Opinion
CV-S-00-1063-PMP(RJJ)
January 23, 2001
Chris Beecroft, Edwards Winterton, Chtd, Las Vegas, NV, Attorney for James W. Anderson, Plaintiff.
Kathryn Landreth, U.S. Attorney, Las Vegas, NV, Virginia Cronan Lowe, U.S. Department of Justice, Washington, DC, Attorney for Walt Budzinski, International Bank For Reconstruction, International Monetary Fund, Ron Smith, THIRD PARTY DEFENDANTS.
Robert Kahre, Las Vegas, NV, Pro Se, DEFENDANT.
ORDER
Presently before this Court is a Third Party Defendants Walt Budzinski's ("Budzinski") and Ron Smith's ("Smith") Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. #5) filed on October 5, 2000 against Third Party Plaintiff Robert Kahre ("Kahre"). Defendants also filed a Memorandum in Support of Third Party Defendants' Motion to Dismiss (Doc. #6) and the Declaration of Virginia Cronan Lowe ("Lowe") (Doc. #7) on October 5, 2000. Third Party Plaintiff Kahre filed an Opposition to Third-Party Defendants' Motion to Dismiss (Doc. #10) on October 26, 2000. Defendants Budzinski and Smith filed a Reply (Doc. #13) on November 9, 2000.
On October 26, 2000, Third Party Plaintiff Kahre filed a Counter Motion for Confirmation of Jurisdiction or Remand in the Alternative; and for Disqualification of Kathryn Landreth and Virginia Lowe (Doc. #11). Defendants Budzinski and Smith filed a Memorandum in Opposition to Third Party Plaintiff's Counter Motion for Confirmation of Jurisdiction or Remand in the Alternative; and for Disqualification of Kathryn Landreth and Virginia Lowe (Doc. #14) on November 9, 2000. Third Party Plaintiff Kahre filed no Reply.
I. FACTUAL BACKGROUND
The underlying suit in this action was begun by Plaintiff James Anderson ("Anderson") to quiet title on real property at 3300 E. Owens, North Las Vegas, Nevada 89030 ("real property"). (Memorandum in Support of Third Party Defendants' Motion to Dismiss (hereinafter Memorandum) at 2.) The IRS had seized the real property from Third Party Plaintiff Kahre for nonpayment of Internal Revenue taxes owed to the United States. (Answer to Complaint, Affirmative Defenses and Counter Claim/Third Party Complaint (hereinafter Third Party Complaint) at Exhibit 8.) Anderson bought the real property at issue in an Internal Revenue Service ("IRS") Sealed Bill Sale. (Memorandum at 2; Third Party Complaint at Exhibit 7 and 8.) Kahre brought suit against Internal Revenue Agents Budzinski and Smith as third parties to the action begun by Anderson against Kahre. (See Third Party Complaint.) Kahre alleges that Budzinski and Smith violated Kahre's Consituational and statutory rights by seizing and selling the real property at issue in this suit. (See Id.)
II. DISCUSSION
A. Subject Matter Jurisdiction
Third Party Defendants Budzinski and Smith argue that this Court does not have subject matter jurisdiction over Third Party Plaintiff Kahre's suit. The Defendants allege that as IRS agents and employees of the United States, Budzinski and Smith have sovereign immunity from suit by Kahre.
The United States has sovereign immunity from suit unless it expressly waives that immunity by consent to suit. United States v. Dalm, 494 U.S. 596, 608(1990). A waiver of sovereign immunity by the United States must be unequivocally expressed. United States v. King, 395 U.S. 1, 4(1969). "`[T]he terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Dalm, 494 U.S. a 608 (quoting United States v. Testan, 424 U.S. 392, 399(1976)). If the United States has not consented to suit, the suit must be dismissed.Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Additionally, sovereign immunity cannot be "avoided by naming officers and employees of the United States as defendant." Id. (citing Larson v. Domestic Foreign Commerce Corp., 337 U.S. 682, 688(1949)). The burden is on the taxpayer to find and prove an "explicit waiver of sovereign immunity." Fostvedt v. United States, 978 F.2d 1201, 1203 (9th Cir. 1992) (quoting Lonsdale v. United States, 919 F.2d 1440. 1444 (10th Cir. 1990)). Thus, such a suit must be dismissed absent a showing of an express waiver immunity by the United States to the suit.
Third Party Plaintiff Kahre states that sovereign immunity does not apply to Budzinski and Smith. Kahre asserts that Budzinski and Smith are not officers of the United States instead work as agents for Third Party Defendants the International Monetary Fund ("IMF") and the International Bank for Reconstruction and Development ("World Bank"). Nevertheless, Budzinski and Smith are clearly IRS agents and not agents for the IMF or World Bank. The actions attributed to Budzinski and Smith does not apply." Hughes v. United States, 953 F.2d 531, 538 (9th Cir. 1991). For the real property at issue in this suit, Anderson had already bought the real property prior to Kahre filing the Third Party Complaint. (Third Party Complaint at 1 and Exhibit 8). Thus, 28 U.S.C. § 2410 does not provide jurisdiction. Next, Kahre evidences to 26 U.S.C. § 7402(2000) and 28 U.S.C. § 2679 (2000). While these statutes confer jurisdiction upon the United States district courts, they do not waive sovereign immunity for the United States. Finally, although Kahre cites to Constitutional violations by Budzinski and Smith, such allegations do not waive the sovereign immunity of the United States without consent.Clemente v. United States, 766 F.2d 1358, 1363 (9th Cir. 1985).
Even if Third Party plaintiff Kahre were suing Budzinski and Smith in their individual capacity, such a suit would be barred by the statute of limitations. Suits for damages against government officials in their individual capacity are allowed in certain circumstances. Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388(1971). Nevertheless, the statute of limitations for a Bivens claim is a constraint upon such actions. The statute of limitations on a Bivens action is the personal injury statute of limitations for the state in which the district court sits. Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991) In Kahre's case, the statute of limitations for a personal injury claim in Nevada is two years. Nev. Rev. Stat. 11.190(4)(e) (2000). The actions complained of by Budzinski and Smith all occurred between 1991 and 1994. Kahre filed the Third Party Complaint on February 14, 2000. (Third Party Complaint at 1). The statute of limitations on a suit against Third Party Defendants Budzinski and Smith in their personal capacity had already expired by the time Kahre filed the Third Party Complaint. Thus, suit by Third Party Plaintiff Kahre against Third Party Defendants Budzinski and Smith under a Bivens claim in their individual capacity is barred.
B. Disqualification of Kathryn Landreth and Virginia Lowe
Kathryn Landreth ("Landreth") is the United States Attorney for the District of Nevada. Virginia Lowe ("Lowe") is a United States Department of Justice attorney. Budzinski and Smith are United States officers working for the Internal Revenue Service. "[T]he conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested . . . is reserved to officers of the Department of Justice, under the direction of the Attorney General." 28 U.S.C. § 516(2000). In addition, "any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States." 28 U.S.C. § 517(2000). By statutory authority, Landreth and Lowe are qualified to act as the attorneys of Budzinski and Smith who are officers of the United States. Third Party Plaintiff Kahre's Motion to Disqualify Landreth and Lowe is denied.
C. Removal Jurisdiction
Third Party Plaintiff Kahre filed a Counter Motion for Confirmation of Jurisdiction. This Court interprets the Counter Motion as a challenge to this Courts Order for Removal through a Motion to Remand. 28 U.S.C. § 1447(c)(2000).
Kahre argues that the removal to this Court was made without legal authority. (Counter Motion for Confirmation of Jurisdiction or Remand in the Alternative; and for Disqualification of Kathryn Landreth and Virginia Lowe (hereinafter Counter Motion) at 8-10). Nonetheless, this Court had the legal authority to remove this case to United States District Court. 28 U.S.C. § 1441-42(2000). Kahre also argues that state court still has jurisdiction over this case. (Counter Motion at 5-6). However, upon filing notice with a state court of removal of a civil action to federal court, the state court no longer has jurisdiction over the case "unless and until the case is remanded." 28 U.S.C. § 1446(d)(2000). As a result, Kahre' s Counter Motion to Remand is denied.
III. CONCLUSION
IT IS THEREFORE ORDERED that Third Party Defendant Walt Budzinksi's Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED. All causes of action against Third Party Defendant Walt Budzinski are DISMISSED.
IT IS FURTHER ORDERED that Third Party Defendant Ron Smith's Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED. All causes of action against Third Party Defendant Ron Smith are DISMISSED.
IT IS FURTHER ORDERED that Third Party Plaintiff Robert Kahre's Counter Motion to Disqualify United States Attorney Kathryn Landreth and United States Department of Justice Attorney Virginia Lowe is DENIED.
IT IS FURTHER ORDERED that Third Party Plaintiff Robert Kahre's Counter Motion to Confirm Jurisdiction or Counter Motion to Remand is DENIED.