Opinion
No. 3:01-cv-1257-J-21TJC
July 26, 2002
Attorney for Plaintiff: Keith Howard Johnson and Louis Andrew Frashure of Johnson and Johnson, P.A. from Jacksonville, FL.
Attorney for Defendant: Bruce T. Russell of the U.S. Dept. of Justice, Tax Division from Washington, DC.
ORDER
This case is before the Court on defendant's Motion to Strike Jury Trial Demand (Doc. 10) to which plaintiff filed a lengthy objection (Doc. 13). Because plaintiff's objection raised new issues, the Court directed defendant to file a response to plaintiff's objection and defendant has now done so (Doc. 15).
II. Background
The Internal Revenue Service ("IRS") assessed $56,557.77 against plaintiff for unpaid payroll taxes. On April 24, 2001, the IRS filed a Notice of Federal Tax Lien against plaintiff. Plaintiff appealed the imposition of the lien to the IRS Office of Appeals. The appeals officer conducted a collection due process hearing and subsequently issued a Notice of Determination on October 19, 2001, finding that the lien was appropriately imposed against plaintiff. Plaintiff filed this action appealing the determination pursuant to 26 U.S.C. § 6320 (c) and 6330(d) and demanded a jury trial. Defendant now moves to strike the jury demand.
Plaintiff did not challenge the underlying tax liability during the administrative process and is not doing so in this action. See Doc. 13 at 2.
III. Discussion
The Seventh Amendment preserves the right to jury trial "in suits at common law." Since there was no right of action at common law against a sovereign, enforceable by jury trial or otherwise, there is no constitutional right to a jury trial in a suit against the United States. Lehman v. Nakshian, 453 U.S. 156, 164 (1981); Mathes v. Comm'r, 576 F.2d 70, 71 (5th Cir. 1978), cert. denied, 440 U.S. 911 (1979). The United States Supreme Court has explained:
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
The reason that the Seventh Amendment presumption in favor of jury trials does not apply in actions at law against the United States is that the United States is immune from suit, and the Seventh Amendment right to a jury trial, therefore, never existed with respect to a suit against the United States. Since there is no generally applicable jury trial right that attaches when the United States consents to suit, the accepted principles of sovereign immunity require that a jury trial right be clearly provided in the legislation creating the cause of action.Lehman, 453 U.S. at 164; see also 9 C. Wright A. Miller, Federal Practice Procedure §§ 2314, at 68-69 (1971)("there is a right to a jury trial in an action against the United States only if a statute, expressly or by fair implication, so provides").
Because there is no Seventh Amendment right to a jury trial in actions against the United States, the Court need not consider plaintiff's three-pronged analysis as to whether this action is a common law controversy as to which the Seventh Amendment right to jury trial applies. See Doc. 13 at 5-12.
Here, plaintiff brought this action in federal court against the government pursuant to 26 U.S.C. § 6320(c) and 6330(d). Briefly stated, § 6320 provides that the IRS cannot proceed with the collection of taxes by imposing a lien on a taxpayer's property until the taxpayer has been given notice and an opportunity for administrative review. Section 6320 expressly incorporates § 6330(d) which permits the taxpayer to appeal the determination by the appeals officer to a United States District Court under certain circumstances. Neither § 6320 nor § 6330 provide fro a trial by jury. Cf. Retirement Care Assoc's, Inc. v. United States, 3 F. Supp.2d 1434, 1445 (N.D. Ga. 1998) (concluding that plaintiffs were not entitled to jury trial on tax claims pursuant to 26 U.S.C. § 7431 and § 7433). Plaintiff has cited no other statutory basis for the right to a jury trial in this case. Indeed, plaintiff cites U.S.C. § 2402 as the only federal statute "known to provide for jury trials in civil tax disputes" and concedes that section 2402 is not applicable in this case. Doc. 13 at 4.
Section 6330(d) provides for judicial review in a district court of the United States "if the Tax Court does not have jurisdiction of the underlying tax liability." The government does not contend that this action was improperly files in district court.
28 U.S.C. § 2402 provides that where a taxpayer seeks recovery under 28 U.S.C. § 1346(A)(1), either party may request that the case be tried by jury. Section 1346(a)(1) grants original jurisdiction to district courts over actions against the United States for the "recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty alleged to have been collected without authority or any sum alleged to have been excessive or in any manner wrongfully collected under the internal-revenue laws." Here, plaintiff is not challenging the validity of the tax liability but rather whether th IRS met the procedural and legal requirements for filing a notice of federal tax lien; thus, § 1346(a)(1) does not apply. Doc. 1 at 4-6.
Plaintiff contends that Rule 39(c), Fed.R.Civ.P. preserves the Seventh Amendment right of jury trial in cases where the United States is the defendant. Rule 39(c) provides:
In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or, except in actions against the United States when a statute of the United States provides for trial without a jury, the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
Although Rule 39(c) has been construed to permit advisory juries in cases where the United States is a defendant, the Rule does not authorize a regular jury trial under the circumstances of this case. See Hamm v. Nasatka Barriers, 166 F.R.D. 1, 2 (DC Dist. Col. 1996) (holding that Rule 39(c) permits advisory juries in cases where the United States is a defendant but noting that the Rule expressly prohibits regular jury trials); 9 C. Wright A. Miller, Federal Practice Procedure §§ 2335, at 214-15 (1971). Thus, at most, Rule 39(c) would permit the Court to use an advisory jury.
Plaintiff mistakenly cites Hamm in support of its contention that Rule 39(c) preserves the Seventh Amendment right of jury trial in cases where the United States is a defendant. See Doc. 13 at 5 n. 8.
Because the Seventh Amendment does not apply in cases where the United States is a defendant and § § 6320(c) and 6330(d) do not provide, either expressly or "by fair implication," for a trial by jury, plaintiff's demand for a jury trial should be stricken.
Accordingly, it is hereby,
ORDERED:
Defendant's Motion to Strike Jury Trial Demand (Doc. 10) is GRANTED. Plaintiff's Jury Trial Demand is hereby STRICKEN and this case should be scheduled as a non-jury trial.