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

                           FOR THE TENTH CIRCUIT                         July 18, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
SECURITIES AND EXCHANGE
COMMISSION,

             Plaintiff−Appellee,

v.                                                        No. 13-5013
                                              (D.C. No. 4:11-CV-00211-CVE-PJC)
BRIAN D. FOX,                                             (N.D. Okla.)

             Defendant−Appellant.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, ANDERSON, and MATHESON, Circuit Judges.


      Brian D. Fox, pro se, appeals from the district court’s judgment and its denial

of his post-judgment motion. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    I. Background

      The Securities and Exchange Commission (Commission or SEC) brought a

civil enforcement action against Fox. The Commission alleged that he violated a

variety of provisions of the Securities Exchange Act of 1934 in connection with the

offer and sale of shares in oil and gas leases through Powder River Petroleum

International, Inc. (Powder River), an Oklahoma corporation with an office in Tulsa.

The Commission deposed Fox, who was represented by counsel. Halfway through

the deposition, which allegedly did not go well for him, Fox consulted with his

attorney and consented in writing to a proposed judgment against him that enjoined

him from committing future violations of certain provisions of the Exchange Act and

acting as an officer or director of any securities issuer. Fox also consented to the

entry of a money judgment for disgorgement, prejudgment interest, and a civil fine in

amounts to be determined by the district court. The consent (and the attached

proposed judgment) further stated that, for purposes of the Commission’s motion for

disgorgement or civil penalties, Fox would “be precluded from arguing that he did

not violate the federal securities laws as alleged in the complaint,” and that “the

allegations of the First Amended Complaint shall be accepted as and deemed true by

the Court.” R. at 302, 313.

      When the Commission moved the district court to enter the judgment and to

order disgorgement, interest, and civil penalties, Fox, who was then without counsel,

opposed the imposition of monetary relief. He complained that his consent was


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invalid because he did not understand that he had agreed not to challenge the facts

alleged in the complaint or that he was agreeing to the entry of a money judgment.

He blamed his former attorney for failing to explain this to him, and he challenged

the factual allegations in the First Amended Complaint by asserting that third parties

had misled him about the business dealings underlying those allegations.

      The district court rejected Fox’s arguments, noting that “a party may not avoid

enforcement of a written agreement because he claims he did not read or understand

it unless he can show that he signed the written agreement because of fraud or false

representation.” R. at 556 (citing Elsken v. Network Multi-Family Sec. Corp.,

49 F.3d 1470, 1474 (10th Cir. 1995) (applying Oklahoma law)). Under this standard,

the court concluded that Fox was bound by his consent because he had ample time to

review and sign the form, and the form’s terms were explained to him in the presence

of his attorney. The court also observed that Fox “made no allegations of fraud or

misconduct on the part of the SEC, and his argument to set aside the consent form is

based solely on his own alleged misunderstanding of the parties’ agreement.”

R. at 556. The court considered the terms of the consent to be “clear and

unambiguous” and noted that Fox had not claimed “he was misled by the language of

the consent form.” Id. The court further pointed out that the consent plainly stated

that Fox “may not challenge the validity of the Consent.” Id. Accordingly, the court

granted the Commission’s motions and entered judgment against Fox, enjoining him

from violating the Exchange Act, barring him from serving as an officer or director


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of a public company, requiring him to disgorge a $320,000 bonus plus prejudgment

interest, and imposing a civil penalty of $100,000.

      Still pro se, Fox filed a post-judgment motion to vacate or reconsider the

district court’s judgment. He largely reiterated the factual contentions and arguments

he made in his responses to the Commission’s motions to enter judgment and for

monetary relief, and he invoked Oklahoma case law for the proposition that he should

be relieved from his consent to the judgment due to the magnitude of his attorney’s

negligence with regard to the implications of signing the consent. He also claimed

that he thought the proposed judgment he consented to was the same as one he agreed

to in a case the Oklahoma Department of Securities brought in state court; that

judgment prohibited him from violating Oklahoma securities law but did not provide

for monetary damages. The district court construed the motion as one to alter or

amend the judgment under Federal Rule of Civil Procedure 59(e) and denied it. The

court concluded that, under Servants of the Paraclete v. Does, 204 F.3d 1005, 1012

(10th Cir. 2000), and other Tenth Circuit precedent, it had no obligation to reconsider

previously rejected arguments, or to consider arguments that could have been raised

earlier, in the absence of an intervening change in the controlling law, new evidence

previously unavailable, or a need to correct clear error or prevent manifest injustice.

This appeal followed.




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                               II. Standards of Review

      We review for an abuse of discretion both “a district court’s decision to

enforce a settlement agreement” and its denial of a Rule 59(e) motion. Walters v.

Wal-Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013). “An abuse of

discretion occurs when the district court bases its ruling on an erroneous conclusion

of law or relies on clearly erroneous fact findings.” Id. State contract law, in this

case Oklahoma law, governs whether the parties formed a settlement agreement. Id.

Under Oklahoma law, the existence of a contract is a question of fact, Gomes v.

Hameed, 184 P.3d 479, 485 (Okla. 2008), so absent clear error, we must uphold the

district court’s finding that a contract existed. We afford a liberal construction to

Fox’s pro se filings, but we do not act as his advocate. See Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008).

                                    III. Discussion

      Fox’s appellate brief is largely devoted to reiterating his version of the facts

surrounding Powder River’s activities. What arguments he does raise are limited and

lack clarity, but his position appears to be that the district court should not have

granted the Commission’s motion for monetary relief due to his attorney’s failure to

explain the implications of signing the consent. He states that his attorney “coerced”

him “to quickly sign [the] consent order.” Aplt. Opening Br. at 10. He also

summarily claims that the district court “failed to consider or be apprised of all the

facts,” “made an erroneous decision” that “was plain error,” and wrongly “denied


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[Fox] his day in Court.” Id. at 11. Fox says that the district court’s “holding violates

clear precedent from this Court and the United States Supreme Court.” Id. He

further argues that the district court erred by refusing to apply Oklahoma law when

the court denied his Rule 59(e) motion. See id. As part of this last proposition, he

acknowledges the general Oklahoma rule stated in American Bank of Commerce v.

Chavis that an attorney’s negligence is not generally a reason to vacate a judgment,

651 P.2d 1321, 1323 (Okla. 1982). Nonetheless, he contends that, under that case,

the magnitude of his attorney’s malfeasance warranted vacatur.

      We find no merit in these arguments. We agree with the district court that the

terms of the consent form are clear and unambiguous and see no clear error in its

decision that the agreement was enforceable under Oklahoma law. See Elsken,

49 F.3d at 1474 (stating that, under Oklahoma law, a party is bound by an agreement

he signed absent false representation, fraud, or deceit). Fox does not allege any false

representation, fraud, or deceit by the Commission. Furthermore, he points to no

record evidence to support his contention that his attorney coerced him into quickly

signing the consent, and our review of those portions of his deposition transcript

made part of the record indicates no such coercion. Moreover, in “our system of

representative litigation,” attorney negligence is an insufficient basis for a party to

“avoid the consequences of the acts or omissions of [a] freely selected [attorney].”

Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962). Therefore, any alleged

negligence by Fox’s attorney provides no basis for relieving Fox from the consent he


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signed, and the consent bars him from challenging the factual basis of the claims

brought against him.

      Fox’s summary claims that the district court erred and denied him his day in

court lack the development required for appellate review. See LaFevers v. Gibson,

182 F.3d 705, 725 (10th Cir. 1999) (stating that “issues adverted to in a perfunctory

manner and without developed argumentation are deemed waived on appeal”). As to

his contention that the district court violated controlling federal precedent, he has not

identified any such precedent. And his reliance on American Bank of Commerce is

misplaced. That case concerned whether an Oklahoma district court abused its

discretion in relieving a party from a default judgment where there was a breakdown

in counsel’s office procedure and counsel relied on misinformation supplied by a

deputy court clerk. 651 P.2d at 1322, 1324. Hence, American Bank of Commerce is

clearly distinguishable, and we see no error by the district court in refusing to apply it

when denying Fox’s Rule 59(e) motion.

      The district court’s judgment and its denial of Fox’s post-judgment motion are

affirmed.


                                                Entered for the Court


                                                Timothy M. Tymkovich
                                                Circuit Judge




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