Opinion
Case No. 6:01-CV-986-ORL-19KRS
October 15, 2001
ORDER
This case was considered by the Court on Motion by Paul H. O'Neill, Van E. O'Neal, Ken Colt, and D. Lawson to Dismiss this Action (Doc. No. 15, filed September 12, 2001) and Memorandum by Paul H. O'Neill, Van E. O'Neal, Kent Colt, and D. Lawson in Support of Motion to Dismiss this Action (Doc. No. 16, filed September 12, 2001). No brief in opposition was filed by Plaintiff as required by Local Rule 3.01(b). Therefore, the Motion by Paul H. O'Neill, Van E. O'Neal, Ken Colt, and D. Lawson to Dismiss this Action (Doc. No. 15) may be granted on this ground alone.
Plaintiff, Robert Murrell, filed suit in the State Circuit Court against "Two Records" filed in the official records of Seminole County and against individuals alleged to be the secretary and agents of the United States Treasury. The case was removed to this Court by the individually named Defendants. Plaintiff alleges in the Complaint that he seeks determination of the legality of two federal tax liens filed in the Seminole County real property records against his property and demands that the liens be vacated, cancelled and discharged as invalid pursuant to Florida Statute Chapter 713 and the Constitution of the State of Florida. Plaintiff claims to bring both a civil and a "criminal" action to this end on the ground that the liens are fraudulent and Florida State § 713.31(3) makes the act of filing a fraudulent lien a felony crime.
While the caption of the complaint also lists Robert A. Butterwroth, Office of the Attorney General of Florida and Robert McMillan, Attorney for the County of Seminole as "Plaintiff /Prosecutor," the complaint is not signed by either of these two persons. Plaintiff Murrell alone signed the complaint. The complaint alleges that Mr. Butterworth and Mr. McMillan are indispensable parties to the case.
Plaintiff has stated no authority vesting him with the right to initiate a criminal action, whether under the guise of a civil case or not, against agents of the Internal Revenue Service or anyone else.
The Motion by Paul H. O'Neill, Van E. O'Neal, Ken Colt, and D. Lawson to Dismiss this Action (Doc. No. 15) is GRANTED.
I. Removal
Because the complaint constitutes an action against employees of the United States Internal Revenue Service for their official acts, removal to this Court is proper pursuant to 28 U.S.C. § 1442(a)(1) which states:
(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.
Plaintiff asserts that this action relating to the notices of a federal tax lien filed against his property involves "the legality of a tax assessment" over which the Florida circuit courts have "exclusive original jurisdiction" as set forth in Article V, Section 20(c)( 3) of the Florida Constitution which states:
Circuit courts . . . shall have exclusive original jurisdiction . . . in all cases involving the legality of any tax assessment or toll. . . and in all actions involving titles or boundaries or right of possession of real property.
This argument that the Florida circuit courts have "exclusive original jurisdiction" over a case involving a federal tax lien is wholly without merit. Even under the highly improbable scenario that the drafters of the Florida Constitution intended to place "exclusive jurisdiction" involving federal tax liens in a state Court, such provisions in the Florida Constitution would be preempted by 28 U.S.C. § 1442(a)(1) when the named defendant is a United States officer. Acts of Congress that provide this Court with removal jurisdiction cannot be invalidated by state law.
II. Dismissal
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts that would entitled him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus when ruling on a motion to dismiss, the trial court is required to view the complaint in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232 (1974). Furthermore, courts are charged with liberally construing the complaints of pro se litigants who are held to less stringent standards for drafting pleadings than lawyers. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Although 28 U.S.C. § 1346(a)(1) provides that district courts shall have original jurisdiction over any civil action against the United States for the recovery of internal-revenue tax alleged to have been erroneously or illegally assessed or collected, "a taxpayer may not rely on Section 1346(a)(1) to challenge an erroneously or illegally assessed amount without first paying the full amount of an income tax deficiency."Schon v. United States, 759 F.2d 614, 617 (7th Cir. 1985). Plaintiff does not allege that he has paid any outstanding tax liability. In fact he contends that the tax liens are fraudulent and void from inception "for failure to reveal the legitimate subject of taxation . . ." (Complaint, paragraph 19, Doc. No. 2).
The Supreme Court has recognized that a suit filed against a United States officer shall be treated by the Courts as one against the United States if "`the judgment sought would expend itself on the public treasury or domain, or interfere with public administration . . . or if the effect of the judgment would be `to restrain the government from acting, or compel it to act.'" Dugan v. Rank, 372 U.S. 609, 620 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738 (1947) and Larson v. Domestic Foreign Corp., 337 U.S. 682, 704 (1949)); Hawaii v. Gordon, 373 U.S. 57 (1963); Louisiana v. McAdoo, 234 U.S. 627, 632 (1914). Inextricably, a judgment that would void a federal tax lien, as Plaintiff seeks, would impact the public treasury.
A suit against IRS employees in their official capacity is, in essence, a suit against the United States. See Rosado v. Curtis, 885 F. Supp. 1538, 1542 (M.D.Fla. 1995), aff'd, 84 F.3d 437 (11th Cir. 1996). Therefore, the United States is the proper defendant in this case, and the doctrine of sovereign immunity applies. Under this doctrine, the United States is immune from suit unless it expressly waives its immunity and consents to be sued. See Rosado, 855 F. Supp. at 1542. Additionally, the Government's waiver of sovereign immunity must be "unequivocally expressed" to be effective. See United States v. Nordic Village. Inc., 503 U.S. 30, 33 (1992); United States v. Shaw, 309 U.S. 495, 500-02 (1940).
In the instant case, the United States has not expressly waived its sovereign immunity or consented to be sued pursuant to Section 713.12, Florida Statues, or the Florida Constitution. Therefore, this Court lacks subject matter jurisdiction over this case. Thus, this case must be DISMISSED because the claim is frivolous, this Court lacks jurisdiction over the subject matter, and Plaintiff has failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(1), (6).
III. Conclusion
For the reasons stated above, it is ORDERED and ADJUDICATED as follows:
1. Defendant's Motion to Dismiss (Doc. No. 15) is GRANTED, and this case is DISMISSED.
2. All pending motions are DENIED AS MOOT.
3. The Clerk is directed to close the file.