                                                                              FILED
                                                                  United States Court of Appeals
                                       PUBLISH                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     January 8, 2013

                                                                      Elisabeth A. Shumaker
                                    TENTH CIRCUIT                         Clerk of Court


BENNIE L. WALTERS,

             PlaintiffAppellant,

v.
                                                            No. 11-5130
WAL-MART STORES, INC, a foreign
for profit business corporation;
WAL-MART STORES EAST, INC.,
a foreign for profit business corporation;
WAL-MART STORES EAST, LP,
a foreign limited partnership,

             DefendantsAppellees.


                    Appeal from the United States District Court
                       for the Northern District of Oklahoma
                      (D.C. No. 4:09-CV-00447-GKF-FHM)


Bennie L. Walters, pro se.

Steven A. Broussard (Stephanie T. Gentry with him on the briefs), Hall, Estill, Hardwick,
Gable, Golden & Nelson, P.C., Tulsa, Oklahoma, for the Defendants-Appellees.


Before BRISCOE, Chief Judge, McKAY, and LUCERO, Circuit Judges.


LUCERO, Circuit Judge.


      Bennie Walters brought employment discrimination claims against his former

employer, Wal-Mart Stores, Inc. (“Wal-Mart”). The parties reached an apparent
settlement during a settlement conference, but Walters later refused to sign the

written agreement. The district court granted Wal-Mart’s motion to enforce the

agreement and denied Walters’ motion for reconsideration. Walters appeals both

rulings.

       Before reaching the merits of the appeal, we must resolve a jurisdictional

dispute borne of the district court’s failure to enter its judgment in a separate

document as required by Fed. R. Civ. P. 58(a). We hold that under these

circumstances, an appellant remains entitled to the extended deadline for filing a

notice of appeal even if he files a motion for reconsideration before the judgment is

deemed “entered” under Fed. R. Civ. P. 58(c). We thus have jurisdiction over the

case under 28 U.S.C. § 1291, and reaching the merits, we affirm.

                                            I

       Walters, a fifty-six-year-old African-American man, brought suit against

Wal-Mart, alleging that it discriminated against him on the basis of race, age,

disability, and gender. Approximately eighteen months after the suit was filed, the

parties, both represented by counsel, reached a purported settlement agreement

during a court-ordered settlement conference conducted by a magistrate judge.

Wal-Mart’s counsel furnished Walters’ counsel with a copy of the written agreement.

Walters’ attorney requested that the document be modified to reflect the allocation of

the settlement funds. Because Wal-Mart had to alter its written agreement to

conform to the request, the parties instead signed a separate document entitled


                                           -2-
“Settlement Terms.” This document set forth the amount to be paid to Walters in

conjunction with Walters’ agreement to release all claims and dismiss the case with

prejudice. It also contained an agreement that within twenty days, the parties would

prepare a formal settlement document consistent with the forms given to Walters’

counsel at the conference.

      Following the settlement conference, the district court entered an order

dismissing Walters’ case without prejudice and granted the parties thirty days to

submit final closing papers. Walters’ and Wal-Mart’s counsel then modified the

settlement agreement as planned. But when presented with the final agreement,

Walters refused to sign it. He alleges that at the settlement conference, his attorneys

misled him by erroneously telling him that his social security and workers’

compensation claims would be at risk if he did not sign the original agreement—a

contention that Walters’ attorneys deny. Walters apparently also had other concerns

about the agreement,1 and alleges that within a week of the settlement conference, he

informed his attorneys that he did not accept the settlement’s terms and would not

sign the final agreement. Three months after the settlement conference, Walters

terminated his relationship with his attorneys. Since April 2011, he has proceeded

pro se.


      1
         As expressed to the magistrate judge during a status hearing in May 2011,
Walters was concerned that the settlement agreement would prevent him from
testifying in his wife’s separate lawsuit against Wal-Mart. He was also wary because
another attorney informed him that the settlement’s terms were unfavorable.


                                          -3-
      At a status hearing in May 2011, Walters made clear that he would not sign the

final agreement. Wal-Mart then filed a motion to enforce the agreement reached at

the settlement conference. It also requested that the district court sanction Walters by

awarding Wal-Mart its attorneys’ fees incurred in bringing the motion.

      The district court concluded that the agreement made at the settlement

conference was a complete, enforceable contract. Accordingly, the court granted

Wal-Mart’s motion to enforce the settlement agreement. The court also granted

Wal-Mart $2,000 in attorneys’ fees, to be reduced from the settlement sum.

Although this order disposed of the case, the court did not enter the judgment in a

separate document. The court did, however, enter a “Minute Sheet” on the docket,

but that unsigned document did not indicate that Wal-Mart’s motion had been

granted. Walters then filed a motion to reconsider, which the court denied. Walters

now appeals both the bench ruling enforcing the agreement and the denial of the

motion to reconsider.

                                           II

                                           A

      As a threshold matter, we must first determine whether Walters timely filed his

notice of appeal. Federal Rule of Appellate Procedure 4(a) mandates that a notice of

appeal must be filed within thirty days after a judgment is entered in compliance with

Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Fed. R. App. P. 4(a)(7).

Under Rule 58, every judgment must be set out in a separate document. Fed. R. Civ.


                                         -4-
P. 58. A judgment is thus not considered “entered” until the district court has

satisfied the separate-document requirement. In the absence of separate judgment,

however, a judgment is deemed “entered” 150 days after the order disposing of the

case is entered on the civil docket. Fed. R. Civ. P. 58(c)(2).

      Although the district court’s order granting Wal-Mart’s motion to enforce

disposed of the case, the court did not set out its judgment in a separate document.

Consequently, though the finality of that ruling was unaffected, see Fed. R. App. P.

4(a)(7)(B), the time for filing a notice of appeal was extended to January 11, 2012,

thirty days after the date the judgment would have been deemed “entered” pursuant

to Rule 58. Walters filed his notice of appeal on September 28, 2011, thus making

his appeal appear timely.

      We reject Wal-Mart’s contention that we should interpret the “Minute Sheet”

as fulfilling the separate-document requirement, which would make Walters’ notice

of appeal untimely. The minutes are not captioned as an order, are not signed, and do

not on their face establish that the district court granted Wal-Mart’s Motion to

Enforce. See Silver Star Enters. v. M/V Saramacca, 19 F.3d 1008, 1012 (5th Cir.

1994) (unsigned minute sheet is not a separate judgment). Moreover, we have held

that Rule 58 “should be interpreted to preserve an appeal where possible.”

Thompson v. Gibson, 289 F.3d 1218, 1221 (10th Cir. 2002); see also In re

Taumoepeau, 523 F.3d 1213, 1217 (10th Cir. 2008) (separate-document rule is




                                          -5-
applied mechanically when doing so is required to preserve a party’s opportunity for

appeal).

      Wal-Mart also argues that Walters waived the separate-document requirement

when he filed a motion to reconsider the district court’s ruling.2 As a consequence,

Wal-Mart asserts that the district court’s August 28, 2011 denial of Walters’ motion

triggered the thirty-day period for filing a notice of appeal, which he missed. See

Fed. R. App. P. 4(a)(4)(A) (instructing that if a party files a Rule 59 or Rule 60

motion, the time to file a notice of appeal starts running upon entry of an order

disposing of that motion). It appears this court has not been faced with this precise

situation: when a motion for reconsideration is filed in the absence of a separate

judgment, does the denial of that motion start the notice-of-appeal clock, or does the

appellant remain entitled to the 150-day period for constructive entry of judgment

provided by Fed R. Civ. P. 58?

      We hold that under these circumstances an appellant remains entitled to the

150-day period for constructive entry of judgment. We are persuaded by the Ninth

Circuit’s reasoning in ABF Capital Corp. v. Osley, 414 F.3d 1061, 1064 (9th Cir.

2005). In that case, the Ninth Circuit held that until judgment had entered in one of

the two ways mandated by Rule 58—either in a separate document or the passage of

150 days—an appellant had no obligation to appeal the judgment. Id. at 1065. The


      2
           Walters did not specify whether he sought relief under Fed. R. Civ. P. 59 or
60.


                                           -6-
court reasoned that there was no evidence Congress meant to require appeal of a final

judgment before entry of the judgment simply because a premature motion

challenging the un-entered judgment had been denied. Id.

       Here, like the plaintiff in ABF Capital Corp., Walters’ motion to reconsider

cannot shorten the time for appeal. “[N]othing in the rules or the commentaries

suggests an intent to shorten the time for appeal if a post-judgment [motion] is filed.”

414 F.3d at 1065. See Fed. R. Civ. P. 59(b) (motions must be filed “no later than 28

days after the entry of judgment”); Fed. R. Civ. P. 60(c)(1) (motions must be filed

“no more than a year after the entry of judgment” or within a reasonable time). As

such, the order denying reconsideration did not reduce Walters’ time to appeal. This

outcome is particularly appropriate considering that this court has already held that

waiver of the separate-document requirement cannot be used to defeat jurisdiction.

See Clough v. Rush, 959 F.2d 182, 186 (10th Cir. 1992); see also Bankers Trust Co.

v. Mallis, 435 U.S. 381, 386 (1978) (“[The separate-document rule] should be

interpreted to prevent loss of the right of appeal, not to facilitate loss.” (quotation

omitted)). We therefore hold that this court has jurisdiction to hear the appeal.

                                             B

       We review a district court’s decision to enforce a settlement agreement for

abuse of discretion. Shoels v. Klebold, 375 F.3d 1054, 1060 (10th Cir. 2004). We

also review the district court’s denial of a motion to reconsider for abuse of

discretion, whether it is construed as a Rule 59(e) or Rule 60(b) motion. Barber


                                           -7-
ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009);

Searles v. Dechant, 393 F.3d 1126, 1131 (10th Cir. 2004). “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.” Hackett v. Barnhart, 475 F.3d 1166, 1172

(10th Cir. 2007) (quotation omitted). We will leave the district court’s decision

undisturbed unless we have a definite and firm conviction that the court made a clear

error of judgment. Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994).

      Because settlement agreements are contracts, “[i]ssues involving the formation

and construction of a purported settlement agreement are resolved by applying state

contract law.” Shoels, 375 F.3d at 1060. Under Oklahoma law, settlement

agreements, which may be oral or written, are controlled by “the rules of offer and

acceptance and of mutual assent which control any issue of contract formation.” In

re De–Annexation of Certain Real Property from City of Seminole, 204 P.3d 87, 89

(Okla. 2009). The consent of the parties must be free, mutual, and “[c]ommunicated

by each to the other.” Id. A party generally may not repudiate a settlement

agreement absent fraud, duress, undue influence, or mistake. Whitehorse v. Johnson,

156 P.3d 41, 46 (Okla. 2007).

      Our review reveals no error in the district court’s conclusion that Walters and

Wal-Mart established the essential elements of a contract. As the district court noted,

the “Settlement Terms” document signed by Walters patently evidences the parties’

intent to effectuate a defined settlement. The fact that certain formalities


                                          -8-
remained--namely, the drafting of a final, formal document—does not undermine

Walters’ acceptance of Wal-Mart’s offer of compromise. Thus, Walters was not in a

position to repudiate the agreement even if he was later unhappy with its terms.

Accordingly, the district court acted within its discretion in granting Wal-Mart’s

motion to enforce the agreement.

      Walters argues, however, that his attorneys misled him at the settlement

conference by telling him that his social security and workers’ compensation benefits

would be at risk if he did not agree to Wal-Mart’s offer. But there is no evidence in

the record to support the allegation that Walters acted under duress. On the contrary,

in a hearing before the magistrate judge, Walters’ attorneys denied that such a

conversation took place. At that same hearing, Walters was reassured by the

magistrate judge that his benefits were not at risk. There is thus no basis for

reversing the district court’s determination that Walters’ assent to the “Settlement

Terms” agreement was not the product of duress.

      Walters also contends that he was not given twenty-one days to consider

whether to sign the final settlement agreement, pursuant to one of its provisions.

Although the “Settlement Terms” document does not reference such, the final

agreement includes a “Twenty-One Day Consideration Period” to consider and accept

the terms, during which Walters was encouraged to consult with an attorney

regarding the terms. The provision was included in order to comply with the Older

Workers Benefit Protection Act (“OWBPA”), which applies to waiver of age


                                          -9-
discrimination claims. Under the OWBPA, in order for a waiver of Age

Discrimination in Employment Act (“ADEA”) claims to be considered knowing and

voluntary and therefore valid, a twenty-one day consideration period is generally

required. 29 U.S.C. § 626(f)(1)(F)(i). However, the twenty-one day provision does not

apply to the settlement of a court case. See § 626(f)(2). Thus, the statutory period that

Walters asserts he was improperly denied did not apply in his case. As such, the

settlement agreement is not unenforceable on that basis.

       Nevertheless, in order for a waiver to be considered knowing and voluntary in a

court action alleging an ADEA claim, the individual must be given a reasonable period of

time within which to consider the settlement agreement, and the waiver must

“specifically refer[] to rights or claims arising under this chapter.” § 626(f)(2)(A)-(B).

Although valid questions remain as to whether Wal-Mart complied with either

requirement under the OWBPA, Walters did not challenge Wal-Mart’s compliance with

the statute in the district court or in this appeal, and the issues are therefore waived.

Cummings v. Norton, 393 F.3d 1186, 1190 (10th Cir. 2005) (“[I]ssues not raised below

are waived on appeal.”). Walters claimed that he had informed his attorneys that he did

not want to sign the formalized settlement agreement and was denied the contractual

twenty-one day consideration period. He does not mention the statute. While we

liberally construe Walters’ pro se filings, we will not “assume the role of advocate”

and make his arguments for him. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th

Cir. 2008) (quotation omitted).


                                            - 10 -
      Finally, Walters appears to challenge the denial of his motion to reconsider.

He does not provide any support for such a challenge, and the record contains no

evidence that the district court clearly misapprehended the facts, Walters’ position, or

the controlling law. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012

(10th Cir. 2000). Thus, we have no reason to disturb the district court’s denial of his

motion to reconsider.

                                          III

      The judgment of the district court is AFFIRMED. We GRANT Walters’

motion to proceed in forma pauperis.




                                         - 11 -
