Edward J. Schuler, Plaintiff-appellant, v. Secretary of Health & Human Services, et al., Defendants-appellees, 46 F.3d 1145 (9th Cir. 1995)

MEMORANDUM^** 

Edward J. Schuler appeals pro se the district court's denial of his Fed. R. Civ. P. 60(b) motion for reconsideration. Schuler contends that the district court should have granted his motion for a new trial or amended its judgment in his action challenging the Secretary of Health and Human Services's ("Secretary") denial of disability benefits under 42 U.S.C. § 405(g). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* Background

Schuler appealed from the district court's underlying decision to this court on December 3, 1992. In Schuler v. Shalala, No. 92-17091, unpublished memorandum (Aug. 25, 1993 9th Cir.), we affirmed the district court's decision upholding the Secretary's denial of disability benefits to Schuler because he had failed to prove that he was disabled prior to his last insured date, June 30, 1983.

After our decision, Schuler filed a motion for a new trial with the district court in which he contended that he was employed, and should have been covered by social security from July 1985 through January 1987. As a consequence, he argued, his disability should be considered to have arisen while he was insured.

The district court reviewed Schuler's motion and denied it. The court found that the evidence presented did not prove that there had been a mistake in the calculation of the period for which he was insured. Moreover, the court found that even if there were a mistake, the evidence presented in the motion was not presented to the Secretary and thus did not warrant amending the court's judgment. Schuler timely appeals.

II

Analysis

A. District Court's Jurisdiction to Hear Motion

Normally, the filing of a notice of appeal divests the district court of jurisdiction. See Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). Thus, during the pendency of the appeal, the district court may not rule on any post-judgment motion, unless the appellate court remands the case to the district court. See id. " [O]nce the appellate mandate has issued, [however], leave of this court is not required for district court consideration of a Rule 60(b) motion." Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 773-74 (9th Cir.), cert. denied, 479 U.S. 987 (1986); Canadian Ingersoll-Rand Co. v. Peterson Prods. of San Mateo, Inc., 350 F.2d 18, 28 (9th Cir. 1965). Accordingly, Schuler's motion, filed after our decision was properly before the district court.¹ 

We review the denial of a motion to reconsider under Fed. R. Civ. P. 60(b) for abuse of discretion. Northern Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 889 (9th Cir. 1992). Our review is limited to the denial of the Rule 60(b) motion and does not extend to the merits of the underlying judgment. Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991). We will reverse "only upon a clear showing of abuse of discretion." Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989).

Here, the district court did not abuse its discretion by finding that the information contained in Schuler's motion for reconsideration did not warrant amending its judgment. See id.

AFFIRMED.