Charles Wray, Plaintiff-appellant, v. Keith O'dell, Defendant-appellee, 117 F.3d 1427 (9th Cir. 1997)

MEMORANDUM^* 

Charles Wray appeals pro se the district court's dismissal for lack of subject matter jurisdiction of his action alleging that Keith O'Dell, a revenue agent employed by the Internal Revenue Service ["IRS"], and five unknown IRS employees violated his constitutional rights and committed the torts of fraud and coversion by collecting his unpaid federal tax liabilities. We affirm.

Because Wray's allegations relate solely to acts O'Dell and the unknown IRS employees committed within the scope of their official duties to assess and collect taxes, his suit is in reality against the United States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). The United States, as sovereign, may not be sued without its consent, and the terms of consent define the district court's jurisdiction to hear the suit. United States v. Testan, 424 U.S. 392, 399 (1976).

Wray has not established the existence of a waiver of sovereign immunity. Contrary to Wray's contention, this action does not fall within the scope of the United States' waiver of sovereign immunity under the Little Tucker Act, 28 U.S.C. § 1491(a) (1). See North Star Alaska v. United States, 9 F.3d 1430, 1432 (9th Cir. 1993) (en banc). His request for injunctive relief is barred by the Anti-Injunction Act because it has the purpose of restraining the government's tax assessment and collection activities. See 26 U.S.C. § 7421(a); Elias v. Connet, 908 F.2d 521, 523 (9th Cir. 1990).

Accordingly, because the United States has not waived its sovereign immunity, the district court properly dismissed Wray's action.

AFFIRMED.