UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

SECURITIES AND EXCHANGE 

COMMISSION, 

 Petitioner - Appellee, 

v. 

HARMAN WRIGHT GROUP, LLC, 

 Respondent, 

and 

TYTUS W. HARKINS; JASON M. 

WHITE, 

 Respondents - Appellants. 

No. 18-1476 

(D.C. No. 1:18-MC-00190-CMA) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges. 

_________________________________ 

Tytus W. Harkins and Jason M. White (together, Appellants), proceeding 

pro se, appeal from the district court’s order compelling them to comply with 

 * After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 14, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

subpoenas issued by the Securities and Exchange Commission (SEC). The district 

court’s order is a final decision that affords us jurisdiction under 28 U.S.C. § 1291. 

E.E.O.C. v. Dillon Cos., 310 F.3d 1271, 1272 (10th Cir. 2002). We affirm. 

BACKGROUND

 Appellants are founding principals and officers of Hartman Wright Group, 

LLC (HWG). They, as well as HWG, are the subjects of an SEC investigation. 

Appellants failed to comply with testimonial subpoenas issued by the SEC, causing 

the SEC to file in the district court an application to compel compliance.1

 

The district court set a show-cause hearing and directed Appellants to respond 

to the SEC’s application within seven days after receiving notice. The order further 

stated that “[i]f a response is not filed within the prescribed time, the Court may treat 

the Application as conceded.” R., Vol. II at 6. The district court then granted 

Appellants’ motion for an extension, setting a November 13, 2018, deadline for the 

response. On November 13, Appellants mailed their documents, which the district 

court received and filed on November 15. The SEC filed a reply on November 20. 

The day after the SEC filed its reply, the district court issued its order 

compelling Appellants to comply with the subpoenas. It held that the SEC had 

satisfied the four requirements for a court to enforce an administrative agency 

 1

 HWG also was subpoenaed and was named as a respondent to the SEC’s 

application to enforce, but it has not appealed. The government states that HWG 

produced documents after the district court held it in contempt. 
3 

investigative subpoena. See R., Vol. II at 215-16 (citing United States v. Powell, 

379 U.S. 48, 57-58 (1964)). The district court further stated:

Moreover, in this Court’s order granting the SEC’s application 

for an order to show cause, the Court indicated that Respondents were 

required to file a timely response to the SEC’s motion. Additionally, 

the Court advised that if a response is not filed within the prescribed 

time, the Court may treat the Application as conceded. After this Court 

granted Respondents an extension of time to respond, Respondents still 

failed to enter a timely submission. Respondent[s’] response was due 

on 11/13/2018. However, Respondents did not submit any filings until 

11/15/2018. Therefore, in light of Respondents’ untimely response and 

the evidence submitted by the SEC, this Court finds that Respondents 

should be compelled to comply with the administrative subpoenas. 

Id. at 217-18 (record citations and internal quotation marks omitted). It later 

summarily denied Appellants’ motion for reconsideration. 

DISCUSSION 

We review for abuse of discretion both the order compelling compliance and 

the order denying reconsideration. Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 

1172 (10th Cir. 2013) (Fed. R. Civ. P. 59(e) and 60(b) motions); Dillon Cos., 

310 F.3d at 1274 (order regarding administrative subpoenas). “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.” Walters, 703 F.3d at 1172 

(internal quotation marks omitted). 

Before this court, Appellants do not challenge the requirements for 

enforcement that the district court identified or the court’s reasons for determining 

that the SEC satisfied those requirements. Instead, they reiterate the arguments they 

made in their motion for reconsideration—that the district court erroneously 
4 

disregarded their response as untimely and issued its order prematurely because they 

did not have time to file a sur-reply. Appellants also request an award of costs. 

In asserting that their filings were timely, Appellants rely on Fed. R. Civ. P. 

6(d), which provides, “[w]hen a party may or must act within a specified time after 

being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the 

clerk), or (F) (other means consented to), 3 days are added after the period would 

otherwise expire under Rule 6(a).” Appellants were not permitted to use the court’s 

electronic filing system and were served by mail. Apparently this caused them to 

believe that they had three days beyond the district court’s November 13 deadline to 

file their documents. 

Appellants are mistaken. When the district court granted their motion for an 

extension, it did not direct them to act “within a specified time after being served.” 

Rather, it ordered a set date—November 13—as the deadline. In those 

circumstances, Rule 6(d) did not apply. Because Appellants’ response was not filed 

with the court on or before November 13, it was untimely. 

Moreover, regardless of the untimeliness of the response, the district court did 

not issue the order solely on the ground of any concession by Appellants. Before 

discussing timeliness, it identified the requirements for enforcing an administrative 

subpoena and analyzed those requirements, finding each satisfied. And as part of 

that discussion, it noted Appellants’ responsive arguments. As stated, Appellants do 

not dispute this portion of the district court’s order, which in itself supports the order 

compelling compliance. 
5 

Appellants also complain that the district court ruled before they were able to 

finish preparing a sur-reply to the SEC’s reply in support of its application. 

Appellants, however, had no right to file a sur-reply. While they cite “FRCP Rule 

27(a)(3)(4),” Aplt. Opening Br. at 3, Fed. R. Civ. P. 27 is inapplicable. The language 

they quote2

 is from Rule 27(a)(4) of the Rules of Appellate Procedure. As an 

appellate rule, Rule 27(a)(4) did not control the briefing of the SEC’s motion to 

compel compliance, and in any event, the rule provides for a reply, not a sur-reply. 

Further, Appellants have failed to present any reason why they should have been 

allowed the unusual privilege of filing a sur-reply—particularly, they give no reason 

why the arguments they wanted to make in their sur-reply had not been available to 

them when they filed their response just a few weeks earlier. 

CONCLUSION 

Because Appellants fail to show that the district court’s orders compelling 

compliance and denying reconsideration were an abuse of discretion, the district 

court’s judgment is affirmed. In light of this disposition, Appellants are not entitled 

to the award of costs they request. Fed. R. App. P. 39(a)(2). 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

 2

 “Reply to Response. Any reply to a response must be filed within 7 days 

after service of the response. A reply must not present matters that do not relate to 

the response.” Aplt. Opening Br. at 3 (internal quotation marks omitted).