Miles W. WHITNEY, Jr., Plaintiff - Appellant, v. MOTOR CARGO, Defendant - Appellee, 168 F. App'x 240

MEMORANDUM Miles W. Whitney, Jr. appeals pro se from the district court’s judgment dismissing his action challenging his employer’s decision to withhold federal income taxes from his wages contrary to his instructions. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim, Bright v. Bechtel Petroleum, Inc., 780 F.2d 766, 768 (9th Cir.1986), and we affirm. The district court properly dismissed Whitney’s action alleging that Motor Cargo improperly withheld taxes from his wages, because Motor Cargo was required by law to do so. See 26 U.S.C. § 3402.

Furthermore, an employer is not liable to any person for the amount of tax withheld. See 26 U.S.C. § 3403; Bright, 780 F.2d at 770 (holding that suits by employees against employers for tax withheld are statutorily barred). We deny Whitney’s motion to supplement the record. We grant Motor Cargo’s motion for attorney’s fees on appeal. The determination of an appropriate amount of fees on appeal is referred to the court’s special master, Appellate Commissioner Peter L. Shaw, who shall conduct whatever proceedings he deems appropriate, and who shall have authority to enter an order awarding fees. See 9th Cir.

R. 39-1.9. The order is subject to reconsideration by the panel. Id. AFFIRMED This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.