Snyder v. Acord Corporation

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 22, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
DALE SNYDER; MARILYN SNYDER;
MARY ANN GELDREICH; MARY
HARROW; KENNETH DALE YODER;
CATHERINE TAYLOR; MARTHA
LEMERT; GARY LEMERT; JEFFREY
RAY; JENNIFER RAY; LOUISE
CREAGER; JANET KOCH; IAN
SIEMPLENSKI; TOMMY MEYER;
NICOLE WRIGHT-MEYER; SUEHAM
KAY HOFFMAN; LAILA SAEDA
URBAN; ESTATE OF DOROTHY
WOOD HAMMER,

Plaintiffs - Appellants,

v. No. 19-1112
(D.C. No. 1:14-CV-01736-JLK)
ACORD CORPORATION, a Delaware (D. Colo.)
non-profit corporation; ACUITY, A
MUTUAL INSURANCE COMPANY, a
Wisconsin corporation; ADDISON
INSURANCE COMPANY, an Iowa
corporation; ALL AMERICA
INSURANCE COMPANY, an Ohio
corporation, d/b/a The Central Insurance
Companies; ALLIANZ GLOBAL RISKS
US INSURANCE COMPANY, a
California corporation; ALLIANZ LIFE
INSURANCE CO. OF NORTH
AMERICA, a Minnesota corporation;
ALLIANZ OF AMERICA, INC., a
Delaware corporation; ALLSTATE
INSURANCE COMPANY, an Illinois
corporation; AMERICAN ASSOCIATION
OF INSURANCE SERVICES, INC., a
Delaware non-profit corporation;
AMERICAN AUTOMOBILE
INSURANCE COMPANY, a Missouri
corporation a/k/a Fireman’s Fund
Insurance Company of Missouri;
AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA, a Florida
corporation; AMERICAN FAMILY
HOME INSURANCE COMPANY, a
Florida corporation; AMERICAN
FAMILY MUTUAL INSURANCE
COMPANY, a Wisconsin corporation;
AMERICAN INDEMNITY FINANCIAL
CORPORATION, a Delaware corporation;
AMERICAN INTERNATIONAL
GROUP, INC., a Delaware corporation;
AMERICAN MODERN INSURANCE
GROUP, INC., an Ohio corporation;
AMERICAN MODERN HOME
INSURANCE COMPANY, an Ohio
corporation; AMERICAN MODERN
SELECT INSURANCE COMPANY, an
Ohio corporation; AMERICAN
RELIABLE INSURANCE COMPANY, an
Arizona corporation; AMERICAN
STRATEGIC INSURANCE CORP., a
Florida corporation; ASSOCIATED
INDEMNITY CORPORATION, a
California corporation; AUTOMOBILE
INSURANCE COMPANY OF
HARTFORD CONNECTICUT, a
Connecticut corporation; AUTO-
OWNERS INSURANCE COMPANY, a
Michigan corporation d/b/a Auto-Owners
Insurance; CASUALTY ACTUARIAL
SOCIETY, an Illinois not for profit
corporation; CENTRAL MUTUAL
INSURANCE COMPANY, an Ohio
corporation d/b/a The Central Insurance
Companies; THE CHUBB
CORPORATION, a New Jersey
corporation; CHUBB NATIONAL
INSURANCE COMPANY, an Indiana
corporation; CHUBB SERVICES
CORPORATION, an Illinois corporation;
CINCINNATI INSURANCE COMPANY,

2
an Ohio corporation; COLORADO FARM
BUREAU MUTUAL INSURANCE CO., a
Colorado corporation; COUNTRY
MUTUAL INSURANCE COMPANY, an
Illinois corporation; ELECTRIC
INSURANCE COMPANY, a
Massachusetts corporation; EMPLOYERS
MUTUAL CASUALTY COMPANY, an
Iowa corporation d/b/a EMC Insurance
Companies; ENCOMPASS INDEMNITY
COMPANY, an Illinois corporation;
ENCOMPASS INSURANCE COMPANY
OF AMERICA, an Illinois corporation
d/b/a Encompass Insurance; FARMERS
ALLIANCE MUTUAL INSURANCE
COMPANY, a Kansas corporation;
FARMERS INSURANCE EXCHANGE,
an Iowa corporation a/k/a Farmers Casualty
Insurance Company d/b/a Farmers
Insurance Exchange; FEDERAL
INSURANCE COMPANY, an Indiana
corporation; FIDELITY AND DEPOSIT
COMPANY OF MARYLAND, a
Maryland corporation; FIREMAN’S
FUND INSURANCE COMPANY, a
California corporation; FIRST
AMERICAN PROPERTY & CASUALTY
INSURANCE COMPANY, a California
corporation d/b/a First American Property
& Casualty Group; FIRST AMERICAN
FINANCIAL CORPORATION, a
Delaware corporation; GRANGE
INSURANCE ASSOCIATION, a
Washington corporation d/b/a Grange
Insurance Group; GREAT NORTHERN
INSURANCE COMPANY, an Indiana
corporation; GUIDEONE MUTUAL
INSURANCE COMPANY, an Iowa
corporation d/b/a Guideone Insurance;
HARTFORD ACCIDENT AND
INDEMNITY COMPANY, a Connecticut
corporation; HARTFORD FIRE
INSURANCE COMPANY, a Connecticut

3
corporation; INSURANCE SERVICES
OFFICE, INC., a Delaware corporation;
INTERNATIONAL INSURANCE
SOCIETY, INC., a Delaware non-profit
corporation; KEMPER CORPORATE
SERVICES, INC., an Illinois corporation;
KEMPER CORPORATION, a Delaware
corporation; LAFAYETTE INSURANCE
COMPANY, a Louisiana corporation a/k/a
United Life Insurance Company, Inc.;
LIBERTY INSURANCE
CORPORATION, an Illinois corporation;
LIBERTY MUTUAL INSURANCE, a
Massachusetts corporation; LIBERTY
MUTUAL INSURANCE COMPANY, a
Massachusetts corporation; LM
INSURANCE CORPORATION, an
Illinois corporation; MARKEL
AMERICAN INSURANCE COMPANY, a
Virginia corporation; MARKEL
INSURANCE COMPANY, an Illinois
corporation; MCKINSEY & COMPANY,
INC., a Delaware corporation a/k/a
McKinsey & Company, Inc. Washington
D.C.; MCKINSEY & COMPANY, INC., a
New York corporation; METLIFE AUTO
& HOME INSURANCE AGENCY, INC.,
a Rhode Island corporation;
METROPOLITAN DIRECT PROPERTY
& CASUALTY INSURANCE
COMPANY, a Rhode Island corporation;
METROPOLITAN LIFE INSURANCE
COMPANY, a Rhode Island corporation;
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, a
Rhode Island corporation; MILBANK
INSURANCE COMPANY, an Iowa
corporation; MUNICH-AMERICAN
HOLDING CORPORATION, a Delaware
corporation; NATIONAL CASUALTY
COMPANY, a Wisconsin corporation;
NATIONAL FARMERS UNION
PROPERTY & CASUALTY COMPANY,

4
a Wisconsin corporation; NATIONAL
SURETY CORPORATION, an Illinois
corporation; NATIONWIDE AFFINITY
INSURANCE COMPANY OF
AMERICA, an Ohio corporation;
NATIONWIDE INSURANCE
COMPANY OF AMERICA, a Wisconsin
corporation; NATIONWIDE MUTUAL
INSURANCE COMPANY, an Ohio
corporation d/b/a Nationwide Insurance;
OWNERS INSURANCE COMPANY, an
Ohio corporation d/b/a Auto-Owners
Insurance d/b/a Home-Owners Insurance;
PACIFIC INDEMNITY COMPANY, a
Wisconsin corporation; PHARMACISTS
MUTUAL INSURANCE COMPANY, an
Iowa corporation; PRAETORIAN
INSURANCE COMPANY, a
Pennsylvania corporation; PROPERTY
CASUALTY INSURERS ASSOCIATION
OF AMERICA, a Colorado non-profit
corporation; QBE HOLDINGS, INC., a
Delaware corporation; QBE INSURANCE
COMPANY, a Pennsylvania corporation
a/k/a QBE Insurance Corporation; QBE
INSURANCE GROUP, LIMITED, a
Sydney, Australia corporation; SAFECO
INSURANCE COMPANY OF
AMERICA, a New Hampshire corporation;
SECURA INSURANCE HOLDINGS,
INC., a Wisconsin corporation; SENTRY
INSURANCE, A MUTUAL COMPANY,
a Wisconsin corporation; SHELTER
MUTUAL INSURANCE COMPANY, a
Missouri corporation; STANDARD FIRE
INSURANCE COMPANY, a Connecticut
corporation; STATE AUTOMOBILE
INSURANCE COMPANY, a Ohio
corporation; STATE FARM FIRE AND
CASUALTY COMPANY, an Illinois
corporation; STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY, an Illinois corporation;

5
STILLWATER PROPERTY AND
CASUALTY INSURANCE COMPANY, a
New York corporation a/k/a Fidelity
National Property and Casualty Insurance
Company d/b/a Stillwater Insurance Group;
TEXAS GENERAL INDEMNITY
COMPANY, a Colorado corporation; THE
BUCKEYE STATE MUTUAL
INSURANCE COMPANY, an Ohio
corporation d/b/a Buckeye Insurance
Group; THE CALIFORNIA CASUALTY
INDEMNITY EXCHANGE, a California
corporation; THE HARTFORD
FINANCIAL SERVICES GROUP, a
Delaware corporation; THE TRAVELERS
COMPANIES INC., a Minnesota
corporation; THE TRAVELERS
INSURANCE COMPANY, a Connecticut
corporation; TRAVELERS INSURANCE
GROUP HOLDINGS, INC., a Connecticut
corporation; TRAVELERS HOME AND
MARINE INSURANCE COMPANY, a
Connecticut corporation; TRAVELERS
INDEMNITY COMPANY OF
AMERICA, a Connecticut corporation;
TRAVELERS COMMERCIAL
INSURANCE COMPANY, a Connecticut
corporation; UNITED FIRE GROUP,
INC., an Iowa corporation d/b/a United
Fire Group; UNITED FIRE &
CASUALTY COMPANY, an Iowa
corporation d/b/a United Fire Group;
UNITED FIRE INSURANCE
COMPANY, an Illinois corporation d/b/a
United Fire Group; UNITED FIRE AND
INDEMNITY COMPANY, a Texas
corporation; UNITED FIRE LLOYDS, a
Texas corporation; UNITED LIFE
INSURANCE COMPANY, an Iowa
corporation; UNITED SERVICES
AUTOMOBILE ASSOCIATION, a Texas
corporation; UNITRIN AUTO AND
HOME INSURANCE COMPANY, a New

6
 York corporation; UNITRIN DIRECT
PROPERTY & CASUALTY COMPANY,
an Illinois corporation; USAA
CASUALTY INSURANCE COMPANY, a
Texas corporation; VERISK
ANALYTICS, INC., a Delaware
corporation; VIGILANT INSURANCE
COMPANY, a New York corporation;
ZURICH AMERICAN INSURANCE
COMPANY, a New York corporation;
ZURICH INSURANCE GROUP LTD/FI,
a Switzerland corporation,

Defendants - Appellees.

------------------------------

JOSUE DAVID HERNANDEZ,

Attorney - Appellant.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before PHILLIPS, BALDOCK, and KELLY, Circuit Judges.
_________________________________

Seventeen Colorado homeowners (“Plaintiffs”) brought an action raising

federal- and state-law claims against insurance companies, trade associations, and

consulting firms (“Defendants”). The district court dismissed the complaint, and we

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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.
7
affirmed. Snyder v. Acord Corp., 684 F. App’x 710 (10th Cir. 2017). Plaintiffs and

their counsel, Josue Hernandez (collectively, “Appellants”), appeal several orders

related to attorneys’ fees. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

In 2014, Plaintiffs filed an action against 113 defendants alleging “a massive

conspiracy to underinsure and underpay homeowners’ claims” and purporting to raise

twenty-three claims, including conspiracy and antitrust claims, in a “260-page, 1,363

paragraph, third amended complaint.” Snyder, 684 F. App’x at 716-17. The district

court dismissed the complaint under Federal Rules of Civil Procedure 8 and 12(b)(6)

and denied Plaintiffs’ motion for relief from the judgment. We affirmed. See id. at

717. By separate order, we awarded Defendants appellate attorneys’ fees under Colo.

Rev. Stat. § 13-17-201 and remanded for a calculation of the amount. In an

additional order, we admonished Mr. Hernandez for violating briefing rules and

proceeding in a manner “inconsistent with the standards of practice required” in this

court, and we warned that future violations will result in “further discipline up to and

including disbarment from the bar of this court.” Aplts. App. Vol. 21 at 3956-57.

We denied Plaintiffs’ petition for rehearing and rehearing en banc. The Supreme

Court denied their petitions for a writ of certiorari and rehearing.

In May 2016, Defendants filed a motion for attorneys’ fees under 28 U.S.C.

§ 1927 and Colo. Rev. Stat. § 13-17-201. The district court granted the motion and

deferred deciding the amount of the fees until after Plaintiffs’ appeal was resolved.

8
 After we denied Plaintiffs’ petition for rehearing and rehearing en banc,

Plaintiffs filed a motion to dismiss the claim for attorneys’ fees under Rule 12(b)(6),

along with a motion seeking, inter alia, an order compelling discovery. The court

struck these motions as unauthorized under its scheduling order and procedurally

improper under the Rules of Civil Procedure. The court also noted the motions

contravened its prior warning against “any more prolix, redundant, meandering

pleadings or briefs.” Aplts. App. Vol. 21 at 4066 (internal quotation marks omitted).

After Defendants filed their brief on the amount of the fees, Plaintiffs filed a “Motion

to Schedule Adversarial Submissions, Pursuant to Fed.R.Civ.P. 54(d)(2)(C), and to

Address Evident Double Billing and Witnesses[’] Credibility Issues,” Aplts. App.

Vol. 32 at 6108-270. The court denied the motion, noting Plaintiffs could address the

amount of the fees in their brief. Following the completion of the briefing, which

included a surreply that the court allowed Plaintiffs to file, the court held a hearing.

In January 2019, the district court entered a detailed 22-page opinion and order

that: (1) awarded approximately $1.6 million in attorneys’ fees under Colo. Rev. Stat.

§ 13-17-201, including appellate fees per our order, to a subset of the defendants;

(2) determined that Mr. Hernandez was personally liable under 28 U.S.C. § 1927 for

fees incurred related to district court proceedings because of his conduct during the

litigation; and (3) directed Defendants to submit the amount of attorneys’ fees they

intended to seek against Mr. Hernandez under § 1927. The court ultimately entered

an order stating Defendants were entitled to recover approximately $1 million of the

$1.6 million total from either Mr. Hernandez or Plaintiffs under § 1927.

9
 Appellants filed a post-judgment motion pursuant to Rules 52 and 59 of the

Federal Rules of Civil Procedure, raising various challenges to the attorneys’ fees

orders. The court denied the motion as procedurally inadequate and without merit.

Appellants then filed a motion under Rule 60(b)(6), seeking vacatur of all prior

rulings and recusal of the district judge from further proceedings. The motion alleged the

judge: (1) failed to disclose the scope of representation provided to him by a partner at

the firm of two attorneys that represented one defendant; (2) was biased in favor of

Defendants because of that attorney-client relationship; and (3) was biased against

Appellants. Appellants’ motion attacked the judge’s character based on rumor, innuendo,

speculation, and hearsay. Two defendants moved to seal the Rule 60(b)(6) motion,

asserting it “serve[d] no legitimate purpose,” contained “baseless, irrelevant, and

potentially libelous allegations,” and was an attempt to create a “circus atmosphere

that can only needlessly cloud the integrity of these proceedings.” Aplts. App. Vol.

42 at 7984, 7986. In their objection, Appellants reiterated many allegations in their

Rule 60(b)(6) motion. The district court denied the Rule 60(b)(6) motion, and a

magistrate judge, upon referral, granted the motion to seal. This appeal followed.

DISCUSSION

Appellants raise a host of challenges to the district court’s orders awarding

attorneys’ fees and denying the motions for post-judgment relief. We reject them all.

I. Attorneys’ Fees Under Colo. Rev. Stat. § 13-17-201

Appellants first contend the court erred in its attorneys’ fee order under Colo.

Rev. Stat. § 13-17-201. This statute mandates an award of reasonable attorneys’ fees to

10
a defendant in a tort action dismissed under Rule 12(b) of the Colorado Rules of Civil

Procedure. See Colo. Rev. Stat. § 13-17-201. The statute also applies when a federal

court, exercising diversity jurisdiction, dismisses Colorado state tort claims under Rule

12(b) of the Federal Rules of Civil Procedure. See Jones v. Denver Post Corp., 203 F.3d

748, 757 (10th Cir. 2000). The statute, which was enacted “to discourage unnecessary

litigation of tort claims,” State v. Golden’s Concrete Co., 962 P.2d 919, 925 (Colo. 1998),

applies to an action that is “primarily a tort action,” U.S. Fax Law Ctr., Inc. v. Henry

Schein, Inc., 205 P.3d 512, 517-18 (Colo. App. 2009). We review factual findings for

abuse of discretion and legal conclusions de novo. See Jones, 203 F.3d at 756.

A. Preemption

Appellants argue that Colo. Rev. Stat. § 13-17-201 is preempted in RICO and

antitrust cases and that the court erred in awarding fees under this statute. We disagree.

Preemption of state law occurs (1) “when Congress, in enacting a federal

statute, expresses a clear intent to pre-empt state law”; (2) “when there is outright or

actual conflict between federal and state law”; (3) “where compliance with both

federal and state law is in effect physically impossible”; (4) “where there is implicit

in federal law a barrier to state regulation”; (5) “where Congress has legislated

comprehensively, thus occupying an entire field of regulation and leaving no room

for the States to supplement federal law”; or (6) “where the state law stands as an

obstacle to the accomplishment and execution of the full objectives of Congress.”

La. Pub. Serv. Comm’n v. Fed. Commc’ns Comm’n, 476 U.S. 355, 368-69 (1986).

11
 In addition to their eighteen state-law claims, Appellants raised four

conspiracy claims under the Racketeer Influenced and Corrupt Organizations Act

(“RICO”) and one antitrust claim under the Clayton Act. Neither the attorneys’ fee

provision for RICO, 18 U.S.C. § 1964(c), nor the fee provision for the Clayton Act,

15 U.S.C. § 15(a), expressly preempts state law. There also is no conflict in the

statutory language because Colo. Rev. Stat. § 13-17-201 requires fees only for

prevailing defendants, whereas the two federal statutes address fees only for

prevailing plaintiffs and do not expressly permit or prohibit fees for defendants.

Even so, Appellants contend the state statute conflicts with “the policy behind

the federal antitrust and RICO fee-shifting statutes” and Supreme Court cases

restricting fee awards for defendants. Aplts. Opening Br. at 35. They analogize

RICO and antitrust actions to 42 U.S.C. § 1983 actions, in which the relevant statute

permits a court to award “the prevailing party” its attorneys’ fees and prescribes no

separate standard for prevailing defendants, see 42 U.S.C. § 1988(b). However, the

Supreme Court has interpreted that statute, based on legislative history, to allow a

prevailing defendant to recover fees only if the action “was vexatious, frivolous, or

was brought to harass or embarrass the defendant.” Hensley v. Eckerhart, 461 U.S.

424, 429 & n.2 (1983); see also Hughes v. Rowe, 449 U.S. 5, 14 (1980) (allowing

fees only when the § 1983 action was “groundless or without foundation”); cf.

Christianburg Garment Co. v. EEOC, 434 U.S. 412, 420-21 (1978) (similarly

interpreting Title VII’s “prevailing party” fee provision, 42 U.S.C. § 2000e-5(k),

12
based on legislative history).1 And because of this heightened standard, the Colorado

Supreme Court has held Colo. Rev. Stat. § 13-17-201 conflicts with 42 U.S.C. § 1988

and is preempted in § 1983 actions. See Golden’s Concrete, 962 P.2d at 926.

Appellants contend that the same heightened standard for defendants in § 1983

cases should apply in RICO and antitrust cases and that Colo. Rev. Stat. § 13-17-201,

therefore, should be deemed preempted based on Golden’s Concrete. But whereas

the Court relied on legislative history for § 1983 cases in Hensley and Hughes and for

Title VII cases in Christianburg, Appellants identify no legislative history supporting

a heightened standard for awarding fees to defendants in RICO and antitrust cases.

They quote Hensley as stating “42 U.S.C. § 1983 fees are governed by ‘the same

standards which prevail in . . . antitrust cases.’” Aplts. Opening Br. at 34 (quoting

Hensley, 461 U.S. at 430 n.4). But the full quote shows clear the Court was referring

to “the amount of fees,” not when they may be awarded. Hensley, 461 U.S. at 430

n.4 (emphasis added) (internal quotation marks omitted).2

1
Contrary to Appellants’ assertion, Title VII’s fee provision is not “identical
to the RICO and antitrust” fee statutes and does not include “language that ‘allows
fee awards only to prevailing private plaintiffs,’” Aplts. Reply Br. at 8 n.9 (internal
quotation marks omitted). Rather, just like § 1988, the plain language allows fees for
“‘the prevailing party,’” Christianburg, 434 U.S. at 414 (quoting 42 U.S.C. § 2000e-
5(k)), which the Court interpreted as applying only to prevailing plaintiffs, id. at 422.
2
Appellants also confusingly claim Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400, 401-03 (1968) (per curiam), and Sedima, S.P.R.L. v. Imrex Co., 473
U.S. 479, 493 (1985), are “governing precedent.” Aplts. Opening Br. at 34 & n.9.
But those cases address neither preemption nor legislative intent relative to attorneys’
fees. The cited portion of Sedima merely noted Congress intended to encourage civil
RICO actions “to fill prosecutorial gaps,” Sedima, 473 U.S. at 493. And contrary to
13
 Finally, “[c]ourts . . . have never construed [RICO’s attorneys’ fee] provision

as precluding a prevailing defendant from recovering attorneys’ fees when authorized

elsewhere.” Chang v. Chen, 95 F.3d 27, 28 (9th Cir. 1996) (collecting cases). And

in an analogous context, where a federal statute allows fees for prevailing plaintiffs

but does not mention defendants, the Eleventh Circuit held that the “statutory

silence” does not act “as an implicit prohibition against awarding attorneys’ fees to

[defendants]” when “authorized elsewhere” and that, therefore, a state statute

authorizing fees was not preempted. Smith v. Psychiatric Sols., Inc., 750 F.3d 1253,

1257 (11th Cir. 2014) (discussing 18 U.S.C. § 1514A(c)).

Ultimately, Appellants have not provided sufficient authority to overcome the

“presumption against implied conflict preemption,” which is grounded on “respect

for the States as independent sovereigns in our federal system,” Tarrant Reg’l Water

Dist. v. Herrmann, 656 F.3d 1222, 1242 (10th Cir. 2011) (internal quotation marks

omitted), aff’d, 569 U.S. 614 (2013). But we need not conclusively decide whether

Colo. Rev. Stat. § 13-17-201 can ever be preempted in actions raising RICO and antitrust

claims. Instead, we hold that, based on the circumstances in this case, the fee award

to Defendants under Colo. Rev. Stat. § 13-17-201 was not preempted by the fee

provisions in RICO or the Clayton Act, particularly considering eighteen of the twenty-

three claims for relief were based solely on state law. Cf. Bennett v. Coors Brewing

Co., 189 F.3d 1221, 1238 (10th Cir. 1999) (stating even if “there is some federal

Appellants’ description, Newman was not an antitrust case but, instead, addressed
fees under Title II of the Civil Rights Act of 1964, see Newman, 390 U.S. at 401.
14
policy prohibiting defendants from recovering fees under the ADEA, there is nothing

to indicate that federal policy should alter the common law rule regarding attorneys’

fees for pendent state law claims”).3 Appellants, therefore, have failed to show error.

B. Lodestar

Appellants next contend the district court erred in calculating the amount of the

fees under Colo. Rev. Stat. § 13-17-201. This argument is conclusory and without merit.

“A court will generally determine what fee is reasonable by first calculating the

lodestar—the total number of hours reasonably expended multiplied by a reasonable

hourly rate—and then adjust the lodestar upward or downward to account for the

particularities of the suit and its outcome.” Zinna v. Congrove, 680 F.3d 1236, 1242

(10th Cir. 2012) (internal quotation marks omitted). Appellants contend the court failed

to ensure Defendants subtracted duplicate hours. But they do not elaborate or describe

how exactly Defendants’ hours were duplicative or otherwise excessive. And they

provide no citation to any portion of the 44-volume, 8,410-page Appendix to support

3
Even assuming the fee provisions in RICO and the Clayton Act preempt
Colo. Rev. Stat. § 13-17-201, that would not be a basis to preclude fees altogether under
the state statute, as Appellants appear to contend. Eliminating fees under the state statute
only on the basis that five out of twenty-three claims are preempted would be tantamount
to throwing out the baby with the bath water and would encourage litigants to include a
single federal claim with a preemptive fee-shifting provision, no matter how meritless,
solely to evade the reach of Colo. Rev. Stat. § 13-17-201. Preemption of § 13-17-201,
however, is claim-specific. See Golden’s Concrete, 962 P.2d at 926 (repeatedly stating
the § 1983 claim was preempted). At most, fees would need to be apportioned, with
Defendants receiving fees under § 13-17-201 for defending against the state-law claims.
Cf. Bennett, 189 F.3d at 1238. But Appellants have attacked the award in its entirety
and have not sought apportionment, and we decline to make the argument for them, see
Tippetts v. United States, 308 F.3d 1091, 1093 n.2 (10th Cir. 2002).
15
their assertion that the district court’s error is evident from a “review of the documentary

evidence,” Aplts. Opening Br. at 48. “It is not our role to sift through the record to find

evidence not cited by the parties to support arguments they have not made.” Cordova v.

Aragon, 569 F.3d 1183, 1191 (10th Cir. 2009); see also Fed. R. App. P. 28(a)(8)(A).

Regardless, the court properly explained that “[m]oving parties are instructed to

make a good faith effort to exclude from a fee request hours that are excessive,

redundant, or otherwise unnecessary” and found that Defendants had “done just that.”

Aplts. App. Vol. 41 at 7941-42 (internal quotation marks omitted) (citing reductions by

defense counsel and their expert witness). The court considered Appellants’ “repeated

accusations” yet found “no evidence of double billing.” Id. at 7942 n.9.

Ultimately, the district court properly applied the lodestar analysis. Appellants

have not demonstrated the court abused its discretion or otherwise erred.

C. Appellate Attorneys’ Fees

Appellants also contend that this court’s order awarding appellate attorneys’ fees

and remanding for a determination of their amount was a non-final order and that the

members of the panel that issued that order are barred from reviewing the final

determination on appeal.

Appellants rely on 28 U.S.C. § 47, which provides that “[n]o judge shall hear or

determine an appeal from the decision of a case or issue tried by him.” But as evident

from the title of that statute, “Disqualification of trial judge to hear appeal” (emphasis

added), Appellants’ reliance on this statute is misplaced. Appellants have cited no

authority for applying 28 U.S.C. § 47 to the present circumstances, and we know of none.

16
They have presented no viable argument regarding the amount of the fees. And to the

extent they contest our underlying order awarding fees, we declined to reconsider that

order, and the Supreme Court denied review. Appellants’ argument is without merit.

II. Attorneys’ Fees Under 28 U.S.C. § 1927

Appellants also challenge the fee award under 28 U.S.C. § 1927. That statute

provides that an attorney “who so multiplies the proceedings in any case unreasonably

and vexatiously may be required by the court to satisfy personally the excess costs,

expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C.

§ 1927. We review an award under § 1927 for abuse of discretion and any underlying

legal analysis de novo. Steinert v. Winn Grp., Inc., 440 F.3d 1214, 1221 (10th Cir. 2006).

A. Joint and Several Liability

Appellants contend the district court erroneously imposed § 1927 fees against

Plaintiffs. Based upon Mr. Hernandez’s “unreasonable and vexatious multiplication of

the proceedings,” the district court awarded Defendants their attorneys’ fees against

Mr. Hernandez, as outlined in a table included in the order, and ordered that Defendants

“are entitled to recover that portion of their total fee award from him or Plaintiffs.”

Aplts. App. Vol. 41 at 7966 (emphasis added). Appellants contend such joint and several

liability was impermissible under § 1927 and that only Mr. Hernandez may be liable for

those fees totaling approximately $1 million, thus reducing Plaintiffs’ liability for fees

awarded under Colo. Rev. Stat. § 13-17-201 to approximately $600,000. We disagree.

Appellants correctly note “§ 1927 is available against only attorneys.” Steinert,

440 F.3d at 1222. But they do not take into account the significant overlap between the

17
fee award under Colo. Rev. Stat. § 13-17-201 and the fee award under § 1927. Contrary

to Appellants’ contention, the § 1927 fees were not imposed against Plaintiffs; those fees

already had been imposed against them under Colo. Rev. Stat. § 13-17-201 and were not

being imposed against them a second time. Rather, the § 1927 order was against Mr.

Hernandez and merely provided that a portion of fees that had been ordered recoverable

from the seventeen Plaintiffs under Colo. Rev. Stat. § 13-17-201 could also be recovered

from Mr. Hernandez personally. Thus, the effect of the order was: (1) to remove some of

the burden for the fees from falling solely on Plaintiffs; and (2) to afford Defendants an

additional and alternative means of recovering approximately $1 million of the $1.6

million in fees. This is consistent with the “victim-centered approach” we have used in

interpreting § 1927. Hamilton v. Boise Cascade Express, 519 F.3d 1197, 1205 (10th Cir.

2008). And other courts have upheld awards structured in this very fashion.4

Under these circumstances, the district court did not err in making Plaintiffs and

Mr. Hernandez jointly and severally liable for the approximately $1 million in fees

identified in the § 1927 order.

4
See, e.g., Wilson-Simmons v. Lake Cty. Sheriff’s Dep’t, 207 F.3d 818, 825
(6th Cir. 2000) (affirming judgment “awarding attorney fees against [the plaintiff]
pursuant to § 1988 and imposing joint and several liability for that award upon her
counsel as a sanction pursuant to § 1927”); Lewis v. Brown & Root, Inc., 711 F.2d
1287, 1289, 1292 (5th Cir. 1983) (upholding award of fees under § 1927 against
plaintiff and his counsel jointly and severally), cited in Morris v. Adams-Millis Corp.,
758 F.2d 1352, 1357 n.7 (10th Cir. 1985).
18
 B. Colorability and Causal Connection

Appellants next contend the district court erred in its order under § 1927 by failing

to assess the colorability of Mr. Hernandez’s actions, but they have not established that

such an assessment is even required. Colorability or merit may be a defense to a § 1927

sanction premised on pursuing a meritless claim. See Baca v. Berry, 806 F.3d 1262,

1273-77 (10th Cir. 2015). But “a court’s discretion to award fees is broad if it concludes

an attorney acted in an objectively unreasonable way that multiplied proceedings.” Id. at

1268 (emphasis added).

Appellants’ contention is further flawed because it rests on the incorrect premise

that § 1927 has an “objective bad faith standard” whereby an attorney can be sanctioned

only for actions that lacked any “legal and factual bases” and were “completely without

merit.” Aplts. Opening Br. at 40 (internal quotation marks omitted). To the contrary, we

have expressly held that “§ 1927 does not require a finding of bad faith.” Hamilton, 519

F.3d at 1202. Although “subjective good faith on the part of a non-attorney party

appellant may in some instances excuse otherwise unreasonable conduct,” “we are

entitled to demand that an attorney exhibit some judgment.” Id. (internal quotation marks

omitted). We will not excuse “one who acts with an empty head and a pure heart.” Id.

(internal quotation marks omitted). “[A]ny conduct that, viewed objectively, manifests

either intentional or reckless disregard of the attorney’s duties to the court, is

sanctionable.” Id. (internal quotation marks omitted); see also Steinert, 440 F.3d at 1221

(holding sanctions under § 1927 may be awarded “when the entire course of the

proceedings was unwarranted” or “when an attorney acts recklessly or with indifference

19
to the law,” “is cavalier or bent on misleading the court,” or “intentionally acts without a

plausible basis” (internal quotation marks omitted)).

Here, the district court imposed § 1927 liability based on Mr. Hernandez’s

histrionics and outrageous conduct, not for pursuing meritless claims. The court noted

that he “refus[ed] to acknowledge that the complaint was deficient under Federal Rule of

Civil Procedure 8” and that he filed “legally incorrect briefs,” which nearly prompted the

court to sanction him. Aplts. App. Vol. 41 at 7950-51 & n.15. The court described Mr.

Hernandez’s filings as “prolix, meandering, full of unfounded supposition and

speculation, repetitive and convoluted almost to the point of being maddening” and stated

that his “notices and errata alone have required Defendants to turn circles and backflips.”

Id. at 7953. The court also detailed his “relentless submission of inappropriate filings,”

id. at 7952, noting: (1) the complaint was amended multiple times, with the last version

being “260 pages and 1,363 paragraphs” and “filed just nine days before Defendants’

motions to dismiss were due,” id.; (2) a 40-page motion for extension of time—“the

lengthiest one [the judge] had ever seen or heard of”—followed by an even longer reply

in support of the motion, id.; and (3) a “motion for relief from the final judgment,

which—with its exhibits and errata—totaled approximately 1,100 pages,” id. at 7952-53.

Finally, the court noted that in a companion case that was later removed to federal court

and consolidated with the present case, a Colorado state court struck the complaint Mr.

Hernandez filed for “violating the intent of the Colorado Rules of Civil Procedure in the

extreme” and for being so long as to “unnecessarily increase costs and generate

20
animosity.” Id. at 7951-52 (brackets and internal quotation marks omitted). And despite

having that complaint stricken, he filed a complaint four times as long in federal court.

The district court concluded that Mr. Hernandez “without a doubt multiplied these

proceedings unreasonably and vexatiously,” id. at 7950, and that “[t]he vexatiousness of

the submissions generally was not in what they purported to be” but “was in their

substance and form,” id. at 7953. The court further found Mr. Hernandez “evidenced a

serious and standard disregard for the orderly process of justice” throughout the case. Id.

The court acknowledged “the impact” the fee awards would “have both on Plaintiffs and

Mr. Hernandez,” but refused to disregard Mr. Hernandez’s “obstinate pattern of

behavior” and Appellants’ “disregard for the consequences of that behavior.” Id. at 7954.

Finally, the court found Mr. Hernandez “forced Defendants . . . to expend enormous sums

defending this action due to the[] senseless and ineffective pleadings and filings.” Id.

The district court thoroughly explained the basis for the sanctions and properly

applied our standards under § 1927. Appellants have failed to establish error.

III. Post-Judgment Motions

A. Rules 52 and 59

We turn next to the district court’s denial of Appellants’ motion under Rules 52

and 59 of the Federal Rules of Civil Procedure, in which they contested the attorneys’

fees orders.5 The court denied the motion as “procedurally inadequate and substantively

without merit.” Aplts. App. Vol. 41 at 7983. We review the denial of a Rule 59 motion

5
The motion also claimed the fee orders were substantively erroneous, raising
many of the arguments that Appellants have raised on appeal and that we have rejected.
21
for abuse of discretion. Price v. Wolford, 608 F.3d 698, 706 (10th Cir. 2010). Under

Rule 52(a)(1), we review factual findings for clear error and legal conclusions de novo.

United States v. Estate of St. Clair, 819 F.3d 1254, 1264 (10th Cir. 2016).

Citing Rule 52(a)(1), Appellants argue the court erred in denying their claim that

the attorneys’ fees orders were conclusory and failed to specifically address all material

issues of fact and law. But their brief fails to specifically identify what was missing in

the court’s orders. And the orders provide us with “a clear understanding of the factual

basis for the trial court’s decision.” Bell v. AT&T, 946 F.2d 1507, 1510 (10th Cir. 1991)

(internal quotation marks omitted). Accordingly, we hold that the orders did not violate

Rule 52(a) and that the court did not err in denying the Rule 59 motion.6

B. Rule 60(b)(6)

A. Order Granting Motion to Seal

We first consider Appellants’ arguments regarding the sealing of their Rule

60(b)(6) motion.7 We review the magistrate judge’s order for abuse of discretion.

United States v. Bacon, 950 F.3d 1286, 1291 (10th Cir. 2020) (internal quotation

marks omitted). When deciding whether to restrict public access to judicial records,

6
Because Appellants have failed to show the court erred in denying the motion
as “substantively without merit,” Aplts. App. Vol. 41 at 7983, we need not address their
challenge to the alternative basis that the motion was “procedurally improper,” id.
See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 877 (10th Cir. 2004).
7
The magistrate judge also sealed Appellants’ response and objection to the
motion to seal. But Appellants have not contended the magistrate judge erred in
restricting access to that document. Therefore, any issue regarding that document is
waived. See Singh v. Cordle, 936 F.3d 1022, 1043 (10th Cir. 2019).
22
a court must assess the circumstances of the case and consider the parties’ interests

along with the public’s interest to open access. See id. at 1293-94. There is a “strong

presumption of openness,” but that “can be overcome where countervailing interests

heavily outweigh the public interests in access.” Id. at 1293 (internal quotation

marks omitted). Countervailing interests include ensuring court records are not used

for “improper purposes,” such as “to gratify private spite,” “promote public scandal,”

or “serve as reservoirs of libelous statements for press consumption.” United States

v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) (internal quotation marks omitted).

The magistrate judge thoroughly addressed the circumstances of the case and

noted that “three weeks after a substantial judgment was entered against him in the

form of the attorneys’ fees award,” Mr. Hernandez, with a “self-evident” motivation,

“filed the Challenged Motion containing what can only be described as scurrilous

accusations with a total lack of foundation.” Aplts. App. Vol. 42 at 8007. The

magistrate judge described the Rule 60(b)(6) motion as: (1) “appear[ing] to be

spiteful, scandalous and motivated by the findings of several courts against Mr.

Hernandez,” id. at 8008; (2) containing “unfounded information, presented to

besmirch reputation rather than to address any legitimate purpose,” id. at 8008-09;

(3) “warranting restricted access,” id. at 8008; and (4) posing, if publicly disclosed, a

“clearly defined and serious injury to individuals to whom the accusations are

directed,” id. at 8009. Refusing to allow the Rule 60(b)(6) motion to “become a

vehicle for improper purposes,” id. at 8008 (internal quotation marks omitted), the

23
magistrate judge granted the motion to seal and placed the Rule 60(b)(6) motion

under Level 1 restricted access, see D.C.COLO.LCivR 7.2(b).

Appellants contend the motion to seal did not identify, and the magistrate

judge did not consider, less restrictive alternatives to sealing, such as redaction.

However, the magistrate judge properly recognized “a denial of public access to the

record must be narrowly tailored to serve the interest being protected by sealing or

restricting access to the records.” Aplts. App. Vol. 42 at 8008. And she placed the

Rule 60(b)(6) motion under the lowest restriction. See D.C.COLO.LCivR 7.2(b)

(providing “three levels of restriction,” where Level 1 restricts access to the parties

and the court, Level 2 to the filing party and the court, and Level 3 to just the court).

We also agree with Defendants that the inappropriate accusations against the judge

were so pervasive as to render redaction or other alternatives impracticable. The

magistrate judge’s ruling was sufficiently narrowly tailored.

Appellants also contend the motion to seal failed to identify “a clearly defined

and serious injury to the party seeking closure.” Aplts. Opening Br. at 53 (internal

quotation marks omitted). We have reviewed the Rule 60(b)(6) motion and agree

with the magistrate judge’s description of its contents, the apparent motivation for its

filing, and the potential harm it could cause. Under the circumstances of this case,

the motion to seal sufficiently identified potential injury to the integrity of the

proceedings. Cf. United States v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997)

(upholding order sealing inadmissible evidence and stating “exposing the public

generally” to “such evidence would play a negative role in the functioning of the

24
criminal process”). Impugning the proceedings also would tend to impugn the

court’s orders, including those awarding attorneys’ fees.8 And we reject Appellants’

suggestion that the identified harm must be to the party filing the motion to seal.

Finally, Appellants contend the magistrate judge failed to properly balance the

competing interests in granting the motion to seal. But we agree with the magistrate

judge that Appellants had no legitimate purpose in filing the Rule 60(b)(6) motion, so

we perceive no legitimate interest in its disclosure either. Also, the public interest in

disclosure was minimal, whereas the movants—indeed, all of the defendants—had a

legitimate interest in protecting the integrity of the proceedings and not allowing

Appellants to pollute the litigation with unsupported accusations about the judge.

The magistrate judge did not abuse her discretion or otherwise err in placing

the Rule 60(b)(6) motion under Level 1 restricted access.9

B. Order Denying Rule 60(b)(6) Motion

As for the denial of the Rule 60(b)(6) motion, we review that order for an

abuse of discretion and will “reverse[] only if we find a complete absence of a

8
The two defendants filing the motion to seal were awarded nearly $200,000
combined in fees, with over $100,000 recoverable against Mr. Hernandez.
9
Appellants also have filed a motion to unseal Volume 43 of the Appendix,
which contains the materials placed under restricted access. In reviewing this
motion, “we are not bound by the district court’s decision to seal certain documents
below.” Williams v. FedEx Corp. Servs., 849 F.3d 889, 905 (10th Cir. 2017)
(internal quotation marks omitted). But Appellants’ motion is procedurally improper
as well as without merit, for the very reasons recognized by the magistrate judge.
We see no legitimate reason to unseal these materials, and we deny Appellants’
motion.

25
reasonable basis and are certain that the decision is wrong.” Johnson v. Spencer, 950

F.3d 680, 701 (10th Cir. 2020) (internal quotation marks omitted). Within this

framework, “we review subsidiary legal questions de novo.” Id.

In their motion, Appellants sought relief from the district judge’s prior rulings,

as well as his recusal from further proceedings, based on 28 U.S.C. § 455.10 Section

455(a) requires a judge to “disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Section 455(b), on

the other hand, lists various grounds for disqualification, including “[w]here he has a

personal bias or prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding,” id. § 455(b)(1). Subsection (a), thus,

addresses “the appearance of impartiality,” and subsection (b)(1) addresses “actual

partiality.” Burke v. Regalado, 935 F.3d 960, 1053 (10th Cir. 2019). Section 455(e)

provides that grounds under subsection (b) cannot be waived and that grounds under

subsection (a) can be waived “provided [waiver] is preceded by a full disclosure on

the record of the basis for disqualification.” 28 U.S.C. § 455(e). Recusal should be

granted when “a reasonable person, knowing all the relevant facts, would harbor doubts

about the judge’s impartiality.” Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (per

curiam) (internal quotation marks omitted). We review the denial of a recusal motion for

abuse of discretion. Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir. 1987) (per curiam).

10
Appellants also based their motion on 28 U.S.C. § 144, which concerns
“personal bias or prejudice either against [the moving party] or in favor of any
adverse party.” They have not addressed § 144 on appeal, so we confine our review
to § 455. See Burke v. Regalado, 935 F.3d 960, 1049 n.79 (10th Cir. 2019).
26
 Approximately two months before issuing his decision dismissing the complaint,

the district judge disclosed to the parties that: (1) he was “being represented in a private,

non-litigation matter by Hal Haddon of Haddon, Morgan & Foreman, P.C., who is the

senior partner of counsel representing a party in this case”; (2) the matter had “nothing

whatever to do with this case” and he had not “had any communication about the case

with Mr. Haddon”; and (3) he saw “no basis for [his] recusal in this case” but nonetheless

provided the disclosure pursuant to § 455. Aplts. App. Vol. 14 at 2584. Based on this

disclosure, the parties filed waivers under § 455(e). Appellants contend that the judge’s

disclosure was incomplete because he had previously been represented by Mr. Haddon

and that their waiver, therefore, was invalid. We do not believe the disclosure was

improper.11 And we need not address the validity of Appellants’ waiver or the denial of

their request for an evidentiary hearing because there was no genuine basis for recusal.

Appellants contend the judge should have recused himself because he: (1) was

presently being represented in a non-litigation matter by Mr. Haddon; (2) had been

represented by Mr. Haddon in a past state court matter and had not disclosed this to the

parties; and (3) may have been represented by Mr. Haddon in other matters based on (a)

hearsay from unidentified individuals, (b) a newspaper article from 1980 reporting

statements allegedly made by the judge, and (c) the nature of other cases in which Mr.

11
Appellants contend they learned after fees were awarded that the judge had
disclosed in another case in 2008 that Mr. Haddon had represented him and his wife
in a state court matter. That disclosure is not inconsistent with the one here because
(1) the judge did not say Mr. Haddon had not represented him in the past; and
(2) both disclosures referred to contemporaneous representation in unrelated matters,
where Mr. Haddon merely worked at the same firm as lawyers who were involved.
27
Haddon provided representation. But under § 455, a judge should “ignore rumors,

innuendos, and erroneous information” and refuse recusal based “on unsupported,

irrational, or highly tenuous speculation.” Hinman, 831 F.2d at 939-40; see, e.g., United

States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982) (upholding denial of motion to

disqualify based on hearsay statements allegedly made by the judge to an unnamed

individual). A judge also is not limited to the allegations or required to treat them as true,

and should reject recusal when there is no valid basis. Hinman, 831 F.2d at 939.

We agree with the district judge that “[t]here is no indication that the attorney who

represented [him] has created a ‘favor bank,’ or that [he] would repay such favors by

ruling for all 113 Defendants in this case in which unrelated lawyers at [the attorney’s]

firm represented a single Defendant and withdrew years ago.” Aplts. App. Vol. 42 at

7999 (citation omitted). Moreover, we affirmed the dismissal of Appellants’ complaint,

and the lone defendant represented by attorneys at Mr. Haddon’s firm did not seek, and

was not awarded, attorney’s fees. The district judge also gave Appellants ample

opportunity to contest the fees, and he reduced the fees where appropriate.12 Finally,

contrary to their conclusory assertion, the fact that Appellants’ Rule 60(b)(6) motion

was sealed in no way shows the recusal standard has been met.

12
The judge: (1) ensured Defendants produced their invoices with sufficient time
for Mr. Hernandez to review them before filing his brief; (2) allowed him to file a
surreply; (3) held a hearing, at which Mr. Hernandez questioned only Defendants’ expert
and declined to call other witnesses or offer additional evidence; (4) granted his request
for additional time after the hearing to submit revised summaries on the fees; (5) made
various reductions to the amount of the fees, including one where Mr. Hernandez failed
to perform the necessary calculations; and (6) elected not to include appellate attorneys’
fees in the § 1927 award, sparing Mr. Hernandez over $300,000 in additional liability.
28
 Appellants have failed to show that the district judge was actually biased or that a

reasonable person would doubt his impartiality under the circumstances. The district

judge did not err in refusing to recuse himself and denying the Rule 60(b)(6) motion.

IV. Cumulative Error

Finally, Appellants seek relief on the ground of cumulative error. Under this

doctrine, we “aggregate[] all the errors that individually have been found harmless” and

decide “whether their cumulative effect . . . is such that collectively they can no longer be

determined to be harmless.” Smith v. Sharp, 935 F.3d 1064, 1088 n.14 (10th Cir. 2019).

Although we have applied this doctrine in criminal and habeas cases, Appellants cite no

non-habeas civil case, and whether it applies in this context may be an unresolved

question. See Ventura v. Kyle, 825 F.3d 876, 886 (8th Cir. 2016) (noting circuit

split). But we need not decide that issue because Appellants have not shown any errors

to aggregate. See Hooks v. Workman, 689 F.3d 1148, 1194-95 (10th Cir. 2012) (noting

the doctrine does not apply “to the cumulative effect of non-errors” (alterations and

internal quotation marks omitted)). Accordingly, their claim of cumulative error fails.

CONCLUSION

The district court’s orders are affirmed. The motion to unseal Volume 43 of

Appellants’ Appendix is denied.

Entered for the Court

Gregory A. Phillips
Circuit Judge

29