FILED
United States Court of Appeals
Tenth Circuit
November 14, 2007
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 06-6362
v. (D.C. No. CIV-06-305-F)
(W.D. Okla.)
SUSAN D. WILLIAMS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.
Defendant-Appellant Susan D. Williams was held in civil contempt by the
United States District Court for the Western District of Oklahoma for failing to
comply with numerous court orders issued in connection with an Internal Revenue
Service (“IRS”) summons. After the contempt fine was reduced to judgment,
Ms. Williams filed unsuccessfully for post-judgment relief under Fed. R. Civ. P.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
60(b) and then appealed to this court. Because we conclude that we lack
jurisdiction to review the underlying judgment, we dismiss Ms. Williams’s appeal
to the extent it seeks relief from that judgment or the contempt order itself. With
respect to her unsuccessful Rule 60(b) motion, we conclude the district court
acted within its discretion in denying relief and we therefore affirm.
I. Facts and Procedural History
The parties are familiar with the facts leading to Ms. Williams’s contempt
citation, and we need not recite them at length here. To summarize, in November
2005, the IRS issued an administrative summons to Ms. Williams, directing her to
appear before an IRS officer to testify and produce documents relating to her
personal income tax liability for several years. After Ms. Williams twice failed to
appear, on March 23, 2006, the IRS filed suit in district court seeking judicial
enforcement of the summons. On March 27, the court issued an order directing
Ms. Williams to appear in court on May 4 and show cause why the IRS summons
should not be enforced. She failed to appear, and on May 8, the court issued an
order granting the relief requested and directing Ms. Williams to appear before
the IRS with the requested documentation. After she failed to comply with this
order, the court issued a subsequent order on June 30 (“Contempt Order”), finding
Ms. Williams in contempt and imposing a fine of $15,000. The Contempt Order
directed Ms. Williams to appear before an IRS officer on July 20. It further
provided that she could purge herself of contempt and eliminate the fine by
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complying with the order. Ms. Williams did not appear. Ultimately, she was
arrested and brought before the court.
Following a hearing, the court issued an order and judgment on August 8,
2006. The court declined in this order to revisit its findings set forth in the
Contempt Order. It reiterated, however, that the “fine was intended not as
punishment but to compel [Ms. Williams’s] appearance [before the IRS] . . . and
otherwise ensure her compliance with the terms of the Contempt Order.” Supp.
App. at 59. The court emphasized that Ms. Williams could have purged herself of
contempt and avoided sanctions by appearing before the IRS as directed. Since
she failed to do so, it let the Contempt Order stand and reduced the $15,000 fine
to judgment. It issued a separate document pursuant to Fed. R. Civ. P. 58 the
same day.
On September 8, 2006, Ms. Williams filed an “Application Requesting
Vacating or Purging of Contempt, or in the Alternative, Request For Hearing On
Contempt” (Aplt. App. at 7), asking the court to revisit the Contempt Order and
resulting judgment. She argued primarily that relief was warranted because her
husband and daughter had conspired to hide from her all of the orders directing
her to appear in court and before the IRS. She maintained that had she known
that she was subject to such orders, she would have complied. In addition, she
argued that relief was warranted because she had strictly complied with all court
orders and IRS requests since being arrested. The court held a hearing on
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November 3 and 7, 2006, and received testimony from Ms. Williams and her
daughter as well as an IRS agent. It construed Ms. Williams’s motion as being
filed pursuant to Rule 60(b) and denied relief on the record at the November 7
hearing because it found Ms. Williams’s arguments concerning her ignorance with
respect to its orders to be either incredible or insufficient to justify relief.
The defendant asserts that she did not know what she had been
ordered to do and of equal significance for the purposes of this
application, that she was unaware of the magnitude of the issues. To
be influenced by this contention and the testimony which has been
offered to support it, I would have to conclude that an apparently
experienced lawyer was justified in relying upon and did in fact rely
on her husband, a non-lawyer, to manage their joint legal
representation in a matter that she had every reason to believe was a
serious and potentially consequential legal matter.
. . . I would further have to conclude that she reasonably made
no personal effort to follow up to ascertain the status of the matter on
an ongoing basis.
....
Those assertions for the reasons I have outlined ring hollow
with the Court. But even if true, they do not provide a basis on
which the Court is inclined to grant discretionary relief from
judgment.
Aplt. App. at 107-109. On December 8, 2006, Ms. Williams filed a notice of
appeal as to this ruling.
II. Discussion
The Government has filed a motion to dismiss this appeal for lack of
jurisdiction, arguing that Ms. Williams is improperly attempting to appeal not
only the district court order denying her Rule 60(b) motion, but also the
underlying Contempt Order and judgment of August 8, 2006. Ordinarily, a
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litigant in a case where the United States is a party must file a notice of appeal
within 60 days of entry of the judgment or order appealed from. Fed. R. App. P.
4(a)(1)(B). That time period is suspended, however, if a party files a Rule 60(b)
motion for post-judgment relief no later than ten days after the judgment is
entered. Id. § (a)(4)(A)(vi); Searles v. Dechant, 393 F.3d 1126, 1129 (10th Cir.
2004). In this case, Ms. Williams’s September 8 motion did not toll the time limit
for filing a notice of appeal as to the court’s August 8 judgment because it was
not filed within ten days. Accordingly, her time limit for filing a notice of appeal
as to the August 8 judgment expired on October 10. 1 Since she did not file her
notice of appeal until December 8 it was untimely, and we therefore lack
jurisdiction to review the August 8 judgment and underlying Contempt Order.
See id. at 1130 (noting that untimely notice of appeal is insufficient to confer
jurisdiction on this court); Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991) (holding that appeal from denial of Rule 60(b) motion “raise[d]
for review only the district court’s order of denial and not the underlying
judgment itself”).
The notice of appeal was timely, however, with respect to the court’s
November 7 decision denying Ms. Williams’s request for post-judgment relief
under Rule 60(b). We therefore have jurisdiction to review that order.
1
The deadline would have fallen on Monday, October 9, but for the
Columbus Day holiday.
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Rule 60(b) allows a district court to relieve a party from a final judgment
under various circumstances, only two of which could possibly apply here–
60(b)(1), which warrants relief for excusable neglect, and (b)(6), which warrants
relief for any other equitable reason, see Van Skiver, 952 F.2d at 1244 (describing
Rule 60(b)(6) as a “grand reservoir of equitable power to do justice in a particular
case”) (quotations omitted). We review a district court’s denial of a Rule 60(b)
motion for abuse of discretion. Beugler v. Burlington N. & Santa Fe Ry.,
490 F.3d 1224, 1229 (10th Cir. 2007). “When doing so, we are mindful that Rule
60(b) relief is extraordinary and may only be granted in exceptional
circumstances.” Id. (quotation omitted). Here, the district court construed
Ms. Williams’s motion under Rule 60(b)(1) as seeking relief for excusable
neglect, which, it concluded, she failed to establish. Our own review of the
record reveals nothing to indicate this decision was an abuse of discretion. While
Ms. Williams may have been kept in the dark about the district court orders, we
agree with the district court’s ultimate conclusion that her own ignorance did not
justify her complete failure to check up on the status of an on-going IRS
proceeding.
Although not specifically discussed by the district court, we also conclude
that Rule 60(b)’s extraordinary relief was not warranted under subsection six.
Such relief, we have held, “is appropriate only when it offends justice to deny” it.
Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir. 1999) (quotation omitted).
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“The denial of a 60(b)(6) motion will be reversed only if we find a complete
absence of a reasonable basis and are certain that the decision is wrong.” Id.
(quotation omitted). Ms. Williams has failed to show that the district court made
a definite, clear, or unmistakable error in denying her Rule 60(b) motion. We
therefore conclude that it did not abuse its discretion in doing so.
III. Conclusion
The Government’s motion to dismiss is GRANTED to the extent it seeks
dismissal of Ms. Williams’s appeal of the August 8, 2006, judgment and
underlying Contempt Order, and is DENIED in all other respects. The district
court’s order denying Ms. Williams’s request for post-judgment relief is
AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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