Opinion
No. CIV S-03-0680 EJG JFM PS
July 18 2003
ORDER AND FINDINGS AND RECOMMENDATIONS
Respondent's motion to dismiss this action on the grounds of sovereign immunity came on regularly for hearing July 17, 2003. Complainant appeared in propria person. G. Patrick Jennings, Trial Attorney, Tax Division, U.S. Department of Justice, appeared telephonically for defendants. Upon review of the motion and the documents in support and opposition, upon hearing the arguments of complainant and counsel and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Complainant Jacobs filed a document entitled "Complaint for Order to Show Cause Why `Notices' of Liens Should Not Be Voided for Lack of Foundation and Fraud" in Plumas County Superior Court on March 10, 2003. The complaint was removed to this court on April 4, 2003, pursuant to 28 U.S.C. § 1442.
Complainant alleges the Revenue Officer Chuck Delao fraudulently placed notice of tax liens against complainant's real property. Complainant disputes the jurisdiction of this federal court over this matter, claiming the Plumas County Superior Court has exclusive original jurisdiction over this matter. However, the remedies sought in the complaint (i.e., the release of federal tax liens) indicate that this action is against the United States, regardless of how it is styled. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 101 n. 11 (1984).
The United States Attorney for the Eastern District of California, acting on behalf of the United States Attorney General, certified that Revenue Officer Delao was acting within the scope of his employment as employees of the United States at the time of the alleged incidents. As such, the United States filed a notice of substitution declaring it was the proper defendant in this suit. Good cause appearing, the request for substitution of the United States as the proper party defendant will be granted.
The United States contends this action should be dismissed on the grounds of sovereign immunity. It is well settled that the United States, as a sovereign, may not be sued without its consent, and that the terms of its consent define the court's jurisdiction. United States v. Testan, 424 U.S. 392, 399 (1976) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). Where the United States has not consented to suit, the court lacks jurisdiction over the subject matter of the action and dismissal is required. Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982) (citations omitted). The burden is on the taxpayer to find and prove an "explicit waiver of sovereign immunity." Lonsdale v. United States, 919 F.2d 1440, 1444 (10th Cir.1990). Waivers of sovereign immunity "must be explicitly expressed," and "must be strictly construed in the favor of the sovereign and may not be extended beyond the explicit language of the statute." Fostvedt v. United States, 978 F.2d 1201, 1202-03 (10th Cir. 1992) (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983);See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985).
None of the statutory provisions cited in Jacobs' complaint provides a specific waiver of sovereign immunity for tax issues. The general jurisdictional statutes such as sections 1332(a)(1) and 1333(1) of Title 28 do not provide the necessary specific waiver of sovereign immunity.See Mack v. United States, 814 F.2d 120, 122 (2d Cir. 1987) (finding that the general jurisdictional statute does not waive sovereign immunity);see also Weeks Construction. Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668, 676 n. 10 (8th Cir. 1986) (finding that the diversity jurisdiction statute does not allow action against United States). This court concludes there is no waiver of sovereign immunity in this action. Therefore, this court lacks subject matter jurisdiction and the complaint against the United States should be dismissed.
Finally, under the circumstances of the case at hand, the Anti-Injunction Act prohibits actions maintained "for the purpose of restraining the assessment or collection of any tax." 26 U.S.C. § 7421(a): see Bob Jones Univ. v. Simon, 416 U.S. 725, 736-37 (1974). Complainant Jacobs has failed to allege facts to support the exception to the Anti-Injunction Act described in Church of Scientology of Cal. v. United States, 920 F.2d 1481, 1485 (9th Cir. 1990).
In accordance with the above, IT IS HEREBY ORDERED that the September 4, 2003 status conference is vacated; and
IT IS HEREBY RECOMMENDED that the United States' motion to dismiss be granted, and this action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991).