"Partial Victory" For TP In The 3rd

[The Observer]

UNITED STATES OF AMERICA
v.
JOSEPH P. SCHIAFFINO,
Appellant

Release Date: MARCH 25, 2009


NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 07-cv-02194)
District Judge: Honorable Robert F. Kelly

Submitted Pursuant to Third Circuit LAR 34.1(a) April 21, 2008
Sur Panel Rehearing Submitted July 2, 2008

Before: AMBRO, FUENTES and FISHER, Circuit Judges

(Opinion filed: March 25, 2009)

OPINION

PER CURIAM

Joseph P. Schiaffino appeals from the District Court's orders that denied his motion to remand this matter to state court and granted the motion to dismiss filed by the United States. We will affirm in part, vacate in part, and remand to the District Court for further proceedings consistent with this opinion.

Schiaffino alleges that he received a Notice of Federal Tax Lien from the Internal Revenue Service ("IRS") in 2005. He also alleges that he immediately challenged the validity of the tax lien by "filing" an "Affidavit of Non-Liability" and sending a "Presumptive Notice" and an "Affidavit of Truth" to the two IRS agents who had signed the Notice. After receiving no response, he filed a "Petition for Rule to Show Cause" in the Court of Common Pleas of Bucks County, requesting that the court direct the United States to show cause why the tax lien "should not be nullified and removed from the Court's records." The United States removed the Petition for Rule to Show Cause to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. section 1442(a)(1). The United States then filed a motion to dismiss the petition for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Schiaffino did not file a response in opposition to that motion. Instead, he filed a motion to remand the matter to state court, in which he challenged the removal procedures followed by the United States.

By order entered on July 5, 2007, the District Court granted the motion to dismiss for lack of subject matter jurisdiction. The District Court also issued a separate order denying the motion to remand the matter to state court. Schiaffino appeals from those orders. We have jurisdiction over the appeal pursuant to 28 U.S.C. section 1291. Our review is plenary. Umland v. PLANCO Financial Services, 542 F.3d 59, 63 (3d Cir. 2008).

Schiaffino argues on appeal that this matter was improperly removed because the United States was designated as the plaintiff in the state court action and, therefore, lacked authority to remove this matter to the District Court. The manner in which the parties were identified in the state court caption is not relevant to the question whether the Petition for Rule to Show Cause was properly removed to the District Court./1/ It is clear from the petition that Schiaffino filed in state court that he is contesting the validity of a federal tax lien. The United States properly removed the Petition for Rule to Show Cause to the District Court under 28 U.S.C. section 1442(a)(1).

The question we confront, then, is whether the District Court erred in dismissing Schiaffino's Petition for Rule to Show Cause. The United States argues that the District Court properly dismissed the case on the basis of the government's sovereign immunity. It is well established that the United States may not be sued without its consent. United States v. Mitchell, 445 U.S. 535, 538 (1980) (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). A party suing the federal government bears the burden of establishing that the United States has unequivocally waived its immunity from suit. Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987), cert. denied, 487 U.S. 1204 (1988).

In his Petition for Rule to Show Cause, Schiaffino asserts a denial of his due process rights in connection with the filing of the notice of federal tax lien. We have held that 28 U.S.C. section 2410 constitutes a waiver of sovereign immunity to an action brought by a taxpayer against the United States challenging the validity of a federal tax lien, provided that the plaintiff refrains from collaterally attacking the merits of the tax assessment./2/ Aqua Bar & Lounge v. United States, 539 F.2d 935, 939-40 (3d Cir. 1976); see also Kabakjian v. United States, 267 F.3d 208, 211-12 (3d Cir. 2001) (existence of federal tax liens vested district court with jurisdiction under section 2410 to hear quiet title claim). Section 2410(a) provides that 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, . . . real or personal property on which the United States has or claims a mortgage or other lien." 28 U.S.C. section 2410(a). As his claim appears to fall within the types of actions included in section 2410(a), Schiaffino's Petition for Rule to Show Cause arguably seeks relief under that statute./3/ On the record before us, we can not say that the District Court properly dismissed this pro se matter on the basis of sovereign immunity. Accordingly, we will remand this matter for further consideration of the question of sovereign immunity and, if necessary, a determination whether the state court had subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) ("Steel Co. [v. Citizens for a Better Environment, 523 U.S. 83 (1998)] does not dictate a sequencing of jurisdictional issues."). If the District Court determines upon remand that consideration of Schiaffino's Petition for Rule to Show Cause is barred by sovereign immunity, the District Court must dismiss the petition./4/ Stapleton v. $ 2,438,110, 454 F.2d 1210, 1218 (3d Cir.), cert. denied, 409 U.S. 894 (1972).

Having concluded that removal under section 1442(a) was proper, we will affirm the District Court's order that denied Schiaffino's motion to remand. As it appears that this matter may not be barred by sovereign immunity, we will vacate the District Court's order granting the motion to dismiss filed by the United States and will remand for further proceedings consistent with this opinion.

FOOTNOTES

/1/ Schiaffino may have identified the parties as he did in his "Petition for Rule to Show Cause" because he views himself as the "defendant" in state court based upon the filing of the notice of federal tax lien in that court.

/2/ Because of this waiver of sovereign immunity, we determined that the District Court had jurisdiction to hear the action, which had been brought in the District Court, under section 2410 in combination with 28 U.S.C. section 1340. 539 F.2d at 940. Section 1340 provides the district courts with "original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue."

/3/ In reaching this conclusion, we were mindful that pro se filings are to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). We express no opinion as to whether Schiaffino's petition meets the requirements in section 2410(b).

/4/ We do not suggest that section 2410 is the sole statute upon which a waiver of sovereign immunity could be predicated, leaving that issue for the parties and the District Court on remand.

[LPC]

I see this as another case in which courts have confused (or conflated) the difference between a lack of jurisdiction and the lack of a substantive remedy.

On remand, the district court should find that it has jurisdiction, and then dismiss the claims on the merits, for failing to state a claim for which relief may be granted.

[LegalEagleMan]

Just became aware of this case last night, figure I would chime in because of something I have seen in Appeals on something somewhat similar.

To me Appeals in this case will most probably have the case back in it's lap. I just went out and looked at the docket and basically the government is pushing the same position. The petitioner is slightly changing his position to conform to what Appeals said, why I don't know. It seems to me that Appeals is wrong only for the reason that it didn't have the necessarily facts to review, and it would seem like the petitioner is somewhat wrong also that USDC would now have jurisdiction pursuant to the Appeals order. The government basically got it's wish but is now stating the same argument.

Petitioner is claiming the lien recorded at the county is not valid, it would seem without property rights being in dispute I don't know how it could fall to USDC under (1). Now why Appeals drop this back to USDC I can see based on some other Appeals cases I was reading early in the week that just came out. I will expand later if I can, I am still talking out loud.

Based on the fact presented, I don't see how USDC can proceed as is, I don't see how USDC has jurisdiction, again talking out loud I am still thinking as to what avenues still exists.

[LegalEagleMan]

Accordingly, we will remand this matter for further consideration of the question of sovereign immunity and, if necessary, a determination whether the state court had subject matter jurisdiction.

Thinking out loud please don't hurt me.

Petitioner is saying it's an invalid lien. USDC I believe would be precluded from making such a determination or declaration ie 28 USC 2201 to make the determination as to whether State court has jurisdiction. Just throwing this out there but it would seem if an invalid lien is sitting in a county that State court would have jurisdiction. Now it would seem that the US can make the same claim in State court to remove jurisdiction after facts are presented, but they might not like the alternative place they might end up.

My initial thoughts are Appeals is trying to make USDC do something it is not capable to do. The US still has opportunity to present sovereign immunity claim but to me this might not be the place to make it in this instance.

[Pottapaug1938]

As with all TP "victories", it's a "victory" on a procedural matter, not a substantive matter. As I said in an earlier post on another thread, the fact that a lawyer prevails, in court, on a minor procedural motion, early in a case, does not put a "win" into his won-loss columns, especially when he loses at trial because the evidence is overwhelmingly against his client.

[LegalEagleMan]

As with all TP "victories", it's a "victory" on a procedural matter, not a substantive matter. As I said in an earlier post on another thread, the fact that a lawyer prevails, in court, on a minor procedural motion, early in a case, does not put a "win" into his won-loss columns, especially when he loses at trial because the evidence is overwhelmingly against his client.

It's not a victory or defeat at this junction for either side, it's just process. I am just throwing my initial thoughts on this case. The reason I made comment on this case has to do with another case that was recently thrown out of Appeals, although on the surface it may not appear to be similar I believe they are. I will try and explain later.

The reason why I say stalemate is because of what I said, petitioner is saying it's an invalid lien. It seems Appeals is saying that USDC has to make a determination as to whether the lien is valid or not to determine if the state has jurisdiction. It would seem they are precluded from doing such but like I said this is my initial thoughts.

USDC in this instance doesn't appear to be the right place to determine that which Appeals wants determined. There are avenues but I am researching at the moment for this to proceed. Sovereign immunity claim can be used by the US but I would say it's premature at this stage.

It would seem Appeals 1st order is correct and they messed it up with the 2nd one, I am thinking it will be back on their plate. Petitioner didn't help himself and the government just wants the case gone.

[LegalEagleMan]

This is what I think for what it's worth based on what I have seen so far in this case and a few I have seen in Appeals.

1.) USDC has no legal authority to make the determination that Appeals has ordered. I would say that order (#2) will have to be vacated. This seems like it will be back in Appeals lap unless USDC dismisses here without remand to State court and the petitioner fails to appeal.

2.) Where does this go if #1 is correct. Remand will have to go to State court. The US would not like this because they believe sovereign immunity claim prevents, which I think would apply but not before facts were presented. There are no facts before the court so the petitioner's claim that the lien is invalid stands as true. Defendant could prevent further action by presenting an agency (final) order that can appealed by petitioner would remove the case once again from the State court. If the US does not present an order from which judicial review could take place than the case stays in State court.

3.) If there is an agency order petitioner can appeal such order to Appeals directly. I believe.

4.) USDC, Appeals, US and petitioner all seem to be confused. Remedy of the action either lies in State court or if US supports it's administrative claim with Appeals if petitioner demands judicial review of such orders. Appeals order #1 appears to be the correct course of action, no other avenue is available for remedy that I can find.

[Dr. Caligari]

1.) USDC has no legal authority to make the determination that Appeals has ordered.

Why not? They have power to hear a quiet title action against the United States.

[LegalEagleMan]

1.) USDC has no legal authority to make the determination that Appeals has ordered.

Why not? They have power to hear a quiet title action against the United States.

Because petitioner is claiming the lien is invalid which most definitely would go beyond what was specified by Appeals. It seems to me that Appeals wants more info before they say USDC does not have jurisdiction. Their first order was correct based on the information I have looked at, but Appeals can claim there isn't enough facts on the record to support it either way. Fair enough. Petitioner all of sudden takes Appeal's stance and US throws the same argument, this leaves USDC in the same spot as far as I am concerned holding the bag.

This is only my initial thoughts, I am going to look at a few more things.

I wouldn't have even looked at this case if it were not for something Appeals said in a case a few weeks ago.

[LegalEagleMan]

LegalEagleMan - you have come across a running gag here. Anytime a tax denier comes away from court without being found guilty or being hit with sanctions it is called a "victory."

Why? Because if you were to follow the tax denier to their favorite site/posting ground, they will loudlu proclaim about how they beat back the "ebil gummint" and achieved a victory.

Victory can mean many things to many people. My favorite legal movie is "From the Hip", funny movie. One of the clients at the beginning the movie hits people when they disrespect him, he doesn't care that he gets sued because he is rich. The attorney goes to him and says I can win this. The guy was like I hit people all the time, it's a loser son. Just make sure it cost him. Victory to him was causing as much pain as he could to the other guy regardless if he lost the actually legal battle and money in the process.

I think there is different levels of victory though, of course you can't claim you are king of the hill either if you are only half way up.

[LegalEagleMan]

Dr. C.

Here is a quick title action as quote by Appeals, maybe this will help you understand what I am saying. What happened in these cases is not what is going on in this case.
KABAKJIAN V. US
http://openjurist.org/267/f3d/208/edward-kabakjian

Let me simply what I am saying. Petitioner is disputing there this is a tax issue, maybe he wouldn't say it like that, but that is how I would summarize it.

Petitioner is claiming the lien is null and void, and wants show cause as to why its exists in the county.

http://vlex.com/vid/aqua-bar-lounge-tre ... z-36830744

The leading case relied on by the government, Falik v. United States, is illustrative. There a taxpayer brought suit against the United States to remove a tax lien on her home. The taxpayer contended that the lien was invalid because the unpaid taxes on which it was based had been wrongfully assessed against her. In finding that no such challenge could be maintained under § 2410, Judge Friendly reasoned that Congress could not have intended to extend to taxpayers a new remedy by which they could contest their tax liability through this addition to the Judicial Code. Rather, he held that the taxpayer's exclusive remedies were to either contest the deficiency in the Tax Court or pay the assessment and thereafter bring suit in the district court for a refund. See also Quinn v. Hook, supra. However, he at no time determined that a taxpayer could not utilize § 2410 under any circumstances. Indeed, a close reading of his opinion suggests that a taxpayer could maintain an action under § 2410 if he limits his challenge to the procedural regularity of the lien. 343 F.2d at 42.

[LPC]

1.) USDC has no legal authority to make the determination that Appeals has ordered.

Why not? They have power to hear a quiet title action against the United States.

Because petitioner is claiming the lien is invalid which most definitely would go beyond what was specified by Appeals.

To a tax lawyer, "Appeals" usually means the department for administrative appeals within the IRS. Circuit Courts of Appeals are usually referred to as "the Circuit" or sometimes "the CA." I point this out because I had to read your posts several times to figure out what you were talking about.

The 3d Circuit vacated (not reversed) the granting of the motion to dismiss, and remanded the case "for further proceedings consistent with this opinion." Given that the remand was predicated on the conclusion that the DC *might* have jurisdiction, I don't know why you think that the DC is prohibited in any way from reaching a decision on the merits.

Furthermore, the Circuit Court made it clear that the DC "had jurisdiction to hear the action" because "Section 1340 provides the district courts with 'original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue.'"

Having "jurisdiction" means that the district court had the power to rule on the merits of the case.

[LPC]

Dr. C.

Here is a quick title action as quote by Appeals, maybe this will help you understand what I am saying. What happened in these cases is not what is going on in this case.
KABAKJIAN V. US
http://openjurist.org/267/f3d/208/edward-kabakjian

Let me simply what I am saying. Petitioner is disputing there this is a tax issue, maybe he wouldn't say it like that, but that is how I would summarize it.

Petitioner is claiming the lien is null and void, and wants show cause as to why its exists in the county.

http://vlex.com/vid/aqua-bar-lounge-tre ... z-36830744

The leading case relied on by the government, Falik v. United States, is illustrative. There a taxpayer brought suit against the United States to remove a tax lien on her home. The taxpayer contended that the lien was invalid because the unpaid taxes on which it was based had been wrongfully assessed against her. In finding that no such challenge could be maintained under § 2410, Judge Friendly reasoned that Congress could not have intended to extend to taxpayers a new remedy by which they could contest their tax liability through this addition to the Judicial Code. Rather, he held that the taxpayer's exclusive remedies were to either contest the deficiency in the Tax Court or pay the assessment and thereafter bring suit in the district court for a refund. See also Quinn v. Hook, supra. However, he at no time determined that a taxpayer could not utilize § 2410 under any circumstances. Indeed, a close reading of his opinion suggests that a taxpayer could maintain an action under § 2410 if he limits his challenge to the procedural regularity of the lien. 343 F.2d at 42.

It would take me a significant amount of time and effort to try to out what you're talking about, and I've decided it's not worth the effort.

If you want people to read and respond to what you write, you're going to have to write something that is coherent within what you write, without having to know what you're talking about already, and without having to read decisions not knowing why we're supposed to read them or what we're looking for.

[LegalEagleMan]

Furthermore, the Circuit Court made it clear that the DC "had jurisdiction to hear the action" because "Section 1340 provides the district courts with 'original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue.'"

As my simplified version explains, "internal revenue" is in dispute although petitioner might not word it in that manner. Although he is shooting himself in the foot with his last motion. I also provided the cites included in the orders.

However, the United States argues on appeal that a remand to state court would be futile, given that Schiaffino may not proceed with his claim in state court due to sovereign immunity and also because section 7421(a) precludes a suit to restrain tax collection in "any court." We have held, however, that a case removed from state court must be remanded under section 1447(c) once the District Court determines that it does not have subject matter jurisdiction over the case, and we have declined to recognize a futility exception to that rule. See Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 214 (3d Cir. 1997). Thus, we conclude that the District Court should have remanded the case to state court pursuant to section 1447(c), instead of dismissing the case outright.

From the 1st order.

DOJ is saying that there is no chance to win because you can't win which is true if it stayed in State court and there is an agency order, Petitioner could remove the case from State court on the presentation that an appeal able order exists to support their actions.

You are assuming there is in fact a valid lien or I would put it, an agency order to support there action. The assumption is that the order exist, if DOJ says there is an order and presents the order than can be appealed by petitioner outside of State court. If no agency order exist than the case would continue in State court.

The cases cited in the #2 order spell it out step by step. Petitioner is in fact disputing the validity of the lien. See cases cites in above posts. When the case was removed from State court no evidence was part of the record that there was an agency order.

The US is saying IFwe have an agency order supporting these actions the petitioner is barred in State court, well yes. But the case hasn't gotten that far, but IF DOJ presents no agency order than State court could proceed. Simple as that.

IF an agency order exists than the US could raise the sovereign immunity claim in State court, until that is present it seems premature.

[LegalEagleMan]

It would take me a significant amount of time and effort to try to out what you're talking about, and I've decided it's not worth the effort.

If you want people to read and respond to what you write, you're going to have to write something that is coherent within what you write, without having to know what you're talking about already, and without having to read decisions not knowing why we're supposed to read them or what we're looking for.

That is certainly your choice. It fairly simple.

You said district court had jurisdiction but that is not entirely true in this case at least from what the order and cases suggested included with the opinion. District court has jurisdiction if in fact this was not dispute over the assessment. Petitioner is in fact contesting such.

"Indeed, a close reading of his opinion suggests that a taxpayer could maintain an action under § 2410 if he limits his challenge to the procedural regularity of the lien"

Petitioner contends no lien exists, 2410 will not be maintained.

The opinions cited were in the case cited in the beginning of the thread.

[The Operative]

It would take me a significant amount of time and effort to try to out what you're talking about, and I've decided it's not worth the effort.

If you want people to read and respond to what you write, you're going to have to write something that is coherent within what you write, without having to know what you're talking about already, and without having to read decisions not knowing why we're supposed to read them or what we're looking for.

That is certainly your choice. It fairly simple.

You said district court had jurisdiction but that is not entirely true in this case at least from what the order and cases suggested included with the opinion. District court has jurisdiction if in fact this was not dispute over the assessment. Petitioner is in fact contesting such.

"Indeed, a close reading of his opinion suggests that a taxpayer could maintain an action under § 2410 if he limits his challenge to the procedural regularity of the lien"

Petitioner contends no lien exists, 2410 will not be maintained.

The opinions cited were in the case cited in the beginning of the thread.

I disagree with what I believe is your assessment.

The petitioner is challenging the validity of a federal tax lien. Whether he believes it should exist or not is irrelevant to the issue of jurisdiction. He is suing the United States and 28 USC 1442(a) applies.

(a) A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

In my opinion, which is worth as much as you paid for it, 2410 only applies in determining whether the United States has waived sovereign immunity and does not apply to the subject matter jurisdiction issue.

Now, under the petitioner's original petition, he challenged the validity of the tax lien but not the underlying tax assessment. Because he did not challenge the tax assessment, the Court of Appeals for the Third Circuit holds the position that the United States has WAIVED sovereign immunity on quiet title claims in the District Court. If the petitioner does not change his petition, the District Court will still find it has subject matter jurisdiction under 28 USC 1442(a) and then dismiss for failure to state a claim for which relief may be granted. However, if the petitioner changes his petition to challenge the federal tax lien and the underlying tax assessment, the District Court will still find it has subject matter jurisdiction under 28 USC 1442(a) and then dismiss the petitioner's claim based upon sovereign immunity and/or failure to state a claim for which relief may be granted.

[LPC]

It would take me a significant amount of time and effort to try to out what you're talking about, and I've decided it's not worth the effort.

If you want people to read and respond to what you write, you're going to have to write something that is coherent within what you write, without having to know what you're talking about already, and without having to read decisions not knowing why we're supposed to read them or what we're looking for.

That is certainly your choice.

Yes, and you have the choice of providing coherent commentary or incoherent ramblings.

It fairly simple.

Yes, it are.

[LPC]

In my opinion, which is worth as much as you paid for it, 2410 only applies in determining whether the United States has waived sovereign immunity and does not apply to the subject matter jurisdiction issue.

I agree.

Now, under the petitioner's original petition, he challenged the validity of the tax lien but not the underlying tax assessment. Because he did not challenge the tax assessment, the Court of Appeals for the Third Circuit holds the position that the United States has WAIVED sovereign immunity on quiet title claims in the District Court. If the petitioner does not change his petition, the District Court will still find it has subject matter jurisdiction under 28 USC 1442(a) and then dismiss for failure to state a claim for which relief may be granted.

My only uncertainty here is on the question of whether a quiet title action under 28 USC 2410 may be used to challenge a lack of notice of federal tax lien in violation of IRC section 6320(a).

I simply don't know the answer, having not looked into the issue.

However, if the petitioner changes his petition to challenge the federal tax lien and the underlying tax assessment, the District Court will still find it has subject matter jurisdiction under 28 USC 1442(a) and then dismiss the petitioner's claim based upon sovereign immunity and/or failure to state a claim for which relief may be granted.

If the petitioner/plaintiff has no legal or factual grounds to challenge the notice of lien under IRC section 6320, then I would agree that any other grounds for complaint would be barred by sovereign immunity and that the court should dismiss the claim for failure to state a claim for which relief may be granted.

[LegalEagleMan]

I simply don't know the answer, having not looked into the issue.

You say I am rambling and incoherent. Why are speaking if you don't know, you say it's rambling when I do it. Just as you have questions, I do as well, that is why when I wrote I said that is my initial thoughts on the matter. You say I don't explain it or explain it well, yet you didn't read where the cites even came from because you didn't both to read the whole order, which was where? The very top of the thread.

Is everyone on the forum like this guy?

If the petitioner/plaintiff has no legal or factual grounds to challenge the notice of lien under IRC section 6320, then I would agree that any other grounds for complaint would be barred by sovereign immunity and that the court should dismiss the claim for failure to state a claim for which relief may be granted.

You just took a leap from someone suing in State court and challenging a lien to an action under section 6320 without evidence on the record to support such. No evidence exist on the record that this is an "internal revenue" case that I have seen, it is void of such evidence. Petitioner claims non-response when inquiring, that appears to be the Petitioner's position. Petitioner is not challenging under section 6320, how did the IRC get involved in this case now? The petition submitted in State court must be taken as true that there is no valid lien. It certainly COULD be an "internal revenue" case but as this moment in time it is not an "internal revenue" case. **AS NOTED BEFORE** Petitioner seems to be changing his tune, why I have no idea and would tend to make what I am saying moot.

"actions challenging the procedural aspects of tax liens." Arford v. United States, 934 F.2d 229, 232 (9th Cir.1991).

The petitioner is claiming that lien does not exist not that there is some type of procedural issue with the process of the lien.

I don't know either, which is why I said that was my initial thought on the matter.

[LegalEagleMan]

The Operative
That was always my first thought as well, however Petitioner is not or more like was not suing for actions "under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue". The Petitioner is claiming he has no knowledge as to why the lien is there, he lacks the facts necessary to determine anything. My wording I would say. The record is void of the necessary facts, to get where this is right now one would have to be assuming facts not in evidence. (Petitioner is changing his stance in his last brief, this kind of changed is not to was not suing above)

It certainly COULD be an "internal revenue" case, it certainly could be the Petitioner suing the US government under an Act of Congress, it COULD be all kinds of things. It all seems premature at this point without the necessary facts, although like I said Petitioner's last brief seem to step away from the point I was making.

If you have more to add please do, I promise I will not say you are rambling because I woke up on the wrong side of the bed. Once again, this is only my initial thoughts on the matter, I am still digging.

I can see your point on a few issues because now Petitioner is kind of saying something else in his last brief. He is now trying to go along with the order, which would make what you said more likely. If Petitioner had or does stay with his original line of thinking than this would all be premature assuming facts not in evidence.

I am in no way claiming Petitioner could "win" in State court if the US has an agency order, Sovereign immunity claim could be used at that point. However, it would than get to a position were Petitioner could move the case to CoA directly. Thinking out loud. I am actually waiting to see one more case in the CoA that touches on what I am talking about that is presently in CoA to give me more insight.