                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAY 19 1997
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    MARION PARKER,

                Plaintiff-Appellant,

    v.                                                   No. 96-5191
                                                    (D.C. No. 92-CV-664-J)
    BANCOKLAHOMA MORTGAGE                                 (N.D. Okla.)
    CORPORATION; BOATMEN’S
    FIRST NATIONAL BANK OF
    OKLAHOMA, party defendant in
    substitution for defendant Woodland
    Bank, fka Woodland Bank,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and LUCERO, Circuit Judges.


         This appeal arises out of an agreement executed by plaintiff, an African-

American real estate appraiser, and several mortgage lenders in settlement of

plaintiff’s suit claiming racial discrimination by appellees in retaining appraisers.



*
      This order and judgment is not binding precedent, except under the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.
As an initial matter, we must determine whether we have jurisdiction over this

appeal. 1

       The parties executed the settlement agreement at issue and stipulated to

dismissal of the case in January 1995. The district court retained jurisdiction to

monitor the settlement agreement as to three of the lenders, including defendants

Bancoklahoma Mortgage Corp. (“BOMC”) and Boatmen’s First National Bank of

Oklahoma (“Boatmen’s”). In October 1995, plaintiff filed a motion to reopen the

case, alleging that BOMC and Boatmen’s had breached the settlement agreement.

The district court judge referred the case to Magistrate Judge Joyner for final

disposition, pursuant to 28 U.S.C. § 636(c)(1). Magistrate Judge Joyner held an

evidentiary hearing and, on June 25, 1996, he issued an order finding that BOMC

had substantially complied with the settlement agreement, but that Boatmen’s had

breached the agreement. Magistrate Judge Joyner entered judgment for BOMC on

plaintiff’s claim for breach and entered judgment for plaintiff and against

Boatmen’s in the amount of $200.00. In his order, Magistrate Judge Joyner

determined that plaintiff was not entitled to either punitive damages or attorney

fees on his claims for breach of the settlement agreement.



1
       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); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

                                        -2-
      On July 25, 1996, plaintiff filed pro se a “Motion for Enlargement of Time

Pursuant to Rules 6(b) and 56(f) Fed. R. Civ. P.” As grounds, he stated that the

magistrate judge’s order should be treated solely as a recommendation and asked

for an extension of time in which to file objections. See Appellee Boatmen’s

Suppl. App. at 254-55. On the same date, plaintiff also filed a “Motion to

Setaside [sic], Vacate, Modify and Recommit to Magistrate Judge for

Recommendation by Special Master.” See id. at 257-59. In a supporting brief,

see id. at 260-66, plaintiff contended that he had not consented to the magistrate

judge entering a final judgment and, therefore, that the magistrate judge had

exceeded his authority. Plaintiff further claimed that the magistrate judge’s

rulings on damages and attorney fees were in error because the magistrate judge

did not have authority to consider these matters. Plaintiff asserted he had a right

to a jury trial on these matters. By order entered August 5, 1996, Magistrate

Judge Joyner denied plaintiff’s post-judgment motions, finding that plaintiff’s

attorney had filed a written consent to disposition of the case by a magistrate

judge and that plaintiff was bound by this consent.

      On August 20, 1996, fifteen days after the magistrate judge’s order denying

the post-judgment motions and fifty-six days after the magistrate judge’s order

ruling on the claims for breach of the settlement agreement, plaintiff filed a

notice of appeal. The notice recited that the order being appealed was the


                                         -3-
magistrate judge’s order of August 5, 1996. See id. at 274. BOMC and

Boatmen’s have moved to dismiss this appeal, arguing that plaintiff’s notice of

appeal was untimely. 2 First, defendants argue that the notice was not filed within

thirty days of the June 25 order and, therefore, we have no jurisdiction to review

that order. Second, defendants claim that, because plaintiff’s post-judgment

motions challenging the June 25 order were not filed within ten days of that order,

the district court did not have jurisdiction to consider the motions or to enter its

order of August 5. Thus, defendants urge, we have no jurisdiction to review the

August 5 order. Plaintiff has not responded to the motion to dismiss.

      Our decision in Carpenter v. Williams, 86 F.3d 1015, 1016 (10th Cir.

1996), establishes that, at minimum, we have jurisdiction to review the court’s

order of August 5, 1996, denying plaintiff’s post-judgment motions. We may

properly construe plaintiff’s post-judgment motions challenging the June 25 order

as motions for relief from judgment pursuant to Rule 60(b). On that basis, we

conclude plaintiff’s notice of appeal, filed fifteen days after entry of the court’s

August 5 order, was timely as to that order.




2
      A notice of appeal “must designate the judgment, order, or part thereof
appealed from,” Fed. R. App. P. 3(c), and it must be filed “within 30 days after
the date of entry of the judgment or order appealed from; but if the United States
or an officer or agency thereof is a party, the notice of appeal may be filed by any
party within 60 days after such entry,” Fed. R. App. P. 4(a)(1).

                                          -4-
      Whether we also have jurisdiction to review the court’s underlying

judgment of June 25 is not as clear. In Van Skiver v. United States, 952 F.2d

1241, 1243 (10th Cir. 1991), we held that the plaintiffs’ appeal from the denial of

their Rule 60(b) motion “raises for review only the district court’s order of denial

and not the underlying judgment itself.” The same would be true here, if plaintiff

had only thirty days to file his notice of appeal. We note, however, that the

Department of Housing and Urban Development (“HUD”), an agency of the

United States, was originally a defendant in this action. If HUD’s presence in

this action entitled plaintiff to a sixty-day appeal period under Rule 4(a)(1), then

plaintiff’s notice of appeal would be timely as to both the June 25 order and the

August 5 order.

      HUD was named as a defendant in both plaintiff’s complaint and amended

complaint. In October 1993, the district court entered a final judgment dismissing

plaintiff’s claims against all defendants. In a previous appeal of this case, we

reversed the district court’s ruling as to some of plaintiff’s claims, and remanded

for further action. We affirmed dismissal of the remaining claims. Included in

the latter category were all the claims against HUD. We concluded that plaintiff’s

HUD claims were barred by sovereign immunity. See Parker v. Bancoklahoma

Mortgage Co., No. 93-5253, 1994 WL 170789, at **2 (May 5, 1994) (unpublished

order and judgment). On remand, plaintiff pursued his surviving claims solely


                                          -5-
against the private defendants and ultimately entered into the settlement

agreement with them referenced above. In Maryland Casualty Co. v. Connor, 382

F.2d 13, 15 (10th Cir. 1967), we held, under similar circumstances, that “[w]here

. . . the interest of the United States has been finally determined prior to entry of

the judgment from which an appeal is sought, the United States is not a party and

the time for appeal is thirty days rather than sixty days.” Therefore, we conclude

that plaintiff’s notice of appeal was timely only as to the magistrate judge’s

August 5, 1996, order which denied plaintiff’s Rule 60(b) motions.

      “Relief under Rule 60(b) is discretionary and is warranted only in

exceptional circumstances. A litigant shows exceptional circumstances by

satisfying one or more of Rule 60(b)’s six grounds for relief from judgment.”

Van Skiver, 952 F.2d at 1243-44 (citation omitted). To the extent that plaintiff’s

post-judgment motions challenge the magistrate judge’s authority to address

certain issues and to enter a final disposition, we may treat the motions as arising

under Rule 60(b)(4) (“the judgment is void”). We review the denial thereof de

novo. See Wilmer v. Board of County Comm’rs, 69 F.3d 406, 409 (10th Cir.

1995). To the extent plaintiff’s motions challenge the merits of the magistrate

judge’s ruling, we may liberally construe them as being made under either Rule

60(b)(1) (“mistake, inadvertence, surprise, or excusable neglect”) or Rule

60(b)(6) (“any other reason justifying relief”). We review such denial for an


                                          -6-
abuse of discretion. See Stubblefield v. Windsor Capital Group, 74 F.3d 990, 994

(10th Cir. 1996). Based upon our review, we conclude the magistrate judge did

not err in denying plaintiff’s post-judgment motions under Rule 60(b)(1), (4),

or (6).

          Upon consent of the parties, a magistrate judge “may conduct any or all

proceedings in a jury or nonjury civil matter and order the entry of judgment in

the case, when specially designated to exercise such jurisdiction by the district

court.” 28 U.S.C.§ 636(c)(1). The record shows that counsel for each of the

parties executed and filed with the district court a “Trial Consent Form,” which

provided: “In accordance with the provisions of 28 U.S.C. § 636(c), the parties to

the above-captioned civil matter hereby waive their right to proceed before the

assigned District Judge and consent to have a Magistrate Judge conduct any and

all further proceedings in the case, including but not limited to trial of the case

. . . and the entry of any order, opinion, or Judgment.” Appellee Boatmen’s

Suppl. App. at 171, 172. In compliance with the parties’ pleadings, the district

court judge entered an order transferring the case to Magistrate Judge Joyner to

conduct all further proceedings and to enter judgment pursuant to § 636(c). See

id. at 171-73.

          At the beginning of the evidentiary hearing on June 4, 1996, and in

plaintiff’s presence, Magistrate Judge Joyner stated that the parties had consented


                                            -7-
to his hearing the case, that he would conduct a final hearing on all factual and

legal matters, and that, at its conclusion, the parties would have no further

opportunity to present evidence. See id. at 178-79. Plaintiff stated no objection.

      On appeal, plaintiff does not deny that his counsel signed and filed the

consent form on his behalf, that he heard the magistrate judge’s statement at the

beginning of the hearing, or that he remained silent. Nor does plaintiff suggest

that his counsel lacked authority to consent to final disposition of the matter by a

magistrate judge. This combination of facts leads to an inescapable conclusion:

the magistrate judge properly denied plaintiff’s post-judgment motions to the

extent they challenged the validity of the magistrate judge’s June 25 disposition

on that basis.

      To the extent plaintiff’s post-judgment motions challenged the merits of the

June 25 disposition, plaintiff has not shown an entitlement to relief under either

Rule 60(b)(1) or Rule 60(b)(6). See, e.g., Cashner v. Freedom Stores, Inc., 98

F.3d 572, 576-80 (10th Cir. 1996) (discussing circumstances under which relief

may be available under Rule 60(b)(1) or Rule 60(b)(6)); Van Skiver, 952 F.2d at

1244-45 (same). Therefore, the magistrate judge did not abuse his discretion in

denying these motions.




                                         -8-
      The judgment is accordingly AFFIRMED. Appellee Boatmen’s motion to

sanction plaintiff for bringing a frivolous appeal is DENIED. Appellee

Boatmen’s motion to strike references to confidential settlement information

contained in attachments to plaintiff’s opening brief is GRANTED. Plaintiff’s

motion to file a reply brief out of time is GRANTED.

      The mandate shall issue forthwith.



                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




                                       -9-
