Opinion
No. MC 02-0006-PHX-EHC
September 19, 2002
ORDER
Pending before the Court is Respondent's Motion to Dismiss the Amended Petition to Quash, filed May 22, 2002. [Dkt. 13].
I. Procedural History
Petitioner filed a Petition to Quash Summonses [Dkt. 3] on February 11, 2002, requesting the Court quash IRS administrative summonses issued as part of an IRS criminal investigation. Initially, Petitioner asserted the Court had jurisdiction to hear the petition under Internal Revenue Code Section 7609(h). [Dkt. 3]. On March 29, 2002, the United States filed a Motion to Dismiss [Dkt. 4], arguing IRS Code Section 7609 offers a limited waiver of sovereign immunity that does not apply in this case because an IRS criminal investigator issued the summonses to parties who do not qualify as third-party record keepers. [Dkt. 5].
The parties who received summonses were both art galleries.
Petitioner conceded Section 7609 did not apply and asked the Court's permission to amend his petition. [Dkt. 7]. The Court granted Petitioner's request [Dkt. 10], and Petitioner amended his petition to assert the Fourth and Fifth Amendments as a jurisdictional basis. [Dkt. 11]. The United States then filed the Motion to Dismiss pending before the Court [Dkt. 13], contending allegations of constitutional violations are insufficient to waive sovereign immunity. [Dkt. 14]. On June 17, 2002, Petitioner filed a Response to the United States' Motion to Dismiss [Dkt. 15], arguing: (1) the Constitution does provide a proper jurisdictional basis; (2) the summonses were not authorized by law; and (3) Respondent has placed no facts on the record. [Dkt. 15]. The United States filed a Reply on June 21, 2002 [Dkt. 18], reiterating its position and noting IRS Agent Jill Aitchison's affidavit did indeed constitute submitted facts on record.
II. Analysis
The United States may not be sued unless it expressly waives sovereign immunity. See United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368 (1990); United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965 (1983). Petitioner, as the party asserting jurisdiction, bears the burden of establishing sovereign immunity has been waived. See Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987), cert. denied, 487 U.S. 1204, 108 S.Ct. 2845 (1988); Haisten v. Grass Valley Medical Reimbursement Fund. Ltd., 784 F.2d 1392, 1396 (9th Cir. 1986); Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168 (1984).
Petitioner has failed to meet that burden. Petitioner has not asserted a statutory waiver of sovereign immunity upon which the Court can rely as a jurisdictional basis. Furthermore, Petitioner's allegations of potential violations of the Fourth and Fifth Amendments to the Constitution are not sufficient to waive sovereign immunity and establish jurisdiction. The Ninth Circuit held that although "there is a considerable appeal to the proposition that a remedy for a constitutional violation ought not to be defeated by the common law doctrine of sovereign immunity[,]" such issues are "foreclosed . . . by a long line of Supreme Court cases[.]" Clemente v. United States, 766 F.2d 1358, 1363 (9th Cir. 1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 881 (1986).
Citing Hill v. United States, 50 U.S. 409, 413 (1850); United States v. Lee, 106 U.S. 196, 207, 1 S.Ct. 240, 249 (1882); Keifer Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 388, 59 S.Ct. 516, 517 (1939).
Accordingly,
IT IS ORDERED that Respondent's Motion to Dismiss the Amended Petition to Quash [Dkt. 13] is GRANTED, the action [Dkt. 11] is DISMISSED and the Clerk of Court shall enter judgment accordingly.