Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

Everett and Loraine O. Lasher appeal, pro se, the district court's summary judgment dismissing their claims for declaratory and monetary relief against Internal Revenue Agent R.J. Damitio. The Lashers alleged they were "non-taxpayers," and that Damitio harassed them and confiscated their property in violation of their constitutional rights. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

"Congress has barred federal courts from giving declaratory judgments in tax matters, 28 U.S.C. § 2201." Handeland v. Commissioner of Internal Revenue, 519 F.2d 327, 239 (9th Cir. 1975). The district court, therefore, was without jurisdiction to entertain the declaratory relief claim.

The monetary claims were also properly dismissed. The claim against Damitio in his official, governmental capacity was based upon an alleged improper tax levy. The Lashers premised jurisdiction on 28 U.S.C. § 1346(a) (1). A federal court only has subject matter jurisdiction under 28 U.S.C. § 1346(a) (1) when the aggrieved taxpayer has paid the full amount of the tax assessed and has filed a claim for refund. Latch v. United States, No. 86-2112, slip op. at 3489 (9th Cir. March 22, 1988); Hutchison v. United States, 677 F.2d 1322 (9th Cir. 1982). The Lashers neither paid the full assessment nor filed a claim for refund. The district court, therefore, lacked jurisdiction over this claim.

The Lashers contend the district court erred in granting summary judgment against Damitio in his personal capacity. They argue they submitted "significant probative evidence" that Damitio violated their right to due process. This contention lacks merit. A federal officer, acting in the course of his official duties, is personally entitled to qualified immunity from suit so long as he does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Mitchell v. Forsyth, 472 U.S. 511, 525 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 107 S. Ct. 3034, 3038-39 (1987).

The Lashers do not dispute Damitio's sworn statement that he was acting within the scope of his official duties. They point to no constitutional or statutory authority which he allegedly violated. Accordingly, the district court did not err in granting summary judgment in favor of Damitio on this claim. See Mitchell, 472 U.S. at 526 (summary judgment proper if discovery fails to uncover evidence sufficient to create a genuine issue as to whether the defendant violated clearly established law).

The district court denied the Lashers' request for leave to amend their complaint. It did not abuse its discretion in doing so. The Internal Revenue Service, through its officers, had authority to seek negligence penalties under 26 U.S.C. § 6653. Accordingly, a warning that such penalties would be sought does not violate a clearly established statutory or constitutional right. See Mitchell v. Forsyth, 472 U.S. 511, 524 (1985). The decision not to schedule an appeals conference was appropriate, because the appeals conference procedure does not extend to cases that involve only the failure or refusal to comply with the tax laws because of moral, religious, constitutional, conscientious or similar grounds. 26 C.F.R. Sec. 601.106(b) (1987). The Lashers refused to pay their taxes because they allege they were "non-taxpayers." An appeals conference, therefore, was not available to them. Amendment of the complaint to include the allegations the Lashers sought to add would have been futile. Under these circumstances, leave to amend was properly denied. Klamath Lake Pharmaceutical Assoc. v. Klamath Medical Service Bureau, 701 F.2d 1276, 1292-93 (9th Cir. 1983).

The government requests sanctions against the Lashers for bringing a frivolous appeal. This court has discretion to impose sanctions under 28 U.S.C. § 1912 and Fed. R. App. P. 38. Sanctions are appropriate when the result of an appeal is obvious and the arguments of error are wholly without merit. Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir. 1986). The Lashers' appeal presents no colorable claim of error. Sanctions are appropriate and we impose them against the Lashers and in favor of the government in the sum of $1,000.00.

AFFIRMED WITH SANCTIONS.