                               NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                                    FILED
                                FOR THE NINTH CIRCUIT                                     JUN 05 2015

                                                                                     MOLLY C. DWYER, CLERK
 THOMAS G. CAMPBELL,                                    No. 13-55442                   U.S. COURT OF APPEALS



                Plaintiff - Appellant,                  D.C. No. 2:11-cv-09944-RSWL-
   v.                                                   JC

 UNITED STATES OF AMERICA,

                Defendant - Appellee.

                     Appeals from the United States District Court
                         for the Central District of California
                   Ronald S.W. Lew, Senior District Judge, Presiding

 MARTIN SCOTT, husband and                              No. 13-55712
 MARGARET SCOTT, wife,
                                                        D.C. No. 2:12-cv-00389-ODW-RZ
                Plaintiffs - Appellants,
 v.
                                                        MEMORANDUM*
 INTERNAL REVENUE SERVICE
 COMMISSIONER,
          Defendant,
   and

 UNITED STATES OF AMERICA,

                Defendant - Appellee.

                       Otis D. Wright, II, District Judge, Presiding

         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
 STEVEN D. WYMAN and LAUREL A.                         No. 13-55990
 WYMAN,
                                                       D.C. No. 5:12-cv-01266-VAP-SP
                Plaintiffs - Appellants,

   v.

 UNITED STATES OF AMERICA,

                Defendant - Appellee.

                      Appeals from the United States District Court
                         for the Central District of California

                     Virginia A. Phillips, District Judge, Presiding

                          Argued and Submitted April 10, 2015
                                 Pasadena, California

Before:       SILVERMAN and BEA, Circuit Judges and QUIST,** Senior District
              Judge.

        The plaintiffs in these consolidated appeals are retired Los Angeles County

firefighters who have service-connected disabilities. The plaintiffs each filed a

separate action in district court seeking a tax refund, and the district court granted

summary judgment to the Government in each of the cases. We exercise

jurisdiction under 28 U.S.C. § 1291, we review the district courts’ conclusions of




        **
               The Honorable Gordon J. Quist, Senior District Judge for the U.S. District Court
for the Western District of Michigan, sitting by designation.

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law de novo, see Nakano v. United States, 742 F.3d 1208, 1210 (9th Cir. 2014),

and we affirm.

      1.     A Los Angeles County employee who retires with a service-connected

disability is entitled to receive a pension equal to half the employee’s final salary.

Cal. Gov’t Code § 31727.4. If the employee qualifies for a service pension in an

amount greater than half the employee’s final salary, however, the employee

receives the service pension amount. Id. Each of the plaintiffs received a pension

equal to the amount of his service pension, which was calculated based on years of

service.

      2.     Section 104(a)(1) of the Internal Revenue Code specifically excludes

from taxation “amounts received under workmen’s compensation acts as

compensation for personal injuries or sickness.” 26 U.S.C. § 104(a)(1). Treasury

Regulation §1.104-1(b) provides that “section 104(a)(1) does not apply to a

retirement pension or annuity to the extent that it is determined by reference to the

employee’s age or length of service . . . even though the employee’s retirement is

occasioned by an occupational injury or sickness.” Treas. Reg. § 1.104-1(b). The

portion of each of the plaintiff’s pensions that exceeds half his final salary is

determined by reference to his length of service, and thus not excludable pursuant




                                           3
to Treasury Regulation §1.104-1(b). See Sewards v. Comm’r, -- F. 3d --, No. 12-

72905, 2015 WL 2214705, at *5 (9th Cir. May 12, 2015).

      3.     The plaintiffs argue that the IRS lacked authority to issue Treasury

Regulation §1.104-1(b), and it is thus invalid. The Treasury Department has

authority to issue “all needful rules and regulations for the enforcement of [the

Internal Revenue Code.].” 26 U.S.C. § 7805(a). To determine whether a Treasury

regulation issued under that grant of authority is valid, courts apply the analysis

announced in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842-43 (1984). Mayo Found. for Med. Educ. & Research v. United States,

562 U.S. 44, 52 (2011). That analysis is satisfied here because § 104(a)(1) does

not directly address the precise question at issue and the regulation is a reasonable

interpretation of § 104(a)(1). See Sewards, 2015 WL 2214705, at *5.

      4.     The plaintiffs’ argument that Supreme Court precedent prohibits

applying Chevron deference in this case is unavailing. The IRS has not interpreted

§ 104(a)(1) in an inconsistent manner, nor has the Supreme Court interpreted that

statute in a way that conflicts with Treasury Regulation § 1.104-1(b). Accordingly,

the cases that the plaintiffs cite are inapposite. See United States v. Home

Concrete & Supply, LLC, 132 S. Ct. 1836 (2012); Rowan Companies v. United

States, 452 U.S. 247 (1981).


                                          4
      5.     Finally, the IRS is not bound to treat the entirety of Campbell’s and

Wyman’s pensions as excludable simply because it did so previously. Because

there are no court decisions addressing whether those pensions are taxable, the law

of the case doctrine is not applicable. See United States v. Lummi Indian Tribe,

235 F.3d 443, 452 (9th Cir. 2000). Nor does the doctrine of equitable estoppel

apply in this case, as Campbell and Wyman have failed to demonstrate that the IRS

engaged in affirmative misconduct or that they were injured by the IRS’s conduct.

See Baccei v. United States, 632 F.3d 1140, 1147 (9th Cir. 2011) (listing elements

of an equitable estoppel claim).

      AFFIRMED.




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