UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BILLY MELOT, Plaintiff - Appellant,

v. LEE ROBERSON; UNITED STATES OF AMERICA; BOBBY SHAW, Defendants - Appellees. No. 15-2234 (D.C. No. 2:15-CV -00235-LH-CG) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________ This appeal marks Billy Melot’ s latest effort to undo the judicial sale of his real and personal property, the pr oceeds of which were applied to his outstanding tax liabilities. Through multiple proceedings, Mr. Melot, who is presently in prison for federal tax crimes, has unsuccessfully challeng ed district court orders that reduced his outstanding tax liabilities to judgment, author ized the government to foreclose its tax liens on his property, appointed defendant Bo bby Shaw as receiver, and confirmed the

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 14, 2016
Elisabeth A. Shumaker Clerk of Court2 sale of the property to defe ndant Lee Roberson. In a prev ious appeal, we explained to Mr. Melot that his claims seek ing to invalidate the sale are moot because the property was already sold to Mr. Robers on in July 2014. Nevertheless, in this action, Mr. Melot, proceeding pro se, once again attempts to invalidate the sale and quiet title to the property. 1 He also seeks monetary damages fo r what he claims was the fraudulent transfer of his property. As we previously explained, however, Mr. Melot’s efforts to invalidate the sale are moot. And, to th e extent he seeks other relief against the government, his claims are barred by soverei gn immunity. As for his claims against Mr. Shaw and Mr. Roberson, they are foreclosed by res judicata. For these reasons, we affirm the dismissal of Mr. Melot’s suit.
I The orders Mr. Melot is attempting to ch allenge were issued in another case, United States v. Melot , No. 09-CV-752-JCH-WPL (D.N.M.) (“ Melot I ”). In that case, the government sued Mr. Melot and his wife, Ka therine Melot, who together owed millions of dollars in unpaid taxes. The governme nt sought to reduce their outstanding tax assessments to judgment and foreclose fede ral tax liens on real and personal property owned by the Melots or their nominees or tran sferees. On January 6, 2012, the district court granted the government’s requests. See R. at 67 ( Melot I , Doc. 141, slip op. at 27). The court then appointed Mr. Shaw as receiver to coordinate the sale, and, once Mr. Shaw found a buyer, entere d an order on December 9, 2013, confirming the sale of

1 We afford Mr. Melot’s pro se pleadi ngs a liberal constr uction but do not act as his lawyer. See United States v. Pinson , 584 F.3d 972, 97 5 (10th Cir. 2009).3 the property to Mr. Robe rson within thirty days, Melot I , Doc. 411, slip op. at 1-4. The Melots appealed, contesting their tax assess ments and the methodolog y used to calculate them, as well as the validity of the government ’s tax liens and Mr. Shaw’s qualifications to serve as receiver, among othe r things. We rejected their arguments and affirmed the district court. United States v. Melot , 562 F. App’x 646, 65 4 (10th Cir. 2014). Closing of the sale was dela yed, however, and the distri ct court’s order confirming the sale expired, because Mrs. Melot refused to vacate one of the parcels of real property. When she eventually re located, the district court entere d an amended order re-confirming the sale on June 30, 2014. R. at 32-35 ( Melot I , Doc. 448, slip op. at 1-4). The sale closed on July 17, 2014, and on that date, Mr. Shaw delivered to Mr. Roberson a Receiver’s Deed for real property, water ri ghts, and certain designated equipment. Id. at 27-31. Again, the Melots appealed, and agai n we affirmed, holding that the appeal was moot to the extent it challenged the sale beca use “[w]e . . . cannot grant any relief that would have the effect of invalidating the sale.” United States v. Melot , 606 F. App’x 930, 932 (10th Cir.), cert. denied , 136 S. Ct. 86 (2015). While these latter even ts played out in Melot I , Mr. Melot initiated a second case in New Mexico state court on June 19, 2014, seeking to qui et title to the property and cancel the government’s tax liens. After th e government removed the case to federal court, the district court dismissed the suit fo r lack of subject matter jurisdiction, ruling that any attempt to enjoin the government from foreclosi ng its liens, which already had been adjudicated in Melot I , was barred by the Anti-Injuncti on Act, 26 U.S.C. § 7421. See Melot v. United States , No. 14-CV-0687-LAM-GBW, slip op. at 5-6 (D.N.M. Nov.4 19, 2014) (“ Melot II ”). Although Mr. Melot denied that he was attempting to invalidate the sale, the district court ruled that any a ttempt to do so would be inappropriate because the proper forum to ra ise such a challenge would have been in Melot I

. Notwithstanding these adverse judgments, M r. Melot returned to the district court and initiated this action with a pleading en titled, “Complaint to Recover for Monetary Loss and to Quiet Title and Occupy.” R. at 6. He named as defendants the United States, Mr. Shaw, and Mr. Roberson. Although he acknowledged the government previously had tax liens on the property, he alleged that as of the time of filing his complaint, the United States no longer had an interest in the property and the liens were unenforceable. He further averred that Mr. Roberson and Mr. Shaw “[a]cted with deceptive practices and fraudulent pretenses to transfer property be longing to [him] without his permission or consent, resulting in a fraudulent sale.” Id. at 7. Thus, Mr. Melot sought to quiet title to the property, requesting that “defendants be barred and forever es topped from having or claiming any lien upon or any right, title, interest, or estate in or to such property, adverse to [him].” Id. at 13. He also sought unspecifi ed damages, another $909,950 from Mr. Roberson and Mr. Shaw, and an additiona l $500,000 in damages for “mental anguish
and distress.” Id. Last, he demanded that Mr. Robers on vacate the property immediately. The district court dismissed the suit on re s judicata grounds, and Mr. Melot appealed.
II
A. Mootness The threshold issue we must consider is th e extent to which this case is moot. See N.M. Env’t Dep’t v. Foulston ( In re L.F. Jennings Oil Co.) , 4 F.3d 887, 888 (10th Cir.5 1993) (“The mootness question ne cessarily constitutes our thre shold inquiry, because the existence of a live case or controversy is a c onstitutional prerequisite to the jurisdiction of the federal courts.” (internal quotation mark s omitted)). The govern ment contends that Mr. Melot’s claims seeking to invalidate the sale and r ecover the property are moot because the sale already occurred. Indeed , the government argues that because these claims are moot, the district court lacked jurisdiction to dismiss them on res judicata grounds. Although the government failed to make this argument to the district court, defects in subject matter jurisdic tion may be raised at any time. Niemi v. Lasshofer , 770 F.3d 1331, 1345 (10th Cir. 2014). Accordingly, we review the mootness issue de novo, Schell v. OXY USA Inc. , 814 F.3d 1107, 1114 (10th Cir. 2016), and agree the district court lacked jurisdiction, at least in part to the extent the complaint sought to invalidate the sale and recover the property. To answer whether Mr. Melot’ s claims are moot, we ask whether the district court could have granted him any effective relief. See Kan. Judicial Review v. Stout , 562 F.3d 1240, 1246 (10th Cir. 2009) (“Wh en it becomes impossible for a court to grant effective relief, a live controversy ceases to exist, and the case becomes moot.”). In Mr. Melot’s previous appeal, we declined to reach his ar guments that would have invalidated the sale, explaining that “‘[a]n appeal is moot if the court of appeals can no longer grant effective relief because the object of the suit has been transferred.’” Melot , 606 F. App’x at 931 (quoting Out of Line Sports, Inc. v. Rollerblade, Inc. , 213 F.3d 500, 501 (10th Cir. 2000)). As we indicated, once the property is sold, a court generally cannot reverse the sale, and thus any judi cial pronouncement on the partie s’ rights will be ineffective in6 granting relief. See, e.g., Schell , 814 F.3d at 1113-15 (holdi ng that sale of gas wells mooted appeal because defendant’s cond uct would not be affected by judgment concerning the leases); Christopher Vill., Ltd. P’ship v. Retsinas , 190 F.3d 310, 314 (5th Cir. 1999) (“Ordinarily, an appeal will be moot when the property underlying the dispute has been sold at a foreclosure sale because this court cannot fashion adequate relief, i.e., cannot reverse the transaction.”); cf. C.O.P. Coal Dev. Co. v. C.W. Mining Co. (In re C.W. Mining Co.) , 641 F.3d 1235, 1239 (10th Cir. 2 011) (holding in bankruptcy context that appeal was moot to the extent remedy would affect the validity of the sale). The property at issue here was sold to Mr. Roberson on July 17, 2014. 2 That event rendered moot Mr. Melot’s claims seeking to i nvalidate the sale and recover the property. We explained this to Mr. Melot in his previo us appeal, but he refused to accept that conclusion and instead institute d anew his claims seeking to invalidate the sale, only to have the district court dismiss them on res judicata grounds. But because the claims challenging the sale were moot before Mr. Me lot filed his complaint, the district court should have dismissed th em for lack of subject matter jurisdiction. We therefore modify the district court’s dismissal accordingly.
B. Sovereign Immunity The government also contends that, to th e extent Mr. Melot’s claims against the United States are not moot, they are barred by sovereign immunity. The damages claim for emotional distress surviv es the foregoing mootness anal ysis. Although Mr. Melot

2 Our previous decision indicated the property was sold on July 21, 2014, but the Receiver’s Deed is dated Ju ly 17, 2014. R. at 30. Th e disparity in these dates is immaterial to our decision.7 also sought unspecified damages “against all defendants,” R. at 13, he does not explain the basis for this claim, though his complaint suggests it is pr edicated on the sale of his property. Nevertheless, we agree these clai ms for damages against the government are barred by sovereign immunity. “The United States and its officers enj oy immunity from suit ex cept in instances where the United States has expre ssly waived that protection.” Flute v. United States , 808 F.3d 1234, 1239 (10th Cir. 2015). A wa iver of sovereign immunity must be “unequivocally expressed,” and “statutory text purporting to waive governmental immunity is strictly construed in favor of the sovereign.” Id. (internal quotation marks omitted). Absent an express waiver of immunity, a court lacks jurisdiction. United States v. Murdock Mach. & Eng’g Co. of Utah , 81 F.3d 922, 930 (10th Cir. 1996). Mr. Melot asserts the government waiv ed its immunity via three statutory provisions: 28 U.S.C. §§ 1346 , 2409, and 2410. Although M r. Melot offers no specific argument under any of these provisions, our re view indicates that none apply. Indeed, none of these provisions waive immunity for Mr. Melot’s emotional distress claim, so his attempt to recover for “mental anguish” is barred. 3 As for his unspecified damages claim, it is possible Mr. Melot intended to rely on § 1346(a)(1), which permits “[a] ny civil action against the Unite d States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or

3 Any argument that Mr. Melot might have brought his emotional distress claim under § 1346(b)(1), the Federal Tort Claims Act, is mer itless because that provision waives immunity for certain personal injury clai ms against the government, except “[a]ny claim arising in respect of th e assessment or colle ction of any tax,” id. , § 2680(c).8 collected.” But this provision is inapplicab le because Mr. Melot does not seek a refund of any “internal-revenue tax”; rather, his comp laint indicates only that he seeks damages, presumably for the loss of his property. If Mr. Melot intended to re ly on § 1346(b)(1), which provides jurisdiction fo r “claims against the United States, for money damages . . . for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government,” sovereign immunity is preserved under 28 U.S.C. § 2680(c), which excludes from the waiver “[a]ny claim arising in respect of the assessment or collection of an y tax.” Mr. Melot also may be relying on § 1346(f), which confers jurisdiction to hear “civil actions u nder [28 U.S.C. § 2409a] to quiet title” where the government asserts an interest in real pr operty. But this provision is inapplicable because the United States no lo nger has an interest in the property, which was sold well before Mr. Melot instituted this action. Li kewise, Mr. Melot held no interest in the property when he in itiated this suit. See Kinscherff v. United States , 586 F.2d 159, 160 (10th Cir. 1978) (per curiam) (holding that § 2409a requires plaintiff to have some interest in the title of the property). Also inapplicable is § 2409 , which authorizes suits ag ainst the government by a “tenant in common or joint tenant owning an undivided interest in lands” if the government “is one of such tenants in common or joint tenants.” Neither the government nor Mr. Melot were tenants in common or jo int tenants when he filed this suit. Lastly, Mr. Melot invokes § 2410, which pe rmits suits to quiet title to real or personal property when the government holds a mortgage or other lien on the property. This provision is inapplicable because the go vernment did not have a lien or mortgage on9 the property when th e suit was filed. See Dahn v. United States , 127 F.3d 1249, 1251 n.1 (10th Cir. 1997) (“A quiet title claim . . . firs t made when any liens involved no longer existed[] was barred ab initio.”); Lewis v. Hunt , 492 F.3d 565, 572 (5th Cir. 2007) (“Section 2410 applies only if at the time plaintiff files suit the government had a mortgage or other lien on the property that is the basis of the taxpayer’s quiet title action.” (brackets and internal quotation marks omitted)); Hughes v. United States , 953 F.2d 531, 538 (9th Cir. 1992) (“If the gove rnment has sold the property prior to the filing of the suit, and no longer claims any interest in the proper ty, § 2410 does not apply.”). Consequently, Mr. Melot failed to in voke a valid waiver of sovereign immunity and his claims against the government are barred to the extent they are not moot.
C. Res Judicata Finally, we review de novo the district court’s application of res judicata to Mr. Melot’s claims against Mr. Shaw and Mr. Roberson. See Pelt v. Utah , 539 F.3d 1271, 1280 (10th Cir. 2008) (applyi ng de novo review). The di strict court concluded that res judicata barred these claims because Mr. Me lot was contesting the same liens, seeking to quiet title to the same properties, and cha llenging the same sale that was involved in Melot I . We agree res judicata applies. “Under res judicata, or claim preclusion, a final judgment on the merits of an action precludes the parties or their privie s from relitigating issues that were or could have been raised in the prior action.” Wilkes v. Wyo. Dep’t of Emp’t Div. of Labor Standards , 314 F.3d 501, 50 3-04 (10th Cir. 2002) (internal quotation marks omitted). To apply, “three elements must exis t: (1) a final judgment on the merits in an earlier action;10 (2) identity of parties or privie s in the two suits; and (3) iden tity of the cause of action in both suits.” Id. at 504 (brackets and internal quotation marks omitted). 4 All three elements are present here. Firs t, there was a final judgment entered on the merits of Melot I . The district court in that case entered orders reducing the Melots’ tax assessments to judgment, authorizing the foreclosure of the government’s tax liens on their property, appointing M r. Shaw as receiver, and twice confirming the sale to Mr. Roberson. The Melots twice appealed th ose orders to this court, and we twice affirmed. The second element also is satisfied. Mr. Melot and the government were opposing parties in Melot I . Although Mr. Shaw and Mr. Roberson were not parties to that suit, they are in privity with the government for pur poses of applying res judicata in this suit. Privity may be established by “a substantial identity between the issues in controversy and showing the parties in the tw o actions are really and substantially in interest the same.” Pelt , 539 F.3d at 1281. The issue in controversy is the same—the propriety of the sale. Also, the government had a shared interest with Mr. Shaw because

4 We have at times articulated a fourth element—a full and fair opportunity to litigate the matter in th e earlier proceeding—although we recognize an exception to res judicata when the party ag ainst whom the prior judgment is asserted la cked a full and fair opportunity to litigate th e matter in the prior suit. See Yapp v. Excel Corp. , 186 F.3d 1222, 1227 n.4 (10th Cir. 1999). These differen t elemental articulations have no impact on our dispos ition because Mr. Melot does not contend he was denied a full and fair opportunity to litigate his claims in Melot I , and we perceive nothing in the record to suggest otherwise. See Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1521 (10th Cir. 1990) (explaini ng that the inquiry focuse s “on whether there were significant procedural limita tions in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effec tive litigation was limited by the nature or relationship of the parties”).11 as receiver, Mr. Shaw coordinated the sale for the government’s benefit. Indeed, Mr. Shaw represented the government’s legal rights by preserving the property value and coordinating the sale to effectuate the foreclosure. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp. , 605 F.2d 1169, 1175 (10th Cir. 1979) (“Privity has been found in cases involving a person so identified in inte rest with another that he represents the same legal right.”). So, too, was Mr. Robers on in privity with the government as the successive owner of the property to which th e government’s liens ha d attached and been reduced to judgment. See id. (“[P]rivity denotes . . . succe ssive relationship to the same right of property, so that a privy is one wh o, after the commencement of the action, has acquired an interest in the [p roperty] affected by the judgm ent through or under one of the parties, as by inheritance, succession, purchase, or assignment.” (internal quotation marks omitted)). The third element of res judi cata—identity of causes of action—exists as well. To ascertain a single cause of action, this court employs a transactional approach in which “a final judgment extinguishes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Lowell Staats Mining Co. v. Phila. Elec. Co. , 878 F.2d 1271, 1274 (10th Cir. 1989). We evaluate a “transac tion” or “series of connected transactions” “pragmatically[,] considering whether the fact s are related in time, space, origin, or motivation, and whether they form a convenient trial unit

. ” Id. “Under [the transactional] approach, a cause of action include s all claims or legal theories of recovery that arise from the same trans action, event, or occurrence.” Nwosun v. Gen. Mills Rests.,12 Inc. , 124 F.3d 1255, 1257 (10th Cir. 1997). Applying this approach, Mr. Melot’s claims for damages or other remedies against M r. Shaw and Mr. Roberson are foreclosed because they are all tied to a solitary transaction: the sale of the property. Mr. Melot disputes this conclusion, insisting there has be en no adjudication of what he alleges were the conspiratorial and deceptive practices of Mr. Shaw and Mr. Roberson to deprive him of the property. But the proprie ty of the sale was litigated in Melot I , and Mr. Melot could have challenged Mr. Shaw and Mr. Robers on’s conduct in that proceeding, just as he challenged Mr. Shaw’s qualifications, see Melot , 562 F. App’x at 654. In fact, he did allege irregularities in Mr. Shaw’s conduct in coordinating the sa le, including claiming that Mr. Shaw failed to properly advertise the property and pursue attractive offers. See Melot , 606 F. App’x at 932. We rejected thos e claims as “unsupported and speculative,” id. , and res judicata bars Mr. Melot from re litigating those or similar claims now. 5
III The judgment of the district court is affirmed, although Mr. Melot’s claims seeking to invalidate the sale should have been dismissed for lack of jurisdiction based on mootness, rather than on res judicata grounds. To the extent Mr. Melot’s claims against the government were not moot, they should have been dismissed as barred by sovereign immunity. So modified, the district cour t’s judgment is otherwise affirmed.

5 In an unrelated argument, Mr. Melot contends the district court erred in dismissing the action prior to service upon all defendants, namely Mr. Shaw. Mr. Melot cites no authority fo r this contention, and where the district court had the government’s motion to dismiss, and the claims against Mr. Shaw were clearly foreclosed, we see little benefit to requiring the district court to wait for Mr. Melot to complete service.13 Mr. Melot’s motion to proceed without prepayment of co sts and fees is denied because he fails to show “the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issu es [he] raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). Mr. Melo t is directed to rem it the entire filing and docketing fee to the Clerk of the District Court.

Entered for the Court
Mary Beck Briscoe Circuit Judge