No. 07- 3827 PHILIP J. KERRIGAN v. BRUCE SMOLLER On Appeal from the United States District Court for the Eastern…

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DLD-68 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07- 3827
___________
PHILIP J. KERRIGAN,
Appellant
v.
BRUCE SMOLLER
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 06-cv-03117 )
District Judge: Honorable Paul S. Diamond
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 29, 2007
Before: BARRY, CHAGARES and ROTH, Circuit Judges
(Opinion filed April 1, 2008)
OPINION
PER CURIAM
Appellant, Phillip Kerrigan, proceeding pro se, appeals from the District
Court’s denial of his motion for relief under Fed. R. Civ. Pro. 60(b). We exercise

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jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s order for abuse
of discretion. Ahmed v. Dragovich, 297 F.3d 201, 209 (3d. Cir. 2002). Kerrigan is
proceeding in forma pauperis, so we must dismiss his appeal if it lacks arguable merit. 28
U.S.C. § 1915(e)(2)(B).
In March 2004, Kerrigan filed a lawsuit against Department of Labor
Secretary Elaine Chao, arguing that the Department had unlawfully terminated his
disability benefits under the Federal Employees Compensation Act (FECA). The District
Court dismissed the action for lack of subject matter jurisdiction and for failure to state a
due process violation. See Kerrigan v. Chao, No. 04-1189, 2004 WL 2397396 (E.D. Pa.
October 26, 2004). We affirmed. See Kerrigan v. Chou, 151 Fed. Appx. 129 (3d Cir.
2005). Subsequently, Kerrigan filed the instant lawsuit, this time suing Dr. Bruce Smoller,
the physician who reviewed his medical records for the Employees Compensation Appeals
Board in the Labor Department’s administrative proceedings.
On July 20, 2007, the District Court dismissed Kerrigan’s lawsuit as an
impermissible collateral attack on its prior decision in Kerrigan v. Chao. Kerrigan filed a
Rule 60(b) motion for relief from the court’s July 20th order, alleging mistake, fraud, and
newly discovered evidence. The District Court rejected the motion because it satisfies
none of the grounds under Rule 60(b), and instead merely reasserts the claims Kerrigan
made in his prior lawsuit. To the extent that Kerrigan seeks to develop evidence of fraud
on the part of Department through his Rule 60(b) motion, it is precluded by collateral
estoppel.

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We agree with the District Court. Because its denial of Kerrigan’s motion did not
rest upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper
application of law to fact, the court did not abuse its discretion. Reform Party of
Allegheny County v. Allegeny County Dept. Of Elections, 174 F.3d 305, 311 (3d Cir.
1999). As a result, the appeal is meritless, and we dismiss it pursuant to § 1915(e)(2)(B).

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