12-2543-cv

Ceparano v. United States, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 14th 4 day of May, two thousand thirteen.

5

6 PRESENT: RICHARD C. WESLEY,

7 CHRISTOPHER F. DRONEY,

8 Circuit Judges,

9 ALISON J. NATHAN,

Judge.* 10

11

12 

13

14 DOROTHY CEPARANO, 

15

16 Plaintiff-Appellant,

17

18 -v.- 12-2543-cv

19

20 UNITED STATES OF AMERICA,

21

22 Defendant-Appellee,

23

24 TOM PINKOWSKI, WELLS FARGO & CO.

25

26 Defendants.

27 

28

29

* Judge Alison J. Nathan, of the United States District

Court for the Southern District of New York, sitting by

designation.
1 FOR APPELLANT: JEFFREY HERZBERG, Zinker & Herzberg, LLP,

2 Smithtown, NY.

3

4 FOR APPELLEES: THOMAS A. McFARLAND, Assistant United

5 States Attorney (Varuni Nelson, Assistant

6 United States Attorney, on the brief),

7 for Loretta E. Lynch, United States

8 Attorney for the Eastern District of New

9 York, Central Islip, NY. 

10

11 Appeal from the United States District Court for the

12 Eastern District of New York (Spatt, J.).

13

14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15 AND DECREED that the appeal be DISMISSED and the case be

16 REMANDED with instruction to dismiss the case for lack of

17 subject matter jurisdiction. 

18 Plaintiff-Appellant Dorothy Ceparano (“Dorothy”)

19 appeals the July 21, 2011, opinion and order of the United

20 States District Court for the Eastern District of New York

21 (Spatt, J.) dismissing her quiet-title action for failure to

22 state a claim. We assume the parties’ familiarity with the

23 underlying facts, the procedural history, and the issues

24 presented for review. 

25 At oral argument we, sua sponte, questioned whether the

26 Court had subject matter jurisdiction and solicited the

27 parties’ views on the matter. Both parties submitted letter

28 briefs concluding that the Court did not have subject matter

29 jurisdiction; we agree. Dorothy brought this declaratory

2
1 judgment action to quiet title to her home after she had

2 sold it. She did so to preclude the United States from

3 seizing the net proceeds of that sale. Her action, however,

4 begs the question whether the United States currently has a

5 valid claim to those proceeds. Until the United States

6 attempts to establish a lien on the proceeds, Dorothy’s

7 action seeks only an advisory opinion with regard to the

8 possibility that the United States at some later date will

9 assert a lien. This is not a case or controversy in which

10 the United States would be a proper party to quiet title to

11 property or proceeds as no claim has, as of yet, been

12 asserted against it by the United States. See 28 U.S.C. §§

13 2409a, 2410; see also Johansen v. United States, 506 F.3d

14 65, 69-70 (1st Cir. 2007). 

15 Accordingly, for the foregoing reasons, this appeal is

16 DISMISSED and the case is REMANDED with instruction to

17 dismiss the case for lack of subject matter jurisdiction.

18

19 FOR THE COURT:

20 Catherine O’Hagan Wolfe, Clerk

21

22

3