Unpublished Disposition, 911 F.2d 737 (9th Cir. 1990)
Annotate this CaseWillard CARTER and Inez Carter, Plaintiffs-Appellants,v.CHAMPION INTERNATIONAL, et al., Defendants-Appellees.
No. 89-35243.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 20, 1990.* Decided Aug. 22, 1990.
Before TANG, ALARCON and WIGGINS, Circuit Judges.
MEMORANDUM**
Willard Carter1 appeals pro se and in forma pauperis the district court's order granting defendants' motion to dismiss his action. Carter contends that (1) the Internal Revenue Service (IRS) has asserted an illegal and unconstitutional notice of levy upon his wages; (2) that his employer, Champion International (Champion), is liable to him for complying with the IRS levy; and (3) that he is not a taxpayer subject to the Internal Revenue Code (I.R.C.). The district court dismissed Carter's action as to the United States and the IRS agents for failure to serve process, and because Carter's claims were barred by the doctrine of sovereign immunity and the Anti-Injunction Act. The court dismissed the action against Champion and the other defendants for failure to state a claim for relief. We review de novo the district court's dismissal pursuant to 26 U.S.C. § 7421(a). See McIntyre v. United States, 789 F.2d 1408, 1410 (9th Cir. 1986), and a district court's dismissal on sovereign immunity grounds. See Steel v. United States, 813 F.2d 1545, 1548 (9th Cir. 1987). We also review de novo the district court's dismissal of an action for failure to state a claim for relief. Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir. 1984). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
Defendants must be served in accordance with Rule 4(d) of the Federal Rules of Civil Procedure or there is no personal jurisdiction. See Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982); cf. Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984) (failure to comply with technical requirements of Rule 4(d) (4) does not require dismissal if party to be served received actual notice, defendant would suffer no prejudice from defect in service, and there is justifiable excuse for failure to serve properly). Rule 4(d) (4) requires that service upon the United States be made by delivering a copy of the summons and complaint to the United States Attorney and by sending a copy to the Attorney General. Fed. R. Civ. P. 4(d) (4). Here, although Carter mailed the complaint to the IRS office, no service upon the United States Attorney General or United States Attorney was made. Therefore, the district court did not err in dismissing for failure to serve process. See Jackson, 682 F.2d at 1347.
Moreover, the United States is a sovereign, and 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). Sovereign immunity cannot be avoided by naming individual officers and employees of the United States as defendants. Id.
Carter has not alleged any facts in his complaint to show that his action falls under any express waiver of sovereign immunity. Thus, Carter's action, insofar as it is against the United States and the individual named IRS agents, is barred by the doctrine of sovereign immunity.2 Id. Therefore, the district court did not err in finding that Carter's action against the United States and the named IRS agents was not properly before it, and did not err in dismissing this claim.
Carter contends that Champion is liable to him for complying with the IRS levy, and that such compliance was in breach of his employment contract. This contention lacks merit.
An employer is immune from liability for withholding taxes from an employee's wages and complying with an IRS notice of levy. See I.R.C. Secs. 3402, 3403, 6332(c)-(d) (1986). Thus, Champion is not liable to Carter for complying with the IRS's levy.
Moreover, Carter's contention that Champion breached its employment contract with him for complying with the IRS levy also lacks merit. An administrative regulation has the force of law. See Bright v. Bechtel Petroleum, Inc., 780 F.2d 766, 772 n. 7 (9th Cir. 1986). "A party is not required to violate the law to avoid liability for breach of contract." Id. at 772. Therefore, the district court properly dismissed Carter's claim against Champion. See id.
Carter also argues that he is not a taxpayer subject to the I.R.C. because he is a "free born white natural individual...." This argument is frivolous and has been repeatedly rejected. See, e.g., United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986). Therefore, the district court did not err in dismissing this claim.
The remaining defendants are several employees of Champion and an attorney consulted by Champion in this action. Since Carter's complaint fails to specifically mention these defendants or allege any wrongful acts on their behalf, the district court did not err in dismissing as to these defendants for failure to state a claim. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (citations omitted) (a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief), cert. denied, Wyoming Community Dev. Auth. v. Durning, 484 U.S. 944 (1987).
Appellees have requested that this court impose sanctions against Carter for bringing a frivolous appeal. We have discretion to award fees and costs for bringing a frivolous appeal. See 28 U.S.C. § 1912; Fed. R. App. P. 38; Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir. 1988). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Id. at 1009. Carter's contentions, including his contention that he is not a taxpayer are frivolous. We therefore award sanctions in the amount of $500.00 to Champion International.
AFFIRMED WITH SANCTIONS.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Willard Carter and his wife, Inez Carter, originally brought this action. Inez Carter, now deceased, did not sign the notice of appeal. In this circuit, pro se appellants must personally sign the notice of appeal. See Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986). Therefore, any issues pertaining to Inez Carter should not be considered. See id. (court lacked jurisdiction to hear wife's appeal where husband signed notice of appeal for both of them)
Moreover, Carter's "prayer for relief" requesting "release ... from the financial bondage from [sic] Champion International and the Internal Revenue, et al." is essentially a request for injunctive relief from the IRS levy upon his wages. Actions to enjoin the assessment and collection of taxes by the IRS are narrowly limited by the Anti-Injunction Act. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th Cir. 1982); see 26 U.S.C. § 7421. The Act states in pertinent part that "no suit for the purpose of restraining the assessment and collection of any tax shall be maintained in any court by any person...." 26 U.S.C. § 7421(a). Although there are several statutory exceptions and one judicial exception to the Act, see 26 U.S.C. §§ 6212(a), (c), 6213(a), 6672(b), 6694(c), 7426(a), (b) (1), and 7429(b); Bob Jones Univ. v. Simon, 416 U.S. 725, 736-37 (1974), Carter has failed to allege that any of these exceptions apply here. Thus, Carter's action is barred by the Anti-Injunction Act. See Cool Fuel, 685 F.2d at 313; 26 U.S.C. § 7421
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