* This order and judgment is not binding precedent, except under the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

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 decision on the briefs without oral
1 Appellants’ complaints also contained claims for civil 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 appellate 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 complaint 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 jurisdiction under Fed. R. Civ. P.

12(b)(1) because Appellants failed to timely file administrative claims for

refunds. We review the dismissal of Appellants’ complaints 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 a remand order tolls the

statute of limitations under certain conditions; 2) whether a court is required to
2 This issue was not raised below so it will not be considered 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 district 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; 2 and 3) whether venue is proper

in the District of Colorado. 3

After careful review of the record on appeal and the applicable legal

standards, we conclude that the district court correctly 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