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Van Vliet v. Van Vliet

United States District Court, E.D. Virginia, Newport News Division

February 11, 2015



HENRY COKE MORGAN, Jr., Senior District Judge.

This matter is before the Court on Defendant United States of America, ex. rel. The Internal Revenue Service's ("United States") Motion to Dismiss, Doc. 3. The United States seeks to be dismissed from this case under Rule 12(b)(1) based upon the protection of sovereign immunity and under Rule 12(b)(6) for the failure to state a claim. See Doc. 4.

The Court held a hearing on this matter on February 5, 2015, and after considering the arguments of counsel, along with the supporting and opposing written memoranda, the Court ruled from the bench and GRANTED the United States' Motion to Dismiss under Rule 12(b)(1) and REMANDED the case to the Circuit Court for Williamsburg and James City County. Having found that the Court lacks subject matter jurisdiction due to sovereign immunity, the Court did not reach the United States' argument under Rule 12(b)(6).


Plaintiff first filed this action in the Circuit Court for Williamsburg and James City County seeking rescission of a Disclaimer of Interest executed on July 16, 2012. Doc. 1 at 2.

Plaintiffs husband passed away in 2011, leaving behind an estate which included an Individualized Retirement Account ("IRA") listing Plaintiff as the primary beneficiary. Id.

After consultation with legal and financial advisors, Plaintiff and her family determined that Plaintiff would execute a Disclaimer of Interest allowing the IRA to pass to the secondary beneficiary, a revocable trust. Doc. 1 at Ex. 2 ¶ 27. Contrary to what she was allegedly told by her advisors, Plaintiff was soon thereafter informed that the mandatory distributions from her late-husband's IRA were significantly higher than projected. Id. at Ex. 2 ¶ 36. Consequently, Plaintiff filed the instant suit in state court, seeking rescission of the Disclaimer. Doc. 6 at 3.

On October 31, 2014, the United States filed its Notice of Removal, bringing this case before the Court on the grounds that any civil action commenced in a state court against the United States may be removed. Doc. 1 (citing 28 U.S.C. § 1442(a)(1)). The United States then filed the instant Motion to Dismiss on November 7, 2014, arguing to be dismissed from the case, and suggesting that the Court should then remand the remaining claims to the Circuit Court in which the case was originally filed. See Doc. 4; see also Doc. 5 at 5, n.1.


Federal district courts are courts of limited subject matter jurisdiction. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) (citing Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005)). Accordingly, Nile objection that a federal court lacks subject-matter jurisdiction... may be raised by a party, or by a court on its own initiative, at any stage in the litigation...." Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (citing Fed.R.Civ.P. 12(b)(1)). "On a motion to dismiss pursuant to Rule 12(b)(1), the party asserting jurisdiction has the burden of proving subject matter jurisdiction." Balzer & Assoc., Inc. v. Union Bank & Trust, 3:09cv273, 2009 WL 1675707, at *2 (E.D. Va. June 15, 2009) (citing Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 764, 768 (4th Cir. 1991)).

Sovereign immunity is "jurisdictional in nature." Bullock v. Napolitano, 666 F.3d 281, 284 (4th Cir. 2012) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). The United States is immune from suit unless it has consented to be sued. United States v. Testan, 424 U.S. 392, 399 (1976). Therefore, whenever a case arises in which the United States has not waived its sovereign immunity, the action must be dismissed for lack of subject matter jurisdiction. United States v. Mitchell, 445 U.S. 535, 538 (1980). Any such waiver of sovereign immunity "cannot be implied but must be unequivocally expressed" and is strictly construed in favor of the sovereign. Id.


Here, the burden of showing an unequivocal waiver of sovereign immunity by the United States is upon Plaintiff. See Balzer, 2009 WL 1675707, at *2. Accordingly, Plaintiff asserts that the waiver of sovereign immunity, and therefore the Court's basis for subject matter jurisdiction over this case, flows from "28 U.S.C. §§ 1331, 1340 and 1346." Doc. 6. The United States disagrees, however, stating that although "those statutes grant jurisdiction... they do not waive the United States' sovereign immunity." Doc. 7 at 2. The Court will examine each statute in turn to determine if Plaintiff has met her burden to establish waiver.

The first statute cited by Plaintiff is 28 U.S.C. § 1331, commonly known as the source of federal question jurisdiction. Although this statute defines one part of this Court's subject matter jurisdiction generally, it is not a "waiver of sovereign immunity." Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (quoting Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 4 (1st Cir. 1989); Humphreys v. United States, 62 F.3d 667 (5th Cir. 1995)). Accordingly, Plaintiff cannot base a waiver of sovereign immunity on this statute.

The second statute cited by Plaintiff is 28 U.S.C. § 1340, which grants original jurisdiction to the district courts over "any civil action arising under any Act of Congress providing for internal revenue...." Similar to 28 U.S.C. § 1331, this statute is a general grant of jurisdiction to the federal courts and was not intended to act as a waiver. Bay Say. Banks F.S.B. v. IRS, 837 F.Supp. 150, 154 (E.D. Va. 1993) (citing Murray v. United States, 686 F.2d 1320, 1324 (8th Cir. 1982)). Even more certainly, however, such a general jurisdictional statute does not amount to an unequivocal waiver of sovereign immunity. Therefore, Plaintiffs reliance on 28 U.S.C. § 1340 is also misplaced.

Finally, Plaintiff asserts 28 U.S.C. § 1346 as the third basis for the alleged waiver. Plaintiff acknowledges that Section 1346 only permits the recovery of monetary damages, and that Plaintiff seeks equitable relief in this case. Doc. 6 at 4. To get around this issue, Plaintiff asserts that combining the general jurisdictional grant of Section 1340 to Section 1346 amounts to an unequivocal waiver of the United States' sovereign immunity regarding Plaintiffs rescission claim in the instant case.

Plaintiffs position is without merit however, and adopting it would allow an end-run of the explicit limitations of the waiver of sovereign immunity Congress created in 28 U.S.C. § 1346. This statute "has long been construed as authorizing only actions for money judgments and not suits for equitable relief against the United States." Richardson v. Morris, 409 U.S. 464, 465-66 (1973) (citing United States v. Jones, 131 U.S. 1 (1889)). Section 1346 was intended to make the jurisdiction of the district courts "concurrent with the Court of Claims." Id. (quoting United States v. Sherwood, 312 U.S. 584, 589-91 (1941); Bates Mfg. Co. v. United States, 303 U.S. 567, 570 (1938)). Since the Court of Claims has no power to grant equitable relief, Glidden Co. v. Zdanok, 370 U.S. 530, 557 (1962), Plaintiff cannot base her claim of waiver, for the purpose of seeking an equitable remedy under this statute.

Plaintiff relies heavily on the case of Breakiron v. Gudonis, No. 09-10427, 2010 WL 3191794 (D. Mass. Aug 10, 2010) to support her argument that the United States has waived sovereign immunity. Doc. 6 at 4-6. In Breakiron, the district court stated that involving the United States in a similar case helped to reduce the possibility of collusion between the parties. Id. at 6. Plaintiff seeks to apply that rationale to this case, "to avoid a subsequent assertion by the IRS that she had sought to obtain state court relief in a non-adversarial proceeding." Id. The Court is not persuaded by this comparison, especially since the opinion in Breakiron did not address the issue of sovereign immunity. Moreover, while the presence of the United States would reduce the possibility of collusion, that fact has no impact on the Court's application of sovereign immunity.

Plaintiffs attempt to prospectively bind the IRS seeks an improper advisory tax opinion from this Court and cannot serve as the basis of a waiver of sovereign immunity to sue the United States. Since the statutes and cases relied upon by Plaintiff failed to establish an unequivocal waiver of sovereign immunity, the Court FOUND that the United States "must be dismissed for lack of subject matter jurisdiction." Mitchell, 445 U.S. at 538.

Having dismissed the United States, it is clear that the Court no longer possesses independent federal jurisdiction over this case.[2] The sole fact permitting removal was the presence of the United States as a party.[3] With the United States dismissed, Plaintiff is left only with state-law claims that are best dealt with by state courts. See Yashenko v. Harrah's NC Casino Co., 446 F.3d 541 (4th Cir. 2006) (noting a district court's wide discretion to dismiss supplemental state law claims after dismissing the corresponding federal claims).


For the reasons stated above, and at the February 5, 2015 hearing, the United States' Motion to Dismiss was GRANTED, and Plaintiffs case against the remaining Defendants was REMANDED to the Circuit Court for Williamsburg and James City County.

The Clerk is REQUESTED to send a copy of this Order to all counsel of record.

It is so ORDERED

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