Securities & Exchange Commission v. Solv-Ex Corp.

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 26, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SECURITIES AND EXCHANGE
COMMISSION,
Plaintiff-Appellee,
No. 05-2001
v. (D.C. No. CIV-98-860 BB/RLP)
(D. N.M.)
SOLV-EX CORPORATION;
HERBERT M. CAMPBELL,
Defendants,
and
JOHN S. RENDALL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN , HOLLOWAY , and BALDOCK , Circuit Judges.
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
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant John S. Rendall, proceeding pro se , appeals the district court’s
denial of his motion for disqualification and for relief from judgment filed
pursuant to 28 U.S.C. § 144 and Fed. R. Civ. P. 60(b)(1), (2), (4), and (6).
Rendall contends that the district court judge relied on evidence that did not exist
in making his amended findings of facts and conclusions of law in this SEC
enforcement action. He further contends that the judge’s reliance on evidence not
in the record both established his bias and prejudice and tainted all his findings
such that the judge should be disqualified and Rendall should be relieved from the
judgment finding him guilty of securities violations, imposing civil penalties, and
enjoining him from further violations. In particular, Rendall points to five
instances in the judge’s forty-five-page decision in which he referred to a
witness’s video testimony when that witness actually testified in person at trial,
one instance in which he purported to quote from a witness’s testimony but did
not do so accurately, and one instance in which he cited an exhibit that Rendall
contends did not support the factual finding for which it was cited. We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm.
Section 144 provides for the disqualification of a district court judge when
a party to a proceeding before that judge files a “timely and sufficient affidavit”
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showing that the judge has “a personal bias or prejudice either against him or in
favor of any adverse party.” An affidavit filed under § 144 is “strictly construed
against the affiant and there is a substantial burden on the moving party to
demonstrate that the judge is not impartial.” United States v. Burger , 964 F.2d
1065, 1070 (10th Cir. 1992). “The bias charged must be of a personal nature and
must be such as would likely result in a decision on some basis other than what
the judge learned from his participation in the case.” United States v. Irwin , 561
F.2d 198, 200 (10th Cir. 1977). Further, “[t]here is as much obligation for a
judge not to recuse when there is no occasion for him to do so as there is for him
to do so when there is.” Hinman v. Rogers , 831 F.2d 937, 939 (10th Cir. 1987).
Whether to recuse is a decision “committed to the sound discretion of the
district court,” and we will not reverse a judge’s refusal to recuse absent an abuse
of that discretion. Burger , 964 F.2d at 1070. Based upon our careful review, we
conclude that the district court judge properly denied Rendall’s motion seeking to
disqualify him under § 144. Even if the district court judge did make the errors
Rendall cites, they do not suggest in any way that bias or prejudice was at work in
the judge’s decision.
Because the district court judge properly refused to disqualify himself from
the case, it was proper for him to rule on Rendall’s motion for relief from
judgment under Rule 60(b). To the extent that Rendall challenges the district
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court’s denial of his Rule 60(b) motion on the merits, we generally review that
decision for an abuse of discretion. See Servants of Paraclete v. Does , 204 F.3d
1005, 1009 (10th Cir. 2000).
“Relief under Rule 60(b) is extraordinary and may only be granted in
exceptional circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking
Co. , 909 F.2d 1437, 1440 (10th Cir. 1990). Our review demonstrates that none of
the errors cited by Rendall justifies relief from the judgment under Rule 60(b)(1),
(2), (4), or (6). Therefore, the district court properly denied Rendall’s motion.
The judgment of the district court is AFFIRMED. Appellee’s motion for
summary dismissal of the appeal is DENIED as moot.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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