Of the District of Massachusetts, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2037

MARLENE JOHANSEN,

Plaintiff, Appellant,

v.

UNITED STATES,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Howard, Circuit Judge,

Campbell, Senior Circuit Judge,

and Saris, District Judge. *

Timothy J. Burke with whom Burke & Associates was on brief for

appellant.

Kenneth W. Rosenberg, Attorney, Tax Division, with whom

Michael J. Sullivan, United States Attorney, Eileen J. O'Connor,

Assistant Attorney General, Bruce R. Ellisen and Laurie Snyder,

Attorneys, Tax Division, Department of Justice, were on brief for

appellee.

October 29, 2007
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CAMPBELL, Senior Circuit Judge. Appellant Marlene

Johansen appeals from the dismissal of her suit in the United

States District Court for the District of Massachusetts to quiet

title on her property. The suit was dismissed for lack of

jurisdiction on mootness grounds, and Johansen argues that this was

error because she has suffered damages that must be redressed by

the government. After reviewing her arguments and the record, we

affirm the dismissal of her suit.

Background

On August 17, 2004, Johansen filed a complaint to quiet

her title to a residential property in Stoneham, Massachusetts.

She contended that a tax lien the United States had asserted

against her as nominee for her divorced ex-husband, Ralph Johansen,

for his delinquent income tax liabilities created a cloud on her

title, effected a detriment to her creditworthiness, and damaged

her. She also requested attorneys' fees under the Internal Revenue

Code, 26 U.S.C. § 7430, and the Equal Access to Justice Act, 28

U.S.C. § 2412(d). The government counterclaimed to foreclose the

tax lien against the Stoneham property by sale.

The district court initially had jurisdiction over

Marlene's action pursuant to 28 U.S.C. §§ 1331 and 1340 (general

jurisdictional statutes) and 2410 (which provides in relevant part

that "the United States may be named a party in any civil action or

suit . . . having jurisdiction of the subject matter (1) to quiet
Marlene Johansen had received the property from her ex- 1

husband as part of the divorce settlement. In its counterclaim the

government asserted that its unrecorded lien against Ralph's

interest in the Stoneham property was valid against Marlene and

that the conveyance to her was fraudulent. Marlene contends that

upon coming to her, the property was no longer subject to the

government's claim for taxes owed by her ex-spouse and that the

government's subsequent filing of a lien on her property was

therefore improper.

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title to; (2) to foreclose a mortgage or other lien upon; (3) to

partition; (4) to condemn; or (5) of interpleader or in the nature

of interpleader with respect to real or personal property on which

the United States has or claims a mortgage or other lien"), and

over the government's counterclaim under 28 U.S.C. §§ 1340, 1345

and IRC § 7403. During the course of the litigation, however, on

August 22, 2005, Ralph Johansen paid in full his tax liabilities.

As a result, on September 20, 2005, the government filed a motion

to dismiss the action on the grounds that it no longer had any

interest in the Stoneham property since full payment of its tax

claim had been made. Thus, the government argued, the issue raised

in Johansen's suit was moot, there no longer being any occasion to

quiet title, and the court being without jurisdiction to decide

anything more. Marlene Johansen opposed the motion to dismiss on

the grounds that the government's lien on her property had been

wrongfully imposed from the start, that she had suffered damages, 1

and that she was entitled to attorneys' fees.

On February 9, 2006, the magistrate judge recommended

dismissing the case as moot. On the same day, the government filed
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with the court documents demonstrating that, on February 8, 2006,

it had officially withdrawn notice of the lien on Ralph Johansen's

tax liabilities. Marlene Johansen filed objections to the

recommendation, arguing that she was nonetheless entitled to have

the court find that the tax lien had been wrongly placed on her

property, and that the government's release of the lien did not

alter the fact that, from the time filed until its release, the

lien was improper and had injured her by undermining her

creditworthiness.

The district court endorsed the recommendation of the

magistrate judge that because the government no longer had an

interest in the property, the case was moot, and that Johansen's

other allegations and her interest in attorneys' fees were

insufficient to maintain a live controversy. This timely appeal

followed.

Discussion

On appeal, Marlene Johansen argues that her claim is not

moot, relying on the same cases which the district court's ruling

properly distinguished. We will discuss her argument infra. As a

preliminary matter, the government argues that the appellant failed

to preserve the issues she raises here on appeal as she did not

specifically indicate them in her objections below to the

magistrate judge's report and recommendations. Johansen's

objections were, indeed, vague, but as the points she now raises
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are clearly without merit, we need not go into the issue of their

preservation. Instead, we address her appellate claims on the

merits.

As we explain infra, when the government ceased to have

an interest in the Stoneham property because the tax liabilities

had been paid, Johansen's suit to quiet title to that property

became moot. The only remedy to which she had been entitled under

28 U.S.C. § 2410, which was the statutory basis of her suit, was

removal of the lien, and that removal was accomplished, leaving the

court with nothing to do. While Johansen alleged in her complaint

that the lien affected her creditworthiness and damaged her, these

claims, standing alone, were outside the province of § 2410, hence

beyond the subject matter jurisdiction of the court and leaving

them barred by the government's sovereign immunity.

The district court's legal conclusion on the motion to

dismiss for lack of jurisdiction is reviewed by us de novo. Gill

v. United States, 471 F.3d 204, 205 (1st Cir. 2006). When a

defendant moves to dismiss for lack of federal subject matter

jurisdiction, "'the party invoking the jurisdiction of a federal

court carries the burden of proving its existence.'" Murphy v.

United States, 45 F.3d 520, 522 (1st Cir.), cert. denied, 515 U.S.

1144 (1995) (quoting Taber Partners, I. v. Merit Builders, Inc.,

987 F.2d 57, 60 (1st Cir.), cert. denied, 510 U.S. 823 (1993)). We

have held that the party advocating jurisdiction must make clear
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the grounds on which the court may exercise jurisdiction: "it is

black-letter law that jurisdiction must be apparent from the face

of the plaintiffs' pleading." PCS 2000 LP v. Romulus Telecomms.,

Inc., 148 F.3d 32, 35 (1st Cir. 1998). If the party fails to

demonstrate a basis for jurisdiction, the district court must grant

the motion to dismiss. Though we take as true the well-pleaded

facts of the complaint, Santa-Rosa v. Combo Records, 471 F.3d 224,

226 (1st Cir. 2006), a plaintiff cannot rest a jurisdictional basis

"merely on 'unsupported conclusions or interpretations of law.'"

Murphy, 45 F.3d at 422 (quoting Washington Legal Foundation v.

Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir. 1993)).

i. Availability of Damages

Johansen argues that the mere fact that the United States

no longer claimed an interest in the property on which the lien had

been placed did not make the controversy moot. She opposed the

government's motion to dismiss below by arguing,

The United States' motion does not provide a basis for

its conclusion that [the removal of the lien] adequately

addressed the allegations and relief sought from the

Court in [plaintiff's] complaint. The issue before the

Court remains as to whether the United States had legal

justification for the filing of the nominee lien, and if

the Court finds none, the extent of damages caused to Ms.

Johansen by its erroneous filing. . . . Ms. Johansen's

Complaint properly alleges that her creditworthiness was

damaged by the filing of the unlawful lien. Her matter

addresses the injury she suffered. Her matter is not

moot.

As already noted, Johansen asserted jurisdiction under general

jurisdictional statutes, 28 U.S.C. §§ 1331 and 1340, and under 28
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U.S.C. § 2410. As the magistrate judge found, any claim of

jurisdiction for the purpose of enabling plaintiff to recover money

damages for alleged detriment to the plaintiff's creditworthiness

fails because § 2410 provides for federal court subject matter

jurisdiction and for an implicit waiver of the United States'

sovereign immunity only for the adjudication of an equitable action

to quiet title, and not an action for money damages. Kulawy v.

United States, 917 F.2d 729, 736 (2d Cir. 1990) ("in a § 2410

action, only equitable relief affecting title, and not damages, may

be awarded").

ii. Mootness

In finding mootness, the magistrate judge relied on Lewis

v. Continental Bank Corporation, 494 U.S. 472, 477 (1990), in which

the Supreme Court set out the definition of a live controversy

under Article III:

Under Article III of the Constitution, federal courts may

adjudicate only actual, ongoing cases or controversies.

To invoke the jurisdiction of a federal court, a litigant

must have suffered, or be threatened with, an actual

injury traceable to the defendant and likely to be

redressed by a favorable judicial decision. Article III

denies federal courts the power to decide questions that

cannot affect the rights of litigants in the case before

them, and confines them to resolving real and substantial

controversies admitting of specific relief through a

decree of a conclusive character, as distinguished from

an opinion advising what the law would be upon a

hypothetical set of facts. This case-or-controversy

requirement subsists through all stages of federal

judicial proceedings, trial and appellate.

Id. (internal citations and quotations omitted). 
When the government filed its motion to dismiss, it had 2

argued that as a result of Ralph Johansen's payment of his tax

liabilities, "[t]he United States will release all liens against

Ralph Johansen, including those liens naming Marlene Johansen as

the nominee of Ralph Johansen. The United States, therefore,

claims no interest in the subject property, and moves to dismiss

this action because there is no controversy to adjudicate." In her

opposition to the motion to dismiss, Johansen did not dispute the

fact that the tax liabilities underlying the lien had been

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Johansen argues that the question of whether the

government was right to place a tax lien on her property amounts to

a still valid ongoing controversy. She says she suffered actual

injury as a result of the wrongful lien and seeks resolution of her

challenge to the lien as a necessary condition to her becoming a

prevailing party entitled to attorneys' fees under 26 U.S.C. §

7430. The magistrate judge rightly found that Johansen's position

could not be sustained. First, the distinction between a

"conclusive decree" and an "advisory opinion" was reiterated in

Rhodes v. Stewart:

The real value of the judicial pronouncement--what makes

it a proper judicial resolution of a 'case or

controversy' rather than an advisory opinion--is in the

settling of some dispute which affects the behavior of

the defendant towards the plaintiff.

488 U.S. 1, 4 (1988) (quoting Hewitt v. Helms, 482 U.S. 755, 761

(1987)) (emphasis in original). Here, the magistrate judge

concluded, "the desired modification of behavior underlying the

plaintiff's complaint, the removal of the defendant's lien on the

subject property, has already been accomplished. Any further

judicial pronouncements would be without 'real value.'" In saying 2
resolved. Following the magistrate judge's report and

recommendation to dismiss the complaint, the government filed

documents showing that on February 8, 2006 (the day before the

report and recommendation issued), the government withdrew three

notices of federal lien related to the liabilities of Ralph

Johansen. According to the language of I.R.C. § 6322, a lien

continues "until the liability for the amount so assessed (or a

judgment against the taxpayer arising out of such liability) is

satisfied or becomes unenforceable by reason of lapse of time"

(emphasis supplied). Johansen did not in either her objection to

the report and recommendation or her initial appellate brief raise

any objection to the fact that the formal paperwork withdrawing

notice of the lien was not filed until February 8, 2006. In her

reply brief, however, she takes issue with the timing of the

withdrawal of the lien notice, arguing that "the finding of

mootness was made without evidence that the matter was moot." Even

if the withdrawal of the lien notice was integral to the mootness

of the controversy, and even if Johansen had raised this argument

in a timely fashion instead of in her reply brief, the "case-orcontroversy requirement subsists through all stages of federal

judicial proceedings, trial and appellate." Lewis, 494 U.S. at

477. At the time the district court approved the report and

recommendation, there was no lien against Johansen's property and

thus no need to quiet the title on it.

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the latter, the magistrate judge reiterated what is clear: that no

matter what damages plaintiff may feel she has suffered as a result

of the lien, "no specific relief through a decree of a conclusive

character," as distinguished from a mere advisory opinion, is

presently possible in this litigation. Lewis, 494 U.S. at 477.

Second, the Supreme Court has concluded that the desire

for attorney's fees is insufficient to maintain Article III

jurisdiction:

At the time Continental's challenge to denial of its

application for an insured ISB was mooted by the

amendments to the BHCA, this litigation had been in

progress for almost seven years. An order vacating the

judgment on grounds of mootness would deprive

Continental of its claim for attorney's fees under 42
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U.S.C. § 1988 (assuming, arguendo, it would have such a

claim), because such fees are available only to a party

that "prevails" by winning the relief it seeks. This

interest in attorney's fees is, of course, insufficient

to create an Article III case or controversy where none

exists on the merits of the underlying claim. Where on

the face of the record it appears that the only concrete

interest in the controversy has terminated, reasonable

caution is needed to be sure that mooted litigation is

not pressed forward, and unnecessary judicial

pronouncements . . . obtained solely in order to obtain

reimbursement of sunk costs.

Lewis, 4984 U.S. at 480 (internal citations omitted). See also

Buckhannon Bd. & Care Home, Inc. v. W.V. Dep't of Health & Human

Resources, 532 U.S. 598, 605 (2001) (holding that the term

"prevail" denotes "a judicially sanctioned change in the legal

relationship of the parties"). We have held that "Buckhannon is

presumed to apply generally to all fee-shifting statutes that use

the 'prevailing party' terminology." The situation here, as the

magistrate judge pointed out, is parallel to Lewis in that the

concrete interest in the controversy has terminated with the

removal of the tax lien from the property. To be sure, plaintiff

may feel a dispute still lingers over the United States' legal

justification for filing the lien in the first place. Section

2410, however, makes no provision for adjudicating such a question

now that the lien no longer exists, leaving the court without

jurisdiction to do so. And this Circuit has recently held that a

"litigant's interest in a possible award of attorney's fees is not

enough to create a justiciable case or controversy if none exists
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on the merits of the underlying claim." Goodwin v. C.N.J., Inc.,

436 F.3d 44, 51 (1st Cir. 2006).

Johansen cites on appeal two additional cases as

supporting her argument, Rainey v. Jackson State College, 481 F.2d

347 (6th Cir. 1973) and Education/Instruccion, Inc. v. United

States, 471 F. Supp. 1074 (D. Mass. 1979). Neither case, however,

even assuming their applicability, lends persuasive support to

plaintiff's position here, since both have since been superceded by

the Supreme Court's decision in Buckhannon. See also Oil, Chemical

& Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452, 455

(D.C. Cir. 2002) (existing case law must give way to the extent it

does not require a plaintiff to have "been awarded some relief by

[a] court" to become eligible for fees).

In the absence of any federal remedy under the statutory

provisions plaintiff relies upon, we must affirm the judgment of

the district court. AFFIRMED.