* Pursuant to Fed. R. App. P. 43(c)(2), Dr. James G. Roche is substituted for

F. Whitten Peters, former Acting Secretary of the A ir Force, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 5 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RUBY L. STARR,

Plaintiff - Appellant,

v. DR. JAMES G. ROCHE, Secretary of the Air Force; * DEPARTMENT OF THE AIR FORCE,

Defendants - Appellees. No. 01-2253 (D.C. No. CV-98-1049-MV/DJS) (D. New Mexico)

ORDER AND JUDGMENT **

Before SEYMOUR , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of1 The district court’s order granting defendants’ mo tion to enforce the settlement

agreement was entered on May 15, 2001. Although Ms . Starr did not file a timely appeal from that ruling, she did file a motion for relief from the judgment under F ED
. R. C IV
. P. 60(b) on May 24, 2001. Because the Rule 60(b) moti on was filed no later than ten days after the judgment was entered, under F ED
. R. A PP
. P. 4(a)(4)(A)(vi) the time to file an appeal ran from the entry of the district court order disposing of that motion. The order denying Ms. Starr’s Rule 60(b) motion was entered on August 5, 2001, and she filed a time ly appeal on August 13. Accordingly, we have jurisdiction over both the und erlying order enforcing the settlement agreement and the order denying Rule 60(b) relief. See Grantham v. Ohio Cas. Co. , 97 F.3d 434, 435 (10th Cir. 1996). -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Ruby L. Starr appeals the district court’ s memorandum and order granting defendants’ motion to enforce an agreementsettling Ms. Starr’s claim that she was subject to a hostile work environment while a civilian employee at Kirkland Air Force Base located in Albuquerque, New Mexico. Ms. Starr also appeals the denial of her motion for relief from the judgment under F ED
. R. C IV
. P. 60(b). 1 We affirm. The facts of this case are well known to the partie s and Ms. Starr’s arguments on appeal are essentially those addressed by the district court. Ms. Starr’s initial Title VII and Privacy Act compl aints were filed in California where she then resided, but those complaints were t ransferred to New Mexico for proper venue. Due in part to Ms. Starr’s claims of financial difficulties and physical disabilities, the court granted her reques t for appointed counsel. After-3-

she attended two depositions in New Mexico, Ms. Sta rr agreed to accept $2,000 to settle her claims. Because a previous attempt at s ettlement had failed, the parties read the terms of the settlement agreement into the record and specifically asked Ms. Starr to verify that the settlement was volunta ry and not made under coercion or duress. She confirmed she was acting voluntaril y and was not under duress. Ms. Starr subsequently reneged and defendants moved the court to enforce the settlement agreement. Ms. Starr contends the s ettlement agreement was the result of coercion, duress, or her lack of mental c apacity to understand the nature of the agreement. The court granted Ms. Starr’s co unsel’s motion to withdraw as he would potentially be a witness to verify the set tlement, and denied Ms. Starr’s motion for appointment of new counsel. On the meri ts, the district court adopted the magistrate judge’s recommended enforcement of t he settlement agreement. “A trial court has the power to summarily enforce a settlement agreement entered into by the litigants while the litigation is pending before it.” United States v. Hardage , 982 F.2d 1491, 1496 (10th Cir. 1993). We review the court’s order enforcing the settlement for an abuse of discretion. See id. at 1495. Issues involving the enforceability of a settlement agreement are resolved by applying state contract law. See United States v. McCall , 235 F.3d 1211, 1215 (10th Cir. 2000). “It is the policy of the law and of the State of New Mexico to favor settlement agreements.” Navajo Tribe of Indians v. Hanosh-4-

Chevrolet-Buick, Inc. , 749 P.2d 90, 92 (N.M. 1988); see also Bd. of Educ. for the Carlsbad Mun. Sch. v. N.M. State Dep’t of Pub. Educ. , 993 P.2d 112, 115 (N.M. Ct. App. 1999). Moreover, “[a]n oral stipulation for the compromise and settlement of claims . . . made in open court in th e presence of the parties and preserved in the record of the court is as binding as a written agreement.” Esquibel v. Brown Constr. Co. , 513 P.2d 1269, 1272 (N.M. Ct. App. 1973) (quotation omitted). Ms. Starr’s claims of mental incapacity, coercion a nd duress were properly reviewed under the relevant law of New Mexico. The district court concluded the evidence she presented was simply insufficient to o vercome her burden of proving that the settlement agreement was not entered into knowingly and freely. While we sympathize with Ms. Starr concerning her disabil ities, we are not persuaded the district court abused its discretion in enforci ng the settlement agreement. “We review the district court’s denial of a Rule 60 (b) motion for abuse of discretion. A district court has discretion to gra nt relief as justice requires under Rule 60(b), yet such relief is extraordinary and may only be granted in exceptional circumstances.” Servants of Paraclete v. Does, I-XVI , 204 F.3d 1005, 1009 (10th Cir. 2000) (citation and internal quotat ions omitted). We have carefully reviewed the record and we are convinced the district court did not-5-

abuse its discretion in determining that Ms. Starr failed to present grounds for relief under Rule 60(b). Finally, Ms. Starr urges us to hold the district co urt erred when it decided not to appoint a second attorney for purposes of th e hearing to enforce the settlement agreement and denied Ms. Starr’s requestfor sanctions against Assistant United States Attorney Hosa. “We have of ten said, and it seems to be universally agreed, that no one has a constitutiona l right to assistance of counsel in the prosecution or defense of a civil action.” Bethea v. Crouse , 417 F.2d 504, 505 (10th Cir. 1969). Instead, “[t]he decision whe ther to appoint counsel is left to the sound discretion of the district court.” Blankenship v. Meachum , 840 F.2d 741, 743 (10th Cir. 1988) (per curiam). While Ms. Starr’s disabilities may have been a factor in the initial appointment of her fir st counsel, they were not dispositive in the district court’s decision to deny a second pro bono attorney, and were apparently outweighed by Ms. Starr’s failure t o attend a hearing on the matter and her filing of a pro se entry of appearance. Under these circumstances, we cannot say the district court abused its discret ion. Likewise, we review the district court’s ruling on the motion for sanctions only for abuse of discretion. See Martinez v. Roscoe, 100 F.3d 121, 123 (10th Cir. 1996). After a careful review of the re cord in light of Ms. Starr’s arguments, the applicable law, and this deferential standard of review, we-6-

conclude that the district court’s decision to deny her motion for sanctions was not an abuse of that discretion. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED

.
Entered for the Court

Stephanie K. Seymour Circuit Judge