Unpublished Disposition, 851 F.2d 360 (9th Cir. 1987)

MEMORANDUM^** 

Plaintiff-appellant Ronald J. Allison, pro se, appeals the dismissal of his complaint against Keith Hamilton, an IRS agent. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.

Allison filed this suit in Montana state court alleging Hamilton had deprived him of income by wrongfully having his employer alter Allison's withholding status, seeking to recover the resulting tax differential. Hamilton removed the case to federal district court pursuant to 28 U.S.C. § 1442(a) (1) and moved for summary judgment. The district court granted the motion, reasoning that the suit actually sought a tax refund. As a refund suit, it was barred because Allison failed to allege that he had filed an administrative claim for a refund, a jurisdictional prerequisite.

On appeal, Allison challenges the propriety of removal. Specifically, he claims immunity from federal preemption of his state cause of action because the Fourteenth Amendment is not applicable to white persons and because he has withdrawn from the social security system. These contentions are transparently frivolous. Hamilton, as an IRS agent, is a federal officer, and his acts were clearly performed under color of his federal authority. He therefore had an absolute right to removal under Sec. 1442(a) (1). Swett v. Schenck, 792 F.2d 1447, 1450 (9th Cir. 1986). Moreover, Allison is collaterally estopped from litigating this issue by our decision in Allison v. Hamilton, No. 85-4265 (Memorandum Disposition, July 16, 1987).

Apparently weary of Allison's repeated attempts to litigate this matter,¹  Hamilton seeks sanctions for this frivolous appeal. We agree that the appeal is frivolous because the result is obvious and the arguments advanced by Allison wholly lack merit. See Swimmer v. IRS, 811 F.2d 1343, 1345 (9th Cir. 1987). We therefore impose sanctions of double costs and $1500 attorney's fees. Fed.R.App.Proc. 38.

In the district court, Hamilton sought "an injunction against further action" by Allison and attorney's fees. The district court abused its discretion in denying these requests. Allison's conduct in continuing to litigate this matter is vexatious and repetitive. We therefore remand this case to the district court with directions that an injunction be issued ordering Allison to refrain from suing either Hamilton or the IRS on this cause of action in any court.

Appellant is ordered to pay appellee $1,500 for attorney's fees and is further assessed double costs.

AFFIRMED in part, REVERSED in part, and REMANDED.