* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

SEP 9 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BOBBY DON VANCE,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

ex rel. Donald N. Dowie, Jr., Patrick

M. Ryan and Robin J. Cauthron,

Defendants-Appellees.

No. 03-6139

(D.C. No. CIV-02-1664)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , McCONNELL , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, this 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). The case is

therefore ordered submitted without oral argument.
-2-

In 1997, the government instituted suit to collect over $900,000 in tax

liabilities against appellant Bobby Don Vance and his wife by foreclosing on tax

liens against the Vance’s real property. Judge Robin Cauthron granted the

government’s motion for summary judgment against Mr. and Mrs. Vance, their

children, and a family trust, holding that Mr. Vance fraudulently transferred the

title of his real property to the family trust. Accordingly, the court authorized the

government to sell the real property. Mr. Vance appealed, and this Court

affirmed the district court’s judgment. 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.

Two weeks before the marshal’s sale, Mr. Vance filed a suit alleging that

the government did not have a rightful claim to his property because the judgment

against him had been procured by fraud. He also claimed that collection was

barred by the statute of limitations. He requested an order compelling the

government to return his property and enjoining its sale. The district court denied

his motion for preliminary injunction and, on October 22, 2002, dismissed his suit

under the Anti-Injunction Act, 26 U.S.C. § 7421, and the Declaratory Judgment

Act, 28 U.S.C. § 2201. Not to be daunted, Mr. Vance filed a second lawsuit,

which is the subject of this appeal, on November 22, 2002. The government sold

the property in December 2002. 
-3-

On appeal from the October 2002 dismissal of his first suit, Mr. Vance

attempted to raise several new arguments that he had not raised in district court,

including that government agents did not comply with relevant Internal Revenue

Code procedures and that the taking of his property was illegal because a

minimum bid price was never established. We affirmed the district court’s

dismissal and refused to address the arguments made for the first time on appeal. 

Vance v. United States , 60 Fed. App. 236, 238-39 (10th Cir. Mar. 17, 2003). 

Mr. Vance’s second suit sought to accomplish the same goal as his first: to

prevent the government from collecting delinquent taxes by selling his real

property. But his second suit also alleged that Judge Cauthron and the two

attorneys representing the government in the first suit had violated 26 U.S.C.

§ 7602(d) (limitations on Secretary’s authority to issue administrative summons),

26 U.S.C. § 6501(c) (exceptions to statute of limitations on tax assessment

proceedings), 26 U.S.C. § 6502(a) (statute of limitations on tax levies), 26 U.S.C.

§ 7214(a) (unlawful acts of internal revenue agents), 26 U.S.C. § 6335(e)

(requirements as to manner and conditions of seized-property sales), and

26 U.S.C. 6331(j) (investigative requirements as to status of seized property). 

See R. Doc. 1 at 1-2. He claimed entitlement to injunctive relief “beyond reach of

26 U.S.C. 7421” to enjoin the government’s collection activity, and requested an
-4-

order “remanding” the two attorneys and Judge Cauthron “to other authority for

preference of charges” under § 7214(a). Id. at 2. 

An out-of-district judge was assigned to the case. The court dismissed the

second suit for failure to state a claim. We review the district court’s rulings

de novo. See Sutton v. Utah State Sch. for Deaf & Blind , 173 F.3d 1226, 1236

(10th Cir. 1999) (review of dismissal under Fed. R. Civ. P. 12(b)(6) for legal

sufficiency of complaint); Rosette, Inc. v. United States , 277 F.3d 1222, 1226

(10th Cir. 2002) (applicability of federal statute is question of law reviewed

de novo ). We have carefully reviewed the district court’s rulings, the record, the

applicable law, and Mr. Vance’s arguments.

We conclude that the Anti-Injunction Act bars the injunctive relief

Mr. Vance requests. See Enochs v. Williams Packing & Navigation Co., 370 U.S.

1, 7 (1962) (“The manifest purpose of § 7421(a) is to permit the United States to

assess and collect taxes alleged to be due without judicial intervention, and to

require that the legal right to the disputed sums be determined in a suit for

refund.”). We further conclude that Mr. Vance is foreclosed from bringing suits

on issues that have already been, or could have been, adjudicated in prior

proceedings, including proceedings that should have been brought in the Tax

Court. See 26 U.S.C. § 6213(a) (providing that notices of tax deficiency may be

challenged by filing petition in Tax Court). Mr. Vance has had the opportunity
-5-

both to challenge the tax assessments and liens in Tax Court, and to litigate the

issues of fraudulent conveyance, statute of limitations, and due process in district

court. He cannot attempt to litigate or relitigate those issues years later by filing

multiple suits collaterally attacking the assessments and judgments. See Guthrie

v. Sawyer , 970 F.2d 733, 735 (10th Cir. 1992) (“A taxpayer who wishes to

challenge the activities of the IRS in sending a notice of deficiency or issuing a

notice of assessment and demand for payment must bring suit under a statute that

waives the sovereign immunity of the United States.”).

On appeal, Mr. Vance argues that his right to bring criminal charges against

Judge Cauthron and the two government attorneys arises under 26 U.S.C. § 7433

(providing for civil action against IRS agents for unauthorized collection actions),

and 18 U.S.C. § 4 (“misprision of felony”). Because neither Judge Cauthron nor

the attorneys are IRS agents, § 7433 provides no cause of action. And 18 U.S.C.

§ 4 simply has no application in this case.

Mr. Vance’s motion to disqualify certain Tenth Circuit judges is denied as

moot because the Tenth Circuit judges he seeks to disqualify are not on this panel.

The judgment of the district court is AFFIRMED.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge