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NEHF v. UNITED STATES

October 27, 1967

SOL NEHF ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA AND E.C. COYLE, DISTRICT DIRECTOR, DEFENDANTS.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

Defendants' Motion for Summary Judgment.

Plaintiffs seek the enforcement of an alleged agreement entered into on December 13, 1961 between themselves and Harold All, then the District Director of the Internal Revenue Service, wherein the Director agreed to pay $15,814.58 to the plaintiffs.*fn1 The District Director apparently had received that amount pursuant to a levy served upon the Chicago Land Clearance Commission.

The agreement apparently provided that if the government did not prevail in the pending case of United States v. Crest Finance Co., 291 F.2d 1 (7th Cir. 1961), plaintiffs would be entitled to the money, since they would hold a lien position superior to the above-mentioned levy. Although unrelated factually to this case, Crest presumably presented a legal issue of lien priority identical to the dispute between plaintiffs and the Government. The Government lost the Crest case, and plaintiffs contend that the rule of law enunciated therein supported the priority of their liens on file with the Chicago Land Clearance Commission, and required the Internal Revenue Service to pay over to them the aforesaid sum, under the terms of their agreement. The defendants named herein are the United States and E.C. Coyle, currently the District Director of Internal Revenue.

The Government filed its answer, in which it denied any liability, claimed that a portion of the alleged agreement was the result of mutual mistake, and insisted that this Court lacks subject matter jurisdiction herein. The Government then served the instant motion for summary judgment to test its contention that we are without jurisdiction in this cause.

In the complaint, jurisdiction is hinged upon 28 U.S.C. § 1331*fn2, the general federal question jurisdictional statute. However, under the doctrine of sovereign immunity, suits against the United States may not be maintained without an express grant of statutory authority. Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). Section 1331 does not confer such authority.

The Government maintains that this is an action upon an express contract, and is correct in its assertion that under 28 U.S.C. § 1346(a)(2), and 1491, the United States Court of Claims has exclusive jurisdiction over contract actions against the Government exceeding $10,000 in amount.*fn3 Since the complaint herein seeks more than that amount, the Government contends that this case properly belongs in the Court of Claims.

The plaintiffs apparently realize the validity of the Government's position. In their brief opposing the instant motion, they seek leave to add Sections 1340, 2410, and 2463 of Title 28, as "additional and further bases for the jurisdiction of this Court."*fn4 Section 1340 provides:

  "The district courts shall have original jurisdiction
  of any civil action arising under any Act of Congress
  providing for internal revenue, or revenue from
  imports or tonnage except matters within the
  jurisdiction of the Customs Court."

Even assuming arguendo that this action arises under a federal statute providing for internal revenue, Section 1340 is merely a grant of general jurisdiction, and is not a waiver by the United States of its immunity from suit. Jurisdiction against the United States under Section 1340 must be supported by some other statute which specifically waives the sovereign's immunity. Falik v. United States, 343 F.2d 38, 40 (2d Cir. 1965); Cooper Agency, Inc. v. McLeod, 235 F. Supp. 276 (D.C.S.C. 1964), affirmed 348 F.2d 919 (4th Cir. 1965); Quinn v. Hook, 341 F.2d 920 (3d Cir. 1965). To supply the necessary consent, plaintiffs evidently rely on Section 2410(a), which states:

  "Under the conditions prescribed in this section and
  section 1444 of this title for the protection of the
  United States, the United States my be named a party
  in any civil action or suit in any district court, or
  in any state court having jurisdiction of the subject
  matter, to quiet title to or for the foreclosure of a
  mortgage or other lien upon real or personal property
  on which the United States has or claims a mortgage
  or other lien."

Although it appears that a Government levy was seemingly responsible for the Government's current possession of the monies in dispute, we do not think that plaintiffs may rely upon Section 2410(a) to sustain jurisdiction, in view of the posture of the pleadings herein.

At first blush, it may appear that the government's possession constitutes a cloud upon plaintiff's title to the property. However, in Remis v. United States, 172 F. Supp. 732, 733 (D.Mass. 1959), affirmed 273 F.2d 293 (1st Cir. 1959), Judge Aldrich cogently put the quietus to the argument that Section 2410(a) is to be literally interpreted without reference to its legislative history. In Remis, the purchaser of real estate at a mortgagee's sale sought to quiet his title as against the United States which had asserted junior liens against the property. Judge Aldrich pointed out that Sec. 2410(a) was designed to allow parties to join the United States in a limited class of cases, as provided in the statute, and stated: (at 733)

  "Taking this history as a whole, I think it
  reasonably apparent that what concerned Congress was
  admitting the government into actions as an
  additional party when necessary for complete relief,
  and not the creation of new jurisdiction in the
  ...

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