                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 14, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court



    JAY H. PETERSO N, personally and
    as Successor to the Bankruptcy Estate
    of Jay H. Peterson, Bankruptcy
    No. 93B-26457,

                Plaintiff-Appellant,                     No. 06-4186
                                                  (D.C. No. 2:04-CV-962-BSJ)
    v.                                                     (D. Utah)

    U N ITED STA TES O F A M ER ICA,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.




         This matter is an appeal from a judgment of the district court in

plaintiff-appellant Jay Peterson’s pro se tax-refund suit. The district court

granted summary judgment in favor of the U nited States and denied Peterson’s




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
two recusal motions and his Rule 59 motion. 1 The underlying dispute evolved

from a Federal Trade Commission (FTC) prosecution of Peterson and his various

subchapter S corporations and the eventual appointment of a receiver who

collected more than $5 million from the defendants. In 1995, Peterson, the FTC,

the receiver, the Internal Revenue Service (IRS), and the Utah State Tax

Commission entered into a written settlement agreement concerning the

administration of the receivership estate. Under that agreement, the receiver was

to pay $458,000 to the IRS. Settlement Agreement at 19 ¶ 8.1. The agreement

further provided that any residual distributions made to Peterson were to be taxed

to him personally. Id. at 21 ¶ 9.3.

      In 2001, the receiver made a distribution to Peterson and paid $343,936 in

taxes to the IRS. In his attempt to prevail on appeal and thus to secure the refund

of that amount, Peterson argues that the district court (1) improperly applied the

principles of res judicata to his case; (2) relied on “whimsical” pleading

requirements to defeat his refund claim; (3) wrongly granted the United States’

motion for summary judgment; and (4) should have recused.

      Our jurisdiction arises under 28 U.S.C. § 1346(a)(1) and 26 U.S.C. § 7422.

Because we agree with the district court that Peterson cannot prevail on his refund



1
      To the extent Peterson is attempting to appeal the district court’s
August 10, 2006, order denying his second Rule 59 motion, we note that no notice
of appeal was filed pertaining to that order, and thus this court has no jurisdiction
to consider it.

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claim since the binding settlement agreement not only properly authorized but

required the tax payment in question, and because Peterson has not advanced any

factually or legally adequate grounds for recusal, we affirm.

      W e review the district court’s grant of summary judgment to the United

States de novo, relying on the same standard as that applied by the district court.

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000).

Summary judgment is appropriate only if there are no genuine issues as to any

material fact and the United States is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

      A s for Peterson’s contention that res judicata is inapplicable to his case, w e

note that, contrary to Peterson’s representation, the district court did not rely

upon that theory for its decision. It referenced res judicata in its memorandum

opinion and order only in its recap of one of the summary judgment arguments

made by the U nited States. 2 M em. Op. & Order at 9. The overarching basis of

the court’s decision was the fact that Peterson had entered into a binding

agreement to treat the receiver’s residual distribution as personally taxable to

him. Id. at 21. That 1995 agreement was not confined to tax treatment of income

for any specific year but applied to the receiver’s residual distribution whenever it



2
      The district court discussed res judicata in its order denying Peterson’s
Rule 59 motion, but only to distinguish Green v. Comm’r, No. 98-9037, 1999 W L
1079605 (10th Cir. Nov. 30, 1999), which Peterson had cited in his response to
the United States’ cross motion for summary judgment.

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occurred. W hen the distribution occurred in 2001, the 1995 agreement was still

in place, still enforceable, and still dictated the tax consequences of the

distribution. The district court did not rely on, nor was it necessary to rely on,

principles of res judicata to justify its grant of summary judgment to the United

States.

      Peterson next challenges the district court’s “oddball” conclusion that his

complaint was inadequate to bring the issue of his alleged 2007 deductions before

the court. Peterson’s arguments in this regard, however, consist mostly of

unsubstantiated charges of transcript tampering and judicial impulsiveness. See

Opening Br. at 10-12. The only argument even remotely approaching appropriate

appellate discourse is Peterson’s statement that his “detailed list of 10 deductions

is found numerous times in the pleadings.” Id. at 12. Peterson, however, fails to

identify where in his complaint he makes a claim for relief based on purported

deductions. “Federal Rule of Civil Procedure 8(a)(2) requires only a short and

plain statement of the claim showing that the pleader is entitled to relief, in order

to give the defendant fair notice of what the . . . claim is and the grounds upon

which it rests.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)

(internal quotation marks omitted and textual omissions in original) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)).

      Yet, nowhere in Peterson’s complaint is there any claim that his taxes for

2001 were improperly calculated and/or that he was entitled to deductions for that

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year. Peterson’s attachment to his complaint of the refund claim he submitted

with his 2001 tax return was insufficient to put the United States on notice that he

was arguing in this action that he was entitled to deductions for 2001. The

district court did not err in refusing to consider this matter where Peterson argued

it for the first time at the hearing on the cross motions for summary judgment.

      Peterson’s third argument, that he is entitled to summary judgment as a

matter of law, is without merit for the reasons explained above. The fact that

Peterson was bound by the 1995 settlement agreement, the validity of which he

does not challenge, is fatal to his argument and mandated summary judgment for

the U nited States.

      Finally, Peterson argues that the district court judge should have recused

under 28 U.S.C. § 144. W e review a refusal to recuse for abuse of discretion.

United States v. M endoza, 468 F.3d 1256, 1262 (10th Cir. 2006). In an argument

rife with wild, unsubstantiated speculation, Peterson ultimately argues that the

district judge should have transferred the recusal motion to another judge.

Peterson misapprehends the law in this area.

             Affidavits of disqualification [under §144] must allege
      personal rather than judicial bias. They must contain more than mere
      conclusions. They must show facts indicating the existence of a
      judge’s personal bias and prejudice. M otions alleging bias and
      prejudice on the part of a judge which establish simply that the
      affiant does not like a particular judge are not adequate to require
      disqualification.




                                         -5-
United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976) (citations omitted). In

order to be sufficient, the §144 affidavit must state facts and reasons which “‘give

fair support to the charge of a bent of mind that may prevent or impede

impartiality of judgment.’” Bell v. Chandler, 569 F.2d 556, 559 (10th Cir. 1978)

(quoting Berger v. United States, 255 U.S. 22, 33-34 (1921)). “A disqualification

order under §144 should be issued when a reasonable man w ould conclude on the

facts stated (in the affidavit) that the district judge had a special bias against

defendant.” Bell, 569 F.2d at 559 (quotation omitted). Because Peterson’s

affidavit failed to reach this standard, the district judge did not abuse his

discretion in denying the §144 motion.

      In sum, Peterson has failed to show any reversible error in the district

court’s disposition of the proceedings. To the extent any particular arguments he

raises on appeal are not addressed explicitly, they have been considered by the

panel but found to be lacking sufficient merit to w arrant express comment.

      Peterson’s motion to strike the brief of the United States and his two




                                           -6-
motions to supplement the record are DENIED. The judgment of the district

court is A FFIR ME D.



                                                 Entered for the Court



                                                 Jerome A. Holmes
                                                 Circuit Judge




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