United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 12, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30928
RICHARD N. LEWIS, ETC., ET AL.,
Plaintiffs,
versus
CAROLINE LEWIS HUNT, ET AL.,
Defendants,
ELLEN HUNT FLOWERS, MARY HUNT HUDDLESTON, HOUSTON
BUNKER HUNT, ELIZABETH HUNT CURNES,
Defendants-Appellees,
versus
UNITED STATES OF AMERICA,
Defendant-Appellant.
________________________________________________
Appeal from the United States District Court for
the Western District of Louisiana
3:03-CV-2118
________________________________________________
Before KING, STEWART, and DENNIS, Circuit Judges.
1
DENNIS, Circuit Judge:
Richard N. Lewis and William J. Lewis, as trustees of
the Turner Hunt Lewis Trust, and as co-administrators of
the Succession of Turner Hunt Lewis, brought this suit in
a Louisiana state court seeking instructions as to the
validity under Louisiana law of a certain provision of
the trust instrument, or, alternatively, for a concursus
proceeding. They named the United States as a party,
asserting that its sovereign immunity had been waived by
28 U.S.C. § 2410 for this suit which involves civil
actions to quiet title to, or interpleader with respect
to, property of the trust on which the government may
have or claim a tax lien. The government removed the
case to federal district court, and that court rendered
summary judgment on the merits declaring that the trust
provision was valid under Louisiana law and that the
Government had no right or claim to any trust assets. See
In re Turner Hunt Lewis Trust, 388 F. Supp. 2d 747 (W.D.
La. 2005). The government appealed.
After hearing oral arguments, we requested additional
2
briefs from the parties on questions pertaining to
sovereign immunity and subject matter jurisdiction.
Having considered the arguments of the parties and the
record in this case, we conclude that, because the
allegations of the complaint do not establish that the
government had or claimed a lien or a mortgage on the
property of the trust when the suit was filed, the
complainants may not hale the United States into court
under 28 U.S.C. § 2410. Accordingly, we must dismiss this
appeal and remand the case to the district court with
instructions to dismiss the suit against the United
States and to remand the case to the state court for
further proceedings consistent with this opinion.
Although the parties and the district court did not raise
these jurisdictional issues, “federal trial and appellate
courts have the duty to examine the basis for their
subject matter jurisdiction, doing so on their own motion
if necessary.” Torres v. Southern Peru Copper Corp., 113
F.3d 540, 542 (5th Cir. 1997); Perez v. Region 20 Educ.
Serv. Ctr., 307 F.3d 318, 333 n.8 (5th Cir. 2002)
3
(holding that sovereign immunity issues may be raised sua
sponte as they bear on subject matter jurisdiction).
I. Background
Turner Hunt Lewis, a resident of Lincoln Parish,
Louisiana, died October 13, 2002 without issue and
without ever having been married. He left no will and,
under the Louisiana laws of intestate succession, his
only heirs were his nieces and nephews. One of his
nieces, Caroline Lewis Hunt, would have inherited one-
third of his estate as an intestate heir. Prior to his
death, however, Mr. Lewis was interdicted,1 and his
estate, which exceeded $16.5 million, was placed in the
Turner Hunt Lewis Trust. The trust instrument provided
that, upon his death without a valid will, each of his
heirs under state law, except for Caroline Lewis Hunt,
would be his successor principal beneficiaries; and that
1
Under Louisiana law, full interdiction is the complete
removal of a person's legal right to care for himself and his
affairs or property because of mental incapacity. See La. Civ.
Code Ann. art. 389 (2001)(“A court may order the full
interdiction of a natural person of the age of majority, or an
emancipated minor, who due to an infirmity, is unable
consistently to make reasoned decisions regarding the care of his
person and property, or to communicate those decisions, and whose
interests cannot be protected by less restrictive means.”).
4
any property that would have devolved to his niece and
intestate heir, Caroline Lewis Hunt, would vest in her
descendants as if she had predeceased Turner Hunt Lewis.
As the trustees’ undisputed pleadings establish, many
years before Mr. Lewis’s interdiction, Caroline Lewis
Hunt and her husband entered a Collateral Agreement with
the Internal Revenue Service to turn over any
inheritances that they received in order to discharge
their federal income tax liability. It is also conceded
that the only reason that Mr. Lewis was interdicted and
his property placed in trust was to prevent a one-third
share of Mr. Lewis’s assets from going to Caroline
through intestate succession, and subsequently to the
federal government to pay off the back taxes owed by
Caroline and her husband.
The underlying issue, which is res nova under
Louisiana law, may be restated more fully as follows:
whether the curator of a fully interdicted person without
a will can, with court approval, supersede the law of
intestate succession by acting for the interdict to
5
create a trust, place the interdict’s property in the
trust, and name persons as successor beneficiaries
different from those who otherwise would have been
entitled to succeed as intestate heirs. The Louisiana
statutes do not provide a clear and unambiguous answer to
this question.2
2
Louisiana Code of Civil Procedure 4566(D) provides: “A
curator may place the property of the interdict in trust in
accordance with the provisions of Article 4269.1. The trust shall
be subject to termination at the option of the interdict upon
termination of the interdiction, or if the interdict dies during
the interdiction, at the option of his heirs or legatees.”
Louisiana Code of Civil Procedure Article 4269.1, in
pertinent part, provides: “At any time during his administration
a tutor may apply to the court for authorization to place some or
all of the minor's property in trust for administration,
management and investment in accordance with the Louisiana Trust
Code. The trust instrument shall name the minor as sole
beneficiary of the trust, shall name a trustee, shall impose
maximum spendthrift restraints, and shall be subject to
termination at the option of the beneficiary upon attaining the
age of majority or, should he fail to attain majority, at the
option of his heirs or legatees.”
The Louisiana Trust Code, Louisiana Revised Statutes §
9:1973(B), provides: “Except as to the legitime in trust, the
trust instrument may provide that the interest of either an
original or a substitute principal beneficiary who dies without
descendants during the term of the trust or at its termination
vests in some other person or persons, each of whom shall be a
substitute beneficiary.”
The government contends that these provisions require that
an interdict’s trust must designate him as the sole beneficiary
and that his property placed in trust must be distributed to the
interdict’s heirs or legatees upon his death. The plaintiff-
trustees argue that when the interdict has no direct descendants,
all of the pertinent statutes read together allow the trust to
continue beyond his death and allow the trustees to engage in
estate planning by naming other persons as beneficiaries with
court approval according to the best evidence of what the
6
On October 16, 2003, the plaintiffs, the trustees-
administrators, filed this suit in state court pursuant
to Louisiana Revised Statutes § 9:2233 and 28 U.S.C. §
2410 for trustees’ instructions or, alternatively, for
concursus proceedings, to address the question of whether
the trust instrument’s successor beneficiary provisions
were valid under Louisiana law. The trustee’s complaint
also named the United States as a party to this suit,
claiming the authority to hale it into the state court
under 28 U.S.C. § 2410 on the grounds that the United
States may have or claim a lien against the trust
property through Caroline Hunt.
Specifically, in respect to waiver of sovereign
immunity , the allegations of the complaint, in pertinent
part, state:
4.
interdict would have wanted done with his property. This is a
question of state statutory interpretation that we conclude we
lack jurisdiction to decide in the present case. Accordingly, the
issues here must be deferred for decision by the Louisiana courts
or legislature within the context of that state’s public policy
and traditions.
7
Jurisdiction over the United States of America
with respect to the Trust is conferred on this
Court by 28 U.S.C. § 2410, in that, as shown
below, the United States of America may have a
lien interest in certain of the Trust assets,
and 28 U.S.C. § 2410 provides that the United
States of America may be named a party in any
civil action in any state court having
jurisdiction of the subject matter to quiet
title to real or personal property on which the
United States of America may have a [sic] claim
a lien.
....
15.
On September 23, 1988, the New Orleans District
of the Internal Revenue Service filed in the
rcrso LnonPrs,Lusaa i Mrgg Bo 34a Pg 15aNtc o
eod f icl aih oiin, n otae ok 3 t ae 4 oie f
Federal Tax Lien Under Internal Revenue Laws (hereinafter
the Notice) regarding Caroline L. Hunt, residing at 4508
Lakeside Drive, Dallas, Texas 75205. Pursuant to its
terms, the Notice operates as a certificate of release of
the federal tax lien as of October 22, 1994. Subsequent
to the filing of the Notice but before October 22, 1994,
Caroline Lewis Hunt entered into that certain Collateral
Agreement between herself, her spouse, and the Internal
Revenue Service dated December 15, 1988 (the Collateral
Agreement), which obliges her to turn over to the
Internal Revenue Service one hundred percent (100%) of
the amount of any devise, bequest, or inheritance she
receives.
....
17.
In the event the Trust instrument does not
comply with Louisiana Code of Civil Procedure
Articles 4566(D) and 4269.1, regarding the
placing of the property of an interdict into
8
trust, defendant, Caroline Lewis Hunt, as Mr.
Lewis’ heir, is entitled to an undivided one-
third (1/3) interest in the assets standing in
the Trust, and, defendant, the United States of
America, may, as a result of the Collateral
Agreement, have or claim a lien on a portion of
the assets standing in the Trust.
(emphasis added).
II. Waiver of Sovereign Immunity Under 28 U.S.C. § 2410
In order to hale the federal government into a court
proceeding, a plaintiff must show that there has been a
valid waiver of sovereign immunity. “A waiver of the
Federal Government's sovereign immunity must be
unequivocally expressed in statutory text... and will not
be implied.” Lane v. Pena, 518 U.S. 187, 192
(1996)(citing United States v. Nordic Village, Inc., 503
U.S. 30, 33-34 (1992)). The mere agreement in court
between parties and their counsel is not sufficient to
constitute a waiver of sovereign immunity. Shaw, 309 U.S.
at 501 ("No officer by his action can confer
jurisdiction."). “Moreover, a waiver of the Government's
sovereign immunity will be strictly construed, in terms
9
of its scope, in favor of the sovereign.” Lane, 518 U.S.
at 192. We may not enlarge the waiver beyond the purview
of the statutory language. United States v. Williams, 514
U.S. 527, 531 (5th Cir. 1995). Absent a waiver of
sovereign immunity, the federal government is immune from
suit. Loeffler v. Frank, 486 U.S. 549, 554 (1988). The
absence of such a waiver is a jurisdictional defect.
Kulawy v. U.S., 917 F.2d 729, 733 (2d Cir. 1990); Bodin
v. Vagshenian, 462 F.3d 481, 484 (5th Cir. 2006)(holding
that a lack of a waiver of sovereign immunity “deprives
federal courts of subject matter jurisdiction”).
Under 28 U.S.C. § 2410, Congress has waived the
government’s sovereign immunity to a limited class of
civil actions, solely with respect to property on which
the United States has or claims a mortgage or other lien.
In pertinent part, Section 2410 provides: “[T]he United
States may be named a party in any civil action or suit
in any district court, or in any State court having
jurisdiction of the subject matter...to quiet title
to...[or] of interpleader or in the nature of
10
interpleader with respect to... property on which the
United States has or claims a mortgage or other lien.” 28
U.S.C. § 2410(a).
In addition to requiring that the United States must
have or claim a lien or mortgage on the subject property,
Section 2410 places other conditions on the government’s
consent to be sued - notably a requirement that the
pleadings be sufficiently specific as to give notice to
the Government of the nature of the lien or mortgage. For
example, “[t]he complaint or pleading shall set forth
with particularity the nature of the interest or lien of
the United States...” and, if the case involves a federal
tax lien, the complaint “shall include the name and
address of the taxpayer whose liability created the lien
and, if a notice of the tax lien was filed, the identity
of the internal revenue office which filed the notice,
and the date and place such notice was filed.” 28 U.S.C.
§ 2410(b).
In keeping with the Supreme Court’s decisions
regarding the construction of statutory waivers, a
11
noncomplying complaint under 28 U.S.C. § 2410 does not
invoke the statutory waiver of sovereign immunity
granting consent to suit, and, consequently, cannot state
a claim upon which relief could be granted. See Macklin
v. United States, 300 F.3d 814, 821 n. 7 (7th Cir. 2002);
Dahn v. United States, 127 F.3d 1249, 1251 (10th Cir.
1997); see also Hussain v. Boston Old Colony Ins. Co.,
311 F.3d 623, 629 (5th Cir. 2002)(holding that the § 2410
waiver “must be narrowly construed to comport precisely
with congressional intent”) (citing Estate of Johnson,
836 F.2d 940, 943 (5th Cir. 1988). “Thus, ‘no suit may be
maintained against the United States unless the suit is
brought in exact compliance with the terms of a statute
under which the sovereign has consented to be sued.’”
Hussein, 311 F.3d at 629 (quoting Koehler v. United
States, 153 F.3d 263, 265-66 (5th Cir. 1998)).
Further, in interpreting and applying Section 2410 we
must be mindful of its purpose and history as a lien
removal statute. Before the enactment of its predecessor,
as the Supreme Court observed in U.S. v. Brosnan, 363
12
U.S. 237, 242-243 (1960):
[I]t was already then well established that the
United States was an indispensable party to any
suit affecting property in which it had an
interest, and that such a suit was therefore a
suit against the United States which could not
be maintained without its consent. Furthermore,
the laws of many States themselves required all
persons claiming an interest in property to be
joined as parties to any suit to foreclose a
lien or quiet title to the property. Thus there
was no way in which a party who held a lien on
property senior to that of the United States
could get a judicial decree extinguishing the
Government's interest.
To remedy this situation, Congress in 1924
passed the predecessor of 26 U.S.C. s 7424, 26
U.S.C.A. s 7424, which gives the holder of a
prior-filed lien the right to enforce it by
civil action against the United States, subject
to the exhaustion of certain administrative
remedies. . . .
In 1931, Congress, for similar reasons,
passed the predecessor of 28 U.S.C. s 2410, 28
U.S.C.A. s 2410, [which] gives a private lienor
the right to name the United States a party in
any action or suit to foreclose a mortgage or
lien or to quiet title to property on which the
United States claims any kind of mortgage or
lien, whether or not a tax lien.
(footnotes omitted).
Thus, the statutes’ “only apparent purpose is to lift the
bar of sovereign immunity which had theretofore been
considered to work a particular injustice on private
13
lienors[,]” Brosnan, 363 U.S. at 246, and not to allow
any party against whom the government might have any kind
of claim to hale the United States into court.
Accordingly, this court and others have consistently
held that Section 2410's waiver of sovereign immunity is
inapplicable if the government did not have or claim a
lien or mortgage on the property that is the subject of
the suit at the time the suit was filed. Section 2410
applies “only if at the time [plaintiff] files suit the
government had a mortgage or other lien on the property
that is the basis of the taxpayer’s quiet title action.”
Koehler v. United States, 153 F.3d 263, 267 (5th Cir.
1998).3 For example, “[t]here is no waiver (1) when a
taxpayer seeks to challenge the validity of any
underlying tax assessment [citing Montgomery v. United
States, 933 F.2d 348, 349 (5th Cir. 1991)], (2) when the
3
Koehler cited with approval a number of cases from other
circuits with similar holdings. See Hughes v. United States, 953
F.2d 531, 538 (9th Cir. 1992); Dahn v. United States, 127 F.3d
1249, 1251-52 n.1 (10th Cir. 1997); Murray v. United States, 520
F. Supp. 1207, 1210 (D.N.D. 1981), aff'd on other grounds, 686
F.2d 1320 (8th Cir. 1982); MacElvain v. United States, 867 F.
Supp. 996, 1002-03 (M.D. Ala. 1994); Brewer v. United States, 764
F. Supp. 309, 314 (S.D.N.Y. 1991); Kulawy v. United States, 917
F.2d 729, 733-34 (2d Cir. 1990).
14
government is claiming a title interest in property
rather than a lien interest, [citing Cummings v. United
States, 648 F.2d 289, 292 (5th Cir. 1981)] or (3) when
the government no longer has a mortgage or a lien upon
the property in dispute when the suit was filed. [citing
Koehler, 153 F.3d at 266-67].” Hussain, 311 F.3d at 629-
630.
Furthermore, if the complaint or pleading does not
set forth with particularity the nature of the
government's interest showing that it has or claims to
have a lien or mortgage against the property that is the
subject of the suit, the complaint fails to satisfy the
conditions necessary to waive the sovereign immunity of
the United States and invoke federal jurisdiction. 28
U.S.C. § 2410(b) (“The complaint or pleading shall set
forth with particularity the nature of the interest or
lien of the United States.”); see also Dahn v. United
States, 127 F.3d 1249, 1251 (10th Cir. 1997) (holding
that a complaint that fails to meet the pleading
requirements “does not invoke the statutory waiver of
15
sovereign immunity"); Macklin v. United States, 300 F.3d
814, 821 n.7 (7th Cir. 2002) (noting that consent to suit
by the United States is conditioned on proper pleading
under section 2410).
III. Adequacy of the Complaint
Keeping these principles underlying sovereign
immunity and Section 2410 in mind, we review the adequacy
of the pleadings in the trustee’s complaint. The
complaint here fails to assert, or to allege facts from
which it may be inferred, that the government had or
claimed a lien or mortgage on Caroline Lewis Hunt’s
property when the suit was filed on October 16, 2003.4 Of
those with potential claims to the estate, only Caroline
was alleged to have owed any tax deficiency at that time.
4
Also made parties were Caroline Lewis Hunt, the other
intestate heirs in their capacity as successor beneficiaries of
the trust, and the children of Caroline Lewis Hunt, as her
descendants and successor beneficiaries. The government,
Caroline, and her children answered, each admitting most of the
facts alleged by the trustees in their complaint, and each
praying that the court determine and order the appropriate
distribution of the trust assets in question. Because of the
absence of waiver of sovereign immunity, and the government’s
consequent immunity from this suit, it is unnecessary and
inappropriate for us to reach or discuss the district court’s
summary judgment decision on the merits.
16
Therefore, unless the government had or claimed a lien on
her property when suit was filed, and a share of the
trust assets became hers upon Mr. Lewis’ death because
the trust provision diverting it to her descendants was
invalid, there is no way the government could have had a
lien on the trust assets when the suit was filed as
required by Koehler. In Section 15 of the complaint, the
trustees alleged that the government had a tax lien on
Caroline’s property that was due to self-release or
expire on October 22, 1994, but the complaint failed to
allege that the lien did not self-release or expire on
that date or that the government re-filed or renewed the
tax lien before its expiration.
Section 15 does go on to allege that prior to that
date, Caroline entered into the “Collateral Agreement”
between herself, her spouse, and the Internal Revenue
Service dated December 15, 1988, which obliges her to
turn over to the Internal Revenue Service any devise,
bequest, or inheritance she receives. However, we have
reviewed the Collateral Agreement, which is in the record
17
as an exhibit, and find that it contains nothing which
purports to continue, renew or create a tax lien. The
Collateral Agreement is simply a contract by which
Caroline agreed to turn over future inheritances, and it
did not grant the government any lien or security
interest in her property.5 The complaint does not contain
any allegation that controverts or obviates the only
reasonable and logical inferences that can be drawn from
the pleadings, viz., that the government tax lien
particularly described in the complaint was the only lien
the government ever had against Caroline’s property,
that pursuant to its terms as described in the complaint
it self-released or expired on October 22, 1994, and that
the government therefore did not have or claim a lien on
Caroline’s property when the present suit was filed on
October 16, 2003.
Because of the complaint’s evident insufficiency, we
5
The Collateral Agreement stipulates that “the federal tax
lien” shall attach to all after-acquired property of Caroline
Hunt. (emphasis added). However, it does not purport to extend
that lien beyond its October 22, 1994 self-release date or to
create and impose any additional lien.
18
asked for and received supplemental briefs from the
parties on questions pertaining to sovereign immunity and
subject matter jurisdiction.6 The trust beneficiaries
filed a supplemental brief that does not attempt to
convince us that the complaint expressly and definitely
establishes that the government had or claimed a lien on
Caroline’s property at the time the suit was filed.
Instead, they set forth several imaginative arguments
that an additional lien was created other than the
federal tax lien which apparently self-released. They
argue for the first time in this case that, under one of
the Bankruptcy Code’s definitions of a lien and also
under the laws of Louisiana and Texas, the Collateral
Agreement itself granted the United States a lien on any
6
The Government, in supplemental briefing requested by this
court, informs us that its investigation reveals that the lien
had in fact “self-released” under this provision by the time this
suit was filed and that no lien was thus in existence. We decline
to consider the results of this investigation, which were not
requested by the court and are in any event outside the record
and unsupported by any evidence other than the Government’s
assertions. In re GHR Energy Corp., 791 F.2d 1200, 1201-02 (5th
Cir. 1986). This dispute does underscore the defect in the
pleadings, however: the pleadings alleged that the lien was
scheduled to “self-release” in 1994 without making any
allegations as to whether it had, in fact, been released.
19
inherited property Caroline might receive in order to
secure her performance under the Collateral Agreement.
The government has not argued, in its letter briefing or
at any other time, that the Collateral Agreement could,
on its own, constitute a lien.
The beneficiaries’ argument is without merit. First,
the complaint did not allege with particularity as
required by Section 2410(b) that the Collateral Agreement
created a lien for the government on Caroline’s property
in existence at the time of the filing of this suit; the
complaint does not quote any specific language or
provision of the Collateral Agreement by which the
government was granted a lien on Caroline’s property. The
complaint merely alleges, using contingent language, that
if the trust provision in question is invalid the
government “may, as a result of the Collateral Agreement,
have or claim a lien on a portion of the assets in the
Trust.” In other words, the complaint says nothing more
than that if the government had a lien on Caroline’s
property when suit was filed it would affect the assets
20
of the trust, if she owns an interest in them. The
beneficiaries’ argument, nevertheless, asks us to read
into the pleadings an allegation of the existence of an
additional lien that was not specifically expressed or
referred to in the complaint. But because the complaint
did not comply with the strict pleading requirements
necessary to establish a waiver of sovereign immunity,
the beneficiaries cannot now rely on the vague and
indefinite allegations of the complaint as alleging the
existence of an additional lien independently created by
the Collateral Agreement in order to invoke the waiver of
sovereign immunity under Section 2410(a).
Second, even if the beneficiaries could belatedly
make the new argument that the Collateral Agreement
independently created an additional lien by operation of
law on Caroline’s property satisfying the Section 2410
requirements for a waiver of sovereign immunity, the
legal authorities upon which they rely are inapposite.
The beneficiaries argue that because the Collateral
Agreement was entered into in settlement of the IRS’s
21
claims against Caroline in her bankruptcy proceeding in
Bankruptcy Court, and a particular section of the
Bankruptcy Code defines a lien as a “charge against or
interest in property to secure payment of a debt or
performance of an obligation,” 11 U.S.C. § 101(37), the
Collateral Agreement necessarily granted the United
States a lien against her property to secure its
performance. Their argument suffers from both a false
premise and a non sequitur. The complaint plainly did
not allege with any degree of particularity or
definiteness that the Collateral Agreement granted a lien
or security interest of any kind to secure Caroline’s
performance under the agreement. Further, it does not
necessarily follow that the Collateral Agreement created
or granted the government any kind of a lien defined by
the Bankruptcy Code simply because the parties were
involved in a bankruptcy case when it was entered into.
The beneficiaries have cited no judicial authority for
this broad encompassing proposition.
The beneficiaries beg the question again by assuming
22
that a lien existed without providing any factual basis
in support therefor while contending that such liens are
cognizable and enforceable in Texas, citing Satsky v.
U.S., 993 F.Supp. 1027, 1029 (S.D. Tex. 1998) and
Louisiana, citing Frey v. Elmwood Development Company,
592 So.2d 493 (La. App. 5th Cir. 1991). The arguments and
the cases are inapposite. In Satsky, the court held that
a lien filed by a hospital against a patient’s cause of
action under a Texas statute was unenforceable because
the hospital had been paid in full for the services it
provided to Satsky, and there was consequently no debt to
secure by the existence of the lien. The beneficiaries
argue that under Texas law, the Collateral Agreement was
an “equitable lien,” a concept that has no application
here. "It is essential to the existence of an equitable
lien arising from express contract that the agreement
deal with specific property which must be so described
that it can be identified and there must be an intention
to create the lien which is clearly apparent from the
language of the instrument itself together with the
23
attendant circumstances." Bradley v. Straus-Frank Co.,
414 S.W.2d 504, 508 (Tex. Civ. App. 1967). The Collateral
Agreement did not mention, describe, or identify the
Turner Hunt Lewis Trust.
Frey is distinguishable from the present case because
the settlement agreement in that case, unlike the one
here, expressly provided that the collateral securing the
creditor’s claim consisted of the building and all rents;
that the creditor was entitled to seize all collateral,
i.e., the building and rents, via the previously filed
petition for executory process and the seizure effected
thereunder in the event of a default by the debtor. In
both Satsky and Frey, the lien alleged to exist was set
forth in clear, explicit language, unlike the Collateral
Agreement in the present case in which there is no
provision which purports to grant a lien and which the
beneficiaries did not allege or expressly argue had been
alleged to create a lien until this case reached this
court on appeal. Moreover, the United States has never
claimed that the Collateral Agreement created or
24
constituted a lien, and did not do so in its briefing to
this court.
IV. Conclusion
For these reasons, we conclude that because the
complaint in this case did not allege with particularity
facts establishing that when the suit was filed that the
government had or claimed a lien or mortgage on property
that is the subject of the suit that the waiver of
sovereign immunity of the United States under 28 U.S.C.
§ 2410 is inapplicable to this case. Accordingly, the
judgment of the district court is VACATED and the case is
REMANDED to it with instructions to dismiss the suit
against the United States for lack of a waiver of
sovereign immunity and to remand the case to the state
court for further proceedings consistent with this
opinion.
25