Neighborhood Improvement Projects, LLC v. United States

FILED
NOT FOR PUBLICATION
JUN 07 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEIGHBORHOOD IMPROVEMENT No. 16-15114
PROJECTS, LLC,
D.C. No. 2:15-cv-00523-DLR
Plaintiff-Appellant,
v. MEMORANDUM*
UNITED STATES OF AMERICA, JOHN
and JANE DOES, 1 through 10
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted May 11, 2017
Pasadena, California
Before: O’SCANNLAIN and OWENS, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.
Plaintiff-Appellant Neighborhood Improvement Projects, LLC (NIP) appeals
the district court’s order granting Defendant-Appellee United States’s motion for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dana L. Christensen, United States Chief District
Judge for the District of Montana, sitting by designation.
summary judgment. On appeal, NIP argues that the district court erroneously
concluded that the Casa Norte Homeowners Association lien was not choate before
the federal tax lien arose. Because the parties are familiar with the facts, we do not
recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We do not reach the merits of NIP’s quiet title action appeal because we find
this appeal is moot with respect to that issue. “[M]ootness can arise at any stage of
litigation” and “federal courts may not ‘give opinions upon moot questions or
abstract propositions.’” Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam)
(quoting Mills v. Green, 159 U.S. 651, 653 (1895)). “[I]f an event occurs while a
case is pending on appeal that makes it impossible for the court to grant ‘any
effectual relief whatever’ to a prevailing party, the appeal must be dismissed.”
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting
Mills, 159 U.S. at 653). One week before the district court ruled on the motion for
summary judgment, NIP sold the subject real property to a third party. Following
the entry of judgment, NIP’s escrow agent paid off the IRS lien, thus satisfying the
previous owner’s 2008 income tax liability. The IRS then released the federal tax
lien which is the subject of this dispute. The relief NIP seeks here is a court
declaration concerning the respective lien priority rights between NIP and the IRS.
2
Because the IRS lien was released, there are no longer competing liens on the
subject property. Title is no longer clouded, the HOA and IRS liens have been
paid off (so determining priority has no real world effect), and any judgment would
have no impact on future purchasers. Thus, the appeal is moot.1
Further, to the extent that NIP has a damage claim, the United States has not
waived sovereign immunity. Bank of Hemet v. United States, 643 F.2d 661, 665
(9th Cir. 1981) (“[T]he presence of a waiver of sovereign immunity should be
determined as of the date the complaint was filed[.]”). The United States waived
its sovereign immunity with respect to NIP’s quiet title action pursuant to 28
U.S.C. § 2410, but such waiver does not extend to an action for damages. See
United States v. Mitchell, 445 U.S. 535, 538 (1980); Ringer v. Basile, 645 F. Supp.
1517, 1526 (D. Colo. 1986).
AFFIRMED in part and DISMISSED in part.
1
No decision we make could lead to a monetary award for NIP sufficient to
defeat mootness. The Arizona statute that NIP’s quiet title action is brought under,
A.R.S. § 33-420(B), does not authorize damages. And a quiet title action cannot
be brought for a tax refund. See Dunn & Black, P.S. v. United States, 492 F.3d
1084, 1092 (9th Cir. 2007). A claim for attorneys’ fees is insufficient to create a
case or controversy where none exists. Lewis v. Cont’l Bank Corp., 494 U.S. 471,
480 (1990).
3