Bey v. Harper

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 23, 2024
• Docket: 23-3231
• Status: Unpublished

Opinion

Appellate Case: 23-3231 Document: 010111083336 Date Filed: 07/23/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 23, 2024 ___________________________________________ Christopher M. Wolpert Clerk of Court MICHELLE AVERY BEY,

Plaintiff - Appellant,

v. No. 23-3231 DAVID HARPER; MATTHEW (D.C. No. 2:23-CV-02125-EFM-ADM) WILLARD; TYRONE GARNER; (D. Kan.) ROBERT BURNS; WENDY GREEN; DONALD TRACY,

Defendants - Appellees. ____________________________________________

ORDER AND JUDGMENT * ____________________________________________

Before BACHARACH, EID, and FEDERICO, Circuit Judges. ____________________________________________

This suit grew out of Ms. Bey’s challenge to an assessment of

property taxes. In this challenge, Ms. Bey claimed that tax authorities had

erroneously classified her property as commercial. To collect these taxes,

* The parties have not requested oral argument, and it would not help us decide the appeal. So we have decided the appeal based on the record and the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be cited for its persuasive value if otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 23-3231 Document: 010111083336 Date Filed: 07/23/2024 Page: 2

authorities seized Ms. Bey’s car and obtained an order requiring her to sell

property. She ultimately redeemed the property by paying the disputed

taxes.

The district court dismissed the action based on (1) a lack of

jurisdiction based on the Tax Injunction Act and (2) an absence of

standing. 1 We conduct de novo review of the dismissal. Marcus v. Kan.

Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). 2

The Tax Injunction Act generally prohibits injunctions to prevent

collection of state taxes. 28 U.S.C. § 1341. An exception exists when the

taxpayer’s state-court remedy is inadequate. Rosewell v. LaSalle Nat’l

Bank, 450 U.S. 503, 512 (1981).

Ms. Bey argues on appeal that (1) she’s challenging the defendants’

conduct, not the taxes themselves; (2) she’s seeking damages rather than an

injunction; and (3) the state-court remedy is inadequate.

We’ve rejected the first two arguments in other cases holding that the

Tax Injunction Act applies to claims involving

 administration of a tax, Brooks v. Nance, 801 F.2d 1237, 1239 (10th Cir. 1986), and

1 The district court also denied a motion to reconsider, but Ms. Bey challenges only the dismissal itself. 2 One defendant, Mr. Donald Tracy, obtained summary judgment. Ms. Bey waived a challenge to this ruling by failing to discuss it in her opening brief. See White v. Chafin, 862 F.3d 1065, 1067 (10th Cir. 2017). 2 Appellate Case: 23-3231 Document: 010111083336 Date Filed: 07/23/2024 Page: 3

 damages, Marcus v. Kan. Dep’t of Revenue., 170 F.3d 1305, 1309 (10th Cir. 1999).

We also reject Ms. Bey’s challenge to the adequacy of the state-court

remedy. The state procedures allow taxpayers to protest an assessment of

property taxes. Kan. Stat. Ann. § 79-2005. Under this procedure, taxpayers

can meet with the county appraiser to protest a tax. If the meeting doesn’t

resolve the disagreement, the taxpayer can obtain review by the state board

of tax appeals and pursue relief in state court. Kan. Stat. Ann.

§ 79-2005(a), (g); Kan. Stat. Ann. § 74-2426(c).

Ms. Bey argues that the state law didn’t ensure adequate notice. The

district court acknowledged this argument, but ruled that standing didn’t

exist because Ms. Bey hadn’t tied an injury or the defendants to the lack of

notice. Given this ruling, Ms. Bey needed to say in her opening brief why

the district court had been wrong. See White v. Chafin, 862 F.3d 1065,

1067 (10th Cir. 2017). She didn’t.

She did argue in her reply brief that the defendants bore

responsibility for the lack of notice. But the reply brief was too late; by

failing to challenge standing in her opening brief, she waived this

argument. See id.

3 Appellate Case: 23-3231 Document: 010111083336 Date Filed: 07/23/2024 Page: 4

Affirmed.

Entered for the Court

Robert E. Bacharach Circuit Judg e