Opinion
Case No. 6:01-cv-1299-Orl-28DAB
December 14, 2001
Tally H. Eddings, Mt. Dora, FL, for Plaintiff.
Cynthia Lewis Stier, U.S. Dept. of Justice, Tax Division, Washington, DC, for Defendant.
ORDER
This cause came on for consideration without oral argument on pro se Plaintiffs Motion for Remand (Doc. 10, filed November 13, 2001) and the Motion to Dismiss by Individually Named Defendants (Doc. 12, filed November 16, 2001). Plaintiff Tally Eddings filed suit in the State Circuit Court against "Four Records" filed in the official records of Brevard County and against the Secretary of the U.S. Treasury. This case was removed to this court by the individually named Defendants. Plaintiff seeks a determination of the legality of four records filed in the Brevard County real property records against his property and demands that these liens be vacated, cancelled, and discharged as invalid pursuant to Section 713, Florida Statutes, and the Constitution of the State of Florida. As set forth below, removal is proper because the United States is a party to this action, and dismissal is proper because this court lacks jurisdiction and the complaint fails to state a claim upon which relief can be granted.
I. Removal is Proper
Because the complaint sets forth an action against the Secretary of the U.S. Treasury, 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.See Krieg v. Mills, 2001 WL 399466 (9th Cir. Apr. 18, 2001). Because defendants were sued for actions taken as employees of the IRS, and because the [Plaintiffs] sought to remove liens imposed to satisfy a tax deficiency, the district court correctly construed their claims as against the United States.")
Plaintiff contends that this action relating to the notice of federal tax liens 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 states:
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 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.
II. Dismissal is Proper
A suit against the Secretary of the U.S. Treasury and in rem against property records to vacate federal tax liens is, in essence, a suit against the United States. See Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D. Fla. 1995), aff'd, 84 F.3d 437 (11th Cir. 1996). Therefore, the United States is the proper defendant in this case, and 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. See Rosado, 855 F. Supp. at 1542. Additionally, the Government's waiver of sovereign immunity must be "unequivocally expressed" to be effective. See United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992). In the instant case, the United States has not expressly waived its sovereign immunity or consented to be sued pursuant to Section 713.12, Florida Statutes. Therefore, this Court lacks subject mailer jurisdiction over this case and the Plaintiff has failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), (6).
Moreover, dismissal is warranted in this case pursuant to local rule 3.01(b) in light of the Plaintiffs failure to respond to the motion to dismiss.
III. Conclusion
1. Plaintiffs Motion for Remand (Doc. 10, filed November 13, 2001) is DENIED.
2. The Motion to Dismiss by Individually Named Defendants (Doc. 12, filed November 16, 2001) is GRANTED.
3. This action is DISMISSED and the clerk is DIRECTED to close the file.
4. All other pending motions are DENIED as moot.
DONE and ORDERED.