IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60423

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

FILED

November 19, 2015

Lyle W. Cayce

Clerk

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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, OchoaBunsow 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 counsel1—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, OchoaBunsow’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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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 attorneyof-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 

 

2 Ochoa-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 OchoaBunsow 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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(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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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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