Citations
- 877 F. Supp. 2d 1115
Full opinion text
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the United States’ Motion to Dismiss, or in the Alternative, for Summary Judgment, filed November 15, 2011 (Doc. 24) (“Nov. 15, 2011 Motion”). The Court held a hearing on February 15, 2012. The primary issues are: (i) whether Plaintiff Wells Fargo Bank, National Association can maintain an action under 28 U.S.C. § 1346(a) against Defendant United States Department of Housing and Urban Development (“HUD”); (ii) whether the HUD has contractually waived sovereign immunity for the relief Wells Fargo seeks; (iii) whether the twelve-year statute of limitations in 28 U.S.C. § 2409a bars any quiet title action Wells Fargo has brought against the HUD; (iv) whether Wells Fargo can maintain this action against the HUD under 28 U.S.C. § 2410; and (v) whether the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, permits Wells Fargo to bring its claims against the HUD. Because 28 U.S.C. § 1346(a) does not waive sovereign immunity against the United States for suits for declaratory relief, there is no waiver of sovereign immunity for this suit that Wells Fargo has brought seeking declaratory relief against the HUD. While the HUD has contractually consented to joinder in a foreclosure suit regarding the property in question, it has not contractually waived sovereign immunity for the relief Wells Fargo seeks. Because the twelve-year statute of limitations under 28 U.S.C. § 2409a has run for Wells Fargo’s quiet title action against the HUD, there is no waiver of sovereign immunity for suit under that statute. Because the HUD does not hold a lien on the property in question, 28 U.S.C. § 2410 does not provide for a waiver of sovereign immunity for suit. Because the Declaratory Judgment Act does not provide an independent basis for federal subject-matter jurisdiction or a waiver of sovereign immunity, it does not permit Wells Fargo to obtain the relief it seeks against the HUD. The Court will grant the HUD’s Nov. 15, 2011 Motion and dismiss all claims Wells Fargo has asserted against the HUD. Because the HUD has consented to joinder to this foreclosure action, and does not oppose remaining a party to this action, the HUD will remain a party to the action while the foreclosure sale occurs.
FACTUAL BACKGROUND
The facts in this case are largely undisputed. Wells Fargo has not sought to dispute any of the facts the HUD has presented. While the HUD both moves to dismiss the case under rule 12(b)(6) of the Federal Rules of Civil Procedure and for summary judgment under rule 56, the HUD has relied, to present the facts to the Court, almost exclusively on the allegations in Wells Fargo’s pleadings as well as the attachments to Wells Fargo’s pleadings. The HUD has also moved for dismissal under rule 12(b)(1), which permits the Court to consider evidence outside the plaintiffs pleadings. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995).
In 1994, the HUD sold through a Special Warranty Deed (dated November 4, 1994), filed October 25, 2011 (Doc. 22-3), a multifamily housing project, located at 920 East Michigan Drive, Hobbs, New Mexico (the “Casa Hermosa property”) for ten dollars to the Southeastern New Mexico Affordable Housing Corporation (“SNMAHC”). Nov. 15, 2011 Motion at 2 (setting forth this fact); Response in Opposition to Defendant United States Department of Housing and Urban Development’s Second Motion to Dismiss, or in the Alternative, for Summary Judgment at 1-3, filed December 23, 2011 (Doc. 26) (“Response to Nov. 15, 2011 Motion”) (not disputing this fact). On November 10, 1994, the Special Warranty Deed “was duly recorded and filed for record in Lea County, New Mexico at Deed Book 506, pages 233-242.” Nov. 15, 2011 Motion at 2 (setting forth this fact); Special Warranty Deed at 23 -32; Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact). “The Special Warranty Deed contains various deed restrictions giving HUD an equity position in all future refinancing or sales of the Property, and governing the operation and use of the Property by requiring maintenance of the land and its improvements be maintained for affordable housing for a specified amount of years.” Nov. 15, 2011 Motion at 2-3 (setting forth this fact). Accord Special Warranty Deed at 25-26, 28; Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact). These deed restrictions “run with the land” according to the terms of the Special Warranty Deed: “The covenants set forth in this Deed shall run with the land hereby conveyed and, to the fullest extent permitted by law and equity, shall be binding for the benefit and in favor of and enforceable by Grantor and his successors in office.” Nov. 15, 2011 Motion at 3 (setting forth this fact); Special Warranty Deed at 23; Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact).
The relevant provisions of Article IV in the Special Warranty Deed are as follows:
(1) If the Grantee, its successors, assigns or purchasers for value, sells, assigns, transfers or conveys the Property (collectively a “Sale”), the Sale proceeds, less any expenses incurred by the Grantee as approved by the Grantor consisting of (1) reasonable transaction costs, (2) purchase price paid by the Grantee for the Property, (3) amounts previously paid by the Grantee to the Grantor under Paragraph (2) of this Rider since the previous sale of the Property, or (4) other costs paid by Grantee as approved by Grantor, ie., costs of renovation and rehabilitation other than routine maintenance and repairs, shall be assigned to the Grantor in the following amount:
(a) For any sale which occurs between the date of the Deed and fifteen (15) years from the date of the Deed, one hundred percent (100%);
(b) For any sale which occurs between sixteen and twenty (16-20) years from the date of the Deed, seventy-five percent (75%);
(c) For any sale which occurs between twenty-one and thirty (21-30) years from the date of the Deed, fifty percent (50%); and
(d) For any sale which occurs over thirty (30) years from the date of the Deed, twenty-five percent (25%);
(4) Grantee acknowledges that Grantee is financing the acquisition and renovation of the Real Property through Grantee’s Issuance of certain multifamily housing revenue bond acquisition notes and bonds which are known as the Multi-Family Housing Revenue Bonds (Casa Hermosa Project Series 1994A) in the aggregate principal amount of $1.255 million (“Notes”) and Grantee’s Multi-Family Housing Revenue Bonds (Casa Hermosa Project Series 1994B), in an aggregate principal amount not to exceed $1.6 million (“Bonds”).
In order to have such Notes and Bonds properly secured, Grantee must be able to grant a mortgage of first priority to secure payment of the Notes and the Bonds. Accordingly, and notwithstanding anything contained herein to the contrary, the rights afforded to the United States Department of Housing and Urban Development as set forth in Section IV of this Special Warranty Dfeed shall be expressly subordinate to the terms of the mortgage granted to secure payment of such Notes and Bonds in the following particulars:
(a) In the event Grantee defaults in any obligations undertaken by it pursuant to that certain Indenture dated October 5, 1994, between Southeastern New Mexico Affordable Housing Corporation and First Security Bank of New Mexico, N.A., as Trustee, the First Supplemental Indenture thereto dated October 5, 1994, and the Second Supplemental Indenture, the terms of the Notes or the Bonds, or the Mortgage on the Real Property pledged to secure payment of same, and in the further event as a result of such default, Mortgagor exercises its rights to foreclose the mortgage on the Real Property, then Grantor will not be entitled to participate in any equity in the property until such time as all costs of foreclosure and rehabilitation costs together with the mortgage debt secured by the Real Property and incurred in conjunction with the Issuance of the MultiFamily Housing Revenue Bonds Anticipation Notes (Casa Hermosa Project Series 1994A) and the Multi-Family Housing Revenue Bonds (Casa Hermosa Project Series 1994B) have been paid in full.
(b) By executing this Special Warranty Deed, Grantor expressly consents to Grantee’s granting of a mortgage to secure payment of the Bond Anticipation Notes and the Bonds hereinbefore referred to, and specifically stipulates and agrees that the issuance of such notes and bonds will not constitute a refinancing, nor will the Issuance of the bonds cause such transaction to fall within the provisions of Paragraph (VI2) of this Special Warranty Deed.
Special Warranty Deed at 25-26. Article VIII in the Special Warranty Deed provides:
(1) The Grantee covenants that Twenty (20) units in the Property shall be maintained as housing for low- and moderate-income persons or families, which shall be defined as follows:
Families, elderly, or handicapped individuals with adjusted annual gross income at or below eighty (80) percent of the median income for the area.
(2) This covenant shall continue in effect for a period of fifteen (15) years from the date of this Deed, or such earlier time as the Grantor may specify in writing. During such period if the number of units occupied by low- and moderate-income persons or families falls below the number of units specified in Paragraph (1) above, the Grantee must seek to rent a sufficient number of units to low- and moderate-income persons or families to comply with Paragraph (1).
Special Warranty Deed at 28. Article IX in the Special Warranty Deed provides:
(1) The Grantee covenants that the rents for sixty-eight (68) units in the Property shall remain affordable for moderate-incoming persons or families, which shall be defined as follows: Families, elderly, or handicapped individuals with adjusted annual gross income at or below eighty percent (60%) of the median income for the area.
(2) This covenant shall continue in effect for a period of thirty (30) years from the date of this Deed, or such earlier time as the Grantor may specify in writing. During such period if the number of units occupied by moderate-income persons or families falls below the number of units specified in Paragraph (1) above, the Grantee must seek to rent a sufficient number of units to moderate-income persons or families to comply with Paragraph (1).
Special Warranty Deed at 28.
In 1997, the HUD executed a Consent to Refinance and Subordination Agreement (dated December 11, 1997), filed October 25, 2011 (Doc. 22-3) (“Subordination Agreement”), that approved the refinancing of the property at the SNMAHC’s request to “redeem certain bonds which were outstanding and payment of which is secured, in party, by the Real Property and to issue refunding bonds in order to achieve such financing.” Nov. 15, 2011 Motion at 3 (setting forth this fact). Accord Subordination Agreement at 33; Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact). The parties to the Special Warranty Deed accomplished the 1997 refinancing “by issuance by [the SNMAHC] of One Million Eight Hundred Thirty Thousand Dollard ($1,830,000.00) worth of Multifamily Housing Revenue Refunding Bonds (Casa Hermosa Apartments) Series 1997A.” Nov. 15, 2011 Motion at 3 (setting forth this fact). Accord Subordination Agreement at 34; Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact). “Articles VIII and IX of the Special Warranty Deed are made not applicable by the Subordination Agreement to any foreclosure of the mortgage securing the Series 1997A bonds.” Nov. 15, 2011 Motion at 3 (setting forth this fact). Accord Subordination Agreement at 34; Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact). More specifically, the Subordination Agreement provides:
WHEREAS, the holders of the Refunding Bonds secured by the Mortgage on the Real Property wish to assure themselves that in the event of a default under the terms of the Bonds, the Indenture by which such bonds are issued, or the Mortgage securing payment of the bonds, and in the event of foreclosure of the Mortgage, that the restrictions set out in Articles VIII and IX of the Special Warranty Deed will not be applicable to any new owner acquiring the Real Property as the result of such default and foreclosure; and
WHEREAS, HUD is willing to waive the restrictions set out in Articles VIII and IX in the event of such default and foreclosure, provided that the new owner is not a subsidiary or affiliate of Grantee....
Subordination Agreement at 34 (emphasis in original).
“Without reference to Article IV, governing HUD’s equity participation, the Subordination Agreement does not subordinate to any foreclosure of the mortgage securing the issuance of the Series 1997A.” Nov. 15, 2011 Motion at 3 (setting forth this fact); Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact). The Subordination Agreement mentions Article IV from the Special Warranty Deed, but does not otherwise modify the applicability of this provision in the event of foreclosure. See Subordination Agreement at 33 (mentioning that the “Special Warranty Deed included a number of restrictions, including those found in the Special Warranty Deed under Article IV which is entitled ‘Equity Participation’ ”). The Subordination Agreement states: “In all other particulars, the restrictions and terms of the Special Warranty Deed are hereby ratified and confirmed.” Nov. 15, 2011 Motion at 3 (setting forth this fact). Accord Subordination Agreement at 35; Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact). The Subordination Agreement “was filed of record in Lea County, New Mexico, in Book 843, page 251 on December 17, 1997.” Nov. 15, 2011 Motion at 3 (setting forth this fact). Ac cord Subordination Agreement at 37; Amended Complaint for Foreclosure and Damages ¶¶35, 37, at 6-7, filed October 25, 2012 (Doc. 22) (“Amended Complaint”); Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact).
Because of the SNMAHC’s default on the debt, Wells Fargo seeks declaratory and injunctive relief, asking the Court to hold that:
Plaintiffs liens have first priority against the Property and are senior to any of HUD’s claims; that any proceeds from any sale of the Property “be declared prior and paramount to” HUD’s interest; that a purchaser at sale to take property free and clear of any of HUD’s interests; and that any interest HUD would have in effecting the sale of the Property would be foreclosed.
Nov. 15, 2011 Motion at 3-4 (setting forth this fact). Accord Amended Complaint ¶¶ D-J, at 11-12; Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact). “Plaintiff alternatively pleads that Plaintiff should be allowed to foreclose on the property subject to HUD’s interest.” Nov. 15, 2011 Motion at 3-4 (setting forth this fact). Accord Response to Nov. 15, 2011 Motion at 1-3 (not disputing this fact).
PROCEDURAL BACKGROUND
On November 24, 2010, Wells Fargo filed its Complaint for Foreclosure and Damages in the Fifth Judicial District Court, County of Lea, State of New Mexico. See Complaint for Foreclosure and Damages, filed February 24, 2011 (Doc. 1-2) (“Complaint”). The Defendants, the HUD and the SNMAHC, removed this case to federal court on February 24, 2011. See Notice of Removal at 1 (Doc. 1).
On March 24, 2011, the HUD filed its United States’ Motion to Dismiss, or in the Alternative, for Summary Judgment. See Doc. 5 (“Mar. 24, 2011 Motion”). The HUD moved for dismissal under rule 12(b)(1) of the Federal Rules of Civil Procedure or, alternatively for summary judgment, on the basis that the Court lacks subject-matter jurisdiction to hear this case, because the United States has not waived sovereign immunity for the claims Wells Fargo seeks to assert. See Mar. 24, 2011 Motion at 1. Alternatively, the HUD moved for dismissal under rule 12(b)(6) for failure to state a claim. See Mar. 24, 2011 Motion at 7-8. The HUD asserted that 28 U.S.C. § 2410 does not support a waiver of sovereign immunity, because the “HUD’s deed restrictions constitute neither a mortgage nor lien under the statute and thus HUD has not waived sovereign immunity under the statute.” Mar. 24, 2011 Motion at 10-11. The HUD also argued that Wells Fargo lacks standing to assert its claims, because Wells Fargo “does not allege HUD’s deed restrictions result in a ‘personal injury’ that is ‘fairly traceable’ to ‘allegedly unlawful conduct’ of HUD.” Mar. 24, 2011 Motion at 11-12. The HUD further asserted that Wells Fargo cannot show that the remedy Wells Fargo seeks against the HUD will redress Wells Fargo’s injuries. See Mar. 24, 2011 Motion at 12. The HUD contended that, if Wells Fargo seeks damages, it has not established that there is a waiver of sovereign immunity under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (“FTCA”). See Mar. 24, 2011 Motion at 12 n. 2. The HUD argued that dismissal under rule 12(b)(6) is appropriate, because Wells Fargo “erroneously attempts to overreach the applicability of Article IV provisions of the 1994 Special Warranty Deed beyond HUD’s approval of SNMAHC’s 1997 refinancing and mortgage and by confusing the 1994 and 1997 transactions.” Mar. 24, 2011 Motion at 13. The HUD asserted that, “[ejxcept by implication, Plaintiff makes no specific allegation in the Complaint that HUD relinquished its Article IV equity participation rights of the Special Warranty Deed beyond its approval of the 1997 refinancing.” Mar. 24, 2011 Motion at 13. The HUD argued that its restrictive covenants run with the land at issue. See Mar. 24, 2011 Motion at 13.
On April 25, 2011, Wells Fargo filed its Response in Opposition to Defendant United States Department of Housing and Urban Development’s Motion to Dismiss, or in the Alternative, for Summary Judgment. See Doc. 9 (“Response to Mar. 24, 2011 Motion”). Wells Fargo acknowledged that it has the burden to “show that this Court has subject matter jurisdiction over this dispute.” Response to Mar. 24, 2011 Motion at 2. Wells Fargo represented that, “[bjecause this action was filed in New Mexico state court, the Complaint did not expressly provide the basis for federal jurisdiction.” Response to Mar. 24, 2011 Motion at 2. Wells Fargo noted that it is “unclear whether HUD is arguing that this cause should be remanded back to the Fifth Judicial District for the State of New Mexico or that there is no forum in which” it “can proceed against HUD.” Response to Mar. 24, 2011 Motion at 2. Wells Fargo contended that the Court has subject-matter jurisdiction under “28 U.S.C. § 2201 or 28 U.S.C. § 2409a” to render “a judicial declaration ... holding that the foreclosure sale (so long as the purchaser is unrelated to the Issuer) is not subject to Article IV of the Special Warranty Deed.” Response to Mar. 24, 2011 Motion at 3. Wells Fargo also asserted that the “HUD has waived any sovereign immunity by virtue of 28 U.S.C. §§ 2409a and 2410 and the Consent to Refinance and Subordination Agreement.” Response to Mar. 24, 2011 Motion at 3. Wells Fargo argued that “an actual case or controversy exists” regarding “the applicability of Article IV of the Special Warranty deed” given that “[t]he parties have been unable to resolve this matter by themselves” and have subsequently entered into litigation, because “there can be no foreclosure in New Mexico except through a judicial decree.” Response to Mar. 24, 2011 Motion at 4. Wells Fargo asserted that it seeks “a court order declaring that the restriction dealt with in the Subordination Agreement, along with the restrictions under Article TV, are not applicable to any purchaser at the foreclosure sale, so long as the purchaser is unrelated to the Issuer.” Response to Mar. 24, 2011 Motion at 4.
Wells Fargo noted that a federal court “has the authority under 28 U.S.C. § 2201” to issue declaratory relief. Response to Mar. 24, 2011 Motion at 5. Wells Fargo noted that 28 U.S.C. § 1346(a)(2) provides for jurisdiction over cases where the United States is a defendant. See Response to Mar. 24, 2011 Motion at 5-6. Wells Fargo also related that 28 U.S.C. § 1346(f) provides federal courts with “exclusive original jurisdiction of civil action [sic] under section 2409a.” Response to Mar. 24, 2011 Motion at 6. Wells Fargo contended that 28 U.S.C. § 1441(f) permits removal of a case even if “the State court from which such civil action is removed did not have jurisdiction over that claim.” Response to Mar. 24, 2011 Motion at 7 (quoting 28 U.S.C. § 1441(f)). Wells Fargo argued that 28 U.S.C. § 1444 permits removal of “[a]ny action brought under” 28 U.S.C. § 2410 “against the United States.” Response to Mar. 24, 2011 Motion at 8 (quoting 28 U.S.C. § 1444). Wells Fargo asserted that, “[b]y entering into this [subordination] agreement, HUD expressly submitted itself to the legal enforcement of the terms of the agreement, thereby waiving sovereign immunity.” Response to Mar. 24, 2011 Motion at 9. Wells Fargo contended that subject-matter jurisdiction is available under 28 U.S.C. § 2409a, because that statute “expressly waives sovereign immunity for the United States when there is' a clouded title.” Response to Mar. 24, 2011 Motion at 10. Wells Fargo asserted that subject-matter jurisdiction is also available under 28 U.S.C. § 2410, because that statute “expressly waives sovereign immunity for the United States when the United States has or claims a mortgage or other lien against the property.” Response to Mar. 24, 2011 Motion at 10. Wells Fargo asserted that the HUD incorrectly argued that “Article IV is a restriction in the Special Warranty Deed and not a lien.” Response to Mar. 24, 2011 Motion at 10-n.
On May 3, 2011, the HUD filed its United States’ Reply to Response in Opposition to Defendant United States Department of Housing and Urban Development’s Motion to Dismiss, or in the Alternative, for Summary Judgment. See Doc. 10 (“Reply to Response to Mar. 24, 2011 Motion”). The HUD noted that “[t]he Response clarifies that only declaratory relief, not monetary damages, is sought against HUD.” Reply to Response to Mar. 24, 2011 Motion at 2. The HUD asserted that Wells Fargo, “not a party to either contract, fails to reveal its contractual theory upon which it bases its claim against HUD or justify it when” 28 U.S.C. § 1346(a)(2) “does not grant, jurisdiction to suit [sic] other than for money damages.” Reply to Response to Mar. 24, 2011 Motion at 3. The HUD contended that 28 U.S.C. § 1346(f) “likewise fails” as a basis for jurisdiction, “because there is no title dispute to the property upon which plaintiff seeks foreclosure” given that “[n]either HUD nor plaintiff claim any estate, fee simple or less, and only if such an ownership interest is disputed by ‘right, title, or interest ... in the real property’ does jurisdiction under Section 1346(f) exist for an action under 28 U.S.C. § 2409a.” Reply to Response to Mar. 24, 2011 Motion at 3 (quoting McKay v. United States, 516 F.3d 848, 850 (10th Cir.2008)). The HUD asserted that disputes regarding liens that the United States holds are “specifically excluded in Section 2409a.” Reply to Response to Mar. 24, 2011 Motion at 3. The HUD also argued, “[m]ost importantly, [that] over 15 years has elapsed since the execution and filing of record of the 1994 Special Warranty Deed and 1997 Subordination Agreement” such that the statute of limitations for filing an action under 28 U.S.C. § 2409a has run. Reply to Response to Mar. 24, 2011 Motion at 4. The HUD emphasized that it has not “waived its sovereign immunity pursuant to” 28 U.S.C. § 2410, because the “HUD does not claim a mortgage or other lien” to the property as required for jurisdiction under 28 U.S.C. § 2410. Reply to Response to Mar. 24, 2011 Motion at 5.
The Court held a hearing on July 19, 2011. See Clerk’s Minutes at 1, filed July 19, 2011 (Doc. 19). After the parties argued the Mar. 24, 2011 Motion, they acknowledged that a more appropriate course of action than having the Court decide the Mar. 24, 2011 Motion would be for Wells Fargo to file an amended complaint to try to address some of the United States’ concerns. See Transcript of Hearing at 18:9-20:25 (taken July 19, 2011) (Court, Vadnais, Lucero) (“July 19, 2011 Tr.”). The HUD acknowledged that there may be some relief available to Wells Fargo but maintained that Wells Fargo could not seek the relief it requested based on the current state of the Complaint. See July 19, 2011 Tr. at 9:12-10:9 (Lucero). Given that Wells Fargo filed the case in state court, and now was before a federal court, the Court acknowledged that the Complaint would not address federal jurisdiction at all and agreed that it made sense for Wells Fargo to try and file a pleading that was more suited for federal court. See July 19, 2011 Tr. at 18:9-19:5, 21:1-11, 22:3-18 (Court).
On October 25, 2011, Wells Fargo filed its Amended Complaint for Foreclosure and Damages. See Doc. 22 (“Amended Complaint”). In its Amended Complaint, Wells Fargo asserts the following bases for the Court’s jurisdiction to hear this case: (i) 28 U.S.C. § 1346(a)(2); (ii) 28 U.S.C. § 1346(f); (Hi) 28 U.S.C. § 2201; and (iv) 28 U.S.C. § 2409a. Amended Complaint ¶ 9, at 2. Wells Fargo asserts that it is the “Successor in Interest to First Security Bank, N.A. as Indenture Trustee for holders of certain Southeastern New Mexico Affordable Housing Corporation Multifamily Housing Revenue Refunding Bonds (Casa Hermosa Apartment) Series 1997A.” Amended Complaint at 1. Wells Fargo alleges that the SNMAHC has defaulted on its loan obligations regarding the property at issue. See Amended Complaint ¶ 43, at 8. Wells Fargo seeks to “accelerate the amounts due” to it, and to have the Court “judicially foreclose its liens on the Property and the Chattels, and to terminate any interest asserted by HUD in the Property or its right to participate in the distribution of any funds from the sale of the Property unless Plaintiff is paid in full.” Amended Complaint ¶ 49, at 9. Wells Fargo requests that the “restrictions imposed in the Special Warranty Deed Articles VIII and IX ... be declared to be inapplicable by the passage of time, with respect to the former, and declared to be inapplicable to any subsequent sale of the Property.” Amended Complaint ¶ 53, at 10. Wells Fargo contends that “the purchaser at any foreclosure sale should take title free and clear of any restrictions imposed by Article VIII or IX of the Special Warranty Deed from HUD to Issuer.” Amended Complaint ¶ 53, at 10. Wells Fargo asserts that the “equity participation reservation in the Special Warranty Deed in Article IV should be declared inapplicable to” both: (i) “a foreclosure sale of the Property”; and (ii) “any sale of the Property by the purchaser of the Property at the foreclosure sale, unless said purchaser is Issuer, or a successor or assign of Issuer, or a purchaser of Issuer.” Amended Complaint ¶¶ 54-55, at 10. Wells Fargo requests that the Court “appoint a Special Master to conduct the foreclosure sale or sales.” Amended Complaint ¶ 59, at 11.
On November 15, 2011, the HUD filed its Notice of the Withdrawal of United States Housing and Urban Development’s Opposed Motion to Dismiss (Doc. No. 5). See Doc. 23. On November 15, 2011, the HUD filed its Nov. 15, 2011 Motion. See Doc. 24. The HUD asserts that Wells Fargo cannot establish that the Court has subject-matter jurisdiction under 28 U.S.C. § 1346(a)(2), because that statute “empowers district courts to award damages but not to grant injunctive or declaratory relief.” Nov. 15, 2011 Motion at 7-8 (emphasis in original) (quoting Lee v. Thornton, 420 U.S. 139, 140, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975) (per curiam)). The HUD notes that the Court has jurisdiction to issue a declaratory judgment under 28 U.S.C. § 2201(a) only “when other grounds for jurisdiction are present” given that this statute does not contain an independent grant of subject-matter jurisdiction or independent waiver of sovereign immunity. Nov. 15, 2011 Motion at 8. The HUD argues that the United States has not waived sovereign immunity, because Wells Fargo has not brought its quiet title action within the twelve-year statute of limitations, which the HUD asserts serves as a jurisdictional bar. See Nov. 15, 2011 Motion at 8-9. The HUD contends that Wells Fargo lacks standing to bring this lawsuit, because it has not suffered any injury that the HUD’s conduct caused. See Nov. 15, 2011 Motion at 10. The HUD asserts that “[tjhere is no factual, facial, or legal connection in support of Plaintiffs claims between Article IV of the 1994 Warranty Deed and the 1997 refinancing mortgage and the Subordinate Agreement.” Nov, 15, 2011 Motion at 10. The HUD clarifies that
if Plaintiffs alternative position simply is that it seeks the ability to foreclose on the property, and concedes that its interest in the property is subordinate to HUD’s interest, including Article IV of the Special Warranty Deed, then there is no case or controversy regarding Plaintiffs alternative pleading and it is not contested.
Nov. 15, 2011 Motion at 11.
Alternatively, the HUD argues that the Court should dismiss the Amended Complaint under rule 12(b)(6). It asserts that: (i) “Plaintiffs quiet title claims are untimely”; and (ii) “Plaintiff erroneously appears to apply Article IV provision of the 1994 Special Warranty Deed to its 1997 refinancing and mortgage by confusing the 1994 and 1997 transactions.” Nov. 15, 2011 Motion at 11. The HUD notes that “[termination or amendment of a restrictive covenant by release or agreement is based on contract law, as one entitled to enforce a promise may relieve the promisor of the obligation,” and emphasizes that “[t]here is, however, no specific allegation in the Amended Complaint that HUD relinquished its equity participation rights in Article IV of the Special Warranty Deed and a reading of the Subordination Agreement does not support such a conclusion.” Nov. 15, 2011 Motion at 11. The HUD asserts that “[t]he 1994 Special Warranty Deed, relating to the 1994 HUD sale to SNMAHC, imposes restrictions that run with the land until terminated.” Nov. 15, 2011 Motion at 12. The HUD elaborates that its
agreement in Article IV of the Special Warranty Deed to not participate in any equity resulting from a foreclosure relates only to the 1994 financing and is not applicable to the 1997 refinancing with a new mortgage and a new Series 1997A bonds, the subject of the 1997 Subordination Agreement and this lawsuit.
Nov. 15, 2011 Motion at 12-13. The HUD argues that “[a]ny foreclosure by Plaintiff should not be ‘free and clear’ of HUD’s deed restrictions, as plead [sic], because HUD’s interest runs with the land and is enforceable in law and equity.” Nov. 15, 2011 Motion at 13. The HUD relates that Wells Fargo’s “alternative argument that foreclosure should be subject to HUD’s interest is not contested because HUD’s interest primes Plaintiffs interest in that deed restrictions are not subject to foreclosure.” Nov. 15, 2011 Motion at 13-14. The HUD contends that its interest in the property is not a lien, but rather a restrictive covenant. See Nov. 15, 2011 Motion at 14. It further argues that, even if its “interest constituted a lien interest, HUD’s 1994 interest would prime Plaintiffs 1997 interest because it is first in time.” Nov. 15, 2011 Motion at 14.
On December 23, 2011, Wells Fargo filed its Response to Nov. 15, 2011 Motion. See Doc. 26. Wells Fargo argues that the Court “has jurisdiction under 28 U.S.C. §§ 1346(a)(2), 1346(f), 2201(a), and 2409a.” Response to Nov. 15, 2011 Motion at 2. It contends that “the quiet title claim against HUD is not time barred because Plaintiff did not have any claim or interest adverse to HUD until the Borrower defaulted in its performance, which occurred in June, 2010.” Response to Nov. 15, 2011 Motion at 1. Wells Fargo “does not dispute that the restrictions of the Special Warranty Deed run with the land.” Response to Nov. 15, 2011 Motion at 7. It contends that the restrictions in Article IV “are, by their own terms, only applicable to SNMAHC, its successors, assigns, or purchasers for value from SNMAHC.” Response to Nov. 15, 2011 Motion at 7. Wells Fargo states: “To the extent Plaintiff has sought a declaration that the purchaser take the property free and clear of any claims by HUD, that request was in error as the deed restrictions plainly run with the land, and affect purchasers from, or affiliates of, SNMAHC.” Response to Nov. 15, 2011 Motion at 8. Wells Fargo elaborates that it “does seek a decree from this Court that Article IV is only applicable to voluntary sales by SNMAHC, or its affiliates, and is made clear by the Special Warranty Deed.” Response to Nov. 15, 2011 Motion at 8. Wells Fargo contends that the restrictions Article IV imposes constitute a lien that the HUD holds, which foreclosure will extinguish. See Response to Nov. 15, 2011 Motion at 8-9.
On January 20, 2012, the HUD filed its United States’ Reply to Response in Opposition to Defendant United States Department of Housing and Urban Development’s Second Motion to Dismiss, or in the Alternative, for Summary Judgment. See Doc. 27 (“Reply to Response to Nov. 15, 2011 Motion”). The HUD asserts that 28 U.S.C. § 1346(a)(2) does not “confer subject matter jurisdiction on [Wells Fargo’s] claims against HUD,” because Wells Fargo is “not a party to either contract” that is the subject of this suit and “fails to reveal its contractual theory upon which it bases it claims against HUD or justify it when” 28 U.S.C. § 1346(a)(2) “does not grant jurisdiction to suits.other than for money damages.” Reply to Response to Nov. 15, 2011 Motion at 3. The HUD asserts that “Plaintiffs jurisdictional claim pursuant to 28 U.S.C. § 1346(f) likewise fails because there is no title dispute to the property upon which plaintiff seeks foreclosure” given that “[n]either HUD nor plaintiff claim any estate, fee simple or less” in the property at issue. Reply to Response to Nov. 15, 2011 Motion at 3. The HUD argues that 28 U.S.C. § 2410 does not establish a waiver of sovereign immunity, because the “HUD’s equity participation under Article IV is not security for repayment of a debt because there is none between HUD and SNMAHC.” Reply to Response to Nov. 15, 2011 Motion at 5.
At the hearing on February 15, 2012, the HUD clarified that it does not oppose the foreclosure that Wells Fargo seeks but that it opposes some of the additional declaratory relief that Wells Fargo seeks. See Transcript of Hearing at 5:11-6:1 (taken February 15, 2011) (Court, Lucero) (“Feb. 15, 2012 Tr.”). The HUD characterized its interest as an easement that runs with the property rather than a lien. See Feb. 15, 2012 Tr. at 7:9-8:3 (Lucero). The Court asked the HUD if, given that the HUD is asserting that the present suit is not a proper one in which to raise the issues Wells Fargo seeks to litigate against it, the issues Wells Fargo seeks to litigate would instead arise properly in a suit the HUD brings against Wells Fargo for failure to comply with its obligations regarding the property. See Feb. 15, 2012 Tr. at 9:6-14 (Court). The HUD agreed that such a lawsuit would be the likely result if the Court holds that it does not have jurisdiction over this suit. See Feb. 15, 2012 Tr. at 9:15-16 (Lucero). Wells Fargo noted that the deed requires that, if it elects to foreclose on the property, it must name the HUD as a party to the lawsuit. See Feb. 15, 2012 Tr. at 12:13-20 (Vadnais). Wells Fargo asserted that, even if the Court dismisses the claim against the HUD, the foreclosure action against the SNMAHC will remain. See Feb. 15, 2012 Tr. at 17:10-17 (Vadnais). Wells Fargo stated that, pursuant to Article IX in the deed documents, the HUD should still remain a party to this action even if the Court dismisses Wells Fargo’s claims against the HUD. See Feb. 15, 2012 Tr. at 17:16-20 (Vadnais).. ■ The HUD asserted that 28 U.S.C. § 2410 does not contain a waiver of sovereign immunity. See Feb. 15, 2012 Tr. at 24:7-21 (Lucero).
LEGAL STANDARD FOR MOTIONS TO DISMISS UNDER RULE 12(b)(1)
“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases authorized and defined in the Constitution which have been entrusted to them under a jurisdictional grant by Congress.” Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.1994) (citations omitted). A plaintiff generally bears the burden of demonstrating the court’s jurisdiction to hear his or her claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“[T]he party invoking federal jurisdiction bears the burden of establishing its existence.”). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to raise the defense of the court’s “lack of jurisdiction over the subject matter” by motion. Fed. R. Civ. P. 12(b)(1). The United States Court of Appeals for the Tenth Circuit has held that motions to dismiss for lack of subject-matter jurisdiction “generally take one of two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject-matter jurisdiction; or (2) a challenge to the actual facts upon which subject-matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.2002).
On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a rule 12(b)(6) motion: the court must consider the complaint’s allegations to be true. See Ruiz v. McDonnell, 299 F.3d at 1180; Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981). But when the attack is aimed at the jurisdictional facts themselves, a district court may not presume the truthfulness of those allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 [summary-judgment] motion.
Hill v. Vanderbilt Capital Advisors, LLC, 834 F.Supp.2d 1228, 1241 (D.N.M.2011) (Browning, J.). As the United States Court of Appeals for the Fifth Circuit has stated:
[T]he trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court’s jurisdiction— its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.
Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)).
When making a rule 12(b)(1) motion, a party may go beyond the allegations in the complaint to challenge the facts upon which jurisdiction depends, and may do so by relying on affidavits or other evidence properly before the court. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d at 1499; Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.1995). In those instances, a court’s reference to evidence outside the pleadings does not necessarily convert the motion to a rule 56 motion for summary judgment. See Holt v. United States, 46 F.3d at 1003 (citing Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (10th Cir.1987)). Where, however, a court determines that jurisdictional issues raised in rule 12(b)(1) motion are intertwined with the case’s merits, the court should resolve the motion under either rule 12(b)(6) or rule 56. See Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir.1999); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997). “When deciding whether jurisdiction is intertwined with the merits of a particular dispute, ‘the underlying issue is whether resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.’ ” Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10th Cir.2003) (quoting Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.2002)).
STANDARD FOR A MOTION TO DISMISS UNDER RULE 12(b)(6)
Under rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering and addressing a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006); Hous. Auth. of Kaw Tribe v. City of Ponca, 952 F.2d 1183, 1187 (10th Cir.1991).
A complaint challenged by a rule 12(b)(6) motion to dismiss does not require detailed factual allegations, but a plaintiffs burden to set forth the grounds of his or her entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (stating that a plaintiffs complaint must set forth more than a threadbare recital “of the elements of a cause of action, supported by mere conclusory statements”). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 545, 127 S.Ct. 1955 (citation omitted). To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007). The Tenth Circuit has stated:
“[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (citations omitted).
LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of “showfing] that there is an absence of evidence to support the non-moving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56 requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact ... is genuinely disputed must support the assertion by .... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).
Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.
LAW REGARDING SOVEREIGN IMMUNITY
“The United States cannot be sued without its consent.” Garcia v. United States, 709 F.Supp.2d 1133, 1137 (D.N.M.2010) (Browning, J.). “Congressional consent— a waiver of the traditional principle of sovereign immunity — is a prerequisite for federal-court jurisdiction.” Garcia v. United States, 709 F.Supp.2d at 1137-38. “The plaintiff bears the burden of proving that Congress has waived sovereign immunity for all of his claims.” Garcia v. United States, 709 F.Supp.2d at 1138. Accord Bork v. Carroll, 449 Fed.Appx. 719, 721 (10th Cir.2011) (unpublished) (“So it is that a plaintiff seeking to invoke the jurisdiction of the federal courts bears the burden of identifying an applicable statutory waiver of sovereign immunity when challenged to do so.”); Summa v. United States, 936 F.2d 584, 1991 WL 114638, at *3 (10th Cir.1991) (unpublished table decision) (holding in an FTCA case that the “Plaintiffs bore the burden of proving that the district court had subject matter jurisdiction over their claims”) (citing Miller v. United States, 710 F.2d 656, 662 (10th Cir.1983)).
1. General Principles of Sovereign Immunity.
It is “axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 468 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citations omitted). Accord FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994): United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). As with any jurisdictional issue, the party bringing suit against the United States bears the burden of proving that sovereign immunity has been waived. See James v. United States, 970 F.2d 750, 753 (10th Cir.1992). A waiver of sovereign immunity cannot be implied and must be unequivocally expressed. See United States v. Nordic Vill., Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); United States v. Murdock Mach. & Eng’g Co. of Utah, 81 F.3d 922, 930 (10th Cir.1996). The United States’ agencies also have sovereign immunity absent a waiver. See FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit”).
28 U.S.C. § 1346(a)(2) provides:
(a) The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of:
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the district courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or unliquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41.
28 U.S.C. § 1346(a)(2). The Supreme Court of the United States has held that this statute “empowers district courts to award damages but not to grant injunctive or declaratory relief.” Lee v. Thornton, 420 U.S. at 140, 95 S.Ct. 853. The Tenth Circuit found the exercise of jurisdiction under this statute improper when the plaintiff “sought the equitable relief of rescission, while employing language designed to render the federal defendants liable in damages in the amount of the promissory note.” Ortiz v. United States, 661 F.2d 826, 830-31 (10th Cir.1981). Accord McKay v. United States, 516 F.3d 848, 851 (10th Cir.2008) (“But this action involves a contractual, not a constitutional, obligation and plaintiff does not cite, nor have we found, any contract case holding that [28 U.S.C. § 1346(a)(2)] may be avoided ... by forgoing the damages remedy the Act permits and seeking equitable relief it prohibits.”). “A plaintiff attempting to invoke the subject matter of the federal district courts bears the burden to establish his or her claim does not exceed the $10,000.00 jurisdictional limit established by” 28 U.S.C. § 1346(f). Cortez v. EEOC, 585 F.Supp.2d 1273, 1288 (D.N.M.2007) (Browning, J.).
3. 28 U.S.C. §§ 1346(f) and 2409a.
28 U.S.C. § 1346(f) provides: “The district courts shall have exclusive original jurisdiction of civil actions under section 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States.” 28 U.S.C. § 1346(f). 28 U.S.C. § 2409a provides in relevant part: “The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest, other than a security interest or water rights.” 28 U.S.C. § 2409a(a). These statutes, often referred to as the Quiet Title Act, 28 U.S.C. §§ 1346(f), 2409a (“QTA”), together provide subject-matter jurisdiction and a waiver of sovereign immunity for quiet title actions against the United States. See Matchr-E-Be-Nashr-She-Wish Band of Pottawatomi Indians v. Patchak, — U.S. —, 132 S.Ct. 2199, 2206, 183 L.Ed.2d 211 (2012) (“From its title to its jurisdictional grant to its venue provision, the Act speaks specifically and repeatedly of ‘quiet title’ actions. That term is universally understood to refer to suits in which a plaintiff not only challenges someone else’s claim, but also asserts his own right to disputed property.” (citations omitted)). “Congress intended the QTA to provide the exclusive means by which adverse claimants could challenge the United States’ title to real property.” United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986). The Tenth Circuit has stated that, “as its legislative history makes clear, the QTA applies even where the plaintiff claims an estate less than a fee simple ... [such as] an easement.” McKay v. United States, 516 F.3d at 850 (alteration in original) (internal quotation marks omitted).
28 U.S.C. § 2409a(g) provides:
Any civil action under this section, except for an action brought by a State, shall be barred unless it is commenced within twelve years of the date upon which it accrued. Such action shall be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.
28 U.S.C. § 2409a(g). As the Supreme Court has stated: “The limitations period is a central condition of the consent given by the Act.” United States v. Mottaz, 476 U.S. at 843, 106 S.Ct. 2224. A plaintiffs claim being timely under this statute of limitations is a jurisdictional prerequisite to suit under 28 U.S.C. § 2409a. See Block v. North Dakota ex rel. Bd. of Univ. and Sch. Lands, 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983) (“When waiver legislation contains a statute of limitations, the limitations provision constitutes a condition on the waiver of sovereign immunity.”); Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation, 599 F.3d 1165, 1175 (10th Cir.2010) (“Timeliness under subsection [ (g) ] is a jurisdictional prerequisite to suit under section 2409a.” (alteration in original)).
“The twelve-year limitations period is strictly construed in favor of the United States.” Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation, 599 F.3d at 1176. The Tenth Circuit has “held that for purposes of determining when ‘the claim’ accrues under § 2409a(f), ‘[a]ll that is necessary is a reasonable awareness that the government claims some interest adverse to the plaintiffs.’ ” Vincent Murphy Chevrolet Co., Inc. v. United States, 766 F.2d 449, 452 (10th Cir.1985). “Knowledge of the claim’s full contours is not required. All that is necessary is a reasonable awareness that the Government claims some interest adverse to the plaintiffs.” Rio Grande Sil very Minnow (Hybognathus amarus) v. Bureau of Reclamation, 599 F.3d at 1176 (emphasis in original). “[T]he United States need not assert a full legal title in the disputed property for the limitations period to accrue; the claimed adverse interest in the title of the property merely must be substantial enough to create a cloud on title.” Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation, 599 F.3d at 1176. The Tenth Circuit has held that the knowledge of deed restrictions in place that benefitted the United States was sufficient to trigger the running of the statute of limitations under 28 U.S.C. § 2409a(f). See Vincent Murphy Chevrolet Co., Inc. v. United States, 766 F.2d at 452 (“Appellants concede knowledge of a ‘claim’—the deed restrictions—as early as 1965. This is all that is necessary under § 2409a(f).”). The Tenth Circuit elaborated:
While the Supreme Court in Block indicated that the statutes waiving immunity should not be construed in an unduly restrictive manner, it cautioned that these statutes could not be interpreted in such a manner as to “ ‘extend the waiver beyond that which Congress intended.’ ”
To hold that the twelve-year statute of limitations did not begin to run until conditions began changing would give rise to an interpretation of the term “claim” under § 2409a(f) which could extend the limitations period indefinitely. We cannot extend the waiver of immunity under the quiet title act beyond that which Congress could have intended and we refuse to do so without a clear expression of legislative intent.
Appellants argue that in the twelve-year period following 1965, they would not have had a cause of action to quiet title since there would have been no justiciable controversy as the cause of action could not have accrued until conditions began changing. While such argument evokes empathy, we do not believe that it comports with the limited waiver of sovereign immunity Congress intended, and in construing the statute of limitations strictly as a condition to the waiver of sovereign immunity, we must reject appellants’ argument.
Vincent Murphy Chevrolet Co., Inc. v. United States, 766 F.2d at 452 (citations omitted).
“Because § 2409a limits the sovereign immunity of the United States, it must be interpreted according to federal law.” Rio Grande Silvery Minnow (Hybognathus amarus) v. Bureau of Reclamation, 599 F.3d at 1177. “However, federal courts may properly look to state law as an aid in determining the application of statutory language to specific facts.” Rio Grande