Elizabeth Boardman v. Cir

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 12 2015

MOLLY C. DWYER, CLERK
ELIZABETH BOARDMAN, No. 13-15022 U.S. COURT OF APPEALS

Plaintiff - Appellant, D.C. No. 2:12-cv-00639-MCE-
GGH
v.

COMMISSIONER OF INTERNAL MEMORANDUM*
REVENUE,

Defendant - Appellee.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding

Submitted March 10, 2015**
San Francisco, California

Before: BYBEE, CALLAHAN, and OWENS, Circuit Judges.

Plaintiff-Appellant Elizabeth Boardman appeals the district court’s dismissal

of her complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The complaint asserts claims under the Free Exercise Clause and the Religious

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq., and seeks an

injunction ordering the Internal Revenue Service to “put into operation procedures

for processing disputes, claims, collections and litigation adverse to taxpayers who

refuse to pay taxes because of conscience or religion that are respectful, efficient,

transparent and minimally burdensome and that lead to Tax Court determinations

upon taxpayer request.” We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

The district court correctly determined that the complaint is barred by the

Anti-Injunction Act, 26 U.S.C. § 7421(a). The complaint seeks an injunction that

would enjoin the government from following certain tax collection procedures—in

particular, procedures designed to allow the government to expeditiously resolve

taxpayer claims lacking legal merit—and therefore falls within the scope of the

Anti-Injunction Act. See Hansen v. Dep’t of Treasury, 528 F.3d 597, 601 (9th Cir.

2007).

Accordingly, the Anti-Injunction Act precludes federal jurisdiction here

unless Appellant can satisfy the judicially created exception to the Act by

demonstrating (1) irreparable injury if her case is not heard, and (2) certainty of

success on the merits. Bob Jones Univ. v. Simon, 416 U.S. 725, 737 (1974).

Appellant fails to satisfy either requirement. Appellant has a legal remedy in the

2
form of a suit for refund and thus will suffer no irreparable injury. Hansen, 528

F.3d at 601–02. Appellant also has not shown that she is certain to succeed on the

merits of her claim that the government’s listing of war tax resistance as a

“frivolous” legal position for purposes of 26 U.S.C. § 6702 connotes

discouragement of religion or otherwise violates her free exercise rights. See

Jenney v. United States, 755 F.2d 1384, 1387 (9th Cir. 1985) (holding that a

taxpayer’s attempt to claim a war tax deduction is frivolous within the meaning of

26 U.S.C. § 6702 because “[t]here is no provision in the Internal Revenue Code for

a war tax deduction or credit, and taxpayers have no constitutional right to refuse

to pay federal taxes because of their anti-war sentiments”).

Thus, the district court properly granted the Commissioner’s motion to

dismiss under Federal Rule of Civil Procedure 12(b)(1).1

AFFIRMED.

1
Because we conclude that the district court correctly dismissed the
complaint for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), we need not decide whether the complaint was also properly
dismissed under Federal Rule of Civil Procedure 12(b)(6).