* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 18 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RODGER E. MATHIS; JEANETTE D. MATHIS,

Plaintiffs-Appellants,

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

ORDER AND JUDGMENT *

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

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.-2-

Rodger and Jeanette Mathis filed this action in Wyo ming state court challenging the Internal Revenue Service (IRS) levy ing funds in their bank accounts. Defendants removed the case to federal c ourt. In this appeal, the Mathises assert the district court erred in refusin g to remand their case to state court and, instead, dismissing their claims. We af firm. As an initial matter, we have appellate jurisdictio n to review both the district court’s January 28, 2003 final decision de nying 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 th at 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 inv olving 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 wit h that January 28, 2003 decision. See Fed. R. Civ. P. 58(a). In light of that, the Math ises 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, follow ing the district court’s order denying their Rule 60(b) motion to vacate. That no tice of appeal, therefore, was sufficient to vest this court with jurisdiction to review both district court decisions.-3-

We, then, review the district court’s decision deny ing remand and dismissing the Mathises’ claims de novo , see, e.g., Karnes v. Boeing Co. , 335 F.3d 1189, 1193 (10th Cir. 2003) (reviewing dec ision 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)), andits 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’ cl aims with prejudice. In doing so, we address only one appellate argumentfurther. The Mathises assert the district court’s conclusion that removin g 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, base d 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 gen erally to hear federal-law claims, including those involving internal revenue, asserted against, among-4-

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 th e burden of establishing that the United States had waived its sovereign immunityand 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 und er statute that waives United States’ sovereign immunity). Appellants’ remaining arguments lack merit. The ju dgment of the district court is, therefore, AFFIRMED. Appellant’s “Petiti on for Declaratory Relief,” filed with this court, is DENIED. The mandate shal l issue forthwith.

Entered for the Court

Wade Brorby Senior Circuit Judge