Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^** 

Appellant John Albert Strand appeals the district court's dismissal of his pro se complaint, in which he alleges unconstitutional discrimination based on the fact that in 1976 and 1977 the Internal Revenue Service ("I.R.S.") would not allow him to file a joint tax return when his wife filed a separate return. We affirm the dismissal of Strand's case and sanction him for this frivolous appeal.

BACKGROUND

In 1976 and 1977 Strand submitted a "married filing joint" tax return, even though his wife opted to file separately. This created a tax deficiency the I.R.S. remedied with a levy on Strand's wages.

In 1986 Strand filed an action in district court against the United States for ten million dollars in damages purportedly caused by the levy and other governmental actions. The district court dismissed the suit and we affirmed the dismissal in 1989.

Strand then filed an action against the district court judge, the government attorney who opposed him, and the Department of Justice. When the district court dismissed this case, Strand then sued President Reagan for failure to supervise the judges and federal employees involved in his litigation. This action was also dismissed.

At the beginning of 1990 Strand filed in district court once more against the federal government, again asking for ten million dollars in damages as compensation for alleged governmental wrongs committed against him. The district court dismissed Strand's case, characterizing it as frivolous and wholly without merit.

DISCUSSION

We review the district court's grant of the motion to dismiss Strand's case de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990); Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990).

This current appeal marks the second time Strand presents us with precisely the same claim. Two years ago we explained that the doctrine of sovereign immunity bars this action. Under this doctrine, a litigant may not sue the United States without its consent in the form of an express waiver of immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984). The Federal Tort Claims Act ("FTCA") waives sovereign immunity when a plaintiff seeks administrative relief before filing a legal action. 28 U.S.C. § 2675(a). The filing of an administrative claim against the I.R.S. under 26 U.S.C. § 7422(a) enables a plaintiff to recover falsely collected income tax.

We stated two years ago that the district court lacked subject matter jurisdiction because Strand failed to file the required administrative claim under 28 U.S.C. § 7422(a). Now, the transcript from the trial below indicates that Strand did eventually file the appropriate administrative claim, but only long after the statute of limitations had expired.

Moreover, no other waiver of sovereign immunity applies because the FTCA specifically excludes suits regarding the collection of any tax. 28 U.S.C. § 2680(c). Thus, the sovereign immunity defense remains intact and the district court properly dismissed Strand's complaint.

The government requests sanctions against Strand for the filing of this appeal. We have discretion to impose such sanctions to deter frivolous appeals and conserve judicial resources. 28 U.S.C. § 1912; Fed. R. App. P. 38; see, e.g., Maisano v. United States, 908 F.2d 408, 411 (9th Cir. 1990) ($1500 against pro se litigants); In Re Becraft, 885 F.2d 547, 548 (9th Cir. 1989) ($2500 against attorney with predilection for advancing meritless tax claims); Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir. 1988) ($1500 against pro se tax litigant); Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir. 1986) (same).

While the imposition of sanctions is completely discretionary, we consider certain factors especially probative in determining the appropriateness and amount in a given case. First, the appeal must be frivolous, meaning that the result is obvious or that the complaint wholly lacks merit. Wilcox, 848 F.2d at 1009. Next, we consider whether the litigant displays a history of frivolous tax litigation. Colton v. Gibbs, 902 F.2d 1462, 1464 (9th Cir. 1990) ($500 against persistent pro se litigant).

We find sanctions appropriate against Strand because the district court found his action frivolous, the trial judge clearly explained to him the worthlessness of his claim, and yet he persists in pursuing it. Strand has asserted essentially the same grievance five times now, with no indication he will cease. Therefore, in order to discourage Strand from wasting further judicial resources, we impose sanctions of $500. If Strand continues to advance his fruitless claim, he should expect additional sanctions of at least $1500. AFFIRMED WITH SANCTIONS.