* This order and judgment is not binding precedent, e xcept under the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

### FEB 5 2004 

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

ANDRE KIMBOKO; PRISCILLA J. KIMBOKO, Plaintiffs-Appellants,

v. UNITED STATES OF AMERICA, on behalf of its Agent, the Internal Revenue Service,

Defendant-Appellee. Nos. 03-1145 03-1146 03-1147 03-1148 03-1150 03-1151 03-1152 (D.C. Nos. 02-D-69 (PAC) through 02-D-75 (PAC)) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

After examining the briefs and appellate records, this panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral1 Appellants’ complaints also contained claims for ci vil damages under

26 U.S.C. § 7433(b). The district court dismissed these claims for failure to state a claim upon which relief can be granted. Appellants did not raise any issue with respect to these dismissals in their opening brief. See Aplts’ Br. at 10, 13, and 14. Failure to raise an issue in the opening appel late brief waives that issue. State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -2- argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellants Andre and Priscilla Kimboko appeal from the district court’s dismissal of their seven complaints seeking refunds of previously paid tax penalties under 26 U.S.C. § 7422. 1 The penalties were assessed because of late payment of employment tax liabilities. Each compla int related to a separate quarter, specifically, the fourth quarter of 1987, the last two quarters of 1988, and all four quarters of 1989. The district court determined that the complaints should be dismissed for lack of subject matter juri sdiction under Fed. R. Civ. P. 12(b)(1) because Appellants failed to timely file a dministrative claims for refunds. We review the dismissal of Appellants’ co mplaints de novo, applying the same standard as the district court. See U.S. West, Inc. v. Tristani , 182 F.3d 1202, 1206 (10th Cir. 1999). Appellants raise the following issues: 1) whether aremand order tolls the statute of limitations under certain conditions; 2) whether a court is required to2 This issue was not raised below so it will not be c onsidered by this court.

See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).

3 This issue is moot because we agree with the distri ct court that these complaints should be dismissed for lack of subject matter jurisdiction. -3- comply with Rule 52(a) in a trial without a jury; 2and 3) whether venue is proper in the District of Colorado. 3 After careful review of the record on appeal and th e applicable legal standards, we conclude that the district court corr ectly decided this case. Therefore, we AFFIRM the district court’s judgment for the reasons stated in its Order filed March 26, 2003.

Entered for the Court

Mary Beck Briscoe Circuit Judge