In Kasdon, the United States Court of Appeals for the Fourth Circuit determined that Maryland tax sales, of the type Plaintiff asserts, are not "judicial sales" within the meaning of the 28 U.S.C. § 2410. 707 F.2d at 823.Summary of this case from Morris v. Levene
Argued January 10, 1983.
Decided June 3, 1983.
Michael P. DeGeorge, Associate County Atty., Robert B. Ostrom, County Atty., Upper Marlboro, Md. (Michael O. Connaughton, Deputy County Atty., Upper Marlboro, Md., on brief) for appellant.
David English Carmack, Tax Div., Dept. of Justice, Washington, D.C. (J. Frederick Motz, U.S. Atty., Baltimore, Md., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, William S. Estabrook, Tax Div., Dept. of Justice, Washington, D.C., on brief) for appellee.
Appeal from the United States District Court for the District of Maryland.
Before HALL, MURNAGHAN and SPROUSE, Circuit Judges.
Prince George's County, Maryland, appeals from an order of the district court dismissing the United States as a party defendant in three suits to foreclose all rights of redemption in three parcels of real estate. The United States holds tax liens on the properties. The district court dismissed the United States as a defendant on the basis of sovereign immunity. We affirm.
Prince George's County was a defendant in one of the suits and the plaintiff in the other two suits. It opposed, in all three suits, the United States' motions to be dismissed as a party defendant. Prince George's County is the only appellant.
The suits originally were filed individually in the Circuit Court for Prince George's County, Maryland. The United States thereafter removed the cases to the United States District Court, 28 U.S.C. §§ 1441 and 1444, where they were consolidated for all purposes, Fed.R.Civ.P. 24(a).
The plaintiffs had purchased the real estate at a tax sale conducted by Prince George's County on May 8, 1978. Their actions sought to obtain absolute and indefeasible title in the properties. Maryland statutory procedure allows tax sale purchaser to file a petition in equity to foreclose all rights of redemption. If successful, the plaintiffs would take the properties free of all encumbrances. The United States was named as a party in each case because of tax liens it had filed against the properties.
Prince George's County was one of the plaintiffs. It had purchased two of the involved tracts in the 1978 sale because there were no bidders for the properties.
Md.Ann. Code art. 81, §§ 100(a), 102. Section 100(a) provides in pertinent part:
A holder of any certificate of sale, his heirs or assigns, may at any time after the expiration of one year and a day from the date of sale in any of the counties, or after six months from the date of sale in Baltimore City, file a bill in equity to foreclose all rights of redemption of the property to which such certificate relates, as hereinafter provided. The right to redeem shall, nevertheless, exist and continue until finally barred by decree of the court of equity in which the foreclosure proceeding is filed. Unless a proceeding to foreclose the right of redemption is filed within two years of the date of the certificate of sale, the said certificate shall be void and any and all right, title and interest of the holder of the certificate of sale of [or] his predecessors thereof, in and to the property sold shall cease and all money received by the collector on account of the said sale shall be deemed forfeited, and shall be applied by the collector on the taxes in arrears on said property. . . .
Id. § 112.
Id. § 103; see also 26 U.S.C. § 7425.
After the United States removed the cases to the district court, it moved to be dismissed as a defendant on the ground that it had not waived sovereign immunity. Prince George's County contended that the government had statutorily waived its immunity. 28 U.S.C. § 2410. The district court disagreed. It dismissed the United States as a defendant and remanded the cases to the state trial court for proceedings as to the other defendants.
Section 2410(a) provides in part:
[T]he United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter —
(1) to quiet title to, [or]
(2) to foreclose a mortgage or other lien upon,
. . . .
real or personal property on which the United States has or claims a mortgage or other lien.
Section 2410(c) provides in respect to section 2410(a)(2):
However, an action to foreclose a mortgage or other lien, naming the United States as a party under this section, must seek judicial sale.
Prince George's County advances the same two contentions on appeal as it presented to the district court. It first contends that immunity for the United States was waived by both section 2410(a)(1) and section 2410(a)(2). It argues that the Maryland proceeding was an action to quiet title, or alternatively, was a foreclosure action seeking a judicial sale. Prince George's County's second contention is that the interposition by the United States of the defense of sovereign immunity amounts to an unconstitutional taking of the real estate.
The district court, in a well-written opinion, reviewed the basic legal principles relating to quiet title and foreclosure actions. The court first concluded that Congress could not have intended to include the involved type of action within the meaning of a quiet title action in section 2410(a)(1) principally because the plaintiffs did not have actual or constructive possession of the properties. The court next concluded that since the foreclosure sale was not directed by judicial order, it was not a judicial sale as contemplated by section 2410(c). Citing Carlson v. United States, 556 F.2d 489 (Ct.Cl. 1977) and Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91 (1st Cir. 1977), the district court held that the invocation of sovereign immunity by the United States was not a taking of the plaintiffs' real estate, because the plaintiffs have available various routes by which the federal tax liens can be discharged and because the only harm alleged was harm to future, speculative opportunities.
541 F. Supp. 991 (D.Md. 1982).
We agree with the conclusion reached by the district court in answering each of these contentions, and affirm on the basis of its rationale.