Mathis v. Skaluba

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 18 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

RODGER E. MATHIS;
JEANETTE D. MATHIS,

Plaintiffs-Appellants,

v. No. 03-8029
(D.C. No. 02-CV-102-B)
FRED SKALUBA; RICHARD (D. Wyo.)
HARDMAN; UNITED STATES OF
AMERICA,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR , Circuit Judge, BRORBY , Senior Circuit Judge, and
HENRY , Circuit Judge.

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.

*
This order and judgment is not binding precedent, except under the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.
 Rodger and Jeanette Mathis filed this action in Wyoming state court

challenging the Internal Revenue Service (IRS) levying funds in their bank

accounts. Defendants removed the case to federal court. In this appeal, the

Mathises assert the district court erred in refusing to remand their case to state

court and, instead, dismissing their claims. We affirm.

As an initial matter, we have appellate jurisdiction to review both the

district court’s January 28, 2003 final decision denying remand and dismissing all

the Mathises’ claims, as well as the district court’s later decision denying the

Mathises’ Fed. R. Civ. P. 60(b) motion to vacate that final decision. The

Mathises did file their notice of appeal beyond the sixty days normally allotted for

appealing a final decision entered in an action involving the United States or its

officers. See Fed. R. App. P. 4(a)(1)(B). Nonetheless, in this case, the district

court did not file a separate entry of judgment with that January 28, 2003

decision. See Fed. R. Civ. P. 58(a). In light of that, the Mathises actually had

150 days to file their notice of appeal. See Fed. R. Civ. P. 58(b)(2)(B). They did

so within that time frame, on April 7, 2003, following the district court’s order

denying their Rule 60(b) motion to vacate. That notice of appeal, therefore, was

sufficient to vest this court with jurisdiction to review both district court

decisions.

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 We, then, review the district court’s decision denying remand and

dismissing the Mathises’ claims de novo , see, e.g., Karnes v. Boeing Co. ,

335 F.3d 1189, 1193 (10th Cir. 2003) (reviewing decision denying remand);

Wyoming v. United States , 279 F.3d 1214, 1222 (10th Cir. 2002) (reviewing

dismissal under Fed. R. Civ. P. 12(b)(1), (6)), and its decision denying the

Mathises’ Rule 60(b) motion for an abuse of discretion, see, e.g., LaFleur v. Teen

Help , 342 F.3d 1145, 1153 (10th Cir. 2003). For substantially the reasons stated

in those decisions, we affirm the district court’s denying a remand to state court,

dismissing without prejudice any claim the Mathises presented seeking a tax

refund, and dismissing the rest of the Mathises’ claims with prejudice.

In doing so, we address only one appellate argument further. The Mathises

assert the district court’s conclusion that removing this state-court action to

federal court was proper was inconsistent with its then dismissing those claims, in

part, for lack of subject-matter jurisdiction, based on the United States’ sovereign

immunity. The district court’s conclusions, however, are not inconsistent. See,

e.g., Wyoming , 279 F.3d at 1225 (noting general-jurisdiction statutes do not waive

United States’ sovereign immunity); Fostvedt v. United States , 978 F.2d 1201,

1202-03 & 1203 n.2 (10th Cir. 1992) (same).

A federal court has subject-matter jurisdiction generally to hear federal-law

claims, including those involving internal revenue, asserted against, among

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others, the United States and its officers. See 28 U.S.C. §§ 1331, 1340, 1345,

1346(a). Removal, therefore, was proper. See id. , §§ 1441(a) and (b), 1442(a)(1).

Once in federal court, however, the Mathises had the burden of establishing that

the United States had waived its sovereign immunity and was, thus, amenable to

the Mathises’ claims. See, e.g., Fostvedt , 978 F.2d at 1203. The Mathises,

however, failed to meet that burden. See Guthrie v. Sawyer , 970 F.2d 733, 735

(10th Cir. 1992) (holding taxpayer challenging IRS activities in sending

deficiency or assessment notice must bring suit under statute that waives United

States’ sovereign immunity).

Appellants’ remaining arguments lack merit. The judgment of the district

court is, therefore, AFFIRMED. Appellant’s “Petition for Declaratory Relief,”

filed with this court, is DENIED. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby
Senior Circuit Judge

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