larkin-c-craig-v-thomas-lowe-revenue-officer-in-his-personal-and , 108 F.3d 1384 ( 1997 )

108 F.3d 1384

79 A.F.T.R.2d 97-1624, 97-1 USTC P 50,316

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Larkin C. CRAIG, Plaintiff-Appellant,
v.
Thomas LOWE, Revenue Officer, in his personal and individual
capacity; Tom Vogel, Revenue Agent, in his
personal and individual capacity,
Defendants-Appellees.

No. 96-16030.

United States Court of Appeals, Ninth Circuit.

Submitted March 11, 1997.*
Decided March 13, 1997.

Before: SNEED, LEAVY and THOMAS, Circuit Judges.

1

MEMORANDUM**

2

Larkin C. Craig appeals pro se the district court's dismissal of his action seeking a writ of mandamus against Internal Revenue Officer Thomas Lowe and Internal Revenue Agent Tom Vogel. We affirm.

3

The district court correctly dismissed Craig's action for lack of subject matter jurisdiction. Because Craig's allegations relate solely to acts Lowe and Vogel committed in their official capacities as IRS employees, his 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 district court's jurisdiction to hear the suit. United States v. Testan, 424 U.S. 392, 399 (1976).

4

Craig has not established that the United States has waived its sovereign immunity. The mandamus statute, 28 U.S.C. § 1361, does not waive the United States' sovereign immunity. See Hill v. United States, 571 F.2d 1098, 1101 n. 5 (9th Cir.1978). Moreover, because Craig's action has the purpose of restraining the government's tax assessment and collection activities, it is barred by the Anti-Injunction Act. See 26 U.S.C. § 7421(a); Elias v. Connet, 908 F.2d 521, 523 (9th Cir.1990).

5

AFFIRMED.

*

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