     Case: 15-60423      Document: 00513279431         Page: 1    Date Filed: 11/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 15-60423                        November 19, 2015
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
MERCEDES OCHOA-BUNSOW,

              Petitioner - Appellant

v.

COMMISSIONER OF INTERNAL REVENUE,

              Respondent - Appellee




                            Appeal from a Decision of the
                              United States Tax Court
                              TC Docket No. 21759-13


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:*
       Taxpayer Mercedes Ochoa-Bunsow brings this appeal to partially
unwind a settlement with the Commissioner of Internal Revenue. She argues
that her original attorney made a serious mistake when he stipulated that
$477,121 of Ochoa-Bunsow’s income from 2006 should be categorized as gross
receipts. We do not reach the merits of Ochoa-Bunsow’s complaints regarding



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-60423
her 2006 income. It is enough to say that the only possible error she has
identified falls at the feet of her counsel. We therefore affirm.
                                        I.
      The stipulation at issue was part of a package of 39 stipulations entered
into the record on the day of trial. The stipulations resolved all issues and
avoided trial.     Ochoa-Bunsow’s original attorney-of-record signed the
stipulations on her behalf.
      Before the settlement could be committed to a final decision, Ochoa-
Bunsow attempted to renegotiate at least one of the 39 stipulations. The
Commission declined to reopen negotiations and filed an opposed motion for
entry of decision based on the settlement reached on the day of trial.
      Ochoa-Bunsow—now with new counsel 1—objected to entry of decision
and moved to set aside the first of the 39 stipulations. Both filings cited
mistake and manifest injustice as grounds for disturbing the first stipulation.
According to Ochoa-Bunsow, her original attorney failed to understand the
character of certain payments she received in 2006. She states that these
payments were loans received in connection with a business venture that was
a total loss. The first stipulation instead categorized these payments as gross
receipts.
      In addition to these averments of mistake and manifest injustice, Ochoa-
Bunsow’s objection to entry of decision stated that her original attorney
entered into the first stipulation “without [Ochoa-Bunsow’s] full knowledge
and consent.” She did not submit testimony from either herself or her original
attorney on this alleged lack of knowledge and consent.




      1  Ochoa-Bunsow obtained new counsel around this time, although her original
attorney-of-record has never formally withdrawn.
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                                       No. 15-60423
       The tax court denied Ochoa-Bunsow’s motion to set aside the first
stipulation and granted the Commissioner’s motion for entry of decision over
her objection. Ochoa-Bunsow filed a motion to vacate the decision which the
tax court denied. 2 This appeal followed.
                                             II.
       We see no error in the tax court’s entry of decision enforcing all 39 of the
parties’ stipulations. The authority of Ochoa-Bunsow’s attorney-of-record to
enter into a settlement on her behalf is governed by federal law. See Fulgence
v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir. 1981) (federal law
determines the validity of a settlement agreement resolving federal claims);
see also United States v. Int’l Bhd. Of Teamsters, 986 F.2d 15, 20 (2d Cir. 1993)
(“In a case arising under federal law, the scope of an agent’s authority is
determined according to federal precedent.”). Under federal law, an attorney-
of-record is presumed to have settlement authority.                      See Quesada v.
Napolitano, 701 F.3d 1080, 1083 (5th Cir. 2012). Ochoa-Bunsow can rebut this
presumption, but it requires some evidentiary showing on her part. As the tax
court noted, Ochoa-Bunsow failed to support her filings with evidence.
Ordinarily, “disputed issues of the validity and scope” of a settlement
agreement—such as an attorney’s settlement authority—should be resolved by
an evidentiary hearing. See Mid-South Towing Co. v. Har-Win, Inc., 733 F.2d
386, 390–91 (5th Cir. 1984). But in this case, no dispute of fact was shown,
and the tax court did not abuse its discretion when it summarily enforced the
parties’ preexisting agreement. Cf. In re Deepwater Horizon, 786 F.3d 344, 354



       2Ochoa-Bunsow’s notice of appeal indicates that she seeks review of the tax court’s
order denying her motion to vacate the decision. But her arguments on appeal are directed
to the tax court’s order enforcing the settlement agreement. To the extent that Ochoa-
Bunsow believes the tax court abused its discretion when it refused to vacate its prior order,
she waived her arguments by failing to press them in her opening brief. See United States v.
Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).
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                                  No. 15-60423
(5th Cir. 2015) (a lower court’s decision to “summarily enforce a settlement
agreement [when] no material facts are in dispute” is reviewed for “abuse of
discretion only”). Indeed, that Ochoa-Bunsow seeks to disturb only one of 39
stipulations proves that her problem with her original attorney’s actions is not
that he exceeded the bounds of his authority, but that he committed her to a
position she does not wish to maintain.
      The tax court properly rejected Ochoa-Bunsow’s two alternative grounds
for upending the first stipulation. She contends that her attorney made a
mistake, but “a mistake by just one party to a stipulation of settlement is not
a sufficient ground to disregard the stipulation.” Revell v. Comm’r, 93 T.C.M.
(CCH) 913 (2007); see also Mid-South Towing, 733 F.2d at 391 (“[A] unilateral
mistake of fact is not a basis for avoidance of a settlement agreement . . . .”).
Nor is it clear that the deal struck on her behalf will work a manifest injustice.
As described by the Commissioner, the 39 stipulations that resolved this tax
dispute were interrelated and negotiated as a package; some stipulations broke
in the Commissioner’s favor and others benefitted Ochoa-Bunsow. In the end,
Ochoa-Bunsow agreed to pay $78,219.91 of a deficiency originally valued at
$233,519.55. That Ochoa-Bunsow might have been able to show that the 2006
payments were business loans rather than gross receipts, had she taken the
matter to trial, does not justify disturbing the parties’ original bargain. See
United States v. Armour & Co., 402 U.S. 673, 681–82 (1971) (recognizing that
“a compromise” agreement in which the each side “give[s] up something they
might have won had they proceeded with litigation” must be enforced according
to its terms rather than how “it might have been written had the plaintiff
established his factual claims and legal theories in litigation”).




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                               No. 15-60423
                                    III.
     To the extent Ochoa-Bunsow’s allegations about her counsel’s
performance have merit, she may have a basis for separate litigation against
him. But we find no legal grounds to undo the settlement he had authority to
enter into on her behalf and from which she has obtained some benefits.
     AFFIRMED.




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