                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          MAR 17 2003
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 BOBBY DON VANCE,

               Plaintiff - Appellant,
                                                         No. 02-6346
         v.                                       (D.C. No. CIV-02-1327-C)
                                                      (W. D. Oklahoma)
 UNITED STATES OF AMERICA,

               Defendant - Appellee.


                            ORDER AND JUDGMENT


Before EBEL , HENRY , and HARTZ , Circuit Judges.


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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). 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 This order and judgment is not binding precedent, except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.

        In 1999 the United States District Court for the Western District of

Oklahoma reduced to judgment Plaintiff Bobby Don Vance’s federal income tax
liability for tax years 1976 through 1989. United States v. Vance, No. 97-CV-

1819 (W.D. Okla. Aug. 17, 1999) (“Vance I”). As part of that judgment, the

court authorized foreclosure of liens against Plaintiff’s property. We affirmed,

stating: “We have thoroughly reviewed Mr. Vance’s appeal, the record, and the

district court’s orders. It is clear that the district court carefully considered

Mr. Vance’s arguments, including his meritless tax-protest claims. The district

court properly . . . [entered] judgment [in favor of the Government].” United

States v. Vance, No. 99-6291, 2000 WL 717087, at **2 (10th Cir. June 2, 2000).

A marshal’s sale was scheduled for October 9, 2002.

      Approximately two weeks before the marshal’s sale, Plaintiff filed a second

lawsuit. In that suit Plaintiff alleged that the Government did not have a rightful

claim to his property because the judgment in Vance I had been procured by

fraud, in that a government attorney had knowingly produced false writings with

the intent that the court rely on them, and that the court had in fact relied upon

those false writings. He also alleged that the Government had wrongfully

requested an amount more than or different from the amount appearing on the

records of assessment, and that the records themselves were invalid because the

IRS had failed to follow the assessment procedures set forth in 26 C.F.R.

§ 301.6203-1. Plaintiff requested an order compelling the Government to return




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his property, and he sought to enjoin the Government from selling the property

before the dispute was resolved.

      The district court denied Plaintiff’s motion for preliminary injunction and

dismissed his case because: (1) the Declaratory Judgment Act, 28 U.S.C. § 2201,

and the Anti-Injunction Act, 26 U.S.C. § 7421, barred the action; (2) Plaintiff’s

claims constituted a collateral challenge to the judgment in Vance I and were

therefore barred by res judicata; (3) Plaintiff’s claims under Federal Rule of Civil

Procedure 60(b)(3) could be brought only in the proceeding that gave rise to the

judgment being challenged; and (4) Plaintiff’s allegations of fraud upon the court

were too conclusory.

      Plaintiff’s argument on appeal includes what is essentially a

recharacterization of the allegations of his complaint. He asserts that the district

court allowed the Government to pursue its claim despite the court’s knowledge

that the claim was barred by the statute of limitations, that the district court

knowingly and wrongfully allowed the Government to pursue a judgment for more

than the amount shown on the summary records of assessment, that the district

court was on notice that the Government never produced valid assessments, and

that the only documents that the district court relied upon in making its decision

were fabricated by a government attorney.




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      Plaintiff also raises several new arguments in his brief on appeal: (1) there

was never a notice of levy; (2) when enforcing the judgment, government agents

did not comply with Oklahoma law; and (3) the taking of Plaintiff’s property was

illegal because a minimum bid price was never established. We do not address

these arguments because our review of the record indicates that they were not

raised in the district court. MacArthur v. San Juan County, 309 F.3d 1216, 1225

(10th Cir. 2002).

      In his reply brief Plaintiff belatedly responds to two of the grounds relied

upon by the district court to support the dismissal. First, he asserts that the Anti-

Injunction Act does not bar his claim because it does not apply when (1) the

Government could not have prevailed and (2) absent relief, Plaintiff would suffer

irreparable harm. See Enochs v. Williams Packing & Navigation Co., Inc., 370

U.S. 1, 7 (1962). Plaintiff appears to argue that the Government could not have

met its burden of proof (i.e. could not have prevailed) because it could not have

produced valid assessments and a notice of levy. Second, he seems to claim that

the doctrine of res judicata does not apply because the judgment in Vance I is

void for lack of subject matter jurisdiction. Because neither argument was raised

in Plaintiff’s opening brief, we need not address them, see Stump v. Gates, 211

F.3d 527, 533 (10th Cir. 2000) (court will not review issue first raised in reply

brief); but in any event they are patently frivolous.


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      Whether the Declaratory Judgment and Anti-Injunction Acts bar Plaintiff’s

claim is a question of law that we review de novo. See Rosette Inc. v.

United States, 277 F.3d 1222, 1226 (10th Cir. 2002) (“The construction and

applicability of a federal statute is a question of law, which we review de novo.”).

The district court’s conclusion that Plaintiff’s claim is barred by the doctrine of

res judicata is also reviewed de novo. Wilkes v. Wyoming Dep’t of Employment

Div. of Labor Standards, 314 F.3d 501, 503 (10th Cir. 2002). The court’s failure

to set aside the judgment for fraud upon the court, however, is reviewed for abuse

of discretion. United States v. Buck, 281 F.3d 1336, 1342-43 (10th Cir. 2002).

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      For substantially the same reasons stated in the district court’s order, we

agree that to the extent Plaintiff sought declaratory and injunctive relief, his

claims were barred by the Anti-Injunction Act and the Declaratory Judgment Act.

We also agree with the district court, again for substantially the same reasons

stated in its order, that “Plaintiff’s claims are nothing more than a collateral

challenge to the underlying judgment and so are barred by res judicata.” Vance v.

United States, No. CIV-02-1327-C, slip op. at 4 (W.D. Okla. Oct. 17, 2002).

      Finally, we hold that the district court’s dismissal of Plaintiff’s fraud claim

was appropriate, although for slightly different reasons from those expressed in

the court’s order. The district court characterized Plaintiff’s fraud claim as either


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a challenge under Federal Rule of Civil Procedure 60(b)(3), or an allegation that

the judgment in Vance I was procured by fraud upon the court. Id. at 3. We need

not address the 60(b)(3) issue because Plaintiff asserts in his reply brief that he

was not proceeding under that rule. As the district court recognized, a litigant

may bring a fraud-against-the-court claim outside of Rule 60(b)(3). This can be

done either by bringing an independent action or by “invok[ing] the inherent

power of a court to set aside its judgment if procured by fraud upon the court.”

Buck, 281 F.3d at 1341. In either event, when fraud is alleged, it must be pleaded

with particularity. Fed. R. Civ. P. 9(b). Plaintiff’s conclusory allegations that a

government attorney “advanced writings which . . . [he] knew were false,” ROA

at 1, that the records relied upon were “fraud fabricated by [the Government],”

ROA at 24, and that the property was encumbered by “fraud perpetrated by [the

Government],” ROA at 25, do not satisfy this standard. Accordingly, the district

court (although not specifically referencing Rule 9(b)) correctly dismissed

Plaintiff’s complaint for failure to describe specifically the fraudulent acts

forming the basis of his claim.

      We AFFIRM.

                                        ENTERED FOR THE COURT

                                        Harris L Hartz
                                        Circuit Judge



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