Bank of New York Mellon v. United States

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 17, 2019
• Docket: 18-1474
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-1474

THE BANK OF NEW YORK MELLON, as Trustee for the Holders of the GE- WMC Asset-Backed Pass-Through Certificates, Series 2005-1, f/k/a The Bank of New York,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA, Department of the Treasury, Internal Revenue Service,

Defendant - Appellee,

and

HOLLY G. ASHLEY, a/k/a Holly G. Smith; MICHAEL ASHLEY; CITIFINANCIAL, INC.; BETTY LOU CRUMRINE, Trustee; NANCY J. LIBERTO, Trustee; STATE OF MARYLAND, Comptroller of Maryland,

Defendants.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:14-cv-02914-DKC)

Submitted: April 26, 2019 Decided: May 17, 2019

Before WILKINSON and KEENAN, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed as modified by unpublished per curiam opinion. Mark W. Schweitzer, Brent M. Ahalt, Aaron D. Neal, MCNAMEE, HOSEA, JERNIGAN, KIM, GREENAN & LYNCH, P.A., Greenbelt, Maryland, for Appellant. Richard E. Zuckerman, Principal Deputy Assistant Attorney General, Bruce R. Ellisen, Richard Caldarone, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2 PER CURIAM:

Bank of New York Mellon (the Bank) appeals the district court’s order dismissing

its civil action with prejudice for lack of subject matter jurisdiction. We have thoroughly

reviewed the parties’ submissions and find no reversible error in the district court’s

conclusion that it lacked subject matter jurisdiction over the Bank’s action. As the

district court recognized, the Bank’s assertion that its action falls within the scope of the

waiver of sovereign immunity provided by 28 U.S.C. § 2410(a)(1) (2012) is foreclosed

by our decision in Kasdon v. United States, 707 F.2d 820, 823 (4th Cir. 1983). ∗

However, because the dismissal was based on a defect in jurisdiction, we modify the

dismissal order to reflect that the action is dismissed without prejudice. See 28 U.S.C.

§ 2106 (2012); S. Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands,

LLC, 713 F.3d 175, 185 (4th Cir. 2013).

Accordingly, we affirm as modified the district court’s judgment. We dispense

with oral argument because the facts and legal contentions are adequately presented in

the materials before this court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED

∗ Because we affirm the district court’s jurisdictional ruling on this basis, we conclude that we need not address the United States’ alternative argument that the Bank lacked standing to bring its action.