Opinion
Case No. 05-80669-CIV-ZLOCH.
June 13, 2006
Deborah M. Morris, Esq., For Plaintiff.
Evangelos Lena, Pro Se, West Palm Beach, FL, Defendant.
Joanne Lena, Pro Se, West Palm Beach, FL, Defendant.
Christopher I. Kachouroff, Pro Se, Manassas, VA, Defendant.
Trevor George Hawes, Esq., For Defendant Citimortgage, Inc.
ORDER
THIS MATTER is before the Court upon Defendant Joanne Lena's Motion To Compel Agency Action Pursuant To 28 U.S.C. § 1361 (DE 22). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.
On July 25, 2005, Plaintiff United States of America (hereinafter "Plaintiff") filed a Complaint (DE 1) seeking to reduce to judgment unpaid federal tax liabilities assessed against Defendants Evangelos Lena and Joanne Lena, to foreclose federal tax liens and for the sale of real property. On December 9, 2005, Defendant Joanne Lena (hereinafter "Defendant") filed the instant Motion (DE 22) wherein she moves the Court to compel Mark Everson, the Commissioner of the Internal Revenue Service (hereinafter "the Commissioner"), to issue a release of liens and levies pursuant to 26 U.S.C. § 6325(a) (1), return property pursuant to 26 U.S.C. § 6343(a) and (b) and to correct an administrative accounting record. In response, the United States argues that the Commissioner is immune from the relief Defendant seeks. See DE 25. Alternatively, the United States argues that the instant Motion (DE 22) is barred by the Anti-Injunction Act. Id.
The Court notes that the Commissioner is not a party to the above-styled cause. Nonetheless, the Court treats the instant Motion (DE 22) as an attempt to bring an action against — or to compel action of — the United States. See, e.g, Brewer v. C.I.R., 2006 WL 1310687, * 1 (S.D. Ala. 2006); Helvie v. Beach, 2003 WL 22073142, * 2 (S.D. Fla. 2003).
In light of these arguments, the Court notes that while 28 U.S.C. § 1361 provides that "district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff," it is well established that this provision is not a general waiver of sovereign immunity. Weintraub v. I.R.S., 2005 WL 1155142, * 2 (S.D. Fla. 2005). Under the doctrine of sovereign immunity, the United States is immune from suit except to the extent it has explicitly waived such immunity. United States v. Mitchell, 445 U.S. 535, 538 (1980). Where the United States has not waived immunity a court lacks subject matter jurisdiction over the case. United States v. Sherwood, 312 U.S. 584, 586 (1941). Regarding tax collection and assessments, the United States has waived sovereign immunity in the limited circumstances outlined in 26 U.S.C. § 7421(a). Because Defendant has failed to present facts or argument brining the instant Motion (DE 22) within any judicially recognized exception to Section 7421, the Act prohibits the Court from granting the relief sought. Moreover, while the United States Supreme Court has recognized a narrow judicial exception to Section 7421, that exception does not apply here. See Enochs v. Williams Packing Navigation Co., 370 U.S. 1, 7 (1962) (concluding that the Anti-Injunction Act applies unless there are no circumstances under which the United States can prevail and if equity jurisdiction otherwise exists); see also Bob Jones University v. Simon, 416 U.S. 725, 746-49 (1974) (placing the burden on the taxpayer to show their case falls within the judicially created exception to the Anti-Injunction Act).
The Court further notes that there is no indication in the instant Motion (DE 22) that Defendant has filed an administrative claim with the Internal Revenue Service.
Defendant, in turn, argues that the Administrative Procedure Act, 5 U.S.C. § 702, waives the immunity of the United States in this instance. Section 702 provides a limited waiver of sovereign immunity as follows:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States. . . . The United States may be named as a defendant in any such action, and a judgment or decree may be entered . . . Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial reivew or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
Although the above-mentioned waiver of sovereign immunity does not provide an independent grant of jurisdiction, see Califano v. Sanders, 430 U.S. 99, 104-05 (1977), jurisdiction may be based upon the general federal jurisdiction statute, 28 U.S.C. § 1331.
Nevertheless, the Court does not find a waiver of sovereign immunity here, as any such waiver in this instance is prohibited by the Anti-Injunction Act. Specifically, as indicated in the last clause of Section 702, nothing in the Administrative Procedures Act "confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." Because the Anti-Injunction Act expressly forbids "suit[s] for the purpose of restraining the assessment or collection of any tax," the Court is prohibited from granting the instant Motion (DE 22). See, e.g., Segal v. Commisioner of the I.R.S., 2006 WL 952223, * 1 (11th Cir. 2006);Hughes v. United States, 953 F.2d 531, 537 (9th Cir. 1991);Lonsdaie v. United States, 919 F.2d 1440, 1444 (10th Cir. 1990); Weintraub, 2005 W L 1155142 at * 2. As such, the Court deems it proper to deny the instant Motion (DE 22).
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED that Defendant Joanne Lena's Motion To Compel Agency Action Pursuant To 28 U.S.C. § 1361 (DE 22) be arid the same is hereby DENIED. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this day of June, 2006.