                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           FEB 26 2001
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    ABDUL AZIZ,

                  Plaintiff-Appellant,

    v.                                                    No. 00-1262
                                                      (D.C. No. 97-B-1748)
    UNIVERSITY OF COLORADO,                                 (D. Colo.)

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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      This order and judgment is not binding precedent, except under the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. 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.
      Pro se plaintiff Abdul Aziz appeals the denial of his motion for relief

from a judgment, brought pursuant to Federal Rule of Civil Procedure 60(b)(6).

We affirm.

      Plaintiff applied for and was rejected for a tenure track position in the

Engineering Department of the University of Colorado at Denver. He brought

a discrimination action in the federal district court, alleging he was not selected

due to his national origin, race, and age. During a settlement conference, the

parties entered into a conditional agreement that plaintiff would dismiss his case

with prejudice if a neutral, qualified third party appointed by the court concluded

that plaintiff was not more qualified than the person selected for the position.

      The district court appointed Dr. Albert J. Rosa, Chair of the Department of

Engineering at the University of Denver, to act as a special master in the matter.

Although plaintiff initially objected, on April 8, 1998 he filed a pleading

indicating he would comply with the settlement agreement. On May 6, 1998,

Dr. Rosa reported to the court that plaintiff was not more qualified than the

selected candidate. When the University sought dismissal of the lawsuit pursuant

to the settlement agreement, plaintiff refused to comply, arguing that the special

master was not qualified because he did not follow the court’s order and made

factual errors, and that the appointment of Dr. Rosa violated the settlement

agreement.


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      After a hearing, the district court issued an order on November 6, 1998,

dismissing plaintiff’s lawsuit on the grounds that the terms of the settlement

agreement had been met and plaintiff had waived his objections to the special

master. We affirmed the district court’s judgment in Aziz v. University of

Colorado, No. 98-1466, 1999 WL 308565 (10th Cir. May 17, 1999) (unpublished

disposition).

      On November 26, 1999, plaintiff filed his first motion for relief pursuant to

Rule 60(b)(6), which was denied on November 29, 1999. On May 6, 2000,

plaintiff filed a second Rule 60(b)(6) motion, seeking relief from the judgment

on the grounds that the district court did not possess the qualifications to evaluate

the qualifications of engineering candidates, and that the issue of qualification

was genuine. The district court denied plaintiff’s motion on the ground that it

was not filed within a reasonable time; it did not demonstrate extraordinary

circumstances; and the basis of the motion had already been before the Tenth

Circuit. Plaintiff appeals.

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

will not reverse the district court unless it “has made an arbitrary, capricious,

whimsical, or manifestly unreasonable judgment.” Woodworker’s Supply, Inc. v.

Principal Mut. Life Ins. Co., 170 F.3d 985, 992 (10th Cir. 1999) (quotations

omitted). Plaintiff, who argues simply that the court lacked the qualifications to


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evaluate candidates and that his case presented a genuine issue under a summary

judgment standard, has not shown that the district court abused its discretion.

      Plaintiff made a binding agreement authorizing the district court to appoint

an expert and agreeing that he would dismiss his case if the expert concluded

that the selected candidate was more qualified than plaintiff. R. I., doc. 12, at 2.

He therefore waived any right to object to the district court’s qualifications to

appoint Dr. Rosa. In addition, whether he presented sufficient evidence to

survive a summary judgment motion is irrelevant. For the reasons stated by the

district court, we affirm the denial of plaintiff’s Rule 60(b)(6) motion.

      AFFIRMED. Plaintiff’s motion to return the case back to the district court

is DENIED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




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