                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                        MAR 29 2001
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                     No. 00-5187
 TIMOTHY LEE NIPPER, separately                   (D.C. No. 98-CV-526-K)
 and as trustee for the Proprietor                      (N.D.Okla.)
 Property Trust; THOMAS EUGENE
 NIPPER, as trustee for the Proprietor
 Property Trust and as nominee of
 Timothy Lee Nipper,

           Defendants-Appellants,

 and

 MELLON MORTGAGE COMPANY,
 as mortgagee,

           Defendant.


                                 ORDER AND JUDGMENT     *




Before HENRY , BRISCOE, and MURPHY, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined


       This order and judgment is not binding precedent, except under the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.
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.

       Timothy Lee Nipper and Thomas Eugene Nipper, appearing pro se, appeal

from the district court’s August 2, 2000, order which directed the sale of real

property. We dismiss the appeal as moot.

       The district court granted summary judgment to the United States in its

action to recover tax assessments by executing against real property. The

property originally was owned by Timothy, who quit-claimed the property to

Thomas. Thomas then quit-claimed the property to the Proprietor Property Trust.

Following the entry of summary judgment in favor of the United States, the

Nippers filed a motion pursuant to Federal Rule of Civil Procedure 59 to alter,

amend, or vacate the judgment. The district court denied the motion and the

Nippers appealed.    See United States v. Nipper , 2001 WL 109157 (10th Cir. Feb.

8, 2001) ( Nipper I ).

       On August 1, 2000, the United States moved for an order of sale. The

district court granted the motion and entered an order of sale on August 2, 2000.

On September 11, 2000, the Nippers appealed the order of sale (the present

appeal, Nipper II ) and filed a motion for stay of the sale pending the appeal. The

district court conditioned the granting of a stay upon the Nippers posting a


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supersedeas bond in the amount of $208,823.55 or showing cause why a bond

need not be posted or why a modified bond might be acceptable. The Nippers

did not file a notice of appeal from that order, did not post the supersedeas bond,

and did not succeed in convincing the district court that an appeal bond should

not be required in this case. The property was sold at public auction on January

16, 2001.

       In February 2001, we reversed the denial of the Nippers’ Rule 59 motion

and remanded for further proceedings in      Nipper I . We concluded that summary

judgment was inappropriate because the government had not met its initial

evidentiary burden for unreported income cases.

       In the present appeal ( Nipper II ), the Nippers argue that no bond was

required and that the bond requested was excessive. However, we do not reach

these issues because this appeal is moot. “The constitutional mootness doctrine

is grounded in Article III’s requirement that federal courts only decide ‘actual,

ongoing cases or controversies.’”    Phelps v. Hamilton , 122 F.3d 885, 891 (10th

Cir. 1997) (quoting Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990)).

“‘Generally, an appeal should be dismissed as moot when events occur that

prevent the appellate court from granting any effective relief.’”   Phelps , 122 F.3d

at 891 (quoting Thournir v. Buchanan , 710 F.2d 1461, 1463 (10th Cir. 1983)).

“The central question in determining whether a case has become moot is whether


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‘the issues presented are no longer “live” or the parties lack a legally cognizable

interest in the outcome.’”    Phelps , 122 F.3d at 891 (quoting   Powell v.

McCormack , 395 U.S. 486, 496 (1969)).

       Here, even if we agreed that the district court abused its discretion in

ordering the Nippers to post a bond in order to obtain a stay, there is no relief to

be granted to the Nippers. The property has been sold.        See Holloway v. United

States , 789 F.2d 1372, 1373-74 (9th Cir. 1986) (dismissing appeal as moot

because property had been sold). The purchaser is not a party to this action.

This pleading deficiency further inhibits our ability to grant the Nippers the

ultimate relief they seek – the return of their property.    See id. at 1374. Further,

the Nippers do not argue on appeal that the district court abused its discretion in

setting the terms and conditions of sale in its order of sale; they argue instead

that the court improperly conditioned the grant of a stay upon their posting of a

supersedeas bond. The Nippers’ failure to file a notice of appeal from the district

court’s order to post the supersedeas bond deprives us of jurisdiction over issues

pertaining to the bond. Fed. R. App. P. 3(c). In addition, as the sale has

occurred, any challenge to the court’s order requiring the posting of a bond is

moot. See Horstkoetter v. Dep’t of Public Safety        , 159 F.3d 1265, 1276-77 (10th

Cir. 1998).

       We DISMISS this appeal as moot.


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    Entered for the Court

    Mary Beck Briscoe
    Circuit Judge




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