The opinion of the court was delivered by: Illston, District Judge.
ORDER GRANTING MOTION TO DISMISS
The liens in question were attached to plaintiffs' property
due to plaintiffs' alleged tax deficiencies for their fiscal
years 1990, 1991, and 1992.*fn2 Plaintiff Linda Krieg is
alleged to owe more than $130,000 in back taxes and penalties,
and plaintiff Keith Krieg more than $100,000 in back taxes and
penalties, for fiscal years 1990, 1991 and 1992. In 1997,
defendant McNulty obtained approval from IRS District Counsel to
file a nominee lien against Keith and Linda Krieg, and then
caused seven nominee liens to be prepared and filed with the San
Mateo County Recorder.*fn3 McNulty Decl., ¶¶ 3-6.*fn4 After
these liens were prepared, they were forwarded to defendant
Mills, a revenue officer of the Internal Revenue Service who is
also posted in Oakland, California, and who was at the time of
these events Section Chief of Support, Special Procedures
Function. Pointer Decl., ¶ 1-2. In accord with her job
responsibilities, on August 6, 1997, Mills reviewed and signed
the nominee liens before they were filed. Pointer Decl., ¶ 3.
In October 1997, plaintiffs and their nominees appealed the
filing of the liens. On November 14, 1997, after considering all
the protests and appeals, an IRS appeals officer concluded that
appropriate steps had been taken in the filing of the liens and
upheld them against challenge. In August 1998, plaintiffs filed
an appeal with the District Director of the Internal Revenue
Service, which was denied by letter in October 1998. McNulty
Decl., ¶¶ 15-16, Ex. S-T. In October 1998, defendant McNulty
discovered clerical errors in the liens and filed amended liens
in San Mateo County which corrected those errors. McNulty Decl.,
¶¶ 17-18, Ex. U, W.
On September 30, 1998, plaintiffs filed suit in this Court.
Plaintiffs' complaint alleges that these liens were filed in
violation of their right to due process because the IRS failed
to properly assess the income tax liabilities against plaintiffs
for the years 1990, 1991 and 1992, and that the IRS is engaging
in fraud and coercion against plaintiffs.
On March 3, 2000, defendants filed the present motion to
dismiss for lack of subject matter jurisdiction, failure to
state a claim upon which relief can be granted, and for partial
"It is a fundamental principle that federal courts are courts
of limited jurisdiction. The limits upon federal jurisdiction,
whether imposed by the Constitution or by Congress, must be
neither disregarded nor evaded." Owen Equipment & Erection Co.
v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d
274 (1978). "A federal court is presumed to lack jurisdiction in
a particular case unless the contrary affirmatively appears."
General Atomic Co. v. United Nuclear Corp., 655 F.2d 968,
968-69 (9th Cir. 1981). Accordingly, the burden rests on the
asserting federal subject matter jurisdiction to prove its
existence. See Kokkonen v. Guardian Life Ins. Co. of America,
511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994).
When deciding a motion to dismiss for lack of subject matter
jurisdiction, a court must take all the allegations in
plaintiffs complaint as true. See NL Indus. v. Kaplan,
792 F.2d 896, 898 (9th Cir. 1986).
A motion to dismiss for failure to state a claim will be
denied unless it appears that the plaintiff can prove no set of
facts which would entitle it to relief. See Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957);
Fidelity Fin. Corp. v. Federal Home Loan Bank, 792 F.2d 1432,
1435 (9th Cir. 1986). All material allegations in the complaint
will be taken as true and construed in the light most favorable
to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898
(9th Cir. 1986). In deciding a motion to dismiss, a court may
not consider material outside of the complaint, except that it
may consider exhibits submitted with the complaint and take
judicial notice of facts outside of the pleadings. See Levine
v. Diamanthuset Inc., 950 F.2d 1478, 1483 (9th Cir. 1991); Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,
1555 n. 19 (9th Cir. 1989); Mack v. South Bay Beer Distrib.,
Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).
The United States is a sovereign nation, and as such, it may
not be sued absent consent. See Lehman v. Nakshian,
453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981); Gilbert
v, DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). If the United
States has not consented to the suit, subject matter
jurisdiction is lacking and the complaint must be dismissed,
See Fed.R.Civ.P. 12(h)(3); United States v. Mitchell,
463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983);
Gilbert, 756 F.2d at 1458. This immunity protects not only the
United States but its agents and officers. See Hawaii v.
Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1052-53, 10 L.Ed.2d 191
(1963); Gilbert, 756 F.2d at 1458; Hutchinson v. United
States, 677 F.2d 1322, 1327 (9th Cir. 1982). "[S]uit against
IRS employees in their official capacity is essentially a suit
against the United States." Gilbert, 756 F.2d at 1458.
When the government is sued, the plaintiff in that suit bears
the burden of showing that the government has waived its
sovereign immunity. See Sopcak v. Northern Mountain Helicopter
Service, 52 F.3d 817, 818 (9th Cir. 1995). The general
jurisdiction statutes cited in plaintiffs' complaint are not
sufficient to establish waiver of sovereign ...