Anthony Mcilvain Ostheimer, Mary Bacon Parke Ostheimer,plaintiffs-appellants, v. Sheila Lindquist, John Doe, Jane Doe, Internal Revenueservice, Defendants-appellees, 944 F.2d 909 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 944 F.2d 909 (9th Cir. 1991) Submitted Sept. 11, 1991. *Decided Sept. 16, 1991

Before EUGENE A. WRIGHT, FARRIS and TROTT, Circuit Judges.


Anthony and Mary Ostheimer appeal pro se the district court's summary judgment in favor of the Internal Revenue Service and individual IRS agents in their action alleging that the IRS and agents had wrongfully levied on their property. They sought a writ of mandamus directing the IRS to return $544 and to produce documents relating to the levy, and an award of punitive damages and costs. We affirm.

In so far as the Ostheimers' suit is against the IRS, the district court was without jurisdiction under the doctrine of sovereign immunity. The Ostheimers failed to cite any provision in the district court that waived immunity against suits such as theirs. Further, the record reflects that the Ostheimers have not filed a refund claim and therefore may not assert jurisdiction under 28 U.S.C. §§ 1346(a) (1) and 7422(a).

To the extent the Ostheimers' suit is against the named IRS employees in their individual capacities for a deprivation of property, it is precluded because the Ostheimers have not sought the alternative remedy open to them--a refund claim. Rutherford v. United States, 702 F.2d 580 (5th Cir. 1983). The Ostheimers have alleged no facts that could overcome the individual employees' qualified immunity for any alleged deprivation of a liberty interest. Morales v. Haynes, 890 F.2d 708, 710 (5th Cir. 1989).

The Ostheimers' contention that the district court judge abused his discretion by denying their motion to recuse him is without merit.



The panel unanimously finds this case suitable for decision without oral argument. 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