12-2543-cv Ceparano v. United States, et al

. **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A**  **PPENDIX 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**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Thurgood Marshall United 2 States Courthouse, 40 Foley Square, in the City of New York, 3 on the 14 thday of May, two thousand thirteen. 4 5 PRESENT: R ICHARD C. W ESLEY , 6 C HRISTOPHER F. D RONEY , 7 Circuit Judges , 8 A LISON J. NATHAN , 9 Judge

. * 10 11 12 13 DOROTHY CEPARANO, 14 15 Plaintiff-Appellant , 16 17 -v.- 12-2543-cv 18 19 UNITED STATES OF AMERICA, 20 21 Defendant-Appellee , 22 23 TOM PINKOWSKI, WELLS FARGO & CO. 24 25 Defendants. 26 27 28 29

* Judge Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation.FOR APPELLANT: JEFFREY HERZBERG, Zinker & Herzberg, LLP, 1 Smithtown, NY. 2 3 FOR APPELLEES: THOMAS A. McFARLAND, Assistant United 4 States Attorney (Varuni Nelson, Assistant 5 United States Attorney, on the brief ), 6 for Loretta E. Lynch, United States 7 Attorney for the Eastern District of New 8 York, Central Islip, NY. 9 10 Appeal from the United States District Court for the 11 Eastern District of New York (Spatt, J .). 12 13 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 14

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

**REMANDED** with instruction to dismiss the case for lack of 16 subject matter jurisdiction. 17 Plaintiff-Appellant Dorothy Ceparano (“Dorothy”) 18 appeals the July 21, 2011, opinion and order of the United 19 States District Court for the Eastern District of New York 20 (Spatt, J. ) dismissing her quiet-title action for failure to 21 state a claim. We assume the parties’ familiarity with the 22 underlying facts, the procedural history, and the issues 23 presented for review. 24 At oral argument we, sua sponte , questioned whether the 25 Court had subject matter jurisdiction and solicited the 26 parties’ views on the matter. Both parties submitted letter 27 briefs concluding that the Court did not have subject matter 28 jurisdiction; we agree. Dorothy brought this declaratory 29

2judgment action to quiet title to her home after she had 1 sold it. She did so to preclude the United States from 2 seizing the net proceeds of that sale. Her action, however, 3 begs the question whether the United States currently has a 4 valid claim to those proceeds. Until the United States 5 attempts to establish a lien on the proceeds, Dorothy’s 6 action seeks only an advisory opinion with regard to the 7 possibility that the United States at some later date will 8 assert a lien. This is not a case or controversy in which 9 the United States would be a proper party to quiet title to 10 property or proceeds as no claim has, as of yet, been 11 asserted against it by the United States. See 28 U.S.C. §§ 12 2409a, 2410; see also Johansen v. United States , 506 F.3d 13 65, 69-70 (1st Cir. 2007). 14 Accordingly, for the foregoing reasons, this appeal is 15

**DISMISSED**and the case is **REMANDED** with instruction to 16 dismiss the case for lack of subject matter jurisdiction **.** 17
18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21 22

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