Unpublished Disposition, 914 F.2d 261 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 261 (9th Cir. 1990)

Nathan BOATNER, Plaintiff-Appellant,v.UNITED STATES of America, et al., Defendants-Appellees.

No. 89-56172.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 20, 1990.*Decided Sept. 6, 1990.

Before TANG, ALARCON and WIGGINS, Circuit Judges.


MEMORANDUM** 

Nathan Boatner appeals pro se the district court's order dismissing his action for lack of subject matter jurisdiction, personal jurisdiction, and failure to state a claim upon which relief can be granted.1  The district court found that Boatner failed to exhaust his administrative remedies prior to filing his complaint, and that it was deprived of jurisdiction by sovereign immunity which also made it impossible for Boatner to state a claim upon which relief could be granted. Boatner contends that the court erred in denying him leave to amend his complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review de novo the dismissal of a complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b) (1), for failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6), Kruso v. International Tel. & Tel. Co., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), or for lack of personal jurisdiction under Fed. R. Civ. P. 12(b) (2), Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257, 1258 (9th Cir. 1989). The district court's factual findings on jurisdictional issues must be accepted unless clearly erroneous. Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).

We review the district court's refusal to allow Boatner to amend his complaint under the abuse of discretion standard. See Thomas-Lazear v. FBI, 851 F.2d 1202, 1206 (9th Cir. 1988). Dismissal with prejudice is warranted where the pleadings before the court demonstrate that a plaintiff would not be entitled to relief under any set of facts. Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 732 (9th Cir. 1987).

In May, 1989, Boatner filed suit against the United States, IRS agent Rosemary Bowen, IRS district director Frederick Neilson, and DOES 1-25. Boatner alleged that the IRS has established a scheme to obtain additional taxes whereby each agent fulfills a quota by assessing a deficiency of $2,500 per audited account, regardless of whether that amount is actually owed by the taxpayer. Boatner asserts that in furtherance of this scheme, the IRS audited him, disallowed substantial expenses, and ignored his subsequent protest and appeal. Boatner concedes that his existing claim against the IRS is barred by the doctrine of sovereign immunity, but asserts that he will state a proper cause of action under 26 U.S.C. § 7433 if permitted to amend his complaint.

It is settled law that the United States, as a sovereign entity, may not be sued without its consent, and that the terms of that consent define the courts' jurisdiction. Lehman v. Nakshian, 453 U.S. 156, 160 (1981); Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982). The Federal Tort Claims Act (FTCA), provides a limited waiver of sovereign immunity and permits recovery against the United States for tortious conduct by federal employees that occurs within the scope of their employment. See generally 28 U.S.C. §§ 2671-80. Prior to commencing an FTCA action in federal court a plaintiff must present a claim to the appropriate agency. Id. at Sec. 2675(a). If the agency denies or fails to decide the claim within six months, the plaintiff is free to file a federal action. Id. Boatner filed a FTCA claim with the IRS which was rejected by the agency on the ground that the FTCA does not waive sovereign immunity for claims arising out of the assessment or collection of taxes. See 28 U.S.C. § 2680(c); see also Hutchinson, 677 F.2d at 1327. The district court correctly determined that because Boatner's claims arose out of the assessment and collection of taxes, sovereign immunity was not waived and therefore it lacked subject matter jurisdiction over his FTCA claim. See 28 U.S.C. § 2680(c).

The district court was also correct in holding that it lacked jurisdiction over the two individual IRS agents. The bar of sovereign immunity extends to agents and officers of the United States where they are sued in their official capacities for actions within the scope of their employment. Hawaii v. Gordon, 373 U.S. 57, 58 (1963); Hutchinson, 677 F.2d at 1327. Boatner specifically stated in his complaint that the defendants were the agents and employees of their codefendants and acting within the course and scope of their employment. Therefore, they were protected by sovereign immunity, and dismissal as to them was proper. See id.

B. Lack of Personal Jurisdiction and Failure to State a Claim

Because the district court properly dismissed this action for lack of subject matter jurisdiction, there is no authority to decide the other issues.2 

Dismissal was proper because the district court lacked subject matter jurisdiction over Boatner's action.

AFFIRMED.

 **

The panel unanimously finds this case suitable for disposition without oral argument. Therefore Boatner's request for oral argument is denied. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3

 1

Although Boatner appeals pro se, he is a licensed, practicing attorney

 2

Boatner requested attorney fees pursuant to 28 U.S.C. § 2412. Section 2412 is inapplicable to proceedings where 26 U.S.C. § 7430 applies. 28 U.S.C. § 2412(e). Section 7430 provides for an award of attorney fees to a prevailing party in a proceeding brought against the United States in connection with the determination, collection or refund of any tax, interest or penalty. 26 U.S.C. § 7430(a). Because Boatner is not a prevailing party as defined in section 7430(c) (4), the district court properly denied his request for attorneys fees