UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SECURITIES AND EXCHANGE COMMISSION, Plaintiff - Appellee,

v. BIRTE BOOCK and IRWIN BOOCK Defendant - Appellan t

. No. 18-1321 (D.C. Nos. 00-cv-1921-LTB-PAC and 1:00-CV-01921-LTB-PAC) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , MCHUGH , and CARSON , Circuit Judges. **

________________ _________________ Pro se Defendants Birte Boock and Irwin Boock 1 appeal from the district court’s denial of their motions for recons ideration of the district cou rt’s 2018 order on their

* This order and judgment is not b inding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cit ed, however, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32. 1.

** After examining the appellant’s brief and appellate record, thi s panel has determined unanimously that oral argument wo uld not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is th erefore ordered submitted without oral argument.

1 Because Defendants are proceedi ng pro se, we review their plead ings and filings liberally. See Haines v. Kerne r, 404 U.S. 519, 520–21 (1972). FILED United States Court of Appeals Tenth Circuit 

### February 11, 2019
Elisabeth A. Shumaker Clerk of Court2 Federal Rule of Civil Procedur e (“Rule”) 60(b) motions. 2 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the d istrict court’s denial of Defe ndants’ motions for reconsideration.
I. In 2000, Plaintiff the Securities and Exchange Commission (“SEC ”) filed this civil action in the district court, a lleging that Defendants and Leah Industries, Inc. committed securities fraud by misrepresentin g Leah Industries’ relationsh ips with international accounting firms while selling L eah’s stock. In 2002, the dist rict court entered a default judgment against Leah Industri es. Meanwhile, the Boocks settle d and entered into Consent Agreements. F ollowing the entry of the Consent Agreeme nts, the Boocks filed Rule 60(b) motions. In those mo tions, they argued that the dis trict court should relieve them of the Consent Agreements b ased on Birte Boocks’ alleged “ Post Traumatic Stress Syndrome.” The district court de nied the initial Rule 60(b) mo tions in 2003. The Boocks did not appeal.

2 Defendants’ joint notice of appe al designates the order they se ek to appeal as the order denying Irwin Boocks’ motion fo r reconsideration. It fails to designate the similar order denying Birte Boocks ’ motion for reconsid eration. We note Birt e Boocks filed a motion to reconsider the district cour t’s denial of her application to proceed in forma pauperis on appeal within the thirty days aft er the district court denied h er motion for reconsideration. Because Birte Boocks is proceedi ng pro se, we construe her plea dings and filings liberally. We thus construe he r motion to reconsider the den ial of her motion for leave to appeal in forma pauperis as the functional equivalent of a notice of appeal. See, e.g., Smith v. Barry, 502 U .S. 244, 248–49 (1992 ) (concludi ng a docum ent filed within the time specified in Federal Rule o f Appellate Procedure 4 that gi ves notice required by Federal Rule of Appellate Proced ure 3 may be construed as the “ functional equivalent” of a notice of appeal); see also Fleming v. Evans, 481 F.3d 1249, 1253–54 (10th Cir. 2007) (concluding that an in forma pauperis motion may be construed as the “functional equivalent” of a notice of appeal).3 In 2017, the Boocks filed a se cond pair of Rule 60(b) motions. This time the Boocks again raised Birte Boocks ’ alleged “Post Traumatic Stres s Syndrome.” They also asserted new allegations that th e SEC failed to disclose a witn ess’s misconduct— specifically, embezzlement—and that the district judge was bias ed against them for being Canadian. 3 In denying the motions and the subsequent motions for reconsi deration, the district court generally held th at the Boocks did not make thei r motions within a reasonable time as required by Ru le 60(c). The district court also concluded that the motions lacked merit based on a lack of evidence. On appeal, t he Boocks raise the same arguments that they presented to the district court.
II.
A. A district court “has substantia l discretion to grant relief as justice requires under Rule 60(b).” Fed. Deposit Ins. C orp. v. United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998). Accordingly , we reverse the district court’s rulin g on a Rule 60(b) motion only when the district court enga ges in a “manifest abuse of di scretion.” Sec. Mut. Cas. Co. v. Century Cas. C o., 621 F.2d 1062, 10 68 (10th Cir. 1980). “A district court would necessarily abuse its discretion if it based its ruling on an e rroneous view of the law or on a clearly erroneous assessment of the evidence.” Fed. Deposit Ins. Corp., 152 F.3d at
1272.

3 Defendants also argued to the dis trict court that because they violated a provision of the consent agreements, the Consent Agreements no longer stand. Th e district court noted that the SEC does not seek to vacate the final judgments for an y violations. As a result, they are not void. Defendants did not appeal this holding.4 In contrast, where a party move s for relief on the basis that a judgment is void pursuant to Rule 60(b)(4), we appl y the de novo standard of rev iew. Marcus Food Co. v. DiPanfilo, 671 F.3d 1 159, 1166 (10th Cir. 2 011). Where a party properly invokes Rule 60(b)(4), “relief is not a discreti onary matter” but instead is “mandatory.” Id. Rule 60(c)(1) provides that a par ty must make Rule 60(b) motion s “within a reasonable time.” Fed. R. Civ. P . 60(c)(1). We have ruled, ho wever, that any time period preceding the filing of a Rule 60(b)(4) motion is reasonable as a matter of law because such a motion claims that the underlying judgment is void ab initio . V.T.A. Inc. v. Airco, Inc., 597 F.2d 220, 2 24 n.9 (10th Cir. 1979 ). Regardless, a mo tion under Rule 60(b)(4) “is not a substitute for a timely appeal.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010). Indeed, “the concept of setting aside a judgment on voidness grounds is narrowly restricted” in the “interest of finality.” V.T.A. Inc., 597 F.2d at 225.
B. The district court did not err i n denying the Rule 60(b) motion s regarding the Boocks’ argument that Birte Boo ck suffered from post-traumatic stress syndrome, which in turn tainted the Consent Agre ements. The Boocks first broug ht this argument in their 2003 Rule 60(b) motions and the Boocks did not appeal the rulin g. A successive Rule 60(b) motion is an “inappropriate vehicle[] to reargue an issue previously addressed by the court when the motion mere ly advances new arguments, or sup porting facts which were available at the time of the original motion.” Servants o f Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “ Absent extraordinary circum stances, not present here, the basis for the second motion mu st not have been available at the time the first motion5 was filed.” Id. Because the basis for this relief was availab le to the Boocks when they brought their first motion, the d istrict court pr operly denied the second Rule 60(b) motion on this ground.
C. The district court also did not err in denying t he Boocks’ moti ons to the extent they invoked Rule 60(b)(4). The Boocks first assert the Consen t Agreements are void because the SEC knew that “thei r chief witness” had embezzled f unds from Leah Industries and the SEC did not re veal that fact to the Court an d to the Boocks. The Boocks additionally allege the SEC was aware of these stolen fu nds, yet accused the Boocks of having thes e funds as gain. The Boocks posited to the distric t court that new evidence prov ed malicious prosecution by the SE C. They did not, how ever, provide the dis trict court with the alleged new evidence. 4 We agree with the district c ourt that the Boocks have failed to show the SEC lacked probable caus e to initiate the action again st them or that the SEC harbored malice towards them. Second, the Boocks contend the Co nsent Agreement is void becau se the district judge displayed bias against the m when he allegedly referred to them as “UnAmerican due to [their] Canadian attorney not complying with a request t hat was against Canadian

4 Perhaps aware of this deficien cy, on February 5 , 2019, the Booc ks filed a motion in this Court for discovery pursuant to Rule 37. Specifically, the Boo cks request evidence that they believe will show that Plai ntiff committed a fraud upon th e Court. Even if the SEC has the information Plaintiff n ow seeks, “new evidence not subm itted to the district court is not properly part of the reco rd on appeal.” Utah v. U.S. De pt. of Interior, 535 F.3d 1184, 1195 n.7 (10th Cir. 2008). W e deny the Booc ks’ February 5, 2019 motion.6 Rules of Procedure.” The distric t court noted the last exchang e it had with the Boocks occurred in 2003. The B oocks have not cited to any actual evid ence regarding this alleged exchange in which the district judge referred to them a s “un-American.” Accordingly, we agree with the district cour t that the Boocks h ave failed to present any evidence showing the Cons ent Agreements are void. 5
III. Accordingly, we AFFIRM. Entered for the Court

Joel M. Carson III Circuit Judge

5 For substantially the reasons sta ted by the district court, we conclude this appeal is not taken in good faith and that th e Boocks have failed to show the existence of a reasoned, nonfrivolous argument on the law and facts in support of the is sues raised on appeal. Therefore, we deny the appellants' motion seeking leave to proc eed in forma pauperis on appeal. Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077 , 1079 (10th Cir. 2007) (citing 28 U.S.C. § 1915(a)(3), (e)(2)).