Opinion
Case No. CV03- 034-N-LMB
February 12, 2003
ORDER
Plaintiff originally filed his Complaint in state court. Attorneys for Defendant filed a Notice of Removal on January 27, 2003, pursuant to 28 U.S.C. § 1442. The Court now reviews the propriety of removal, pursuant to 28 U.S.C. § 1446(b) and (c)(4). Having reviewed the record in this matter, and otherwise being fully informed, the Court enters the following Order.
REVIEW OF REMOVAL REQUEST
A. Background
Plaintiff's Complaint appears to be a challenge to the Internal Revenue Service's tax collection efforts on amounts he allegedly owes to the government. Attached to the Complaint are several notices relating to alleged tax deficiencies assessed against Plaintiff. Plaintiff alleges that he has "repeatedly challenged the purported admiralty jurisdiction of U.S. of the District of Columbia over him." Complaint, p. 3. He is requesting relief from the Internal Revenue Services's tax collection efforts.
B. Discussion
28 U.S.C. § 1442 authorizes removal of any civil action brought in state court against the United States or an agency thereof Therefore, the subject matter of this lawsuit is properly before the Court. Plaintiffs Complaint was flied on January 16, 2003, and Defendants filed the Notice of Removal on January 27, 2003. Accordingly, the Notice of Removal was timely filed pursuant to 28 U.S.C. § 1446. Based on the foregoing, the Court grants the Defendant's Petition for Removal (Docket No. 1).
It appears from the allegations in the Complaint that this Court lacks subject matter jurisdiction over this lawsuit. The Court is obligated to raise the issue of subject matter jurisdiction sua sponte. See Solano v. Beilby, 761 F.2d 1369, 1370 (9th Cir. 1985); Miller v. Transamerican Press Inc., 709 F.2d 524, 527 n. 2 (9th Cir. 1983). Whether subject matter jurisdiction exists is a question of law. Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir, 1994).
"The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769-70 (1941) (citations omitted); see also Arnsberg v. United States, 757 F.2d 971, 977-78 (9th Cir. 1985) (no right to money damages against United States without sovereign immunity waiver). "A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed' by Congress." Doe v. Attorney General of the United States, 941 F.2d 780, 788 (9th Cir. 1991) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503 (1969)). Plaintiff bears the burden of showing that the United States has unequivocally waived its sovereign immunity. See Baker v. United States, 817 F.2d 560, 562 (9th Cir, 1987), cert. denied, 487 U.S. 1204 (1988).
Plaintiff has not alleged a waiver of sovereign immunity in his lawsuit against the United States. Thus, the Court lacks subject matter jurisdiction, and the claims are subject to dismissal. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (dismissing a suit against IRS agents in their official capacities due to lack of subject matter jurisdiction). The law as set forth herein regarding sovereign immunity has been derived from a long history of case law in our country regarding claims against the federal government. Plaintiff may not agree with the law, but this Court is bound by it in ruling on his case.
Plaintiff's Complaint also asserts that he has not "subjected himself to U.S. admiralty jurisdiction." Complaint, p. 4. Plaintiff states that he is "not a person required to . . . pay over a tax to United States of District of Columbia." Complaint, p. 4. Plaintiff should be aware that the Constitution of the United States, Article I, Section 8, provides for the "Power to lay and collect Taxes, Duties, Imposts and Excises." Based on this power, the Ninth Circuit has "never recognized a constitutional violation arising from the collection of taxes." Wages v. Internal Revenue Service, 915 F.2d 1230, 1235 (9th Cir. 1990). "The prompt collection of taxes is necessary for the nation's continued existence and is an important governmental interest . . . ." Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981).
Based on the foregoing, Plaintiff is advised that his Complaint may be subject to dismissal for failure to state a claim upon which relief can be granted. Because the Court liberally construes the allegations in pro se complaints, Plaintiff will be given an opportunity to amend the Complaint. Specifically, Plaintiff must cure the subject matter jurisdiction pleading defect. Plaintiff will be given thirty (30) days within which to file an amended complaint in this matter. In the alternative, Plaintiff may file a notice of voluntary dismissal of the Complaint. If Plaintiff fails to file either an amended complaint or a notice of dismissal, the Complaint will be dismissed due to lack of subject matter jurisdiction in this Court.
C. Motion for Enlargement of Time
Counsel for Defendant filed a motion requesting additional time within which to file a response to Plaintiff's Complaint. He asserts that additional time is needed to investigate the Complaint's allegations and gather information before filing the response. He requests up through and including March 18, 2003 to file the response. Because Plaintiff has been ordered to file an amended complaint in this action, a response to the Complaint will not be required at this time. Defendant's request for additional time within which to file a response to the Complaint will be extended until twenty (20) days after Plaintiff files an amended complaint in this action.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Defendant's request for removal (Docket No. 1) is GRANTED.
IT IS FURTHER HEREBY ORDERED that Plaintiff shall file an amended complaint within thirty (30) days from the date of this Order in accordance with the guidelines set forth above. In the alternative, Plaintiff may file a notice of voluntary dismissal within the same time frame. Failure to file either an amended complaint or a notice of voluntary dismissal will result in the dismissal of Plaintiff's Complaint.
IT IS FURTHER HEREBY ORDERED that Defendant's Motion for Enlargement of Time to Respond to the Complaint (Docket No. 3) is GRANTED as set forth above.