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476 F2d 291 Bertie's Apple Valley Farms v. United States

476 F.2d 291

BERTIE'S APPLE VALLEY FARMS, an Idaho corporation, et al.,
Plaintiffs-Appellants,
v.
UNITED STATES of America et al., Defendants-Appellees.

No. 72-2741.

United States Court of Appeals,
Ninth Circuit.

March 29, 1973.

Lloyd J. Webb, Webb, Pike, Burton & Carlson, Twin Falls, Idaho, for plaintiffsappellants.

Sidney E. Smith, U. S. Atty., Thomas C. Frost, Asst. U. S. Atty., Boise, Idaho; Dale Kent Frizzell, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for defendants-appellees.

Before MERRILL, ELY and WRIGHT, Circuit Judges.

PER CURIAM:

1

Plaintiffs sued in state court to quiet title to real and personal property. The government successfully petitioned under 28 U.S.C. Sec. 1444 to remove to the district court where the action was dismissed.

2

The district court dismissed this action as one against the United States to which it had not consented. The United States is immune from suit except where it consents. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Plaintiff contends that Congress has given its consent to suit in this case in 28 U.S.C. Sec. 2410, which provides in relevant part:

3

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

4

The United States does not claim a mortgage or other lien interest in the property involved herein. Rather, the United States claims title to the property, pursuant to an order of the Referee in Bankruptcy for the District of Idaho, who confirmed a sale by the trustee to the Small Business Administration. Congress in Sec. 2410 did not consent to suits against the United States where the United States claims a title interest as distinguished from a lien interest. See Wells v. Long, 68 F.Supp. 671 (D.Idaho 1946) aff'd on other grounds, 162 F.2d 842 (9th Cir. 1947).

5

The order of the district court is affirmed.