1PBGC is a wholly-owned United States government corporation

established under ERISA to administer the mandatory pension plan

termination insurance program in Title IV. Under the insurance

program, PBGC guarantees the payment to participants of certain

pension benefits described in and limited by 29 U.S.C. § 1322 in

1

United States Court of Appeals,

Fifth Circuit.

No. 94-10199

Summary Calendar.

Theodore SHANBAUM, Plaintiff-Appellant,

v.

UNITED STATES of America and the Pension Benefit Guaranty

Corporation, Defendants-Appellees.

Sept. 16, 1994.

Appeal from the United States District Court for the Northern

District of Texas.

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:

Theodore Shanbaum appeals the district court's dismissal of

his suit against both the United States and the Pension Benefit

Guaranty Corporation ("PBGC"). We affirm the decision of the lower

court.

I.

Theodore Shanbaum is a beneficiary of the Lee Optical and

Associated Companies Pension Plan (the "Plan"), a qualified pension

plan under the Employment Retirement Income Security Act ("ERISA").

Shanbaum retired in 1978 and began receiving pension benefits. In

1991, the Plan was terminated and PBGC was appointed trustee of the

Plan.1 On June 24, 1991 the Plan's prior trustee notified Shanbaum
the event a covered pension plan terminates with insufficient

assets to pay for those benefits. If a covered pension plan

terminates without sufficient funds to pay benefits, PBGC

generally becomes trustee of the plan under 29 U.S.C. § 1342(c). 

2

that his pension would be reduced to the Title IV guaranteed

amount. Shanbaum began receiving an estimated monthly pension

benefit of approximately $734.00 from the PBGC, pending an initial

determination of his guaranteed benefit. Plaintiff has not yet

received his initial benefit determination from PBGC.

On October 17, 1992, the Internal Revenue Service ("IRS")

levied upon Shanbaum's pension benefits in order to collect his

unpaid income taxes for tax years 1974 through 1982, excluding

1979. The levy was served on State Street Bank of Massachusetts,

the PBGC's paying agent. Since the levy, Shanbaum has not received

any of his monthly pension benefits because they are being paid to

the IRS.

Shanbaum filed suit against the United States seeking damages

and declaratory relief on the grounds that the IRS levy violated

ERISA. Shanbaum also filed a claim against PBGC alleging that PBGC

paid him less than the full amount of his guaranteed pension

benefit under the Plan and that PBGC improperly honored the IRS

notice of levy.

PBGC moved to dismiss Shanbaum's complaint, and the district

court granted the motion on the grounds that Shanbaum had not

exhausted his administrative remedies regarding the amount of his

guaranteed benefit. See 29 C.F.R. § 2606.7 ("[A] person aggrieved

by an initial determination of the PBGC ... has not exhausted his
3

or her administrative remedies until he or she has filed a request

for reconsideration ... or an appeal ... and a decision granting or

denying the relief requested has been issued."). Shanbaum has not

appealed this issue. Issues not raised by the appellant are

normally not considered on appeal, and, in any event, the district

court's ruling on this issue was correct.

In its order dismissing Shanbaum's cause against PBGC, the

lower court did not address the merits of Shanbaum's claim that

PBGC breached its fiduciary duty to protect Plan assets from levy

by the IRS. However, since this Court reviews de novo a dismissal

of a complaint for lack of subject matter jurisdiction or for

failure to state a claim upon which relief may be granted, Bradley

v. Barnes, 989 F.2d 802, 804 (5th Cir.1993); Fernandez-Montes v.

Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.1993), we may

consider whether Shanbaum's substantive claim also supports the

lower court's dismissal.

The Government moved to dismiss, or alternatively for summary

judgment, contending that the court lacked subject matter

jurisdiction because the Government had not waived sovereign

immunity for the action. Additionally, the Government asserted

that the facts alleged by the taxpayer did not state a claim upon

which relief could be granted. Shanbaum also filed a motion for

summary judgment claiming that the United States had waived

sovereign immunity pursuant to 29 U.S.C. § 1132, 28 U.S.C. §§ 1331,

1340 and 1346, and section 7426 of the Internal Revenue Code. The

district court found no waiver of sovereign immunity and granted
 

2The only waiver of sovereign immunity found in 29 U.S.C. §

1132 is found in § 1132(k), allowing specific actions against the

Secretary of Labor of which this action clearly is not one. 

4

the Government's motion to dismiss.

II.

We initially turn to Shanbaum's claim against the United

States. The district court was correct in holding that Shanbaum is

barred from bringing suit because the Government has not waived

sovereign immunity.

The United States may not be sued except to the extent it has

consented to such by statute. United States v. Testan, 424 U.S.

392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976); Smith v.

Booth, 823 F.2d 94, 96 (5th Cir.1987). A waiver of sovereign

immunity cannot be implied, but must be unequivocally expressed.

United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-

52, 63 L.Ed.2d 607 (1980).

Shanbaum's reliance on 29 U.S.C. § 1132 is misplaced.

Although this section gives plan participants the right to bring

civil actions to redress violations of ERISA, this section does not

provide a waiver of sovereign immunity which would permit the suit

to be brought against the United States.2 Similarly, 28 U.S.C. §

1331 is a general jurisdiction statute and does not provide a

general waiver of sovereign immunity. Voluntary Purchasing Groups,

Inc. v. Reilly, 889 F.2d 1380, 1385 (5th Cir.1989).

Shanbaum's assertion that 28 U.S.C. § 1346 provides a waiver

of sovereign immunity is also without merit. Section 1346 is a

general jurisdiction statute that does not constitute a separate
5

waiver of sovereign immunity. Standard Acceptance Co. v. United

States, 342 F.Supp. 45, 47 (N.D.Ill.1972). Section 1346 operates

in conjunction with 26 U.S.C. § 7422 to provide a waiver of

sovereign immunity in tax refund suits only when the taxpayer has

fully paid the tax and filed an administrative claim for a refund.

Neither of these jurisdictional prerequisites to a refund suit has

been met in the instant case.

Finally, 26 U.S.C. § 7426 does not support Shanbaum's

contention that the government waived sovereign immunity. Section

7426 expressly provides that only a person other than the taxpayer

(the person against whom is assessed the tax out of which the levy

arose) who has an interest in or lien on the property at issue may

bring a civil action for wrongful levy of the property. Shanbaum

argues that he is only a nominal plaintiff bringing suit on behalf

of the Plan, and he characterizes the property at issue as the

Plan's assets rather than his pension benefits. His position is

without merit. The IRS did not levy on Plan assets; the levy was

served on PBGC's paying agent to collect taxpayer's monthly pension

benefits as they become due. Shanbaum, the taxpayer, instituted

this suit specifically requesting to recover the loss of the

benefits.

Even if Shanbaum could overcome the jurisdictional issue, he

would still not prevail against the Government on the merits

because his underlying claim is based solely on the erroneous

contention that the IRS levy violated ERISA. In order for a

pension plan to be qualified under ERISA, it must state that
 

3Section 6334(a)(6) exempts certain pension rights, but the

pension benefits at issue in this case are not among them. 

6

"benefits provided under the plan may not be assigned or

alienated." 29 U.S.C. § 1056(d)(1). Shanbaum's pension plan

complied with this requirement. On the basis of this

non-alienation provision, Shanbaum attempts to argue that his

pension benefits are exempt from levy by the IRS.

Section 6321 of the Internal Revenue Code creates a lien for

unpaid taxes in favor of the United States upon all property and

rights to the property of the taxpayer. Under section 6331, the

IRS is authorized to levy upon all property and rights to property

belonging to the taxpayer in order to collect his assessed income

tax liabilities. See generally United States v. National Bank of

Commerce, 472 U.S. 713, 105 S.Ct. 2919, 86 L.Ed.2d 565 (1985).

Section 6334, which specifically exempts certain property from

levy, does not exempt pension plan benefits from collection.3

Moreover, section 6334(c) provides the following:

Notwithstanding any other law of the United States (including

section 207 of the Social Security Act), no property or rights

to property shall be exempt from levy other than the property

specifically made exempt by subsection (a).

ERISA also provides that it shall not be "construed to alter,

amend, modify, invalidate, impair, or supersede any law of the

United States ... or any rule or regulation issued under any such

law." 29 U.S.C. § 1144(d). Reading the unambiguous language of

Internal Revenue Code section 6334(c) with the mandate contained in

section 1144(d) of ERISA, Shanbaum's argument that the IRS levy

authority yields to the later enacted non-alienation provision is
 

4Indeed, the applicable Treasury Regulation provides that

pension benefits are not protected from federal tax levies. 26

C.F.R. § 1.402(a)-13(b)(2)(ii) (plan provisions satisfying the

requirements of the general rule against assignment and

alienation of benefits do not preclude enforcement of a federal

tax levy made pursuant to section 6331). Other courts have come

to the same conclusion. See In re Raihl, 152 B.R. 615, 618

(Bankr. 9th Cir.1993); Ameritrust Co. v. Derakhshan, 830 F.Supp.

406, 410 (N.D.Ohio 1993); Hyde v. United States, 93-2 U.S. Tax

Cas. (CCH) ¶ 50,432, 1993 WL 328375 (D.Ariz 1993), aff'd on other

grounds without published opinion, 26 F.3d 130 (9th Cir.1994); 

Jacobs v. IRS, 147 B.R. 106, 107-08 (Bankr.W.D.Pa.1992); In re

Taylor, 91-2 U.S. Tax Cas. (CCH) ¶ 50,354, 1991 WL 185110

(Bankr.D.Md.1991); In re Perkins, 134 B.R. 408, 411

(Bankr.E.D.Cal.1991); In re Reed, 127 B.R. 244, 248

(Bankr.D.Haw.1991); Quinn v. IRS, 84-1 U.S. Tax Cas. (CCH) ¶

9337, 1984 WL 25 (E.D.La.1984). 

7

without merit.4

III.

The lower court's dismissal of Shanbaum's suit against PBGC

may also be upheld on the basis that PBGC did not breach any

fiduciary duty to Shanbaum or to the Plan. Shanbaum contends that

PBGC breached its fiduciary duty by not contesting the "wrongful

and illegal levy." This contention fails because, as shown above,

the IRS levy on Shanbaum's pension benefits was not wrongful or

illegal. See Quinn v. IRS, 84-1 U.S. Tax Cas. (CCH) ¶ 9337, 1984

WL 25 (E.D.La.1984) (holding trustees of employee welfare plan have

no standing under § 7426 to attack IRS levies against benefits to

employee-participants under the plan and any person who complies

with a levy is discharged from liability to the delinquent

taxpayer).

IV.

Since Shanbaum's suit against the United States is barred

under the doctrine of sovereign immunity and since the IRS levy was
8

neither wrongful nor illegal, we affirm the district court's

dismissal of Shanbaum's actions against the United States and PBGC.

AFFIRMED.