Opinion
CASE NO. 3:00-cv-949-J-25TJC
May 17, 2001
ORDER
THIS CAUSE is before the Court on Defendant's Motion to Dismiss (Dkt. 5) and Plaintiff's "Notice of Non-Acceptance of Removal and Petition to Remand Case Back to State Jurisdiction" (Dkt. 9), which this Court shall treat as a motion to remand.
On August 4, 2000, Plaintiff, appearing pro se, brought this action in state court, pursuant to Florida Statute § 713.21, seeking to cancel federal income tax liens filed against him, and seemingly to discharge his tax debts. This case was removed by Defendant to federal court on August 25, 2000, pursuant to 28 U.S.C. § 1446.
Plaintiff argues that Defendant improperly removed this action and seeks to have this cause remanded to the state court. Plaintiff's argument is without merit. Defendant properly removed this action to federal court pursuant to 28 U.S.C. § 146, which provides:
(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 the collection of the revenue.
Defendant contends, in its Motion to Dismiss, that this action, although alleged to be brought against Defendant in his individual capacity, is in reality an action against Defendant in his official capacity. Again, Plaintiff is challenging the federal income tax liabilities assessed against him by seeking an order releasing him from the associated tax liens. Plaintiff does not allege, and the notices attached to the complaint do not support, that Defendant failed to comply with 26 U.S.C. § 6323, when the liens were filed. lnstead, plaintiff alleges the usual tax protester type arguments, such as, Plaintiff "has no knowledge of a factual contract upon which a claim of lien or debt would be valid against [him] in relation to the respondent in this action" and he "has not been given notice of an Act of Congress and published regulation thereto that would create a liability upon which the alleged lien(s) could be claimed against [him]." See Complaint at ¶¶ 6, 7 (emphasis added). Accordingly, the Court finds that this action should be treated as one against Defendant in his official capacity as revenue officer for the United States.
A suit against a governmental official in his or her official capacity is actually a suit against the governmental entity that he or she represents, which in this case is the United States. Kentucky v. Graham, 473 U.S. 159, 166 (1985); see also Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D. Fla. 1995) (recognizing that suit against IRS employee in his official capacity is suit against United States) (citation omitted)), aff'd without opinion, 84 F.3d 437 (11th Cir. 1996). Under the doctrine of sovereign immunity, no relief may be awarded against the United States, unless it has expressly and unequivocally waived its sovereign immunity and consents to be sued. See Department of Army v. Blue Fox, Inc., 525 U.S. 255, 260-61 (1999). Because the United States has not waived its immunity or consented to be sued under Florida Statute § 713.21, the Court finds that it lacks subject matter jurisdiction over this case, and thus it should be dismissed pursuant to Fed.R.Civ.P. 12(1).
Accordingly, it is ORDERED:
1. Plaintiff's "Notice of Non-Acceptance of Removal and Petition to Remand Case Back to State Jurisdiction" (Dkt. 9) is DENIED.
2. Defendant's Motion to Dismiss (Dkt. 5) is GRANTED, and this action is hereby DISMISSED WITH PREJUDICE.
3. The Clerk is DIRECTED to enter Final Judgment in favor of Defendants and against Plaintiffs.