No. 82-1475, 707 F.2d 820 (4th Cir. 1983)

Prince George's County, Maryland, appeals from an order of the district court dismissing the United States as a party defendant in three suits¹  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.

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 plaintiffs²  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 purchasers to file a petition in equity to foreclose all rights of redemption.³  If successful, the plaintiffs would take the properties free of all encumbrances.⁴  The United States was named as a party in each case because of tax liens it had filed against the properties.⁵ 

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,⁶  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.

We agree with the conclusion reached by the district court in answering each of these contentions, and affirm on the basis of its rationale.

AFFIRMED.