## FILED AUG 23, 2013 DEBORAH S. HUNT, Clerk NOT RECOMMENDED FOR PUBLICATION

File Name: 13a0783n.06 No. 12-4532 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MARY MORRIS,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA,

Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

OPINION
Before: GILMAN, GRIFFIN, and STRANCH, Circuit Judges. RONALD LEE GILMAN, Circuit Judge. Mary Morris sued the United States, alleging that the imposition of a federal tax lien on her property by the Internal Revenue Service (IRS) without a prior hearing violated her right to procedural due process under the Fifth Amendment to the United States Constitution. The district court ruled against her on the merits. As part of the government’s response to Mrs. Morris’s appeal, it argues for the first time that the suit is barred by the Tax Anti-Injunction Act, the Declaratory Judgment Act, and sovereign immunity. For the reasons set forth below, we agree with the government’s belated argument. I. BACKGROUND In June 2011, Mrs. Morris received a letter from the IRS titled “Notice of Federal Tax Lien Filing Nominee or Alter-Ego,” accompanied by a “Form 668(Y), Notice of Federal Tax Lien.” The letter stated that Mrs. Morris had been “identified as the nominee or alter-ego for Daniel E. Morris,”Morris v. United States, No. 12-4532

her husband, and informed her that the I RS has “filed a Notice of Fe dera l Tax L ien” on her proper ty

. I t further explained that Mrs. Morris could appea l the filing of the notice and could reque st the lien’s discharg e by

either pa y ing the taxes due or posting a bond. The For m 668(Y) Notice of Fe dera l Tax L ien provided “notice that taxes (including interest and pen a lt ie s ) h a

v e b e e n a s s e s s e d a g ainst” Mrs. Morris as “nominee/tra nsfer ee/f raudule nt convey ee” of Mr. Morris. I t explained that, beca use the taxes had rema ined unpaid despite a demand for
pay ment, there had arisen “a lien in favor of the United States on all proper ty and rig hts to proper

ty belong ing to [Mrs. Morris] for the amount of these taxes, and additional penalties, interest, and costs that may acc rue.” The Notice identified the amount due as $226,600.64, arising from unpaid taxes for the y ear s 1997, 1999, and 2000. Mrs. Morris was not g iven an opportunity to be hear d prior to the impositi on of the lien. I n Dec ember 2011, M rs. Morris filed suit ag ainst the g overnme nt in the United States District Court for the Norther

n District of Ohio. She alleg ed that the lien “has encumbe red her proper ty , has restric ted her ability to use and/or transfe r her proper ty , has impaired [her] cre dit, and has impaired her ability to enjoy her retire ment.” The complaint further alleg ed that the imposit ion of the lien without a prior hear ing amounted to a taking of proper ty without due proce ss of law, in violation of the Fifth Amendment. Mrs. Morris acc ording ly reque sted that the court decla re a constitutional violation, void the lien ab initio , and awa rd damag es “not y et asce rtainable ” but e stimated to be in excess of $100,000. I n its answe r, t he g overnme nt did not contest any of the e ssential fac tual alleg ations of t he complaint, but denied that Mrs. Morris was entitled to the relief reque sted. Mrs. Morris responde d

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by filing a

motion for judgme nt on the pleading s. I n opposing the motion, the g overnme nt a rg ued that due proce ss is satisfied by the proce dures available to a taxpay er for contesting the lien afte r its imposit ion and does not re quire a pre- imposit ion hear ing. The district court held that the availability of a quiet-ti t l e ac t i o n t o deter mine whether the nominee lien is valid constitutes a sufficie nt opportunity for a hear ing under the Due Process Clause. I t there fore denied Mrs. Morris’s motion for judgme nt on the pleading s. After the court enter ed its order deny

ing the motion, the parties jointly moved for the order to be deeme d final and appea lable. The c ourt ac cording ly

enter ed fina l judgment in fa vor of the g overnme nt. This appeal f ollowed. II. ANALYSIS On appea l, Mrs. Morris presse s the same argument that she prese nted below, contending that due proce ss require s a hear ing prior to the imposit ion of a nominee tax lien. This argument is clea rly fore closed by near ly 100 y ear s of prec edent holding that the “pay first, sue later” principle embodied in the I nterna l Revenu e C o de is constitutional. See, e.g. , Dodge v. Osborn , 240 U.S. 118, 122 (1916); Phillips v. Comm’r of Internal Rev enue , 283 U.S. 589, 595 (1931); B o b Jo n es Univ. v. Simon , 416 U.S. 725, 746-48 (1974); G. M. Leasing Corp. v. United States , 429 U.S. 338, 352 n.18 (1977). So if the case wer e befor e us on the merits, it would have resulted in a n easy aff irmance

. But the g overnme nt is not c ontent with winning on the merits, and arg ues for the first time

on appea l that the courts are without subject-matter jurisdiction to decide this case . The g overnme nt contends that the Tax Anti-I njunction Act, 26 U.S.C. § 7421, deprive s the courts of jurisdiction over the portions of the complaint reque sting decla ratory and injunctive relief , an d t h at sovere ign immunit y bars Mrs. Mor

ris’s damag es cla im.

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As an initial matter , we note that Mrs. Morris does not question the jurisdictional nature of the Tax Anti-I njunction Act or t h e s o v er ei gn-immunity doctrine; nor does she contend that the
g overnme nt has waived these arguments by failing to raise them below. The courts have long treated both matters as jurisdictional and there fore unwaivable , in acc ordanc e with Supreme Court
prec edent. See, e.g. , United States v. Mitchell , 445 U.S. 535, 538 (1980) (“I t is elementa

ry that the United States, as sovere ign, is immune from suit save as it consents to be sued, and the terms of its
consent to be sued in any court define that court’s jurisdiction t o enter tain the suit.”) (bra ckets, ellipsis, and internal quotation marks omitted); Enochs v. W illiams Pack

ing & Navigation Co. , 370 U.S. 1, 5 (1962) (“The object of [t he Tax Anti-I njunction Act] is to withdraw jurisdiction from the
state and fede ral courts to enter tai n s u i t s seeking injunctions prohibiting the collection of fede ral taxes.”). I n rec ent y ear s, howeve r, t h er e h as been a g rowing debate about whether the term “jurisdiction” as used i n Supreme Court jurisprudenc e invariably ref ers to the conce pt in its technica l, authori t y -t o -d ecide sense. See Steel Co. v. Citi zens for a Better Env’t , 523 U.S. 83, 90 (1998) (obser

ving that “[j] urisdiction

. . . is a word of many , too many , meaning s”) (interna l quotation marks omitted). Compare RY O Mach., LLC v. U.S. Dep’ t of Tr ea s u r y , 696 F.3d 467, 470-71 (6th Cir. 2012) (holding that the Tax Anti-I nj u nction Act “pre vents courts from asser ting jurisdiction ove r” pree mptive tax challeng es), with Hobby Lobby Stores, Inc. v. Sebelius , ___ F.3d

___, No. 12-6294, 2013 WL 3216103, *37 (10th Cir. J une 27, 2013) (en banc) (Gorsuc h, J .,

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concur ring ) (“In t h e en d, the [Tax Anti-I njunction Act] shows none of the hallmarks of a jurisdictional restriction, and ha s many features that collec tively indicate other

wise.”)

. We have no occa sion in the prese nt case to weig h in on this debate beca use Mrs. Morris does
not contest the jurisdictional nature of the Tax Anti-I njunction Act or of sovere ign immunit y . Her
argument, rathe r, is that the Tax Anti-I njunction Act does not bar her claim beca u s e s h e i s not seeking injunctive relief

, and that sovere ign immunit y is no barr ier beca use the fede ral courts have jurisdiction over actions broug ht under 28 U.S.C. § 1331. We will acc ording ly continue to treat both the Tax Anti-I njunction Act and sovere ign immunit y as jurisdictional for the purpose of the prese nt

case and will rese rve the question of whet h er they are truly so for a case in which the issue is
square ly prese nted. Suc h j u ri s d i ctional treatment does not aff ect the outcome of this case beca use, even if we

wer e to hold that the Tax Anti-I njunction Act and sovere ign immunit y do not implicate the courts’ subject-matter jurisdiction, we would still enter tain the g overnme nt’s arg uments. We would do so beca use the rule that arguments prese nted for the first time on appea l are waived is not absolute, but is rathe r a “g ener al rule” that admits of “devia t i o n s ” i n “exceptional case s or particula r circ umstances.” Pinney Dock & T r a n s p . Co. v. Penn Cent. Corp. , 838 F.2d 1445, 1461 (6th Cir. 1988) (interna l quotation marks omitted). For example, this court has addre ssed an arg ument raised for the first time on a

ppeal whe n it was of a “ purely leg al” na ture a nd its resolution “ require [d] no further development of the rec ord at the district court level.” United States v. Ellison , 462 F.3d 557, 560-61 (6th Cir. 2006).

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The arg ument that the Tax Anti-I njunction Act and sove reign immunit y bar Mr s. Morris’s suit is j ust such a pure ly

leg al ar g ument, and we would addre ss it even if we did not consider it to be of a jurisdictional nature

. Mrs. Morris’s suit is in fac t barr ed for the rea sons discussed below, so whether that b ar is char acte rized as jurisdictional makes no prac tical differ ence for the case ’s dispositi on. Wit h this prologue out of the way , we now proce ed to decide whether Mrs. Morris’s suit is barr ed by the Tax Anti-I njunction Act and sovere i gn i m m u nity

. The Tax Anti-I njunction Act provides that, except for certa in lawsuits authorized elsewhere i n t h e I nterna l Revenue Code, “no suit for the purpose of restra ining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person ag ainst whom such tax was assessed.” 26 U.S.C. § 7421(a). I n Enochs v. W

illiams Pack

in g & N a vi g ation Co. , 370 U.S. 1 (1962), the Supreme Court held t hat “[ t] he object of § 7421(a) is to withdraw jurisdi ction from the state and fede ral courts to
enter tain suits seeking injunctions p ro h i b i t i ng the collection of fede ral taxes,” and it reje cted the
argument that suits for an injunction should be permitted wher e the leg al reme dy is inadequa te. 370 U.S. at 5-6. The Court explained that this policy is justified by the g overnme nt’s need to promptly collect taxes. Id. at 7 (“ The manifest purpose of § 7421(a) is to permit the United States to assess and collec t tax es alleg ed to be due without judicial intervention, and to require that the leg al rig ht
to the disputed sums be deter mined in a suit for ref

und. I n this manner the United States is assure d of prompt collection of its lawful reve nue.”). Nevertheless, the Supreme Court left open the

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possibility of injunctive relief in cases where “it is clear that under no circumstances could the Government ultimately prevail” and “equity jurisdiction otherwise exists.” Id. The Supreme Court reaffirmed Williams Packing ’s expansive interpretation of the Tax AntiInjunction Act in Bob Jones University v. Simon , 416 U.S. 725 (1974). It reiterated that the space left open for injunctive-relief suits is narrow, requiring “first, irreparable injury, . . . and second, certainty of success on the merits.” 416 U.S. at 737. The Court also rejected the claim that the procedure mandated by the Tax Anti-Injunction Act that a taxpayer must pay first and sue later violates the Due Process Clause. It commented that “[t]his is not a case in which an aggrieved party has no access at all to judicial review,” noting that the opportunities to exhaust the IRS’s internal refund procedures and then sue for a refund “offer petitioner a full, albeit delayed, opportunity to litigate the legality of the Service’s” tax-collection efforts. Id. at 746. The Court acknowledged that the “pay first, sue later” principle presented “serious problems of delay,” but held that “the problems presented do not rise to the level of constitutional infirmities, in light of the powerful governmental interests in protecting the administration of the tax system from premature judicial interference and of the opportunities for review that are available.” Id. at 747-48 (internal citations omitted). In the present case, the government relies on Bob Jones University to argue that the Tax AntiInjunction Act bars Mrs. Morris’s request for declaratory and injunctive relief. Mrs. Morris, in response, distinguishes Bob Jones University on the ground that the relief requested in that case was the enjoinment of

future harm, whereas her complaint requests redress for past harm: Mrs. Morris did not bring a preemptive lawsuit seeking to restrain the government from doing anything. The difference here is between Mrs. Morris suing to enjoin the -7-Morris v. United States, No. 12-4532

United States from filing the Nominee or Alter-Ego tax lien and bringing a suit after the United States filed its lien challenging the constitutionality of that filing. Mrs. Morris did not and does not seek injunctive relief. Rather, she seeks redress for a wrong already committed. The lien is filed. The damage is done. Tax Anti-Injunction Act, therefore, does not bar this suit. This argument is not without surface appeal. And it is leant strength by the language of the Notice of Federal Tax Lien, which states that taxes “have been assessed” against Mrs. Morris. If the taxes have already been assessed and the lien imposed, one might suppose, then the relief sought is not truly an injunction but rather “redress for a wrong already committed.” The Tax Anti-Injunction Act, however, is not limited to prohibiting actions that restrain the “assessment” of taxes; by its terms, the Act also speaks to tax “collection.” See 26 U.S.C. § 7421(a). In the present case, there is no dispute that the taxes allegedly due have not yet been collected. Nor can there be any dispute that the imposition of the lien furthers the government’s efforts to collect such taxes. So the purpose of Mrs. Morris’s requested relief to void the lien ab initio is manifestly to “restrain[] the . . . collection of [a] tax,” 26 U.S.C. § 7421(a), which is exactly what the Tax Anti-Injunction Act prohibits. Indeed, Williams Packing was clear that “in general, the Act prohibits suits for injunctions barring the collection of federal taxes when the collecting officers have made the assessment and claim that it is valid.” 370 U.S. at 8 (emphasis added). And other courts of appeals have interpreted the Tax Anti-Injunction Act as “applicable not only to the assessment or collection itself, but to activities which are intended to or may culminate in the assessment or collection of taxes.” See, e.g. , Colangelo v. United States , 575 F.2d 994, 996 (1st Cir. 1978) (ellipsis omitted) (quoting United

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States v. Dema , 544 F.2d 1373, 1376 (7th Cir. 1976)); accord Smith v. Rich , 667 F.2d 1228, 1230 (5th Cir. 1982). To further illustrate this point, suppose that the property encumbered by the lien was about to be sold in order to raise money to pay the assessed taxes. See 26 U.S.C. § 6325(b)(3) (providing for the discharge of the lien where the encumbered property is sold and the proceeds are held subject to the government’s claims). If a suit were then brought to enjoin the sale, there would be no doubt that the suit was directed at restraining future tax-collection efforts. To hold that such a suit which would be brought later in time and later in the chain of the government’s collection efforts than the present suit is barred by the Tax Anti-Injunction Act, but that the present suit is not so barred because it seeks “redress for a wrong already committed,” would be illogical. Mrs. Morris’s purported distinction between a true injunction and a “redress” is therefore a false dichotomy. Under both the plain language and the clear policy of the Tax Anti-Injunction Act, the fact that the lien has already been imposed does not render the Act inapplicable, just as the fact that the taxes had already been assessed (but not yet collected) did not render the Act inapplicable in Williams Packing

. The foregoing conclusion is bolstered by the decisions applying the Tax Anti-Injunction Act to suits that, like the present one, have sought the removal of a tax lien. The cases decided after Bob Jones University appear to be unanimous in holding that a suit seeking the removal of a tax lien is barred by the Tax Anti-Injunction Act. See, e.g. , Overton v. United States , 925 F.2d 1282 (10th Cir. 1991); Colangelo , 575 F.2d 994; Krieg v. Mills , 117 F. Supp. 2d 964 (N.D. Cal. 2000), aff’d , 8 F.

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App’x 663 (9th Cir. 2001); Ross v. United States , 861 F. Supp. 406 (E.D.N .C. 1994); MBI Motor Co., Inc. v. Lotus/East, Inc. , 399 F. Supp. 774 (E.D. T enn. 1975). The decision in Harrell v. United States , 13 F.3d 232 (7th Cir. 1993), is not to the contra ry . I n that case , the S eventh Ci rcuit hel d t h at “[t] he anti-injunction act .

. . bars a suit challeng ing the collection or assessment of taxes, but not a suit to remove a lien without questioning the entitlement of the g overnme nt to collect the taxes in some other way .” 13 F.3d at 234. The pertinent distinction, noted the court, is betwee n a suit challeng ing the plaintiff’s tax liability , which is barr ed by the Tax Anti-I njunction Act, and one challeng ing “ mere ly the m eans for enf orcingthat liability ,” which is not barre d. Id. at 235. That distinction, even assuming it is a valid one, does not make any differ ence in the prese nt

case . Mrs. Morris is not simply challeng ing the lien as an improper method of tax collection while

conce ding that the g overn m en t can g o about collecting the assessed taxes from her in some other
way . Rather, she is clea

rly challeng ing her very tax liability ; she say s that the proper ty subject to the lien is leg ally and equitably hers, not her husband’s, so it should not have been encumbe red without

a prior hear ing i n wh i ch she could contest the I RS’s asser tion that she was mere ly her husband’s nominee. Harrell is theref ore of no avail to Mrs. Morris. Nor can Mrs. Morris g et around the Tax Anti-I njunction Act throug h the W illiams Pack

ing exception for case s wher e “under no circ umstances could the Gover nment ultimately preva il,” 370 U.S. at 7. This exception d o es n o t ap ply beca use Mrs. Morris’s constitutional claim, far from exhibi ting a “ce rtainty of succe ss on the merits,” Bob Jones Univ. , 416 U.S. at 7 3 7 , i s v i rt u all y g uara nteed to f ail. As noted, the Supreme Court r ejec ted a simil ar constitutional c halleng e in Bob

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Jones University , id. at 746-48, and has done so many other times before and since. See, e.g. , Phillips v. Comm’r of Internal Revenue , 283 U.S. 589, 595 (1931); G. M. Leasing Corp. v. United States , 429 U.S. 338, 352 n.18 (1977). Finally, Mrs. Morris cannot find an escape hatch for her declarative and injunctive requests in the Declaratory Judgment Act, 28 U.S.C. § 2201. That statute authorizes the courts to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” Id. at § 2201(a). But the statutory authorization is, by its own terms, subject to an important carveout “except with respect to Federal taxes.” Id. Because “the federal tax exception to the Declaratory Judgment Act is at least as broad as the Anti-Injunction Act,” Bob Jones Univ. , 416 U.S. at 732 n.7, Mrs. Morris cannot use the former statute to get around the latter. Mrs. Morris’s requests for declaratory and injunctive relief are therefore barred by the Tax Anti-Injunction Act. This leaves the complaint’s request for monetary damages, which the government contends is barred by sovereign immunity. “It is elementary that the United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Mitchell , 445 U.S. 535, 538 (1980) (brackets, ellipsis, and internal quotation marks omitted). The burden is on the plaintiff to establish that the government has waived sovereign immunity. Reetz v. United States , 224 F.3d 794, 795 (6th Cir. 2000). “If [the plaintiff] cannot identify a waiver, the claim must be dismissed on jurisdictional grounds.” Id.

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The only purported waiver of sovere ign immunit y iden tified by Mrs. Morris is 28 U.S.C. § 1331, which is the g ener al statute conf err ing f eder al-que stion jurisdi ction on the district courts. But “jurisdictional statutes, such as the statute g iving fede ral district courts orig inal jurisdiction of civil actions arising under Constit ution, laws, or treaties of United States, do not operate as waiver s of sovereig n immunit y .” Munaco v . United States , 522 F.3d 651, 653 n.3 (6th Cir. 2008); accord Mitchell , 445 U.S. at 538. Mrs. Morris has ther ef o re fa iled to car

ry her burden of establishing a waiver of sover eig n immunit y . I n sum, Mrs. Morris’s prese nt suit is barr ed by the Tax Anti-I njunction Act, the Dec laratory J udg ment Act, and s o v er ei gn i mmunity

. This does not mean, of course , that Mrs. Morris is
perpe tually prohibited from challeng ing the taxes assessed ag ains t her. There are innumerable decisions on the books dealing with challeng es to various taxes. Mrs. Morris is likewise fr ee to challeng e the assessed taxes, a ssuming that she meets any other a pplicable r equire ments, after she
pay s them. Or she can contest th e l ien by filing a quiet-title action to show that the encumbe red
proper ty is truly hers, not her husband’s. See 28 U.S.C. § 2410 (per mitti ng suits ag ainst the United States “to quiet t i t l e to

. . . rea l or persona l proper ty on which the United States has or claims a mortg ag e or other lien,” and presc ribing the proper proce dure for such suits). But she cannot bring the pre sent cha lleng e at this juncture. III. CONCLUSION For all of t he reasons set forth above, we VA CA TE the j udg ment of t he dis trict court and

rema nd the ca se with instructions to DISMISS it for want of subject-matter

jurisdiction.

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