* This order and judgment is not binding precedent, e xcept under the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

### APR 7 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

In re: MICHAEL GEORGE WEBER and EDLYNA FRANCES WEBER,

Debtors.

MICHAEL GEORGE WEBER,

Appellant, No. 98-3009

v. D. Kansas INTERNAL REVENUE SERVICE OF THE UNITED STATES,

Appellee.

WILLIAM H. GRIFFIN,

Trustee. (D.C. No. CV-97-4084-DES)

ORDER AND JUDGMENT *** The Honorable H. Dale Cook, United States District Judge for the

Northern District of Oklahoma, sitting by designati on. -2- Before ANDERSON and MCWILLIAMS , Circuit Judges, and COOK , ** District Judge.

Michael George Weber appeals from a district court decision affirming the bankruptcy court. The bankruptcy court determined that it lacked jurisdiction to hear Weber’s challenge to a priority claim by the I nternal Revenue Service (IRS) for certain amounts of child support it seeks to co llect under 26 U.S.C. § 6305(a). We affirm. Weber’s former wife assigned at least some of her c hild support rights to the state of Nebraska in exchange for welfare benef its. Nebraska sought the assistance of the IRS in collecting the debt from W eber, under the procedures of 26 U.S.C. § 6305(a), which provides in relevant part: Upon receiving a certification from the Secretary o f Health and Human Services, under section 452(b) of the Social Security Act with respect to any individual, the Secretary shall asse ss and collect the amount certified by the Secretary of Health and Hum an Services in the same manner, with the same powers, and [with ex ceptions not applicable here] subject to the same limitations as if such amount were a tax imposed by subtitle C the collection of which would be jeopardized by delay . . . . After Weber declared bankruptcy, the IRS filed a pr oof of claim in the amount of $46,149.45.-3-

Weber challenged the claim, but the bankruptcy court held that it could not hear his challenges, citing 26 U.S.C. § 6305(b), wh ich provides as follows: No court of the United States, whether established under article I or article III of the Constitution, shall have jurisdi ction of any action, whether legal or equitable, brought to restrain or review the assessment and collection of amounts by the Secretary under subsection (a), nor shall any such assessment and c ollection be subject to review by the Secretary in any proceedin g. This subsection does not preclude any legal, equitable, or administrative action against the State by an individual in any St ate court or before any State agency to determine his liability for any amount assessed against him and collected, or to recover any such a mount collected from him, under this section. The district court agreed and affirmed. Our review on this question of law is de novo. See Rushton v. State Bank of S. Utah (In re Gledhill) , 164 F.3d 1338, 1340 (10th Cir. 1999). Weber at some point convinced Nebraska that the $46 ,149.45 amount originally submitted for IRS collection should be r educed to $16,015.73. Since the filing of briefs in this case, the IRS has amen ded its proof of claim to match the $16,015.73 amount. Nevertheless, Weber still argues that he does not owe even that amount to the state of Nebraska for child support, and claims that the bankruptcy court has jurisdiction to hear his argum ents on this point. Weber recognizes that the plain language of § 6305( b) prevents all federal courts, including bankruptcy courts, see Fullmer v. United States (In re Fullmer) , 962 F.2d 1463, 1468-70 (10th Cir. 1992), from heari ng any challenges to “the-4-

validity [or] amount of a properly certified child support assessment.” Id. at 1469 n.8. He claims instead that the $16,015.73 am ount was not properly certified, and argues that § 6305(b) does not prevent federa l courts from requiring compliance with certification procedures. Weber raises numerous arguments in an attempt to support his invalid certification theory. In his opening brief, he arg ues that Nebraska has failed to amend its certification request, that its submissio ns do not reflect its own subsequent corrections to the amount Weber owes, an d that such inaction violates 45 C.F.R. § 303.71(g)(i). As far as we can discernfrom the information provided to us by Weber, this claim has been rendered moot b y Nebraska’s recent action to amend the certification request and by the IRS’ ame nded proof of claim. Weber has raised additional invalid certification a rguments both in his reply brief and at oral argument. He argues (1) th at the $16,015.73 amount is not in fact a nondischargeable debt for child support, but is instead a dischargeable claim for “excess welfare benefits,” Appellant’s Re ply Br. at 2; (2) that an agreement with his former spouse settling claims fo r child support precludes any such claims by Nebraska ; and (3) that Nebraska’s representations regardin g Weber’s child support obligations are fraudulent, see id at 3. Weber waived these issues by not raising them in his opening brief. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). We nevertheless note that these-5-

arguments are of no avail. They do not challenge c ompliance with certification procedures; rather, these are challenges to the val idity of the claim, to which § 6305(b) applies. We therefore do not decide whether § 6305(b) bars claims that certification procedures have not been followed, be cause Weber’s attempts to characterize his arguments as such are unconvincing

. Without directly challenging the constitutionality of § 6305(b), see Appellant’s Br. at 9-10, Weber claims he has been d enied due process. We do not agree, especially given the fact that Weber does no t specifically claim to have pursued all available state remedies and makes no s erious legal argument that state remedies are inadequate. We note in this reg ard that should Weber avail himself further of state procedures, the IRS conced es that “[w]hile Weber pursues his remedies against the State of Nebraska, the Uni ted States is precluded from collecting by operation of the automatic stay in the Chapter 13 case. See 11 U.S.C. § 362.” Appellee’s Br. at 29. Weber claims that Nebraska has consented to federal court jurisdiction in this matter. We need not decide if that is so, forNebraska’s consent could not confer the jurisdiction that § 6305(b) denies.-6-

Accordingly, we AFFIRM. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge