VALERIE P. COOKE, United States Magistrate Judge
This Report and Recommendation is made to the Honorable Howard D. McKibben, Chief United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is defendant's motion to dismiss (#4). The court has thoroughly reviewed the record and the parties' pleadings and finds that defendant's motion to dismiss (#4) should be granted.
I. BACKGROUND
According to plaintiff's complaint, he received a settlement award on November 15, 1999, in a case against the Bank of America NTSA, in which plaintiff alleged a violation of his civil rights. See Complaint, p. 2, ¶ 5. After settling his case, plaintiff sought guidance from the Internal Revenue Service ("IRS") as to whether such settlement monies would have to be claimed as income under the Internal Revenue Code ("the Code"). Plaintiff asserts that the relevant portion of the Code is "constitutionally vague and capable of many interpretations." The IRS did not give plaintiff a definitive answer, but rather, referred him to relevant Code sections and IRS forms.
Plaintiff, proceeding in proper person, has filed the present action requesting that the court declare a subsection of the Code "unconstitutional and unenforceable, or in the alternative, that the monies received by the plaintiff from Bank of America NTSA be declared non-taxable income for the year 1999." See Complaint, p. 6, ¶ 1. Before the court is defendant's motion to dismiss (#4).
II. DISCUSSION
In its motion to dismiss (#4), defendant asserts that the court lacks subject matter jurisdiction over this matter because the United States, as a sovereign, has not waived sovereign immunity. Defendant argues that the relief plaintiff seeks, i.e., a declaratory judgment that a section of the tax code is unconstitutional and unenforceable, is beyond the power of the court to provide. Therefore, according to defendant, dismissal of the case is required. The court agrees.
"Under settled principles of sovereign immunity, 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. Dalm, 494 U.S. 596, 608 (1990) (citations and internal quotations omitted). A waiver of sovereign immunity "cannot be implied, but must be unequivocally expressed." Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (citing United States v. King, 395 U.S. 1, 4 (1969)); accord Allied/Royal Parking L.P. v. United States, 166 F.3d 1000, 1003 (9th Cir. 1999). A waiver of sovereign immunity "is a prerequisite for jurisdiction." Id. (citing United States v. Mitchell, 463 U.S. 206 (1983)). "Where a suit has not been consented to by the United States, dismissal of the action is required." Id. (citing Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982)).
To defeat defendant's motion to dismiss, plaintiff in the present case must establish that the United States has explicitly consented to be sued in this type of case. Plaintiff asks the court to issue a declaratory judgment that 26 U.S.C. § 104(a)(2) is "unconstitutional and unenforceable, or in the alternative, that the monies received by the plaintiff from Bank of America NTSA be declared non-taxable income for the year 1999." See Complaint, p. 6, ¶ 1. However, plaintiff fails to establish that the government has waived sovereign immunity for this type of suit, thus, allowing the court to exercise jurisdiction. Indeed, the Declaratory Judgment Act, 28 U.S.C. § 2201, upon which plaintiff must necessarily rely for jurisdiction, since he is seeking a declaratory judgment, specifically excludes this type of suit from the court's jurisdiction. The statute provides, in relevant part:
Section 104 provides in relevant part that "gross income does not include —
. . . .
(2) the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness . . . ."
26 U.S.C. § 104(a)(2) (1996).
In a case of actual controversy within its jurisdiction,
except with respect to Federal taxes . . ., any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.
28 U.S.C. § 2201(a) (1993) (emphasis added);
see, e.g., Hughes v. United States,
953 F.2d 531, 536-37 (9th Cir. 1992). Nowhere in plaintiff's complaint or briefing does he attempt to explain how his suit, which relates to "[f]ederal taxes," is not precisely the type of suit that Congress intended to exclude from the Declaratory Judgment Act. Moreover, even after defendant raised the issue of sovereign immunity in its motion to dismiss, plaintiff neglected to mention the issue in his opposition.
Therefore, the court cannot exercise jurisdiction over plaintiff's suit pursuant to the Declaratory Judgment Act.
The court notes that, at the hearing on defendant's motion to dismiss, when queried as to how his complaint would survive the sovereign immunity issue, plaintiff was likewise unable to articulate a viable explanation.
Plaintiff also makes vague reference to various general jurisdictional statutes, such as 28 U.S.C. § 1331 and 1340. These statutes do not provide the explicit consent to suit that is required to circumvent defendant's sovereign immunity and allow the court to exercise jurisdiction. Additionally, plaintiff mentions 28 U.S.C § 1346 as a basis for jurisdiction. However, section 1346 only grants jurisdiction in cases where the plaintiff has already paid taxes that she asserts were "erroneously or illegally assessed or collected." In the case at bar, no facts are present which would establish jurisdiction on that basis. Accordingly, the court finds that plaintiff has failed to establish that defendant has waived sovereign immunity, which is a prerequisite for subject matter jurisdiction.
Plaintiff makes additional assertions pertaining to the Anti-Injunction Act and certain judicial and statutory exceptions; however, plaintiff asserts no set of facts that would establish subject matter jurisdiction under any of the schemes he alludes to and, thus, the court need not address these argument.
III. CONCLUSION
The court concludes that it does not have subject matter jurisdiction in this case and that plaintiff's suit is barred by the doctrine of sovereign immunity. Therefore, the court further concludes that this case should be dismissed.
The parties are advised:
1. Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule IB 3-2 of the Local Rules of Practice, the parties may file specific written objections to this report and recommendation within ten days of receipt. These objections should be entitled "Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points and authorities for consideration by the District Court.
2. This report and recommendation is not an appealable order and any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the District Court's judgment.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an order GRANTING defendant's motion to dismiss (#4).