113 F3d 1241 La Spina v. C Wucherer Irs

113 F.3d 1241

79 A.F.T.R.2d 97-2721

Anna Maria LA SPINA, Plaintiff-Appellant,
v.
Joseph C. WUCHERER, Grp. Mgr. IRS; J. Alexander, Revenue
Agent, Defendants-Appellees.

No. 96-56735.

United States Court of Appeals, Ninth Circuit.

Submitted May 6, 1997.*
Decided May 9, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: FLETCHER, REINHARDT and FERNANDEZ, Circuit Judges.


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1

MEMORANDUM**

2

Anna Maria La Spina appeals pro se the district court's dismissal of her action alleging that Internal Revenue Service ("IRS") employees Joseph C. Wucherer and J. Alexander violated her due process rights by seizing her vehicles without a hearing. We affirm.

3

The district court dismissed for lack of personal service, but La Spina has now made it clear that her action is against Wucherer and Alexander in their official capacities. Because La Spina seeks damages against Wucherer and Alexander solely in their official capacities as IRS employees, her suit is in reality against the United States. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). The United States, as sovereign, may not be sued without its consent, and the terms of consent define the court's jurisdiction to hear the suit. United States v. Testan, 424 U.S. 392, 399 (1976).

4

La Spina's claims for damages are barred by the doctrine of sovereign immunity. The United States did not waive its sovereign immunity under 26 U.S.C. § 7433 because La Spina failed to allege that she exhausted her administrative remedies. See 26 U.S.C. § 7433(d)(1). Nor did the United States waive its sovereign immunity under the Federal Tort Claims Act because La Spina's claims arise out of the assessment and collection of taxes. See 28 U.S.C. § 2680(c).

5

Accordingly, because the United States has not waived its sovereign immunity, the district court properly dismissed La Spina's action.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a); 9th Cir.R. 34-4


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**

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