Unpublished Disposition, 918 F.2d 181 (9th Cir. 1986)

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U.S. Court of Appeals for the Ninth Circuit - 918 F.2d 181 (9th Cir. 1986)

Jerome W. WAYNO and Rita Ann Wayno, Plaintiffs-Appellants,v.UNITED STATES of America, Internal Revenue Service,Defendants-Appellees.

No. 88-6099.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 7, 1990.* Decided Nov. 13, 1990.

Before HUG, CANBY and WIGGINS, Circuit Judges.


Appellant Rita Wayno1  appeals pro se the district court's order dismissing her first amended complaint for lack of subject matter jurisdiction and the district court's denial of a temporary restraining order. We affirm.


I. Dismissal of first amended complaint for lack of subject matter jurisdiction

We review the district court's dismissal for lack of subject matter jurisdiction de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). We review the district court's factual findings on jurisdictional issues under the clearly erroneous standard. Id. The district court correctly held that Wayno's action was barred by the doctrine of sovereign immunity.

The United States may not be sued without its consent. The plaintiff has the burden of proving that the United States has waived its immunity to suit. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984). Wayno asserts that the court had jurisdiction under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., and the United States Constitution.2 

The Federal Tort Claims Act (FTCA) waives the government's sovereign immunity in specific tort actions if a plaintiff fulfills the statutory prerequisites. Here, Wayno failed to file an administrative claim with the appropriate agency prior to the filing of her action. 28 USC Sec. 2675(a) (emphasis added); Holloman, 708 F.2d at 1401.3  Wayno's claims regarding the assessment and collection of taxes are also specifically barred under the FTCA. 28 U.S.C. § 2680(c).

The United States Constitution fails to provide a jurisdictional basis for Wayno's claim that the IRS' actions violated the Waynos' right to due process. The United States has not waived sovereign immunity with respect to suits for damages based on alleged violations of constitutional rights. Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986). Wayno's other claims have no constitutional basis.4 

Wayno argues that the government should be estopped from raising jurisdiction as a defense to the action. Wayno misunderstands the nature of jurisdiction. Jurisdiction goes to the court's power to hear a case. Even if the government did not raise the issue of jurisdiction, this court would be obligated to dismiss the action sua sponte for lack of jurisdiction. Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1980).

II. Denial of Wayno's motion for a temporary restraining order.

Wayno argues that the district court erred by treating her application for a temporary restraining order as an application for a preliminary injunction. Wayno further contends that the TRO is necessary to prevent irreparable harm. We review the denial of preliminary relief for an abuse of discretion. Religious Technology Center, Church of Scientology Int'l Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir. 1989). We review the district court's findings of fact under the clearly erroneous standard. Id. The trial court found that Wayno did not have a substantial likelihood of success on the merits and denied plaintiff's motion for a TRO.5  We affirm.

The Anti-Injunction Act, 26 U.S.C. § 7421, prevents the district court from granting a TRO against tax assessment or collection. No statutory exception prevents application of this bar. Although the Waynos argue that they did not receive proper notice as required by sections 6212 and 6213 of the Code, the government presented a copy of the Postal Service's Certified Mailing List, which indicated that on March 21, 1986, a Notice of Deficiency was sent to taxpayers by certified mail for the years at issue. A postal receipt form also indicated that the certified mail was received by "J.W. Wayno."

The judicial exception to the anti-injunction provision is also inapplicable as Wayno has failed to show that "under no circumstances could the Government ultimately prevail...." Bob Jones University v. Simon, 416 U.S. 725, 737 (1974). The district court's finding that Wayno would not prevail on appeal is not clearly erroneous.6 

Wayno's remaining arguments are without merit. Accordingly, we affirm the district court's orders dismissing Wayno's action and denying a temporary restraining order.7 


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and 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 Cir.R. 36-3


Appellant Rita Wayno moved to substitute herself for her deceased husband, Jerome W. Wayno. She has supplied no documents to establish her capacity to represent her husband's estate, and the motion is accordingly denied. The denial is without consequences because Rita Wayno was co-plaintiff in all claims and we resolve all those claims in favor of the government


Wayno's complaint includes claims for breach of contract, fraud, violation of the constitutional right to due process, intentional infliction of emotional harm, wrongful death, negligence, extortion, conspiracy and conversion


Wayno's recently filed administrative claim is not timely and therefore cannot be said to fulfill the statutory criteria. The statutory prerequisites are jurisdictional and cannot be waived by the court as Wayno urges


The Claims Court has exclusive jurisdiction over Wayno's claim for breach of contract because her damages exceed $10,000. 28 U.S.C. § 1346(a) (1). In her brief, Wayno states that enforcement of the contract is impossible. Nonetheless, Wayno argues that she does not seek monetary damages. If performance is impossible, monetary damages constitute Wayno's sole remedy for the contract claim. Thus, her claim is appropriately brought in the Claims Court


Although the trial court cited a case involving a motion for a preliminary injunction, the court applied the correct criteria in evaluating Wayno's request for a TRO


Our disposition of this issue makes it unnecessary to address the government's further contention that Wayno failed to show irreparable harm


Wayno's request for sanctions against the government for late filing of its brief is denied