In affirming, the Circuit Court said in conclusion (265 F.2d at page 300):
'The district court in its opinion in this case pointed out that in numbers of situations rather similar to this one the aggrieved person has maintained a suit against a Director of Internal Revenue, but that this is in legal contemplation different from a suit against the United States. E.g. Rothensies v. Ullman, 3 Cir., 1940, 110 F.2d 590; Szerlip v. Marcelle, D.C.E.D.N.Y.1955, 136 F.Supp. 862. Stuart v. Chinese Chamber of Commerce, 9 Cir., 1948, 168 F.2d 709. While we cannot adjudicate a matter which is not before us, we do note that nothing appears here which suggests that such a remedy was not available to the appellant or that such a suit would even now be untimely.'
It is now urged that the defendant Director is immune from a suit for damages for wrongs committed in performing discretionary acts within the scope of his official authority. However, it is evident that this action is not a suit against the Director for damages as such, but for a liquidated sum of money, i.e., $ 7,359.49, being the proceeds of the sale in excess of the amount necessary to satisfy the government's first lien and the costs of sale.
A non-taxpayer has long had the right to enjoin the Director from wrongfully seizing his property to satisfy the tax obligation of another, Raffaele v. Granger, 3 Cir., 1952, 196 F.2d 620; or to sue to recover property already seized or its proceeds, Szerlip v. Marcelle, D.C.E.D.N.Y.1955, 136 F.Supp. 862; and this is so even if the proceeds have been covered into the Treasury, Stuart v. Chinese Chamber of Commerce, 9 Cir., 1948, 168 F.2d 709; Colorado Milling & Elevator Co. v. Glenn, D.C.W.D.Ky.,1954, 118 F.Supp. 943. Cf. Pennsylvania Turnpike Commission v. McGinnes, 3 Cir., 1959, 268 F.2d 65, 67-68. In passing we note that if the plaintiff prevails, upon the court's certificate stating that the Director acted with probable cause or under the direction of a proper officer, the government will pay the personal judgment obtained against the Director. Title 28 U.S.C.A. 2006.
No case has been called to our attention, nor have we found one, which specifically adjudicates the right of a lienor to sue a Director for proceeds of a tax sale which the lienor claims should have been distributed to him.
However, 6342, Title 26 U.S.C.A., prescribes the application of proceeds of a tax sale of seized property. Subsection (b) provides:
'Any surplus proceeds remaining after the application of subsection (a) shall, upon application and satisfactory proof in support thereof, be credited or refunded by the Secretary or his delegate to the person or persons legally entitled thereto.'
If plaintiff was legally entitled to the surplus proceeds and the Director refused to refund same to the plaintiff but distributed the money to the United States as alleged, in effect, the Director has wrongfully seized plaintiff's property, and the latter is entitled to recover it. As we see it, the plaintiff-lienor is in a position analogous to any other non-taxpayer whose property has been wrongfully seized by the Director for the tax liability of another. Hence, we think plaintiff has stated a claim against the defendant upon which relief can be granted, and the motion to dismiss should be denied.