                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          JUL 22 1998
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 JAMES B. SMITH and JEAN T. SMITH,

              Plaintiffs-Appellants,

 v.                                                      No. 97-4193
                                                    (D.C. No. 96-CV-1084)
 UNITED STATES OF AMERICA;                             (District of Utah)
 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.



                          ORDER AND JUDGMENT            *




Before PORFILIO , KELLY , and HENRY , Circuit Judges.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. This case is therefore ordered submitted without oral argument.
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       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


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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




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