The opinion of the court was delivered by: Marovitz, District Judge.
Cross-Motions for Summary Judgment
This is an action to recover $15,814.58 allegedly "illegally
seized" by defendants and "there is here involved the question of
priority of claims on these monies." Complaint, ¶¶ 7, 10. While
the Complaint (¶ 6) alleges the money was held pursuant to a tax
levy on the Chicago Land Clearance Commission, the parties have
stipulated that no money was received by defendants pursuant to
the levy. Stipulation of Facts, ¶ 18. To the extent plaintiffs
have any valid claim, it must rest on grounds other than those
alleged. Quite briefly, plaintiffs were assignees of proceeds to
be received by the Atlas Wrecking Co. from a contract with the
Chicago Land Clearance Commission. On May 29, 1961, the
Commission issued a check of $25,510.50 to Atlas. Atlas deposited
the money in an Atlas bank account, which contained a $1,014.43
balance, rather than paying the money to plaintiffs. On May 29,
1961, Atlas drew a check for $5,000 payable to the District
Director of the Internal Revenue Service in partial payment of
withholding tax then due and owing. On July 12, 1961, Atlas drew
another check for $4,821.63 to the same party for the same
reason. Neither the Commission nor the Revenue Service knew of
Relying on Ill.Rev.Stat. Ch. 121, § 221 (since repealed) as
authority for their position, plaintiffs contend that where an
assignor, e.g., Atlas Wrecking Co., assigns the proceeds of an
executory contract to an assignee, e.g., the plaintiffs, the
assignee can recover from a third party, e.g., the government,
the proceeds which the assignor receives and then spends with the
third party, notwithstanding the fact that the assignee failed to
give notice of the assignment. Plaintiffs argue that their rights
under this statute were superior to anyone claiming any of the
monies paid to Atlas by the Chicago Land Clearance Commission
after the assignment between Atlas and plaintiffs. Plaintiffs
further argue that a fraud was perpetrated on them and that
defendants cannot be even innocent beneficiaries of the fraud.
The government, which seeks summary judgment, urges that the
court lacks jurisdiction by virtue of the doctrine of sovereign
immunity, that the applicable statute of limitations, 28 U.S.C. § 2401,
bars this action, and that plaintiffs' theory of
defendants' liability is without foundation in law.
Initially, we recall that on July 8, 1966, defendant filed an
action to recover $15,814.58 claiming a breach of an agreement
entered into between plaintiffs and the District Director of
Internal Revenue. This court granted summary judgment for the
defendants in that case, Nehf v. United States, 278 F. Supp. 444
(N.D.Ill. 1967). In their arguments in that case, plaintiffs
asserted that the action was not based on contract, but on an
issue of lien superiority. However, in light of the language of
the complaint, the court treated the action as one based on a
contract which incidentally arose from a lien priority dispute
between the plaintiffs and the government. Id. at 447. The
instant action was filed on December 5, 1967, less than two
months after the summary judgment was ordered. The parties, the
transaction out of which both claims grew, and the prayers are
essentially the same in both suits. However, as plaintiffs'
theory is somewhat different now, the action is not barred.
We now reach the government contention that this court lacks
jurisdiction in this suit by virtue of the doctrine of sovereign
immunity. In their complaint, plaintiffs have asserted that
jurisdiction lies by virtue of 28 U.S.C. § 1331, 1340,
1346(a)(2), 2410 and 2463. Complaint, ¶ 9. As we have said
before, under the doctrine of sovereign immunity, suits against
the United States may not be maintained without an express grant
of statutory authority. Nehf v. United States, 278 F. Supp. 444,
446 (N.D.Ill. 1967). The general federal question statute,
28 U.S.C. § 1331, does not confer such authority. Id. Similarly,
assuming its relevance, 28 U.S.C. § 1340 is, at best, another
grant of jurisdiction and not a specific statutory waiver. Id.
The applicability of 28 U.S.C. § 1346(a)(2) to this action has
not been made clear by plaintiffs. In the original law suit in
this matter, summary judgment was granted to defendants because
that complaint was based on a contract claim which sought damages
in excess of $10,000 while Section 1346(a)(2) vested exclusive
jurisdiction over such actions in the Court of Claims. Id. at
448. In the instant case, the monetary claim as set forth in the
Complaint (¶ 10) is still for more than $10,000. Thus, the
complaint, as it stands, belongs in the Court of Claims. Of
course, in their briefs, plaintiffs recognize that their present
claim is for no more than $9,821.63. Consequently, if amended,
their complaint would fall within the monetary limitations of the
statute. However, plaintiffs have still failed to demonstrate how
they come within one of the five categories of claims covered by
the statute. Because jurisdiction must be proven, not merely
asserted, we find that this statute does not grant jurisdiction
in this case as it is presently
framed. Even if there were jurisdiction here, though, the section
still does not contain an explicit waiver of sovereign immunity.
Section 2463 of Title 28 is also relied upon by plaintiffs for
jurisdictional purposes. Bartell v. Riddell, 202 F. Supp. 70, 74
(S.D.Cal. 1962). Even assuming the correctness of this position,
(but see, Morris v. United States, 303 F.2d 533, 535 (1st Cir.
1962)) this statute does not constitute an explicit waiver of
Finally, 28 U.S.C. § 2410 does contain a specific statutory
waiver of governmental immunity to certain types of civil actions
affecting property on which the United States has a lien.
Plaintiffs' theory of recovery is not included in any of the five
categories of permissible actions listed in the statute, however.
As was said in another case where the government "seized" certain
property in satisfaction of a tax debt,
"(t)he suit is not a suit to quiet title, but to
recover property the title to which is in the United
States, a form of action as to which 28 U.S.C. § 2410
does not waive sovereign immunity." Trustees of
the Puritan Church v. United States, 111 U.S.App.D.C.
105, 294 F.2d 734, 735 (1961).
See also, Falik v. United States, 343 F.2d 38, 41 (2d Cir. 1965).
In conclusion, the United States has not consented to be sued
in an action such as this for monies which plaintiffs allege a
third party should have paid to them and not to the United States
in payment of that third party's taxes. This court, consequently,
lacks jurisdiction over this matter. Similarly, defendant Coyle,
merely acting in his official capacity, is also protected by the
sovereign immunity doctrine. Nehf v. United States, 278 F. Supp. 444,
448 (N.D.Ill. 1967).
Defendants have also asserted that the statute of limitations
has run on this complaint. The government argues that the money
which plaintiffs really seek, the $9,821.63 allegedly traceable
to May 29, 1961, deposit of Atlas, was received by the District
Director in May and July of 1961, and, consequently, that the
statute of limitations began to run at that time. Plaintiffs'
complaint was filed on December 5, 1967. Thus, say the
defendants, it was filed more than six years after the alleged
rights accrued and therefore is barred by 28 U.S.C. § 2401.
Plaintiffs, on the other hand, contend that the statute of
limitations did not begin to run until the provisions of a
Settlement Agreement between the parties, dated December 13,
1961, were violated by defendants. Under the provisions of the
agreement, a copy of which is not attached to the complaint or to
the Stipulation of Facts, but only to one of plaintiffs' briefs,
the District Director ...