           Case: 12-12822   Date Filed: 04/23/2013   Page: 1 of 3


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-12822
                        Non-Argument Calendar
                      ________________________

                    D.C. Docket No. 1:11-cv-04204-AT



ANDRE' T. CARTER,

                                                            Plaintiff-Appellant,

                                  versus

UNITED STATES OF AMERICA,
THE INTERNAL REVENUE SERVICE,
THE STATE OF GEORGIA DEPARTMENT OF REVENUE,

                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (April 23, 2013)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 12-12822     Date Filed: 04/23/2013   Page: 2 of 3


      Andre T. Carter appeals pro se the dismissal of his complaint against the

United States, the Internal Revenue Service, and the Georgia Department of

Revenue. Carter sought a refund of income taxes collected by the Service and the

Department and to enjoin them from enforcing tax levies. The district court

dismissed Carter’s complaint for lack of subject matter jurisdiction based on

federal and state sovereign immunity, the Anti-Injunction Act, the Tax Injunction

Act, and principles of comity. We affirm.

      The district court lacked subject matter jurisdiction over Carter’s complaint.

Neither the United States nor its agency, the Service, may be sued absent a waiver

of sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996,

1000 (1994). Although the United States has consented to be sued for a refund of

income taxes imposed erroneously, see 28 U.S.C. § 1346(a), Carter could not avail

himself of that limited waiver because he had not paid his tax deficiency or filed an

administrative claim for a refund with the Secretary of the Treasury, see 26 U.S.C.

§ 7422(a). And Carter could not avail himself of the statutory or judicially-created

exceptions to the prohibition in the Anti-Injunction Act against taxpayer “suit[s]

for the purpose of restraining the assessment or collection of any tax.”

id.§ 7421(a). Carter could not proceed under the statutory exception to the Act

because he failed to request a due process hearing after receiving the notice of

levy, see id. § 6330(e)(1), and he could not proceed under the judicial exception


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because he had an adequate remedy at law available in an action for a refund, see

Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 6, 82 S. Ct. 1125, 1129

(1962). Carter also could not proceed against the Department, an arm of the state

of Georgia, because it enjoys sovereign immunity, under the Eleventh Amendment.

See Regents of the Univ. of Calif. v. Doe, 519 U.S. 425, 429, 117 S. Ct. 900, 903

(1997).

      We AFFIRM the dismissal of Carter’s complaint.




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