United States v. Zook

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 6, 2022
• Docket: 22-1060
• Status: Unpublished

Opinion

Appellate Case: 22-1060 Document: 010110778202 Date Filed: 12/06/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 6, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Petitioner - Appellee,

v. No. 22-1060 (D.C. No. 1:21-CV-01077-RM) DAVID ZOOK, (D. Colo.)

Respondent - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges. _________________________________

After receiving a confidential complaint from a former tenant of a

late-nineteenth century apartment building that the property was in disrepair and

paint was constantly chipping off the building, the Environmental Protection Agency

(EPA) issued an administrative subpoena to the building’s landlord, David Zook.

The subpoena sought documents concerning whether Zook warned his tenants of the

risks of lead-based paint, as required by what is commonly known as the “Lead

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-1060 Document: 010110778202 Date Filed: 12/06/2022 Page: 2

Disclosure Rule,” see 40 C.F.R. §§ 745.100 to 745.119. After Zook refused to

comply with the subpoena, the United States filed a petition for judicial enforcement.

The district court issued Zook an order to show cause why the petition should not be

granted. Representing himself, Zook responded and moved to quash the subpoena.

The district court denied Zook’s motion and granted the petition, determining the

subpoena was within the EPA’s legitimate statutory authority and was not unduly

burdensome. Zook filed a post-judgment motion, which the district court denied.

Zook appeals pro se. 1 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. Jurisdictional Scope of Appeal

We first address the scope of our jurisdiction because, in a civil case, a timely

notice of appeal “is a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205,

214 (2007). The district court entered judgment on October 28, 2021. On

November 29, 2021, Zook filed a motion to alter or amend the judgment pursuant to

Federal Rule of Civil Procedure 59(e). Because the motion was filed beyond

Rule 59(e)’s 28-day deadline, however, the court treated it as one for relief under

Rule 60 and, on February 1, 2022, denied it.

Because the United States is a party, Zook had to file his notice of

appeal “within 60 days after entry of the judgment or order appealed from.”

Fed. R. App. P. 4(a)(1)(B)(i). He filed his notice of appeal on February 28, 2022.

His notice of appeal was therefore timely as to the February 1 order denying his

1 We liberally construe Zook’s pro se filings but may not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 2 Appellate Case: 22-1060 Document: 010110778202 Date Filed: 12/06/2022 Page: 3

post-judgment motion but untimely as to the October 28 judgment unless his

post-judgment motion tolled the time to appeal under Federal Rule of

Appellate Procedure 4(a)(4). Such a motion tolls the time for appeal only if it is

filed “within the time allowed by” the Federal Rules of Civil Procedure.

Fed. R. App. P. 4(a)(4)(A). 2 A Rule 59(e) motion “must be filed no later than

28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). And to be timely for

purposes of appellate Rule 4(a)(4)(A), a Rule 60 motion must be “filed no later than

28 days after the judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi). Because

Zook filed his post-judgment motion 32 days after entry of the district court’s

judgment, it did not toll the time to appeal.

Zook contests this conclusion, arguing that because the court served the

judgment to him by mail, Federal Rule of Civil Procedure 6(d) provided him with an

additional three days to file a timely post-judgment motion under either Rule 59(e) or

Rule 60, and therefore his post-judgment motion was timely filed on Monday,

2 Zook’s notice of appeal named “the final judgment entered on February 1, 2022, denying his Motion to Alter or Amend the Order entered on October 28, 2021.” R. at 88. Naming only the order denying the post-judgment motion would have been sufficient to include the final judgment in this appeal if the post-judgment motion was one described in Rule 4(a)(4)(A). See Fed. R. App. P. 3(c)(5)(B) (“In a civil case, a notice of appeal encompasses the final judgment . . . if the notice designates . . . an order described in Rule 4(a)(4)(A).”). But as we explain, the post-judgment motion was not one described in Rule 4(a)(4)(A) because it was not filed within the time period Rule 4(a)(4)(A) requires for the motion to toll the appeal deadline.

3 Appellate Case: 22-1060 Document: 010110778202 Date Filed: 12/06/2022 Page: 4

November 29, 2021. 3 However, as Zook recognizes, Parker v. Board of Public

Utilities, 77 F.3d 1289 (10th Cir. 1996), forecloses his argument. In Parker, this

court held “that the three-day mail provision of Rule 6([d]) is not applicable to a

motion pursuant to Rule 59(e) and does not extend the [28-day] time period under

that rule.” Id. at 1291. 4 We reached this conclusion because the extra time Rule 6(d)

affords is available only when a party may or must act within a specified time after

service and service is by mail. See id. In contrast, Rule 59(e)’s time period “is

triggered by entry of the judgment,” not by service, and Rule 6(b)(2) prohibits a court

from extending Rule 59(e)’s time period. Id. (emphasis added). Likewise, to toll the

appeal period, a Rule 60 motion must be “filed no later than 28 days after the

judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi) (emphasis added).

Because Zook’s post-judgment motion was filed more than 28 days after entry

of the judgment, it was properly construed as a Rule 60(b) motion and it did not toll

3 With the three extra days, a timely post-judgment motion would have been due on Sunday, November 28, so the deadline would have been extended to Monday, November 29. See Fed. R. Civ. P. 6(a)(3)(A). 4 When Parker was decided, the relevant provision was Rule 6(e), and Rule 59(e) had a 10-day deadline. Rule 59(e) now has a 28-day deadline. And Rule 6(e) has since been redesignated Rule 6(d) and revised, but it is materially unchanged in substance, providing:

Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).

4 Appellate Case: 22-1060 Document: 010110778202 Date Filed: 12/06/2022 Page: 5

the time to file a notice of appeal. Consequently, Zook’s notice of appeal is timely

only with respect to the order denying his post-judgment motion, and our jurisdiction

is limited to review of that order. See Bowles, 551 U.S. at 214; see also Lebahn v.

Owens, 813 F.3d 1300, 1305 (10th Cir. 2016) (“[A]ppeal from the denial of [a]

Rule 60(b) motion raises for review only the district court’s order of denial and not

the underlying judgment itself.” (brackets and internal quotation marks omitted)).

We reject Zook’s suggestion that we equitably toll the appeal period or overrule

Parker. See Bowles, 551 U.S. at 214 (explaining that courts lack “authority to create

equitable exceptions to jurisdictional requirements”); United States v. White,

782 F.3d 1118, 1126–27 (10th Cir. 2015) (“[O]ne panel of this court cannot overrule

the judgment of another panel absent en banc consideration or an intervening

Supreme Court decision that is contrary to or invalidates our previous analysis.”

(internal quotation marks omitted)). 5

II. Merits

We review the denial of a Rule 60(b) motion for “an abuse of discretion,

keeping in mind that Rule 60(b) relief is extraordinary and may only be granted in

exceptional circumstances.” Lebahn, 813 F.3d at 1306 (internal quotation marks

omitted). “We will not reverse the district court’s decision on a Rule 60(b) motion

unless that decision is arbitrary, capricious, whimsical, or manifestly unreasonable.”

Id. (internal quotation marks omitted).

5 Neither condition is present here. 5 Appellate Case: 22-1060 Document: 010110778202 Date Filed: 12/06/2022 Page: 6

A. Legal error in application of substantive standard

In its petition for judicial enforcement, the United States argued its subpoena

should be judicially enforced under the standards set out in United States v. Morton

Salt Co., 338 U.S. 632 (1950). In Morton Salt, the Supreme Court held that an

administrative subpoena “is sufficient if the inquiry is within the authority of the

agency, the demand is not too indefinite and the information sought is reasonably

relevant.” Id. at 652. In response, Zook argued that Morton Salt’s “reasonable

relevance” standard applies to corporations, not individuals like him, because in

Morton Salt, the Supreme Court observed that “corporations can claim no equality

with individuals in the enjoyment of a right to privacy,” id. Zook instead suggested a

more stringent reasonable-suspicion standard should apply to subpoenas directed at

individuals. The district court rejected that position.

In his Rule 60(b) motion, Zook argued the district court made a legal error in

applying Morton Salt’s reasonable-relevance standard and again urged a reasonable-

suspicion standard. The district court denied relief, finding Zook’s argument to be

“merely a rehashing of an argument he previously made and which [the] Court

previously rejected. A motion for reconsideration is not an appropriate mechanism to

ask the Court to revisit issues already addressed.” R. at 81–82.

On appeal, Zook repeats his substantive argument that the Morton Salt

standard does not apply to administrative subpoenas directed at individuals. But we

see no abuse of discretion in the district court’s resolution of his Rule 60(b) argument

regarding Morton Salt’s applicability. “Rule 60(b) relief is not properly granted

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where a party merely revisits the original issues and seeks to challenge the legal

correctness of the district court’s judgment by arguing that the district court

misapplied the law or misunderstood [the party’s] position.” Lebahn, 813 F.3d

at 1306 (internal quotation marks omitted).

B. Zook’s reply in support of his Rule 60(b) motion

We next address Zook’s argument concerning the reply in support of his

Rule 60(b) motion he filed with the district court. He asserts that although he timely

submitted the reply, the district court’s clerk’s office failed to file it. The district

court then issued its ruling in which it noted Zook had failed to file a reply. He

thereafter re-submitted the reply, and it was properly filed. He argues the reply may

have proved “crucial” for its discussion of Parks v. FDIC, 65 F.3d 207 (1st Cir.

1995). Aplt. Opening Br. at 10. Parks took the view that “the standard for judicial

enforcement of administrative subpoenas of a private citizen’s private papers is

stricter than that for corporate papers,” 65 F.3d at 211. Parks concluded that the

proper test in the case of a private citizen is “a Fourth Amendment standard of

reasonableness that stops short of probable cause,” id. at 214, which it termed

“reasonable suspicion” or “individualized suspicion,” id. at 214–15.

We do not think the district court would have granted Rule 60(b) relief if it

had been aware of Zook’s reliance on Parks. That reliance was no more than another

piece of his rehashed reasonable-suspicion argument the district court properly

declined to consider because it was an improper basis for Rule 60(b) relief. Offering

additional support in a reply brief for an argument inappropriately raised in a

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Rule 60(b) motion would not have led to a different result. Further, the First Circuit

withdrew Parks and vacated its judgment upon granting a petition for rehearing

en banc. See Parks v. FDIC, No. 94-2262 (1st Cir. Nov. 20, 1995) (docket entry).

The First Circuit ultimately vacated the district court’s order enforcing the FDIC’s

subpoena “[w]ithout passing on the merits,” and remanded with instructions that the

district court dismiss the proceedings without prejudice to a later enforcement action.

See id. (Mar. 15, 1996 docket entry). We are confident Parks would not have

persuaded the district court to overlook the impropriety of his rehashed argument and

to grant Rule 60(b) relief.

C. Whether Zook was targeted for an illegitimate reason

In his response to the show-cause order, Zook asserted that the former tenant

informed the EPA about peeling paint at his building in an effort to extort or

blackmail Zook for the return of her full security deposit and that the EPA was

complicit in that alleged crime. In his Rule 60(b) motion, Zook argued the district

court failed to address this assertion, claiming it was relevant because “the court, as a

matter of public policy, ought not acquiesce [sic] the EPA in its improper assistance

to and rewarding of persons who would feloniously misuse this important agency.”

R. at 62.

The district court assumed Zook was correct about the informant’s motives but

observed he had provided no authority, nor was the court aware of any, requiring “it

to conclude that when an agency acts on the basis of a tip from someone with

allegedly improper motives, the agency’s actions that follow become improper.”

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R. at 80. The court further observed that Zook had “provided no evidence beyond his

own assertions the informant had improper motives,” id., and that he failed to

“demonstrate[] that the EPA acted, or sought to act, in an abusive manner towards

him,” which would be “prohibited” under Oklahoma Press Publishing Co. v. Walling,

327 U.S. 186, 216 (1946), R. at 83.

On appeal, Zook contends the court overlooked his statement regarding alleged

cooperation between the informant and the EPA, and because that statement was in a

sworn pleading, it put the burden on the EPA to produce contrary evidence. When

the EPA failed to do so, he concludes, the court was required to infer that the EPA

had abused its power. We disagree. As noted, the court credited his statement as to

the informant’s motives but concluded he had not shown the EPA’s actions were

abusive. And contrary to Zook’s position, the burden to show an agency has abused

the subpoena process is on the respondent to the subpoena, and “unsupported

allegations” are insufficient to meet that burden. SEC v. Blackfoot Bituminous, Inc.,

622 F.2d 512, 515 (10th Cir. 1980). Even though Zook’s statement was in a sworn

pleading, it was still unsupported. We therefore see no error in the district court’s

rejection of this argument for lack of supporting authority or any evidence of an

improper purpose.

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III. Conclusion

The district court’s Order On Motion To Alter Or Amend Judgment is

affirmed.

Entered for the Court

Allison H. Eid Circuit Judge