Raulerson v. U.S.

• Decision Date: 15 April 1986
• Docket Number: No. 85-3054,85-3054
• Citation: 786 F.2d 1090
• Parties: -1198, 86-1 USTC P 9458 Donald E. RAULERSON, Plaintiff-Appellant, v. UNITED STATES of America, Commissioner of Internal Revenue, Department of Justice, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1090

786 F.2d 1090

57 A.F.T.R.2d 86-1198, 86-1 USTC P 9458

Donald E. RAULERSON, Plaintiff-Appellant, v. UNITED STATES of America, Commissioner of Internal Revenue Department of Justice, Defendants-Appellees.

No. 85-3054.

United States Court of Appeals Eleventh Circuit.

April 15, 1986.

Phillip E. Kuhn, J. David Pobjecky, Winter Haven, Fla., for plaintiff-appellant.

Jeffrey J. Tinley, Asst. U.S. Atty., Orlando, Fla., Glenn L. Archer, Jr., Asst. Atty. Gen., Tax Div. U.S. Dept. of Justice, Michael L. Paup, Chief, Appellate Section, Carlton D. Powell, Laurie A. Snyder, Elaine Ferris, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and SIMPSON, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

In this action for declaratory judgment and injunctive relief, appellant sought a determination of the priority of claims against the same property by different federal agencies, and an order directing the IRS to enforce its lien. The district court granted summary judgment for the government. Concluding that the federal courts lack jurisdiction, we vacate the judgment and dismiss the appeal.

On July 9, 1981, the IRS made a 1.7 million dollar jeopardy assessment for 1980 taxes against Donald Raulerson. On July 13, the IRS issued a tax lien against Raulerson's property including real estate in Osceola County, Florida.

On August 5, 1981, Raulerson was arrested and charged with conducting a continuing criminal enterprise involving importation and distribution of marijuana. That same day, the FBI seized Raulerson's Osceola County property and initiated in rem forfeiture proceedings pursuant to 21 U.S.C. Sec. 881(a)(6). Section 881(a)(6) authorizes forfeiture to the United States of "proceeds" or "things of value" traceable to illegal drug sales. The government also sought forfeiture of the same property under 21 U.S.C. Sec. 848(a) which authorizes the forfeiture of "profits" obtained from continuing criminal enterprises.

On December 14, 1981, Raulerson entered into a plea agreement whereby he pled guilty to charges that he had engaged in a continuing criminal enterprise involving importation and distribution of marijuana since a time prior to October, 1977. Raulerson specifically agreed to forfeit and waive his interest in the Osceola County property. ¹

Raulerson initiated this action seeking (1) a declaration that the IRS lien on his Osceola property has priority over all other interests and (2) an order that the IRS satisfy its jeopardy assessment by selling the Osceola County property. Raulerson's potential injury is clear: if the Osceola property is forfeited pursuant to either sections 848 or 881, the IRS's jeopardy assessment will have to be satisfied from Raulerson's other assets. Cf. Gonzalez v. United States, 606 F.Supp. 134, 135-36 (S.D.Fla.1985) (termination assessment reasonable because defendant may forfeit tainted money and remain liable for taxes on the profit it represents).

The district court determined that the United States had waived its sovereign immunity to Raulerson's suit for declaratory judgment on the basis of 28 U.S.C. Sec. 2410. Section 2410 provides that the United States may be sued in an action to quiet title to property on which the government has a lien. The district court found that Raulerson's claim was akin to an action to quiet title, and therefore the government had waived its sovereign immunity. ² We disagree.

The United States, as a sovereign, may not be sued without its consent; the terms of its consent define the federal court's jurisdiction. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Moreover, any waiver of sovereign immunity must be explicit and will be strictly construed. Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957); Sherwood, 312 U.S. at 590, 61 S.Ct. at 771; Florida Department of Business Regulation v. United States, 768 F.2d 1248, 1253 (11th Cir.1985) (sovereign immunity waiver of Quiet Title Act strictly construed). While the instant action may be similar to a quiet title action, section 2410 waives sovereign immunity only in actual quiet title actions, not suits analogous to quiet title actions. Because we must construe sovereign immunity waiver narrowly, we cannot read section 2410 as applying to a suit such as Raulerson's. Raulerson's complaint is not an action to quiet title. Raulerson forfeited title to the Osceola property under either sections 881 or 848 and waived his interest in the property by the specific terms of his plea agreement. Accordingly, there is no controversy as to who has title to this property: all parties concede that this property belongs to the government. ³ Indeed, the purpose of Raulerson's suit is to force one branch of the government to foreclose its lien to the detriment of another branch of the government. ⁴ Thus Raulerson's suit does not seek a determination of who owns the Osceola property. Rather he seeks a declaration that the IRS's claim has priority over the claims of the other branches of the government. Hence, this is not a quiet title action within the immunity waiver of section 2410 because there is no title in dispute. Cf. United Sand & Gravel Contractors, Inc. v. United States, 624 F.2d 733, 736-38 (5th Cir.1980) (although IRS may levy against funds in the hands of other federal agencies, section 2410 does not waive sovereign immunity where government owns property outright). ⁵ Because we conclude that this suit is barred by sovereign immunity, the federal courts lack jurisdiction to settle this dispute.

Alternatively, the United States argues that Raulerson is merely seeking an order directing the IRS to foreclose on specific property. Under I.R.C. Sec. 6321, however, the government may levy against all of a delinquent taxpayer's property; ⁶ its power to levy is discretionary. Again, we agree with the government. Because the government, not the taxpayer nor the judiciary, decides which property is to be sold to satisfy a tax assessment, it would be anomalous to determine that the government has consented to a suit to compel the IRS to foreclose on specific property. ⁷

In light of the foregoing, we conclude that the district court lacked subject matter jurisdiction. Therefore, we VACATE the district court's order and DISMISS this appeal.

1 Paragraph two of the plea agreement states:

The defendant Donald Raulerson agrees to waive any interest in those properties presently under seizure by the United States government, said seizure accomplished by seizure warrant, warrant in rem, or properties subject to forfeiture listed in Count I of the aforestated indictment.

Count I of the indictment specifically alleged that Raulerson had used illicit proceeds to purchase the Osceola County property and that this property should be forfeited to the government pursuant to 21 U.S.C. Sec. 848.

2 28 U.S.C. Sec. 2410 provides:

(a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may 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--

(1) to quiet title to,

(2) to foreclose a mortgage or other lien upon,

(3) to partition,

(4) to condemn, or

(5) of interpleader or in the nature of interpleader with respect to,

real or personal property on which the United States has or claims a mortgage or other lien.

3 The heart of Raulerson's complaint turns on when the various branches of the government acquired the Osceola property. Because we conclude that Raulerson's suit is barred by sovereign immunity, we do not reach Raulerson's argument that the IRS lien is superior to the Sec. 848 criminal forfeiture. The crux of this argument is that the Sec. 848 forfeiture is not operative until guilt...