James A. Murray, Appellant, v. United States of America, Appellee, 686 F.2d 1320 (8th Cir. 1982)

This appeal arises from the district court's¹  dismissal of appellant James A. Murray's complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b). Murray seeks $70,000.00 in civil damages, or, alternatively, an order compelling the United States to convey to him certain real property which he had attempted to redeem following its conveyance to the United States at a tax auction. The district court held that subject matter jurisdiction was lacking because the United States had not waived its sovereign immunity.

We agree with the district court that upon the pleadings and undisputed facts neither civil damage relief nor mandamus is available to appellant. Moreover, while we do not accept the trial court's characterization of the action as one to quiet title, we affirm the judgment of dismissal.

Background.

The essential facts are not in dispute. On December 20, 1978 the appellant Murray took a mortgage on real estate owned by Fireside, Inc., a North Dakota corporation operating as a bar and lounge. The mortgage was executed by Donald Paul, a large stockholder and president of the corporation, and was duly recorded in the office of the Register of Deeds of Cass County on the same date. The property was subject to a prior mortgage to the Casselton State Bank on which there was owing the sum of $92,130.07, and was subject also to IRS tax liens and other judgment liens. The IRS filed additional tax liens after December 20, 1978.

On April 18, 1979 the property was seized by the IRS for nonpayment of taxes. The property was later purchased by the United States at a tax auction for the amount of the statutory calculated bid, $301.84, pursuant to 26 U.S.C. § 6335(e) (1). Appellant did not bid at the auction nor does he challenge the validity of either the tax lien or the auction sale.

On August 13 and December 9, 1979 appellant sent letters to the IRS, enclosing a check for $320.00 (the amount of the government's purchase price plus some interest) and asking to redeem the property. See 26 U.S.C. § 6337.²  IRS officials on both occasions refused to permit the redemption and returned the checks. It was the IRS's position that the property of the corporation had been improperly given by a shareholder to secure an individual debt. The IRS noted that the transaction had not been approved by the corporation's Board of Directors, and that the mortgage was executed without consideration to the corporation. The Internal Revenue Service concluded that the mortgage was invalid, and hence that it was ineffective to trigger the redemption rights created by 26 U.S.C. § 6337.

On December 27, 1979 appellant filed a claim for damages with the IRS. The IRS denied this claim on April 1, 1980. The Service also sold its interest in the property to the Casselton State Bank for $301.84 in February, 1980. We are informed by appellant's brief that the property was subsequently transferred to a new purchaser on December 17, 1981.

On September 30, 1980 appellant commenced this suit in district court, seeking damages for the allegedly wrongful refusal of his redemption offer. In the alternative, he sought a writ of mandamus compelling the United States³  to convey the real property to him and to void all prior deeds it had given on the property.

Appellant asserted jurisdiction under 28 U.S.C. §§ 1340 (civil action arising under Act of Congress providing for internal revenue), 1346 (Federal Tort Claims Act), 1356 (seizure under law of the United States), 1402 (venue statute applicable to suits under Federal Tort Claims Act), 2410 (quiet title action against United States), and 1361 (petition for mandamus). The government moved to dismiss the complaint on the ground that the suit was barred by the doctrine of sovereign immunity. The district court dismissed appellant's complaint on this ground while expressly declining to reach the question whether appellant's mortgage was valid. Murray v. United States, 520 F. Supp. 1207, 1208 n.1 (D.N.D. 1981).

(A) Damage Relief.

We approach the jurisdictional issues from the perspective of the relief requested by appellant. We consider first whether Murray's prayer for damage relief is well-founded in any of the cited statutes.

(i) Federal Tort Claims Act.

Appellant bases his claim to damage relief primarily on the jurisdiction provided by the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (hereinafter FTCA), which waives the immunity of the United States with respect to suits alleging injury or loss of property through the negligent or wrongful act or omission of a United States employee.⁴  The waiver provided by section 1346(b) is limited, however, by a number of exceptions set forth in 28 U.S.C. § 2680. Two of the exceptions are said by the government to apply here.

The government relies first on Section 2680(c), which preserves sovereign immunity for "(a)ny claim arising in respect of the assessment or collection of any tax."

Appellant proposes a narrow construction of the exception, arguing that tax collection efforts were complete when the property was conveyed to the United States at the tax sale for the statutorily calculated minimum bid. He points out that he has not challenged as improper the IRS's assessment of taxes against the Fireside, Inc. He thus urges the conclusion that this lawsuit arises from rights which postdate the government's collection efforts. Allegedly, his legal action will not interfere with these efforts. Appellant also argues that the exception to FTCA jurisdiction stated in Section 2680(c) bars only taxpayer suits. The exception allegedly does not apply to suits by third parties whose interests may be affected by tax collection efforts.

The weight of authority is to the contrary. E.g., United States v. Worley, 213 F.2d 509, 512 (6th Cir. 1954) (exception in § 2680(c) barred suit by taxpayer's wife), cert. denied, 348 U.S. 917, 918, 75 S. Ct. 301, 302, 99 L. Ed. 719, 720 (1955); Broadway Open Air Theatre, Inc. v. United States, 208 F.2d 257, 258-59 (4th Cir. 1953) (exception barred suit by preferred stockholders of corporation where taxpayers were principal officers, directors and shareholder); Home Indemnity Co. v. Brennan, 430 F. Supp. 828 (S.D.N.Y. 1977) (exception barred suit by contractor's surety where taxpayer was the contractor). In a case closely on point, Pargament v. Fitzgerald, 272 F. Supp. 553, 556 (S.D.N.Y. 1967), aff'd, 391 F.2d 934 (2d Cir. 1968), the court specifically noted that Section 2680(c) precluded suit by a chattel mortgagee who alleged that his rights had been impaired by tax collection proceedings against his mortgagor. The exception to FTCA jurisdiction clearly applies to taxpayers and third parties alike.

We also cannot agree that appellant's claim arises outside of "the assessment or collection of taxes" for purposes of the exception to FTCA jurisdiction. When at a tax sale property is adjudicated to the government at the statutory minimum price, see 26 U.S.C. § 6335(e) (1), the government in effect becomes the purchaser subject to the statutory right of redemption. 26 U.S.C. § 6337(b) (1). Capital Savings Association v. Runnels, 361 So. 2d 458, 462 (La.Ct.App.1978). The right of redemption arises only in connection with the tax levy, and is an integral facet of such a levy. A claim founded on redemption rights is clearly a claim "arising in respect of the collection of a tax" within the meaning of Section 2680(c).⁵ 

(ii) Sections 1340, 1356.

The other statutes relied on by appellant as grants of jurisdiction for a damage action are equally of little avail. Appellant argues that his suit may be heard under 28 U.S.C. § 1340, which gives the federal district courts "original jurisdiction of any civil action arising under any Act of Congress providing for Internal Revenue." It is established, however, that this general grant of jurisdiction does not constitute a waiver of sovereign immunity. Aqua Bar & Lounge, Inc. v. United States Department of Treasury Internal Revenue Service, 539 F.2d 935, 937 (3d Cir. 1976); Essex v. Vinal, 499 F.2d 226, 231 (8th Cir. 1974), cert. denied, 419 U.S. 1107, 95 S. Ct. 779, 42 L. Ed. 2d 803 (1975) (and cases cited therein); Geurkink Farms, Inc. v. United States, 452 F.2d 643, 644 (7th Cir. 1971); Falik v. United States, 343 F.2d 38, 40 (2d Cir. 1965). There is similarly no waiver of sovereign immunity to be found in 28 U.S.C. § 1356, which is merely another general provision vesting jurisdiction in the district courts over certain kinds of seizures.⁶  Van Buskirk v. United States, 206 F. Supp. 553, 555 (E.D. Tenn. 1962).

(iii) Implied Waiver of Immunity.

Moreover, we cannot agree with appellant that a waiver of sovereign immunity must be implied where it is alleged that the IRS has failed to comply with seizure and sale provisions in the Internal Revenue Code. Appellant relies primarily on the reasoning of the dissent in Aqua Bar & Lounge, Inc. v. United States Department of Treasury Internal Revenue Service, 539 F.2d at 942-43. The dissent in this case was concerned that absent an implied waiver of immunity, the IRS would be free to violate Congressional mandates with impunity. Id. at 942. While we are similarly concerned that any injury which may here exist not be without a remedy, we cannot agree that a remedy should be provided through an implied waiver. A waiver of immunity "cannot be implied but must be unequivocally expressed." United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1352, 63 L. Ed. 2d 607 (1980), quoting United States v. King, 395 U.S. 1, 4, 89 S. Ct. 1501, 1502, 23 L. Ed. 2d 52 (1969). Such a waiver, if it exists at all, should be sought in the statute giving rise to a cause of action. Doe v. Civiletti, 635 F.2d 88, 94 (2d Cir. 1980); May Department Stores Co. v. Smith, 572 F.2d 1275 (8th Cir.), cert. denied sub nom. May Department Stores Co. v. Veterans' Administration, 439 U.S. 837, 99 S. Ct. 122, 58 L. Ed. 2d 134 (1978).

(iv) Federal Question Jurisdiction.

Appellant finally alleges that the refusal of his offer of redemption unconstitutionally deprived him of due process rights. The actions of government officials are said to have raised a substantial federal question within the subject matter jurisdiction of the district court. 28 U.S.C. § 1331. The existence of federal question jurisdiction, however, does not remove the barrier of sovereign immunity urged by the government against proceeding with this suit. Doe v. Civiletti, 635 F.2d at 94; Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972).⁷ 

In sum, we can find no cognizable ground for jurisdiction over appellant's damage action.⁸ 

(B) Equitable Remedies.

(i) Mandamus.

As an alternative to money damages, appellant requested that the district court issue a writ of mandamus compelling the United States to set aside all deeds it had given and convey the property to him. The federal mandamus statute, however, is of no help to appellant for several reasons.

First, it is debatable whether 28 U.S.C. § 1361⁹  constitutes a waiver of sovereign immunity. Doe v. Civiletti, 635 F.2d at 94 (Section 1361 is not an all-purpose waiver of immunity); Watson v. Blumenthal, 586 F.2d 925, 935 (2nd Cir. 1978); Hill v. United States, 571 F.2d 1098, 1101 n.5 (9th Cir. 1978); Essex v. Vinal, 499 F.2d at 231-32; McQueary v. Laird, 449 F.2d 608, 611 (10th Cir. 1971); see also 14 C. Wright, Federal Practice and Procedure § 3655 at 200 (1976) ("Section 1361 has not had any direct impact on the doctrine of sovereign immunity"); but see Vishnevsky v. United States, 581 F.2d 1249, 1255-56 (7th Cir. 1978) (doctrine of sovereign immunity inapplicable to actions for mandamus).

Moreover, even if sovereign immunity were waived by 28 U.S.C. § 1361, no federal officials are named as defendants in appellant's amended complaint. The Mandamus Act does not apply to the United States itself. Morpurgo v. Board of Higher Education, 423 F. Supp. 704, 714 (S.D.N.Y. 1976).

(ii) Action to Quiet Title, 28 U.S.C. § 2410.

Appellant's amended complaint did not expressly contain a prayer for quiet title relief. It is clear from the record, however, that the parties and the district court construed the suit as seeking such relief. 520 F. Supp. at 1209-10. The final question on appeal accordingly is whether this suit may properly be characterized as a quiet title action, and, if so, whether the district court had jurisdiction under 28 U.S.C. § 2410(a) (1)¹⁰  in combination with 28 U.S.C. § 1340.¹¹ 

We hold that appellant's suit may not appropriately be characterized as a suit to quiet title.

Appellant's complaint seeks two remedies: damages, or, in the alternative, a writ of mandamus compelling the United States to convey the property to him and to void all prior deeds it had given. Appellant persists on appeal in asserting that the ultimate effect of his redemption, if permitted, will be to convey to him a title interest in the property. Appellant thus eschews restoration of that interest in the land which he previously held, namely an inferior security interest which he may not want, and instead seeks creation in himself of a title interest which he never previously possessed or claimed.¹² 

On the ground that the present action is not one to quiet title, we affirm the district court's ruling that jurisdiction does not exist under Section 2410. This conclusion renders it unnecessary for us to consider the district court's different rationale for dismissal, namely that the United States had sold its interest in the property at the time suit was brought.¹³  520 F. Supp. at 1210.

The district court's order and judgment of dismissal is affirmed for lack of subject matter jurisdiction. Our affirmance of the dismissal is without prejudice to any quiet title action appellant may choose to bring against parties other than the United States in an appropriate state forum.¹⁴  See N.D.Cent.Code § 32-17-91 (1976 Repl.).