Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1989)

MEMORANDUM^** 

John L. Dean appeals pro se the district court's dismissal of his action challenging tax deficiencies assessed against him for lack of subject matter jurisdiction. Dean contends that the district court erred in denying his request to restrain the government and the tax court from proceeding with his pending tax court case.

Subsequent to the district court's denial of Dean's request to restrain the tax court proceedings, the tax court entered a decision sustaining the Commissioner's assessment of deficiencies against Dean. Because the act Dean sought to enjoin has already occurred, we cannot grant Dean the relief he requests and this case is dismissed as moot. See Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir. 1986); Holloway v. United States, 789 F.2d 1372, 1374 (9th Cir. 1986). If an appeal is dismissed as moot, the established practice is for the appellate court to vacate the judgment below and remand with directions to dismiss the action. United States v. Munsingwear Inc., 340 U.S. 36, 39 (1950). The judgment is vacated and the case remanded to the district court to dismiss the action.

Dean's suit and appeal were frivolous. Under Fed. R. App. P. we may apply sanctions for a frivolous appeal. Dismissal of the appeal as moot does not deprive this court of jurisdiction to award sanctions. Holloway v. United States, 789 F.2d 1372, 1374 (9th Cir. 1986). Accordingly, we order Dean to pay $1,500 for filing this frivolous appeal.

REMANDED with directions to dismiss Dean's Suit. Dean is directed to pay the Clerk of this court $1,500.