Unpublished Disposition, 865 F.2d 265 (9th Cir. 1989)

MEMORANDUM^** 

Donald Wayne Rosenbalm appeals pro se the district court's dismissal, with prejudice, of his tax refund action against the United States for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b) (6). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* This court reviews de novo the district court's dismissal of a complaint for failure to state a claim. Trerice v. Pederson, 769 F.2d 1398, 1400 (9th Cir. 1985).

II

Rosenbalm contends that the district court erred in dismissing his action for failure to state a claim because: (1) he is not subject to the provisions of the Internal Revenue Code ("IRC"); (2) the dismissal violated his first amendment right to petition the government for redress of grievances; (3) the levies violated his fourth amendment right against unreasonable searches and seizures; (4) the dismissal violated his fifth amendment right to due process; (5) the levies violated his sixth amendment right to a speedy and public trial because no trial was held prior to the levies on his salary; (6) the dismissal violated his seventh amendment right to a jury trial; and (7) the fines imposed by the IRS violated his eight amendment rights. All of these contentions lack merit.

By its terms, the Internal Revenue Code imposes taxes on the income of "every individual." See 26 U.S.C. § 31 (1982 & Supp.1986). Accordingly, the district court properly found that Rosenbalm's income is subject to taxation.¹ 

The first amendment right to petition the government for redress of grievances does not include the right to maintain baseless actions. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). Because Rosenbalm's action is baseless, the district court properly dismissed his first amendment claim.

The government's seizure of property to collect delinquent taxes does not violate the fourth amendment if it involves no invasion of the taxpayer's premises. Hutchinson v. United States, 677 F.2d 1322, 1328 (9th Cir. 1982). Here, the IRS has committed no invasion of Rosenbalm's premises; instead it levied upon his wages. Accordingly, the district court properly dismissed Rosenbalm's fourth amendment claim. Id.

A district courts dismissal of an action for failure to state a claim does not violate the due process clause. See Stonecipher v. Bray, 653 F.2d 398, 403 (9th Cir.), cert. denied, 454 U.S. 1154 (1982) (upholding a Fed. R. Civ. P. Rule 12(b) (6) dismissal against a due process challenge). Accordingly, the district court did not violate Rosenbalm's fifth amendment rights by dismissing his action for failure to state a claim.

The summary collection of tax deficiencies is constitutional if the taxpayer has an opportunity for a post-deprivation determination of his rights. See 26 U.S.C. § 6331 (1982 & Supp.1986); Phillips v. Commissioner, 283 U.S. 589, 595-97 (1931); Bothke v. Fluor Engineers & Constructors, Inc., 834 F.2d 804, 811 (9th Cir. 1987) (no constitutional right to a pre-levy hearing). Here, Rosenbalm was able to sue for a tax refund in a federal district court. Accordingly, Rosenbalm's sixth amendment rights were not violated by the district court's failure to hold a trial prior to the levies on his taxes.

The seventh amendment right to a jury trial does not apply to actions against the United States. See Hudson v. United States, 766 F.2d 1288, 1292 (9th Cir. 1985). Because Rosenbalm's action is against the United States, the district court's order of dismissal did not violate his seventh amendment right to a jury trial.

The eight amendment applies to criminal statutes rather than civil penalties. Powell v. Texas, 392 U.S. 514, 531-32 (1968). Because Rosenbalm is challenging civil tax penalties, the district court properly dismissed his eighth amendment claim.

III

This court has discretion to impose sanctions for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912 (1982); Olson v. United States, 760 F.2d 1003, 1005 (9th Cir. 1985). An appeal is frivolous when the result is obvious or the arguments on appeal wholly lack merit. Dewitt v. Western Pacific Rail Co., 719 F.2d 1448, 1451 (9th Cir. 1983). The arguments raised by Rosenbalm in this appeal have been repeatedly rejected by this court. See Cook v. Spillman, 806 F.2d 948, 949 (9th Cir. 1986) (sanctions imposed on pro se litigant who raised challenges to the income tax that had been repeatedly rejected by this court). Therefore, the government's request for sanctions of $1,500 will be granted.

AFFIRMED.