Statutory interpleader, 28 U.S.C. § 1335, requires that at least two of the adverse claimants be of diverse citizenship. The United States, for the purposes of interpleader statute, is not a citizen of any state. United States v. Dry Dock Savings Inst., 149 F.2d 917 (2d Cir. 1945) (interpreting the predecessor of section 1335, 28 U.S.C. § 41(26)); Superior Beverage Co. v. Ohio, 324 F. Supp. 564, 567 (N.D.Ohio, 1971); First National Bank v. United States, 172 F. Supp. 757, 758 (S.D.Tex. 1959); 3A J. Moore, Federal Practice ¶ 22.09[3], at 3067 (2d ed. 1974). Therefore, the requisite diversity is lacking.

The government agreed with plaintiff that § 2410 only waived the sovereign immunity of the United States, but contended that under § 1444 it had an absolute right to remove any action brought under § 2410, and then seek dismissal for lack of subject-matter jurisdiction in the federal court. See Tompkins v. United States, 172 F. Supp. 204 (S.D.Tex. 1959) and First National Bank of Brownsville, Texas v. United States, 172 F. Supp. 757 (S.D.Tex. 1959), cited by the court in George v. United States. The district court recognized an apparent conflict between §§ 2410 and 1444, and sought to reconcile the two sections insofar as possible to effect the legislative purpose of each.

Nevertheless, defendant acknowledges that circuits are split as to whether § 2410 confers subject matter jurisdiction. SeeMacklin v. U.S., 300 F.3d 814 (7 Cir. 2002); McNeill v. Franke, 171 F.3d 561 (8 Cir. 1999); Shaw v. U.S., 331 F.2d 493 (9 Cir. 1964); Pacific Mut. Life Ins. Co. v. American Nat. Bank and Trust Co. of Chicago, 642 F. Supp. 163 (N.D. Ill. 1986); American Fidelity Fire Ins. Co. v. Construcciones Werl, Inc., 407 F. Supp. 164 (D.V.I. 1975); Seff v. Machiz, 246 F. Supp 823 (D. Md. 1965); Guttman v. U.S., 196 F. Supp. 384 (E.D.N.Y. 1961); Jones v. U.S., 179 F. Supp. 456 (S.D. Cal. 1959); First Nat. Bank of Brownsville, Tex v. U.S., 172 F. Supp. 757 (S.D. Tex. 1959) (finding that § 2410 does not provide a jurisdictional basis for bringing a claim in federal courts); compare with Progressive Consumers Federal Credit Union v. U.S., 79 F.3d 1228 (1 Cir. 1996); Estate of Johnson, 836 F.2d 940 (5 Cir. 1988); Aqua Bar & Lounge v. United States Dept. of Treasury, 539 F.2d 935, 940 (3d Cir. 1976) (finding that § 2410 confers subject matter jurisdiction). 28 U.S.C. § 2410 provides:

This provision, like § 2409a, does not confer this court with jurisdiction, but instead constitutes a waiver of the government's immunity in the instances therein described. See Shaw v. United States, 331 F.2d 493, 496 (9th Cir. 1964) (stating that § 2410 "does not, in addition to waiving sovereign immunity, confer jurisdiction upon federal courts"); First Nat. Bank of Brownsville v. United States, 172 F. Supp. 757, 759 (S.D.Tex. 1959) ("section 2410 presupposes jurisdiction in a court having jurisdiction of subject matter and does not confer jurisdiction to sue the Government independently . . .") In other words, the statute provides two avenues in which the wouldbe plaintiff may proceed — he may either bring his action in a federal district court, provided that an independent jurisdictional basis exists, or he may sue in a state court having jurisdiction over the subject matter. See Hamlin v. Hamlin, 237 F. Supp. 299, 300 (N.D.Miss.

It is also true that because of this, there is no jurisdiction for a statutory interpleader action where there are two claimants, one of which is the United States. Kent, 497 F.2d at 1327; United States v. Dry Dock Savings Institution, 149 F.2d 917, 918 (2d Cir. 1945); First Nat'l Bank of Brownsville v. United States, 172 F. Supp. 757, 758 (S.D.Tex. 1959). However, the United States is not a claimant in this action; the Administrator is. Where an agent of the United States is sued in her official capacity, she is considered to be a citizen of the state in which her agency is located.

Id. Accordingly, it is clear that the minimal diversity requirements of § 1335 do not exist. Additionally, plaintiff cannot base jurisdiction over this interpleader action on F.R.Civ.P. 22 because of the lack of either diversity or a federal question. Next, defendant Andrew Stone claims that 28 U.S.C. § 2410 confers jurisdiction upon this Court with regard to actions for interpleader because the provisions of § 2410 operate to waive the diversity requirements for interpleader actions. It was held in First National Bank of Brownsville, Texas v. United States, 172 F. Supp. 757, 759 (S.D.Tex. 1959), that ". . . section 2410 presupposes jurisdiction in a court having jurisdiction of the subject matter and does not confer jurisdiction to sue the Government independently, or to join the United States in a case in this Court where the remaining defendants are citizens of the same state as the plaintiff."

See annot. at 5 L.Ed.2d 867-887, citing many cases. But cf. Maule Industries, Inc. v. Tomlinson, 244 F.2d 897 (5 Cir. 1957); United States v. Morrison, 247 P.2d 285 (5 Cir. 1957); First National Bank of Brownsville, Texas v. United States, 172 F. Supp. 757 (D.C.Tex. 1959); George v. United States, 181 F. Supp. 522 (D.C.Tex. 1960). Applying the strict construction rule to the questions raised here, i. e., (1) whether the present suit amounts to an action to quiet title and (2) whether the interest of the United States constitutes a mortgage or other lien, it appears that a suit characterized as one for injunctive relief, as here, can nevertheless be in the nature of a suit to quiet title.

The Court is of the opinion that the Court is without jurisdiction to try this case. The Court relies upon the cases of Seattle Association of Credit Men v. United States, 9 Cir., 240 F.2d 906; Wells v. Long, 9 Cir., 162 F.2d 842; First National Bank of Brownsville v. United States, D.C., 172 F. Supp. 757; Remis v. United States, D.C., 172 F. Supp. 732, 733. Counsel will submit appropriate findings of fact, conclusions of law and judgment effectuating the Court's ruling.

The parties are agreed that Title 28 U.S.C.A., § 2410, only waives the sovereign immunity of the United States in certain civil actions and will not support an independent suit against the United States in federal court where no other grounds for federal jurisdiction exist. Tompkins v. United States, D.C.S.D.Tex. 1959, 172 F. Supp. 204, and First Nat. Bank of Brownsville, Texas v. United States, D.C.S.D.Tex. 1959, 172 F. Supp. 757. It is agreed that there are no other grounds for original jurisdiction of this court over an action to quiet title against the United States. Section 2410(a) reads as follows: "(a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the 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, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien."