Opinion
Case Number: 01-3979-CIV-MORENO
April 8, 2002
Howard Hal Ollman, pro se, Miami, FL.
Deborah M. Morris, Esq., Washington, D.C., UNITED STATES DEPARTMENT OF JUSTICE, TAX DIVISION.
ORDER GRANTING MOTION TO DISMISS
After the Internal Revenue Service filed various Notices of Federal Tax Liens in Dade County, Florida, Plaintiff filed this pro se action in state court, seeking discharge of his federal tax debts and cancellation of the federal liens. Defendants removed the case to federal court. Defendants subsequently filed a motion to dismiss (D.E. No. 8), on December 18, 2001. Plaintiff did not respond to the motion. Because the Court finds that it lacks jurisdiction over the Defendants, the motion to dismiss is GRANTED.
Although Plaintiff named as Defendants the federal tax liens he asks the Court to cancel and three officials of the United States government, this action is properly construed as one against the United States. The Supreme Court has explained that a suit should be treated as one against the United States where the relief sought would "expend itself on the public treasury" or "interfere with the public administration." Dugan v. Rank, 372 U.S. 609, 620 (1963). Because Plaintiff's complaint seeks a discharge of federal tax debts and cancellation of liens, the relief in this case would clearly "expend itself on the public treasury." Id.
As the United States is the proper Defendant in this case, the doctrine of sovereign immunity applies. Under this doctrine, the United States may be sued only if it expressly waives its immunity United States v. Mitchell, 445 U.S. 535, 538 (1980). The Plaintiff has the burden of establishing that the United States has waived sovereign immunity and must identify the underlying statutory provisions that contain the waiver. Thomson v. United States, 2001 WL 1022518, at *2 (S.D. Fla. July 27, 2001). in this case, Plaintiff's complaint cites only Florida statutes prohibiting fraudulent lien filing. Moreover, Plaintiff did not respond to Defendants' motion to dismiss. Plaintiff has clearly failed to demonstrate that any waiver has taken place. This action is therefore barred by the doctrine of sovereign immunity and must be dismissed for lack of jurisdiction. The Clerk of Court shall mark this case as CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, this 8th day of April, 2002.