Opinion
Case No.: 5:00-cv-1277-Orl-28A
December 1, 2000
ORDER
I. Introduction
This cause came on for consideration without oral argument on Plaintiffs Notice of Non-Acceptance of Removal and Petition to Release Case Back to State Jurisdiction (Dec. 13. filed October 23, 2000) which this Court construes as a motion for remand. Also before the Court is Petitioner's Brief in Support of Petition (Doc. 14, filed October 23, 2000) and Defendant's Opposition to Motion for Remand of Removed Case (Doc. 17, filed October 26, 2000). In addition, Defendant has filed a Motion to Dismiss (Dec. 7, filed October 6, 2000).
II. Facts
This case was filed by pro se Plaintiff, Danny True, in the Eighteenth Judicial Circuit in and for Seminole County, Florida. The Defendant, Van E. O'Neal, is an employee of the United States internal Revenue Service (IRS) whose previous duties as a Revenue Officer had included arranging for the filing of notices of federal tax liens in the public records. Plaintiff requests a hearing to be set for Defendant to show cause why a notice of a federal tax lien filed against his property should not be discharged, and he requests an order discharging the lien if the Defendant should fail to demonstrate good cause.
III. Removal is Proper
Because the complaint sets forth an action against Van E. O'Neal relating to his official acts as an IRS Revenue Officer, removal to this Court is proper pursuant to 28 U.S.C. § 1442 (a)(1)which states:
(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act, under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or collection of the revenue.
Plaintiff asserts that this action relating to the notice of a federal tax lien filed against his property involves "the legality of a tax assessment" over which the Florida circuit courts have "exclusive original jurisdiction" as set forth in Article V, Section 20(c)( 3) of the Florida Constitution which sets forth:
Circuit courts . . . shall have exclusive original jurisdiction . . . in all cases involving the legality of any tax assessment or toll . . . and in all actions involving titles or boundaries or right of possession of real property.
This argument purporting that the Florida circuit courts have "exclusive original jurisdiction" over a case involving a federal tax lien is wholly without merit. Even under the highly improbable scenario that the drafters of the Florida Constitution intended to place "exclusive jurisdiction" involving federal tax liens in state Court, such provisions in the Florida Constitution would be preempted by 28 U.S.C. § 1442 (a)(1) when the named defendant is a United States officer. Acts of Congress that provide this Court with removal jurisdiction cannot be invalidated by state law.
IV. Dismissal is Proper
Although the named defendant is Van E. O'Neal, this case against a United States officer relating to an action he performed in his official capacity is more accurately an action against the United States. The Supreme Court has recognized that a suit filed against a United States officer shall be treated by the Courts as one against the United States if "`the judgment sought would expend itself on the public treasury or domain, or interfere with public administration . . . or if the effect of the judgment would be `to restrain the government from acting, or compel it to act.'" Dugan v. Rank, 372 U.S. 609, 620 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738 (1947) and Larson v. Domestic Foreign Corp., 337 U.S. 682, 704 (1949)); Hawaii v. Gordon, 373 U.S. 57 (1963);Louisianna v. McAdoo, 234 U.S. 627, 632 (1914). Inextricably, a judgment that would void a federal tax lien, as Plaintiff seeks, would impact the public treasury.
As the United States is the proper Defendant in this case, the doctrine of sovereign immunity applies. Under this doctrine, the United States is immune from suit unless it expressly waives its immunity and consents to be sued. United States v. Shaw, 309 U.S. 495, 500-01 (1940); United States v. Nordic Village. Inc., 503 U.S. 30, 33 (1992) (holding that a waiver of sovereign immunity must be "unequivocally expressed" to be effective). Although 28 U.S.C. § 1346 (a)(1) provides that district courts shall have original jurisdiction over any civil action against the United States for the recovery of internal-revenue tax alleged to have been erroneously or illegally assessed or collected, "a taxpayer may not rely on section 1346(a)(1) to challenge an erroneously or illegally assessed amount without first paying the full amount of an income tax deficiency." Schon v. United States, 759 F.2d 614, 617 (7th Cir. 1985). Plaintiff does not allege that he has paid any outstanding tax liability. He solely seeks to have a federal tax lien invalidated. Thus, this case must be dismissed because this Court lacks jurisdiction over the subject matter and Plaintiff has failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), (6).
IV. Conclusion
For the reasons stated above, it is ORDERED and ADJUDICATED as follows:
1. Plaintiffs Motion for Remand (Doc. 13, filed October 23, 2000) is DENIED.
2. Defendant's Motion to Dismiss is GRANTED.
3. This case is DISMISSED.
4. The Clerk is directed to close the file.
DONE and ORDERED.