USA V. DENNIS POSELEY, No. 10-16200 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAY 24 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-16200 D.C. No. 2:06-cv-02335-EHC v. MEMORANDUM * DENNIS OWEN POSELEY, Defendant, and PATRICIA ANN ENSIGN, AKA Patricia Moats, AKA Patricia Poseley, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Earl H. Carroll, District Judge, Presiding Submitted May 15, 2012 ** Before: CANBY, GRABER, and M. SMITH, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Patricia Ann Ensign appeals pro se from the district court s orders dismissing for lack of jurisdiction her motion for declaratory and injunctive relief from the Internal Revenue Services s ( IRS ) assessment of administrative penalties for selling tax evasion schemes. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Hughes v. United States, 953 F.2d 531, 535 (9th Cir. 1992), and we affirm. Dismissal on jurisdictional grounds of Ensign s motion for relief from the assessment of penalties under 26 U.S.C. § 6700 was proper because the government is immune from being sued regarding such penalties except under limited circumstances that Ensign failed to establish. See 26 U.S.C. § 6703(c) (to contest § 6700 penalty, claimant must pay 15% of penalty and file a refund claim with IRS); 26 U.S.C. § 7422(a) (prohibiting suit to recover penalties until refund claim is filed); see also Korobkin v. United States, 988 F.2d 975, 976 (1993) (per curiam) (court lacks jurisdiction over challenge to § 6700 penalty if party fails to comply with statutory administrative claim requirement); Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir. 2007) (waivers of sovereign immunity must be unequivocal and strictly construed in the government s favor). The district court did not abuse its discretion in denying Ensign s motion for reconsideration because she failed to establish grounds for such relief. See Sch. 2 10-16200 Dist. No. 1J, Multnomah Cnty., Or. v. AcandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (reviewing denial of reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b) for an abuse of discretion and setting forth requirements). Ensign s remaining contentions are unpersuasive. AFFIRMED. 3 10-16200

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