UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ YOURAS ZIANKOVICH, Plaintiff - Appellant,

v. BRYON M. LARGE; JESSICA E. YATES, Defendants - Appellees. No. 20-1030 (D.C. No. 1:17-CV -02039-CMA-NYW) (D. Colo.)

_________________________________ ORDER AND JUDGMENT *

_________________________________ Before HARTZ , McHUGH , and CARSON , Circuit Judges.

_________________________________ Plaintiff Youras Ziankovich, an attorn ey representing himself, appeals from the district court’s decision granting su mmary judgment in favor of defendants Bryon M. Large and Jessica E. Yates and dismissing hi s amended complaint with prejudice. He also appeals from the district court’s de nial of his post-judgment motion seeking relief under Ru le 60(b) of the Federal Ru les of Civil Procedure. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we apply the firm waiver rule

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 23, 2020 Christopher M. Wolpert Clerk of Court2 as a bar to appellate review of the dist rict court’s summary judgment decision and dismiss that portion of the appeal. We affirm the district court’s denial of the Rule 60(b) motion. I. Background Mr. Ziankovich is licensed to practice law in New York. Although he did not have a Colorado law license, he maintained a law office in Colorado and practiced immigration law before the Unit ed States District Court fo r the District of Colorado, the Executive Office of Immigration Re view, and the Department of Homeland Security. 1 Ms. Yates is Colorado’s Attorney Regul ation Counsel and was appointed by the Colorado Supreme Court to regulate the practice of law in Colorado. Mr. Large is an attorney for Colorado’ s Office of Attorney Regulation Counsel (“OARC”). The dispute underlying th is appeal arises out of OA RC’s disciplinary action against Mr. Ziankovich for violating the Colorado Rules of Professional Conduct and the federal complaint he filed to ch allenge that disciplinary action. 2 Mr. Large, through OARC, filed a compla int against Mr. Ziankovich on behalf of the People of Colorado (“the People”). Mr. Ziankovich moved to dismiss the disciplinary action against him on the gr ounds that OARC lacked jurisdiction to investigate and sanction attorneys with law licenses from other states and with

1 Mr. Ziankovich no longer resides in or maintains a law o ffice in Colorado.

2 At the time that OARC co mmenced the disciplinary action, James Coyle was Colorado’s Attorney Regulation Counsel. He was later replaced by Ms. Yates.3 practices limited to federal court matters. The presiding discip linary judge (PDJ) denied the motion to dismiss, concluding there was jurisd iction over Mr. Ziankovich. The PDJ subsequently granted summary judgment in favor of the People on six claims. After briefing and a hearing on th e remaining two claims, the Hearing Board (which consisted of the PDJ, an attorney, and a lay memb er) issued an Opinion and Decision in favor of the People. The Hearing Board issued an Amended Opinion to grant Mr. Ziankovich’s post-hearing motion requesting that two sentences be stricken. See People v. Ziankovich , 433 P.3d 640, 641 (Colo. O.P.D.J. 2018). The Board determined that Mr. Zankovich should be sanctioned for his breach of six ethical rules. See id . at 641, 656. It rejected Mr. Ziankovich’s defenses—including his challenge to jurisdiction—as well as his arguments that the disciplinary action violated: procedural due process under the Fourteen th Amendment, the Commerce Clause, the First and Fifth Amendments, 42 U.S.C. § 1983, and the Colorado Constitution. See id . at 650-51. During the pendency of the state discip linary proceedings, Mr. Ziankovich filed a pro se complaint in federal district court seeking a decl aratory judgment that defendants, acting through OARC, did not ha ve authority to main tain an attorney disciplinary action against him. He alleged he has never been licensed to practice law in Colorado and does not practice law in Colorado state courts or agencies; rather, he practices only in fe deral courts and agencies in Colorado. In response to a show-cause order, Mr. Ziankovich filed an amended complaint, asserting claims4 against defendants pursuant to § 1983 for violations of his Fi rst, Fifth, and Fourteenth Amendment rights, as well as a claim for violations of the Commerce Clause. Defendants moved to dismiss the amended complaint for lack of subject matter jurisdiction based on the abst ention doctrine set forth in Younger v. Harris , 401 U.S. 37 (1971). 3 The district court granted the motion and dismissed the amended complaint without prejudice. Mr. Zi ankovich appealed. Becaus e the state disciplinary proceedings had ended when we issued our decision, we vacated the district court’s dismissal of Mr. Ziankovich’s complaint under Younger and remanded to the district court to consider it. See Ziankovich v. Large , 745 F. App’x 800, 802 (10th Cir. 2018). On remand, defendants moved to dismiss Mr. Ziankovich’s amended complaint. They argued: (1) the OARC and PDJ had th e authority to discipline Mr. Ziankovich for his provision of legal services to Colorado residents; (2) the complaint failed to st ate any plausible claims for relief ; and (3) the doctrines of issue and claim preclusion barre d the federal action. The parties supplemented the record after the magistrate judge notified them of her intent to convert the motion to dismis s into a motion for summary judgment. In her report and recommendation, the magist rate judge determined that each of

3 “ Younger requires federal courts to re frain from ruling when it could interfere with ongoing state proceedings.” Columbian Fin. Corp. v. Stork , 811 F.3d 390, 393 (10th Cir. 2016).5 defendants’ arguments independently warr anted granting summary judgment in their favor. She therefore recommended that defendants’ motion for summary judgment be granted and the claims be dismisse d with prejudice. She also notified Mr. Ziankovich that he could file written objections to the report and recommendation and informed him that a ny objections “must be both timely and specific to preserve an issue for de novo review by the dist rict court or for appellate review.” Aplt. App., Vol. 2 at 166 n.6 (internal quotati on marks omitted). Mr. Ziankovich filed objections to th e report and recommendation. The district court first addressed issue preclusion, noting that resolving that argument first would prevent the need to address any of the other arguments. The district court determined that Mr. Ziankovich’s objecti ons as to issue preclusion were not sufficiently specific and did not warrant de novo review of the magistrate judge’s decision. The district court therefore re viewed the decision on issue preclusion for clear error and ultimately a ffirmed and adopted the re port and recommendation. After the court entered judgment in favor of defendants, Mr. Ziankovich filed a Rule 60(b) motion seeking relief from the judgm ent, which the district court denied. He now appeals from the district court’s decisions granting summary judgment in favor of defendants and denying his Rule 60(b) motion. II. Discussion Mr. Ziankovich argues on appeal that: (1) the Colorado Supreme Court is without authority to regulate out-of-state at torneys; (2) defendants’ acts violate his6 constitutional rights; (3) the district cour t erred when it dismissed his action with prejudice; and (4) the district court erred when it denied his motion to reconsider. A. Appeal from the District C ourt’s Summary Judgment Decision We have adopted a firm waiver rule re quiring that “a party’ s objections to the magistrate judge’s report a nd recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop. , 73 F.3d 1057, 1060 (10t h Cir. 1996). In doing so, we explained that “only an objec tion that is sufficien tly specific to focus the district court’s attention on the factual and legal issues that are truly in dispute will advance the policies behind the Magistrate ’s Act that led us to adopt a waiver rule in the first instance.” Id

. Here, the magistrate judge determ ined that issue preclusion barred Mr. Ziankovich’s federal claims because the issues asserted in his federal complaint were actually and necessarily adjudicated in the disciplinary proceedings, he was a party to the disciplinary proceedings, thos e proceedings culminated in a decision on the merits, and he had a full and fair opportunity to litigate the issues in the disciplinary proceedings. In reviewing Mr. Ziankovich’s objections, the district court observed that “‘[t]he filing of objections to a magistrate’s report enables the district judge to focus attention on those issues—f actual and legal—that are at the heart of the parties’ dispute, and gives the district court an opportunity to correct any errors immediately.’” Aplt. App., Vol. 2 at 229-30 (citations, brack ets, and internal quotation marks omitted). It concluded that Mr. Ziank ovich’s objections were not7 “sufficiently specific,” explaining that he was objecting “to the me rits of the Hearing Board’s Amended Opinion and his desire for [the district court] to overrule that opinion—not why the Magistra te Judge erred in ruling th at issue preclusion should apply.” Id . at 230. The district court therefor e declined to revi ew the magistrate judge’s decision on issue preclusion de no vo and instead reviewed the decision for clear error. In his opening brief, Mr. Ziankovich do es not address the district court’s determination that his objections to th e magistrate judge’s decision were not sufficiently specific. In their response br ief, defendants argue that Mr. Ziankovich has waived appellate review of the distri ct court’s summary j udgment decision under the firm waiver rule by “fail[ing] to pr ovide specific objections to the Magistrate Judge’s issue preclusion analys is—the sole ground used by th e district court to grant summary judgment.” Aplee. Resp. Br. at 27. In his reply brief, Mr. Ziankovich asserts that whether he waived appellate review under the fi rm waiver rule “is not an issue for this Appeal, because the district court never put into basis of the decision this waiver.” Aplt. Reply Br. at 2. We disagree. As discussed above and—as Mr. Ziankovich admits in his reply brief—th e district court foun d his “‘objection . . . insufficient to warrant de novo review.’” Id . (quoting Aplt. App., Vol. 2 at 230 (italics omitted)). The district court explained in its deci sion that it “agree[d] with Defendants” that “Plaintiff waived his right to de novo review because Plaintiff’s objection to the Recommendation was too generalized to constitute a proper objection.” Aplt. App., Vol. 2 at 22 9 (emphasis added). Contrary to8 Mr. Ziankovich’s position, the waiver issue was part of the basis of the district court’s decision to review the magistrate judge’s report and recommendation for clear error rather than to review it de novo. 4 And Mr. Ziankovich was on notice that he needed to make timely and specific objecti ons to the report and recommendation to preserve an issue for de novo re view in the district court “ or for appellate review ” in this court. See id . at 166 n.6 (emphasis added) (i nternal quotation marks omitted). Mr. Ziankovich also argues—without c itation to any authority—that if the defendants wanted to raise th e firm waiver issue on appeal , they needed to file a cross-appeal. He contends “t hey are not permitted to raise [the firm waiver issue] in [their] Response Brief, because it constitutes a new request fo r . . . appellate review.” Aplt. Reply Br. at 2. That assertion is not correct. An appellee may raise the firm waiver rule in a response brief w ithout filing a cross-appeal. In One Parcel , for example, we considered the appellee’s argument that the firm waiver rule should apply even though the district court had not applied the ru le and the appellee had not filed a cross appeal. See 73 F.3d at 1060. Mr. Ziankovich does not dispute the dist rict court’s determination that his objections were not sufficiently specific nor does he provide any other argument supported by the facts and the law to a void applying the firm waiver rule.

4 According to Mr. Ziankovich, the di strict court “reviewed the decision de facto under [the] de novo standard.” Aplt. Reply Br. at 2. That is Mr. Ziankovich’s subjective in terpretation of the district court’s decision. The district court expressly stated that it wa s reviewing the magistrate judge’s decision for clear error. See Aplt. App., Vol. 2 at 230, 231.9 Accordingly, we apply the firm waiver rule as a bar to appellate re view of the district court’s summary judgment decision and di smiss that portion of his appeal, which covers the first three issues. B. Appeal from the District Court’s Rule 60(b) Decision We next consider Mr. Zia nkovich’s appeal from the dist rict court’s denial of his Rule 60(b) motion, which we re view for abuse of discretion. See Davis v. Kan. Dep’t of Corr. , 507 F.3d 1246, 1248 (10th Cir. 2007). Mr. Ziankovich did not identify in his motion under which of the six subsections in Rule 60(b) he was seeking relief. The district court, howev er, construed his moti on as seeking relief under Rule 60(b)(1). That subsection permits relief from a judgment due to “mistake, inadvertence, surprise, or excusable negl ect.” Fed. R. Civ. P. 60(b)(1). In his motion, Mr. Ziankovich argued that the district court made a mistake by citing to a rule that did not exist in the Colorado Rules of Civil Procedure. He also argued that the district court clearly erre d in finding that OARC had jurisdiction to prosecute him and in finding th at the state agency could decide the question of its own jurisdiction, which he argued violated the test set forth in United States v. Utah Construction & Mining Co. , 384 U.S. 394, 422 (1966). Fi nally, he asserted that the district court clearly erred in determini ng that he was precluded from relitigating the issue of whether OARC had jurisdiction to discipline him because he was permitted to relitigate issu es of law. The district court denied the motion. The court first explained that Mr. Ziankovich was correct that it had “ina dvertently cited to Colorado Rule of Civil10 Procedure 8.5 when it meant to cite Colo rado Rule of Professional Conduct 8.5.” Aplt. App., Vol. 2 at 273. But the cour t further explained that this inadvertent citation mistake did not affect the cour t’s conclusion that “OARC’s regulatory jurisdiction includes attorney s licensed by other states who practice before federal courts and regulatory ag encies in Colorado.” Id . at 273-74. The court also rejected Mr. Ziankovich’s argument that it had violated the Utah Construction test, noting that the “test does not require this Court to first determine wh ether the agency has jurisdiction to reso lve the issue.” Id . at 275-76 (internal quotation marks omitted). 5 Finally, the district court explained that it properly relied on Te nth Circuit precedent
in Salguero v. City of Clovis , 366 F.3d 1168, 1173 (10th Cir. 2004), in concluding “that the State Disciplinary Action meets the Elliott test, and as such, under Colorado issue preclusion law, the Hearing Board’ s Amended Opinion, as affirmed by the Colorado Supreme Court, bars Plaintiff’s Fe deral Action, including the relitigating of subject matter jurisdiction.” Id . at 277. In doing so, the c ourt noted that “[n]either

5 The Supreme Court reiterated the Utah Construction test in University of Tennessee v. Elliott , 478 U.S. 788, 799 (1986), and so th e test is also referred to as the Elliotttest. We described the test as follows: [W]hen a state agency (1) acts in a “judicial capacity ”; (2) resolves “disputed issues of fact properly befo re it”; and (3) the parties have had an “adequate opportunity to litigate” the issue, we will grant the state agency’s decision preclusiv e effect to the extent that it would have received preclusive eff ect in state court. Salguero v. City of Clovis , 366 F.3d 1168, 1173 ( 10th Cir. 2004) (quoting Elliott , 478 U.S. at 799).11 Plaintiff’s argument nor his reliance on Fifth Circuit pr ecedent dispels the Court’s reasoning.” Id. On appeal, Mr. Ziankovich argues that the district court judge is biased against him because she rejected his Rule 60(b) arguments and refused to amend her summary judgment order even in indisputab ly mistaken parts. In particular, he asserts that the district court was require d to at least make corrections to the misstated rules, such as wher e the court cited to Colorado Rule of Civil Procedure 8.5 instead of Colorado Rule of Pr ofessional Conduct 8.5. He al so states that the district court judge has been “biased at least since January 2018, when the previous appeal in this case was filed.” Ap lt. Opening Br. at 30. “Normally, a party alleging judicial bias should move for r ecusal, and must do so in a timely fashion.” United States v. Nickl , 427 F.3d 1286, 1297 (10th Cir. 2005) (internal quotation marks omitted). Mr. Zia nkovich never filed a motion for recusal. But even considering his allegations of bi as, he only points to adverse rulings as evidence of bias and “adverse rulings . . . do not in themselves support a bias charge.” Id . at 1298. We have explained that “ [r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.” Davis , 507 F.3d at 1248 (internal quotation marks omitted). And we have fu rther explained that “[p]arties seeking relief under Rule 60(b) have a higher hurdl e to overcome because such a motion is not a substitute fo r an appeal.” Id . (internal quotation marks omitted).12 Mr. Ziankovich has failed to show that the district court abused its discretion in denying his Rule 60(b) motion. III. Conclusion We dismiss Mr. Ziankovich’s appeal from the district court’s summary judgment decision. We affirm the district court’s denial of his Rule 60(b) motion.

Entered for the Court Carolyn B. McHugh Circuit Judge