United States v. Simons , 82 F. App'x 14 ( 2003 )


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  •                    UNITED STATES COURT OF APPEALS
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Counter-
    Defendant-Appellee,
    v.                                                     No. 02-4201
    DAN C. SIMONS and SALLY J.
    SIMONS, individually and as trustees
    of the Dan C. Simons Equity Trust,
    Defendants-Counter-
    Claimants-Appellants,
    and
    JOLENE J. SMITH, as trustee of the
    Charlemagne Trust; FIRST CITY
    CORP.; HAROLD MARK SIMONS,
    Defendants-Counter-
    Claimants.
    ORDER
    Filed January 22, 2004
    Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.
    This matter is before the court on appellant’s petition for a panel rehearing
    of the order and judgment issued December 2, 2003. The petition presents four
    requests for relief. The panel denies all but the last, which asks the court to
    delete part of a passage quoting from the district court transcript.
    The original order and judgment is, accordingly, vacated and replaced with
    the amended order and judgment attached to this order.
    Entered for the Court
    PATRICK FISHER, Clerk
    By:
    Deputy Clerk
    -2-
    F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 22 2004
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Counter-
    Defendant-Appellee,
    v.                                                 No. 02-4201
    (D.C. No. 92-CV-1071-B)
    DAN C. SIMONS and SALLY J.                          (D. Utah)
    SIMONS, individually and as trustees
    of the Dan C. Simons Equity Trust,
    Defendants-Counter-
    Claimants-Appellants,
    and
    JOLENE J. SMITH, as trustee of the
    Charlemagne Trust; FIRST CITY
    CORP.; HAROLD MARK SIMONS,
    Defendants-Counter-
    Claimants.
    ORDER AND JUDGMENT          *
    Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist 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.
    Defendants appeal from a consent judgment dismissing the government’s
    case against them pursuant to an executed and satisfied settlement. We hold that
    defendants waived their right to appeal the matters they now attempt to raise and
    affirm.
    The government filed this action to reduce a tax assessment to judgment.
    The parties eventually agreed to settle all claims in exchange for $55,000. When
    defendants reneged on the payment and instead moved to dismiss the action, the
    district court held a hearing on the motion to dismiss as well as a pending motion
    for summary judgment from the government. At the hearing, the court informed
    defendants that it was ready to grant the government’s summary judgment motion
    but, in the interest of closure, it afforded defendants one last opportunity to end
    the litigation by allowing them ten days to honor their obligation under the
    settlement agreement. Defendants paid the $55,000 and submitted an order
    dismissing the action. The court entered the order and closed the case. Fifty-nine
    days later, however, defendants filed this appeal challenging the order they had
    drafted and the resultant judgment it entailed.
    -2-
    It is a well-accepted rule that a party to a consent judgment waives any
    objection to matters within the scope of the judgment.       Mock v. T.G. & Y. Stores
    Co. , 
    971 F.2d 522
    , 526 (10 th Cir. 1992) (collecting cases). If the party’s appeal
    “represents no more than a retroactive attempt to undo consent properly given,”
    summary affirmance is appropriate.       
    Id.
     at 526 n.5 (quotation omitted). The rule
    does not apply, however, if “lack of actual consent, fraud in obtaining consent,
    lack of federal jurisdiction, or mistake are shown,”      
    id.
     , or if the party expressly
    reserved the right to appeal,   
    id. at 527
    . The government argues persuasively for
    applying waiver here, noting the overlap between the substance of the appeal and
    the matters necessarily encompassed within the consent judgment, and also
    anticipating and refuting defendants’ attempts to invoke exceptions to
    enforcement of the consent judgment.
    The government contends, correctly, that defendants did not reserve a right
    to appeal in either the consent decree or the underlying settlement agreement.
    At certain points in their briefing defendants suggest the district court “promised”
    them that they would be able to appeal after they complied with the settlement
    agreement. Our reading of the court's comments leads us to the opposite
    conclusion. The obvious thrust of the court's comments is that defendants had
    come to a crossroad where they could put an end to the protracted litigation by
    complying with the settlement they had agreed to         or suffer the entry of a far more
    -3-
    costly summary judgment,    appeal that ruling , and continue the legal process into
    the incalculable future:
    Mr. Simons, I am disappointed in you. You can honor this
    agreement and pay maybe half of what they are going to assess       if
    I enter this order [granting the government’s motion for summary
    judgment] ten days from now, and then you can go ahead and appeal
    that to the Tenth Circuit . . .
    So I want to make it clear, I am enforcing the settlement
    agreement at the present time requiring the parties to comply with the
    $55,000 amount that was agreed to after a settlement was entered
    into following our last meeting.     If the defendant , Mr. Simons,
    continues to refuse to honor his binding agreement then       the
    alternative for this Court will be to grant summary judgment for the
    United States and then the matter can continue in its legal process    .
    Aplt. App. III at 411c (emphasis added). Defendants’ reading misses the court’s
    point, which is to contrast the closure to be achieved through compliance with the
    agreement and the interminable litigation to be expected from repudiation.
    The government also convincingly explains why defendants would have no
    basis to claim lack of consent or mistake with respect to the parties’ settlement
    agreement and the court’s resulting judgment. The handwritten original draft of
    the agreement is fairly reflected in the consent judgment, which defendants
    themselves prepared for the court to sign.
    Finally, the government notes that this action to reduce a tax assessment to
    judgment clearly falls within the broad grant of jurisdiction to the district courts
    over matters arising under the internal revenue laws. 
    28 U.S.C. §§ 1340
     & 1345;
    
    26 U.S.C. § 7402
    (a); see United States v. Anderson , 
    584 F.2d 369
    , 370 (10 th Cir.
    -4-
    1978); United States v. Scherping , 
    187 F.3d 796
    , 798 (8 th Cir. 1999). Defendants
    resist this point by asserting various objections to the government’s case and
    characterizing these as jurisdictional deficiencies. Defendants do not, however,
    substantiate their jurisdictional arguments with relevant legal authority. Their
    most transparent argument in this respect is that, accepting their view on the
    merits, they owe no taxes, there is thus no lost revenue involved, and, hence, the
    government lacks the legal injury necessary to have standing. This reasoning,
    which rests on the tacit premise that standing is not established unless and until
    the case is won on the merits, would effectively transform every action by the
    government to collect taxes into a jurisdictional dispute over standing.
    Defendants do not cite any authority supporting this facially implausible notion.
    Moreover, their invocation of res judicata and collateral estoppel to support their
    position on the merits does not introduce any jurisdictional element into the case;
    these are mere affirmative defenses.      See Kenmen Eng’g v. City of Union   ,
    
    314 F.3d 468
    , 479 (10 th Cir. 2002); Rekhi v. Wildwood Indus., Inc.     , 
    61 F.3d 1313
    ,
    1317 (7 th Cir. 1995).
    Defendants also try to attribute jurisdictional status to their objection that
    the government’s collection effort here fell outside the statute of limitations.
    The case law, however, treats the relevant limitations provision like most statutes
    of limitation, as just another affirmative defense subject to waiver.    See, e.g. ,
    -5-
    United States v. McGee , 
    993 F.2d 184
    , 187 (9 th Cir. 1993); United States v.
    Gurley , 
    415 F.2d 144
    , 147 (5 th Cir. 1969). Indeed, we recognized that a statute
    of limitations defense may be defeated through private agreement by the
    parties–something that cannot be done with respect to jurisdictional
    deficiencies–in this very case on a prior appeal.         See United States v. Simons ,
    
    129 F.3d 1386
     (10 th Cir. 1997). Defendants ignore this authority and, instead,
    cite a case holding that a statute of limitations relating to a suit     against the
    federal government is jurisdictional.       See Sisseton-Wahpeton Sioux Tribe v.
    United States , 
    895 F.2d 588
    , 592 (9th Cir. 1990). But that case simply reflects
    the unique status of limitation provisions that qualify a waiver of sovereign
    immunity when the government is sued, which are imbued with the jurisdictional
    character of the underlying immunity itself.         See, e.g. , Hoery v. United States ,
    
    324 F.3d 1220
    , 1221 (10 th Cir. 2003); Dahn v. United States , 
    127 F.3d 1249
    ,
    1252 (10 th Cir. 1997). Obviously this principle has no application here.
    It is readily apparent that the objections defendants now raise in an effort to
    escape the binding effect of the settlement agreement and resultant consent decree
    constitute the very substance of the case that they agreed to settle. These are
    precisely the “matters within the scope of the judgment” to which the settling
    party is deemed to have waived objection, rendering affirmance the appropriate
    disposition of the appeal.     Mock , 
    971 F.2d at
    526 & n.5 (quotation omitted).
    -6-
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    -7-