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