Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 571 (9th Cir. 1988)

Michael W. MASON, Cheryl L. Mason, Plaintiffs-Appellants,v.LOCKHEED CALIFORNIA COMPANY, Defendant,andInternal Revenue Service; Lawrence B. Gibbs, IRSCommissioner, Defendants- Appellees.

No. 87-6299.

United States Court of Appeals, Ninth Circuit.

Submitted June 24, 1988.* Decided July 11, 1988.

Before CHOY, TANG and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

The Masons, pro se, appeal the district court's dismissal of their complaint against the Commissioner of Internal Revenue. We dismiss Cheryl Mason's appeal for lack of jurisdiction and we affirm the district court in Michael Mason's case. We also impose $1500 in sanctions on Michael Mason for a frivolous appeal.

FACTS AND PROCEEDINGS

Michael Mason1  failed to pay income taxes from 1980 through 1985. For this reason, the Internal Revenue Service ("IRS") seized land owned by Mason and sold it to pay Mason's tax liability. The IRS also instructed Mason's employer, Lockheed, to begin withholding taxes from Mason's wages. On October 8, 1986, Mason filed suit against Lockheed, a Lockheed employee, and the Commissioner, seeking an injunction and the return of his property.

On November 17, 1986, the district court dismissed Lockheed and its employee from the suit because they had complied properly with the IRS withholding instructions. At the same time, the district court advised Mason that he had failed properly to serve the Commissioner. On March 13, 1987, Mason asked for a default judgment against the Commissioner for failure to file an answer. The same day, Mason properly served the Commissioner. On March 23, 1987, the Commissioner filed a motion to dismiss Mason's complaint. Later, the district court granted the Commissioner's motion because the United States had not waived its sovereign immunity and denied Mason's motion. Mason filed a timely appeal.

DISCUSSION

Mason argues that the district court erred when it denied his motion for default. We disagree. Mason failed to serve the Commissioner properly until March 13th; thus, the Commissioner's motion to dismiss filed on March 23 was a timely response to the complaint.

Mason asserts that the district court erred when it granted the Commissioner's motion to dismiss. We disagree. The dismissal was proper because the United States has not waived its sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538 (1980) (the United States is immune to suit unless it has consented to be sued).

The Commissioner argues that $1500 in sanctions should be imposed for a frivolous appeal. We agree and we exercise our authority under Fed. R. App. P. 38 and award $1500 in damages to the appellees in lieu of costs and attorney's fees. We find that the appeal is frivolous because all of Mason's arguments are wholly without merit. Wilcox v. Commissioner, No. 87-7312, slip op. at 6598 (9th Cir. June 7, 1988) ("An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit").

AFFIRMED in part, DISMISSED in part.

 *

Mason requests oral argument. We disagree and reject his request because the legal standard is established and the result in this case is clear. See Fed. R. App. P. 34(a), Ninth Circuit Rule 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 Ninth Circuit Rule 36-3

 1

Mason's wife, Cheryl, was a party to the district court proceedings, but she did not sign the notice of appeal. A pro se appellant must sign the notice of appeal. See Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986) (court lacked jurisdiction to hear wife's appeal where husband signed the notice of appeal for both of them). Therefore, we dismiss Cheryl Mason's appeal for lack of jurisdiction