Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

MEMORANDUM^** 

Peter and Myrna Thomsen (Thomsen) appeal pro se the district court's grant of the Internal Revenue Service's (IRS) motion for summary judgment and Chevron's motion to dismiss the action for relief from the IRS's assessment of tax deficiencies and damages from Chevron for withholding the Thomsens' wages pursuant to an IRS order. In this appeal, the Thomsens contend that (1) the district judge erred in failing to recuse himself after labeling Myrna Thomsen's previous actions vexatious, (2) the district court erred in exercising subject matter jurisdiction, and (3) the district court violated their due process rights in preventing the Thomsens from filing further pleadings except with leave of the court and because they received no notice or hearing on the issue of sanctions. We affirm.

DISCUSSION

First, we reject the Thomsens' contention that the district judge should have been disqualified for personal bias because he deemed Mrs. Thomsen's prior actions to be frivolous and ordered the clerk not to accept further pleadings from her without leave of court.

The standard for recusal under 28 U.S.C. §§ 144 and 455 is "whether a reasonable person with knowledge of all the facts would conclude that the judges impartiality might reasonably be questioned." United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). In order to prevail on a motion to disqualify a judge, the party filing the motion must show extrajudicial bias or prejudice. Thomassen v. United States, 835 F.2d 727, 732 (9th Cir. 1987).

Thomsens failed to establish prejudice or bias. There is no evidence in the record that Judge Schwarzer harbored personal animus toward Myrna Thomsen or that his opinion of Mrs. Thomsen developed from information gained outside the courtroom. To the contrary, the record reflects that the judge's opinion of Mrs. Thomsen was based solely upon her conduct as a litigant. See Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (district judge did not abuse discretion in failing to recuse himself, since appellant's bias argument was based entirely on the judge's prior adverse judgment pertaining to appellant).

Second, we disagree with the Thomsens' contention that removal of this action to the district court by IRS officers was improper.

The district court held that Kurtz and Rockwell were clearly entitled to remove this action under 28 U.S.C. § 1442. The record demonstrates that the case was properly removed to federal court pursuant to 28 U.S.C. § 1442. The Thomsens' underlying action challenged federal tax levies, two of which were issued by Kurtz and Rockwell acting in their capacities as IRS officers. Section 1442 expressly permits a federal officer, including an IRS officer, to remove an action against him to federal court regardless of whether the lawsuit could originally have been brought there. See 28 U.S.C. § 1442; Willingham v. Morgan, 395 U.S. 402, 406 (1969); MIR v. Fosburg, 646 F.2d 342, 344 (9th Cir. 1980).

Finally, the Thomsens appear to contend that the district judge denied them due process when it enjoined the clerk from filing any of their pleadings without leave of court and because they received no notice or hearing on the issue of sanctions. We disagree.

In dismissing the Thomsens' action, Judge Schwarzer also entered an order limiting future filings by the Thomsens. We recognize, however, that courts have inherent power to restrict future litigation by plaintiffs who continually engage in baseless litigation. See Hansen v. Goodwin, 432 F. Supp. 853, 858 (W.D. Wash. 1977). The district judge properly concluded that the Thomsens' claim pertaining to their tax withholding was frivolous as a matter of law.

Moreover, Peter Thomsen received notice that sanctions might be imposed against him in the IRS officers' motion for summary judgment. In addition, Fed. R. Civ. P. 11 requires that sanctions be assessed if a pleading signed by an attorney or unrepresented party is frivolous, legally unreasonable or without factual foundation. Zaldivar v. City of Los Angeles, 780 F.2d 823, 831 (9th Cir. 1986).

AFFIRMED.