Unpublished Disposition, 861 F.2d 268 (9th Cir. 1986)

MEMORANDUM^** 

Edwin C. Dawn and June E. Dawn, pro se, appeal the district court's dismissal of their action against IRS officers and the Secretary of the Treasury under Fed.Local Ct.Rules (C.D. Cal.) 7.9 for failure to file a timely opposition to the government's motion to dismiss their action. We affirm.

Edwin C. Dawn and June E. Dawn claimed a deduction for casualty losses under 26 U.S.C. § 165 on their 1975 tax return, and applied for and received tax refunds for the tax years 1972, 1973 and 1974. The Commissioner subsequently disallowed the Dawns' deductions and issued a notice of deficiency for the years 1972 through 1975. The Dawns petitioned the tax court for a redetermination of the asserted tax deficiency. The tax court granted summary judgment in favor of the Commissioner on the ground that the Dawns had not sustained a casualty loss for purposes of section 165. The IRS assessed the deficiency while the Dawn's appeal to this court was pending. We affirmed the tax court's decision. See Dawn v. Commissioner, 675 F.2d 1077 (9th Cir. 1982), aff'g 39 T.C.M. 611 (CCH) (1979). The Commissioner subsequently assessed taxes for the tax year 1981.

In 1985, the IRS initiated proceedings to collect the Dawn's 1973, 1974, 1975 and 1981 taxes plus statutory additions to tax. The Commissioner served Notices of Levy upon June Dawn's employer and upon the Dawns' bank accounts. The Commissioner also filed a Notice of Federal Tax Lien with the county recorder's office. The Commissioner collected substantially all of the Dawns' unpaid tax liability.

On February 4, 1986, the Dawns filed a pro se complaint against the Secretary of the Treasury and various IRS officers and officials, alleging that the IRS's collection activities violated the Dawns' constitutional rights.¹  On July 29, 1986, the government moved to dismiss the Dawns' action on the grounds that the district court lacked subject matter jurisdiction and that the Dawns had failed to state a claim upon which relief could be granted. The district court scheduled a hearing on the government's motion for September 15, 1986. The parties thereafter entered into a stipulation to extend the time for a hearing on the motion to dismiss to November 24, 1986. The parties also stipulated that the Dawns would have until November 10, 1986 to respond to the motion to dismiss.

On November 10, 1986, the Dawns moved for an extension of time to file an opposition to the motion to dismiss, which the district court denied on November 12, 1986. On November 24, 1986, the Dawns filed an amended complaint. At a hearing held on November 24, 1986, the district court dismissed the Dawns' action under Fed.Local Ct.Rules (C.D. Cal.) 7.9 for failure to file an opposition to the government's motion to dismiss.²  The Dawns filed a motion to reconsider and vacate the district court's order of dismissal, which the district court denied. The Dawns timely appealed.³ 

Dismissal Under Local Rule 7.9

The Dawns contend that the district court denied their fifth amendment due process rights by (1) refusing to grant them additional time in which to respond to the motion to dismiss and (2) failing to read their amended complaint. The Dawns' contentions lack merit.

The district court dismissed the Dawns' action under Fed.Local Ct.Rules (C.D. Cal.) 7.9 for failure to file an opposition to the government's motion to dismiss. The district court's application of local rules in disposing of motions is reviewed for an abuse of discretion. See Victor F. v. Pasadena Independent School District, 793 F.2d 633, 635 (5th Cir. 1986) (per curiam).

Pro se litigants are required to abide by court rules. Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986). Under the local court rules, a party opposing a motion must file and serve a memorandum in opposition to the motion and the evidence upon which the party will rely in opposing the motion not later than 14 days before the date designated for the hearing of the motion. Fed.Local Ct.Rules (C.D. Cal.) 7.6. A party who fails to file and serve the required papers may be deemed by the court to have consented to the motion. Fed.Local Ct.Rules (C.D. Cal.) 7.9.

Here, the Dawns failed to file and serve an opposition to the government's motion to dismiss not later than 14 days before the date of the hearing. Instead, the Dawns waited until the day of the hearing and filed an amended complaint. Moreover, the Dawns were well aware of when their opposition to the government's motion was due because they had stipulated to extend the date for a hearing on the government's motion from September 15, 1986 to November 24, 1986, and to extend the date for responding to the government's motion to November 10, 1986, 14 days before the hearing.⁴  Because the Dawns failed to timely respond to the government's motion to dismiss, the district court did not err in holding that the Dawns had consented to the Commissioner's motion to dismiss their action. See Fed.Local Ct.Rules (C.D. Cal.) 7.9.⁵ 

Failure to State A Claim Upon Which Relief Could be Granted

This court reviews de novo a district court's dismissal of an action for failure to state a claim upon which relief can be granted. Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir. 1987), cert. denied, 108 S. Ct. 2031 (1988). "In reviewing such a dismissal, it must appear to a certainty that plaintiff would not be entitled to relief under any set of facts that could be proved." Id. In addition, the allegations of the Dawns' pro se complaint must be construed liberally. See Bothke v. Fluor Engineers and Constructors, Inc., 834 F.2d 804, 809 n. 7 (9th Cir. 1987).

The Dawns contend that the district court erred in dismissing their action for failure to state a claim upon which relief could be granted because (1) their action is not barred by sovereign immunity since they sued the defendants in their individual, rather than their official, capacity, and (2) the IRS improperly assessed taxes due for 1973-1975 while their petition for review with this court was pending, in violation of their fifth amendment due process rights. The Dawns' contentions lack merit.

As a sovereign, the United States is immune from suit unless it has expressly waived its immunity and consented to be sued. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). A suit against government officers and employees in their official capacities is a suit against the United States and is, therefore, barred by sovereign immunity. Id.

When a plaintiff alleges that the officers and employees violated his constitutional rights, however, his suit is not barred by sovereign immunity and it is construed as being against the officers and employees in their individual capacities. United States v. Yakima Tribal Ct., 806 F.2d 853, 858-59 (9th Cir. 1986), cert. denied, 107 S. Ct. 2461 (1987). Here, the Dawns allege that the government agents violated their fifth and fourteenth amendment rights. Because the Dawns' complaint contains allegations of constitutional violations, their action is construed as being against the defendants in their individual capacities.

Government officials sued in their individual capacities enjoy a qualified immunity which protects them from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir. 1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Here, the government officials and employees did not violate any of the Dawns' clearly established statutory or constitutional rights by assessing the deficiency while this court was reviewing the tax court's decision. The filing of a notice of appeal does not bar the assessment and collection of taxes while an appeal is pending unless the taxpayers file an appeal bond with the tax court. See 26 U.S.C. § 7485. The Dawns failed to file an appeal bond. See Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987) (pro se litigants must abide by court rules). Therefore, the IRS agents could assess the Dawns. Because the IRS agents had the statutory authority to assess the tax deficiency while the Dawns' appeal was pending, the defendants are immune from liability for civil damage. See Ryan, 764 F.2d at 1328.⁶ 

Sanctions

The government requests $1,500 as a sanction on this appeal. This court has the discretion to impose damages and single or double costs as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912. An appeal is frivolous "when the result of the appeal is obvious and the arguments of error are wholly without merit." Coastal Transfer Co. v. Toyota Motor Sales, 833 F.2d 208, 212 (9th Cir. 1987).

The district court found an appeal not to be frivolous in granting the Dawns their motion for leave to appeal in forma pauperis. While this appeal comes close to being frivolous, we exercise our discretion not to impose any sanction against the Dawns.

AFFIRMED.