UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES B. SMITH and JEAN T. SMITH,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA; ROBERT E. RUBIN, Secretary of Treasury; MARGARET M. RICHARDSON, Commissioner of Internal Revenue; PAM C. BIGELOW, Acting District Director, IRS,

Boise, Idaho; MICHAEL O. LEAVITT, Governor, State of Utah;

KIM S. THORNE, Finance Director, State of Utah,

Defendants-Appellees.

No. 97-4193

(D.C. No. 96-CV-1084)

(District of Utah)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

After the Internal Revenue Service seized the Smiths' $790 Utah state income tax refund, the Smiths brought this action against the United States and various named and unnamed state and federal employees, alleging that the seizure was unlawful. In their complaint, the Smiths requested both a declaration that the defendants' actions were unlawful and more than $23 million in damages. The defendants moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint. The magistrate judge assigned to the case recommended dismissal, reasoning that all of the defendants enjoyed immunity, and furthermore, that the United States and the individual federal defendants had acted lawfully and that the Smiths had failed to state a claim against the individual state defendants. After the district court adopted the magistrate's recommendation and dismissed the complaint, the Smiths filed this appeal.

To the extent the Smiths seek a declaration that the defendants acted unlawfully in seizing their refund check, the Declaratory Judgment Act mandates dismissal of that portion of their complaint. See 28 U.S.C. § 2201(a) (providing that declaratory relief is not available in suits "with respect to Federal taxes"). We also uphold the dismissal of all claims for damages against the United States, as the Smiths have failed to demonstrate that the United States waived its sovereign immunity with respect to such claims. See United States v. Testan, 424 U.S. 392, 399 (1976) (holding "that the United States, as sovereign, is immune from suit save as it consents to be sued") (quotation omitted); see also 28 U.S.C. § 2680(c) (stating that the Federal Tort Claims Act does not apply to any "claim arising in respect of the assessment or collection of any tax"). Finally, because the complaint lacks any specific factual allegations that would, if proven true, demonstrate that the individual state and federal employee defendants "violate[d] clearly established statutory or constitutional rights," these defendants are entitled to qualified immunity from the Smiths' claims for monetary damages. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

Accordingly, we AFFIRM the district court's dismissal of the Smiths' complaint.

Entered for the Court,

Robert H. Henry

Circuit Judge