Anthony McIlvain Ostheimer, Mary Bacon Parke Ostheimer v. Sheila Lindquist, John Doe, Jane Doe, Internal Revenue Service

944 F.2d 909, 1991 U.S. App. LEXIS 27144, 1991 WL 180082

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 1991
• Docket: 90-35247
• Status: Unpublished

Opinion

944 F.2d 909

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Anthony McIlvain OSTHEIMER, Mary Bacon Parke Ostheimer,
Plaintiffs-Appellants,
v.
Sheila LINDQUIST, John Doe, Jane Doe, Internal Revenue
Service, Defendants-Appellees.

No. 90-35247.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 11, 1991.*
Decided Sept. 16, 1991.

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

MEMORANDUM**

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.

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