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513 F.2d 31

Docket No. 74-1368.

Nickerson v. United States

First Circuit Court of Appeals

Argued March 4, 1975.

Decided March 28, 1975.

First Circuit Court of Appeals · decided 1975-03-28

2 counsel of record

Key passage — most relied on by later courts

“(1) Wrongful levy. — If a levy has been made on property or property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States.”

quoted by 4 later decisions, including Three "M" Investments, Inc. v. United States, Baddour, Inc. v. United States

“It is well settled that the United States may not be sued absent a waiver of sovereign immunity. Nickerson claims to have found such a waiver in 26 U.S.C. § 7426 (a), which he alleges should be construed to permit such suit whenever there has been a levy even if, as in the present case, the levy has been released and is no longer outstanding. While the wording of the statute does not specifically foreclose such a construction at least one court has refused to enjoin a threatened first levy noting that the statute reaches only “existing” levies, and no other court has exercised jurisdiction absent such a levy. This construction derives support from the fact that the exclusive remedies of subsection (b) seem to contemplate an existing levy.”

quoted by 1 later decision, including Three "M" Investments, Inc. v. United States

Applies 26 U.S.C. § 7426 · 28 U.S.C. § 2201 · 28 U.S.C. § 2410

Relies on Skelly Oil Co. v. Phillips Petroleum Co. · McMahon v. United States · Honda v. Clark

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1975-03-28

How this case has been cited

Cited by 27 later decisions — most recently August 2008 · most notably Texas Commerce Bank-Fort Worth, N.A. v. United States (1990), Interfirst Bank Dallas, N.A. v. United States (1985)

9 federal appellate · 8 district ·

1301975198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*32Raymond A. LaFazia, Providence, R. I., with whom J. Renn Olenn and Gunning, LaFazia, Gnys & Selya, Providence, R. I., were on brief, for plaintiff-appellant.

¶2William A. Friedlander, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Washington, D. C., Lincoln C. Almond, U. S. Atty., Providence, R. I., Gilbert E. Andrews, Elmer J. Kelsy and Wesley J. Filer, Attys., Tax Div., Dept, of Justice, Washington, D. C., were on brief, for appellee.

¶3Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.

¶4PER CURIAM.

¶5Plaintiff Eric Nickerson and his son Warren jointly own Nickerson’s Garage in Little Compton, R. I. In January 1974 the Internal Revenue Service filed a tax lien on all Warren’s property. In June the service levied on and took possession of the garage, denying Eric access to the premises and certain of his own personal property located thereon. This levy was released two days later when Warren agreed to make payments satisfying his outstanding tax liabilities. In July Eric brought suit to obtain a declaration that the government had no right to seize property held jointly with his son or owned outright. He also sought an injunction restraining the United States from levying on these interests to satisfy Warren’s tax deficiencies. The district court dismissed on jurisdictional grounds and Eric appeals.

¶6It is well settled that the United States may not be sued absent • a waiver of its sovereign immunity. See, *33e. g., Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967). Nickerson claims to have found such a waiver in 26 U.S.C. § 7426(a),1 which he alleges should be construed to permit such suit whenever there has been a levy even if, as in the present case, the levy has been released and is no longer outstanding. While the wording of the statute does not specifically foreclose such a construction2 at least one court has refused to enjoin a threatened first levy noting that the statute reaches only “existing” levies, American Pacific Investment Corp. v. Nash, 342 F.Supp. 797, 799 (D.N.J.1972), and no other court has exercised jurisdiction absent such a levy.3 This construction derives support from the fact that the exclusive remedies of subsection (b) seem to contemplate an existing levy. Mindful of the principle that waivers of sovereign immunity are to be strictly construed, McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951), we believe the district court correctly held § 7426 inapplicable.

¶7Nickerson also adverts to 28 U.S.C. § 2410(a)(1) providing that the United States may be named a party in a civil action to quiet title to property in which it claims a lien, but the lien against Warren’s property does not encumber Eric’s joint interest, so this section is inapplicable. Shaw v. United States, 331 F.2d 493, 497-98 (9th Cir. 1964).4 Finally, the Declaratory Judgment Act, 28 U.S.C. § 2201, does not confer jurisdiction but merely grants an additional remedy in cases where jurisdiction already exists. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Hence it does not avail Nickerson.

¶8Affirmed.

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