                   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-
