FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 9, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
WYODAK RESOURCES
DEVELOPMENT CORPORATION, a
Delaware corporation,
Plaintiff–Appellant,
No. 09-8097
v.
UNITED STATES OF AMERICA,
Defendant–Appellee.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:07-CV-00301-WFD)
Walter Frederick Eggers, Holland & Hart LLP, Cheyenne, Wyoming (Andrew Abbott
Irvine, Holland & Hart LLP, Jackson, Wyoming, with him on the briefs), for the
Plaintiff-Appellant.
Michael Thomas Gray, (Ignacia S. Moreno, Assistant Attorney General with him on the
briefs), United States Department of Justice, Environment & Natural Resources
Division,Washington, D.C., for the Defendant-Appellee.
Before LUCERO, GORSUCH, Circuit Judges, and ARGUELLO,
District Judge.
The Honorable Christine M. Arguello, United States District Judge for the
District of Colorado, sitting by designation.
LUCERO, Circuit Judge.
Wyodak Resources Development Corporation (“Wyodak”) sued the United States
in federal district court, seeking a refund of coal reclamation fees it allegedly overpaid
under the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”), 30 U.S.C.
§§ 1201-1328. The district court concluded that 28 U.S.C. § 1346(a)(1) provided a basis
for federal jurisdiction and a waiver of sovereign immunity because the reclamation fee is
an “internal-revenue tax.” See id. However, the court denied relief on the merits and
entered summary judgment in favor of the United States. We do not reach the merits of
Wyodak’s appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we conclude the
district court did not possess jurisdiction. Because the reclamation fee is not an “internal-
revenue tax” within the meaning of 28 U.S.C. § 1346(a)(1), Wyodak’s claims may be
filed only in the Court of Federal Claims under 28 U.S.C. § 1491.
I
Wyodak operates the Wyodak Mine, a large surface coal mine in the Powder River
Basin of Wyoming. As a surface mine operator, Wyodak is subject to SMCRA. To
further its goal of restoring mined land, SMCRA created the Abandoned Mine
Reclamation Fund (“the Fund”), which exists on the books of the United States Treasury,
but is administered by the Secretary of the Interior. 30 U.S.C. § 1231. SMCRA
authorizes the Secretary of the Interior to assess reclamation fees on each ton of “coal
produced” in the United States to finance the Fund. See id. § 1232. These reclamation
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fees are collected by the Secretary of the Interior, id., specifically, by the Office of
Surface Mining Reclamation and Enforcement (“OSM”), see 30 C.F.R. §§ 870.1-19.
During the time period at issue in this case, OSM used a two-tiered reclamation fee
structure: ten cents per ton for lignite coal, and thirty-five cents per ton for all other
grades. See Surface Mining Control & Reclamation Act of 1977, Pub. L. 95-87, tit. IV,
§ 402(a), 91 Stat. 445, 457.
Between January 1, 1980, and December 31, 2005, Wyodak extracted more than
82 million tons of coal from the Wyodak Mine. It reported all of this coal as non-lignite
and paid the higher reclamation fee of thirty-five cents per ton. In early 2005, Wyodak
retained a consulting chemist to determine whether any of the coal at the Wyodak Mine
was lignite. Samples taken from the ground showed that between 9.5% and 12.3% of the
coal sampled in situ was lignite. In the first two quarters of 2006, Wyodak reported to
OSM that it had extracted more than 2.2 million tons of coal and asserted that 282,988.42
tons of that total was lignite based on the chemist’s studies. In addition, Wyodak claimed
that it had overpaid reclamation fees from 1980 to 2005 because some of the coal
produced was lignite.
OSM audited Wyodak’s 2006 reports and concluded that Wyodak had underpaid.
OSM took the position that SMCRA regulations require the reclamation fee to be
calculated “at the time of the initial bona fide sale, transfer of ownership, or use by the
operator,” see 30 C.F.R. § 870.12(b), and not while coal remains in the ground. Because
any lignite coal mined by Wyodak is comingled with non-lignite coal prior to sale, OSM
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concluded Wyodak did not qualify for the lower reclamation fee. On the same basis,
OSM refused Wyodak’s retroactive refund claim for the years 1980 to 2005. Both
decisions were upheld by an OSM Audit Appeals Officer.
Wyodak then sued the United States in federal district court, seeking a refund of
$2,245,477.14 it allegedly overpaid in reclamation fees, and a declaratory judgment with
respect to future fees. Both parties moved for summary judgment. The district court
rejected the United States’ argument that the court lacked subject-matter jurisdiction, but
granted the government’s motion on the merits.
On appeal, Wyodak contends the district court erred in its merits determination.
The government renews its argument that the district court lacked jurisdiction. We do
not reach the merits because we agree with the government’s jurisdictional position.
II
A
Most suits for money damages against the United States proceed under the Tucker
Act, 28 U.S.C. § 1491, which provides a limited waiver of the United States’ sovereign
immunity and grants “jurisdiction [to] the Court of Federal Claims for claims against the
United States founded upon the Constitution, Acts of Congress, executive regulations, or
contracts and seeking amounts greater than $10,000.” Normandy Apartments, Ltd. v.
U.S. Dep’t of Hous. & Urban Dev., 554 F.3d 1290, 1295 (10th Cir. 2009) (quotation
omitted). Although we have occasionally called the Court of Federal Claims’ jurisdiction
over such claims “exclusive,” e.g., id. (quotation omitted), its jurisdiction is only
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exclusive over claims which no other federal court has the authority to hear. If there is an
independent source of subject-matter jurisdiction over a claim against the United States,
and some waiver of sovereign immunity other than the Tucker Act, a plaintiff is free to
proceed in district court. “[T]he jurisdiction of the Court of [Federal] Claims is not
exclusive; rather, there is rarely any statute available that waives sovereign immunity for
suits in the district court, other than the Tucker Act with its $10,000 limit.” C.H. Sanders
Co. v. BHAP Hous. Dev. Fund Co., 903 F.2d 114, 119 (2d Cir. 1990) (quotation and
emphasis omitted) superseded by statute on other grounds, as stated in United Am. Inc. v.
N.B.C. – U.S.A. Hous., Inc. Twenty Seven, 400 F. Supp. 2d 59, 64 (D.D.C. 2005).
Wyodak invokes one of those rare statutes that both waives sovereign immunity
and grants subject-matter jurisdiction to the district courts, 28 U.S.C. § 1346(a)(1). That
statute waives the United States’ sovereign immunity from suit, United States v.
Williams, 514 U.S. 527, 530 (1995), and gives the Court of Federal Claims and the
district courts concurrent jurisdiction over:
Any civil action against the United States for the recovery of any
internal-revenue tax alleged to have been erroneously or illegally assessed
or collected, or any penalty claimed to have been collected without
authority or any sum alleged to have been excessive or in any manner
wrongfully collected under the internal-revenue laws . . . .
28 U.S.C. § 1346(a)(1).
One short phrase in section 1346, “internal-revenue tax,” establishes the
jurisdictional battle lines in this case. Wyodak argues that the SMCRA reclamation fee is
an “internal-revenue tax” because it is collected on internal, rather than external, revenue.
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The United States counters that an “internal-revenue tax” is a tax collected by the Internal
Revenue Service (“IRS”) or imposed under the Internal Revenue Code.1
The district court agreed with Wyodak, relying entirely on a Sixth Circuit opinion,
Horizon Coal Corp. v. United States, 43 F.3d 234 (6th Cir. 1994). In Horizon Coal, the
court concluded that 28 U.S.C. § 1346 provided for district court jurisdiction over a
reclamation-fee dispute because “internal-revenue tax” means “revenue generated within
the boundaries of the United States, as opposed to ‘external’ revenue.” Horizon Coal, 43
F.3d at 239. The government argued that adopting the broader definition of “internal-
revenue tax” would require Horizon Coal to exhaust administrative remedies with the
Secretary of the Treasury pursuant to 26 U.S.C. § 7422(a), which also uses the phrase
“internal revenue tax.” But the Sixth Circuit held that the phrase “internal-revenue tax”
had a different meaning when used in 26 U.S.C. § 7422. Although the phrase applied to
all taxes on internal revenue under 28 U.S.C. § 1346, the court determined that the phrase
applied only to taxes collected by the IRS when used in 26 U.S.C. § 7422. Horizon Coal,
43 F.3d at 239-40. The district court adopted this reasoning without further explanation.
B
We review the district court’s jurisdictional ruling de novo. Huerta v. Gonzales,
443 F.3d 753, 755 (10th Cir. 2006). The same is true of the district court’s statutory
interpretation. United States v. DeGasso, 369 F.3d 1139, 1144 (10th Cir. 2004).
1
The government does not argue the reclamation fee is not a tax.
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At the outset, we must state our disagreement with the district court’s reliance on
Horizon Coal. A core tenet of statutory construction is that “identical words used in
different parts of the same act are intended to have the same meaning.” Dep’t of
Revenue v. ACF Indus., 510 U.S. 332, 342 (1994) (quotation omitted). Both 26 U.S.C.
§ 7422 and 28 U.S.C. § 1346 use the phrase “internal revenue tax” (or in the latter case
“internal-revenue tax”), and in both instances, the language was added by the Revenue
Act of 1921, Pub. L. No. 67-98, 42 Stat. 227. See tit. XIII, § 1318, 42 Stat. at 315
(predecessor of 26 U.S.C. § 7422); tit. XIII, § 1310(c), 42 Stat. at 311 (predecessor of 28
U.S.C. § 1346). Absent some very good reason to conclude that Congress intended the
phrase “internal-revenue tax” to have two different meanings within the very same act,
such a tortured interpretation should be avoided. Neither the Sixth Circuit nor Wyodak
has provided such a reason. We conclude that the phrase “internal-revenue tax” must
mean the same thing in 28 U.S.C. § 1346 as it does in 26 U.S.C. § 7422.
This, of course, requires that we decide which of the competing interpretations
reflects Congress’ intent. In doing so, we start with the text of the statute. See United
States v. Cisneros-Cabrera, 110 F.3d 746, 747 (10th Cir. 1997). “The plainness or
ambiguity of statutory language is determined by reference to the language itself, the
specific context in which that language is used, and the broader context of the statute as a
whole.” Peters v. Wise (In re Wise), 346 F.3d 1239, 1241 (10th Cir. 2003) (quotation
omitted); see also King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (“Words are not
pebbles in alien juxtaposition; they have only a communal existence; and not only does
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the meaning of each interpenetrate the other, but all in their aggregate take their purport
from the setting in which they are used . . . .” (quotation omitted)).
We are also mindful that 28 U.S.C. § 1346 implicates special rules of construction
because it waives the United States’ immunity. In determining the extent to which a
statute waives sovereign immunity, waiver must not be enlarged beyond the scope of the
statutory language, and all ambiguities in the statute must be construed in favor of
immunity. United States v. Williams, 514 U.S. 527, 531 (1995), superseded by statute on
other grounds, as stated in Wagner v. United States, 545 F.3d 298, 303 (5th Cir. 2008).
C
As is often the case, the statutory text standing alone does not clearly favor one
interpretation over the other. Wyodak claims that “internal revenue” simply refers to any
revenue generated within the United States. The government contends that “internal
revenue” refers to moneys collected by the IRS, or its precursor, the Bureau of Internal
Revenue. Both readings are at least plausible constructions of the bare text. Cf. S. Utah
Wilderness Alliance v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d
1227, 1238 (10th Cir. 2010).
But in construing § 1346(a)(1), we are not constrained to consider the three-word
phrase in isolation; we must also consider the context in which the statute was drafted.
See Wise, 346 F.3d at 1241. In 1954, the year in which the statute assumed its current
form, see Act of July 30, 1954, Pub. L. No. 83-559, 68 Stat. 589, taxpayers who believed
they had paid illegally-exacted taxes had three options for seeking recovery, see William
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T. Plumb, Jr., Tax Refund Suits Against Collectors of Internal Revenue, 60 Harv. L. Rev.
685, 686-87 (1947). First, they could sue the United States in the Court of Claims (now
the Court of Federal Claims), 28 U.S.C. § 1491 (1952) (superseded). Second, they could
bring suit “against the tax collector personally rather than against the United States.” See
Williams, 514 U.S. at 532 (citation omitted).2 Or, third, they could invoke the old
version of § 1346(a)(1), which was identical to the current version, but with two extra
conditions: a district court only had jurisdiction “(i) if the claim does not exceed $10,000
or (ii) even if the claim exceeds $10,000 if the collector of internal revenue by whom
such tax, penalty or sum was collected is dead or is not in office as collector of internal
2
The right to sue the collector personally was a longstanding creature of common
law. Sirian Lamp Co. v. Manning, 123 F.2d 776, 778 (3d Cir. 1941), overruled on other
grounds by Flora v. United States, 362 U.S. 145, 147 n.1 (1960). Although taxpayers
could always sue a tax collector in state court, Congress also granted federal district
courts jurisdiction over such claims in the Force Act (also known as the Bloody Bill) of
1833. See Force Act of 1833, ch. 57, § 2, 4 Stat. 632, 632-33 (1833); see also City of
Phila. v. Collector, 72 U.S. (5 Wall.) 720, 728 (1867). Because such actions were
technically personal suits, sovereign immunity was not implicated. See Smietanka v. Ind.
Steel Co., 257 U.S. 1, 4 (1921).
Commentators called “[t]he suit against the collector for a refund . . . a most
anomalous action,” Plumb, supra, at 687, because the collector was deemed personally
liable for erroneously collected taxes, see United States v. Kales, 314 U.S. 186, 199
(1941), but any recovery against him was paid by the Treasury, 28 U.S.C. § 842 (1940)
(superseded). The personal suit was abolished with the enactment of 26 U.S.C.
§ 7422, which provides that tax refund suits “may be maintained only against the United
States and not against any officer or employee of the United States.” Id.; see also
Mikulski v. Centerior Energy Corp., 501 F.3d 555, 564 (6th Cir. 2007) (“[Section 7422]
was intended to provide taxpayers with a means to obtain relief from improper
collections by tax collectors while also protecting government collection officers from
being sued by taxpayers.”); cf. Brennan v. Sw. Airlines Co., 134 F.3d 1405, 1411 (9th
Cir. 1998).
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revenue when such action is commenced . . . .” 28 U.S.C. § 1346(a)(1) (Supp. V 1952)
(superseded).
In other words, at the time the current version of § 1346(a)(1) was amended, its
jurisdictional grant was limited and interstitial, intended to give taxpayers a remedy when
the other two options (suing in the Court of Claims or suing the collector personally)
were inadequate. The rationale for the $10,000 limitation was “the feeling that taxpayers
wealthy enough to be assessed taxes in excess of $10,000” could afford to exercise option
one and sue in the Court of Claims, but that others, subject to lower taxes, “could not
afford to pursue an action in Washington.” H.R. Rep. No. 83-659, at 2 (1953). Likewise,
the second exception allowed direct suits against the United States in situations where the
collector could not be sued personally.
Another contextual consideration warrants our attention. In 1952, President
Truman issued Reorganization Plan No. 1, which drastically changed the structure of
internal revenue collection in the United States. See Bryan T. Camp, Theory and Practice
in Tax Administration, 29 Va. Tax Rev. 227, 241 (2009). Since 1862, income taxes had
been collected by presidentially-appointed assessors and collectors who were effectively
sovereign within their geographic jurisdictions. Id. But after a House Ways and Means
Committee inquiry revealed widespread corruption in this system, investigators
concluded that the “collectors could not be effectively supervised by the Commissioner
[of Internal Revenue], or even by Treasury, because of their political connections.” Id. at
241-42. President Truman’s Plan sought to replace the collectors with district
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commissioners, who were career civil service employees rather than political appointees.
See Reorganization Plan No. 1 of 1952, H.R. Doc. No. 82-327, at 3 (1952). Congress
quickly approved the Plan, and over the next two years, the Bureau of Internal Revenue
became the IRS, with tax administration being divided among nine geographic regions
(headed by regional directors) and sixty-four districts (headed by district directors).
Camp, supra, at 242-43. “District directors now held all the old powers of the assessor
and collector combined.” Id. at 242.
Having explained its context, we proceed to interpreting the statute itself. The
present version of § 1346(a)(1) was created mid-1954, when the eighty-third Congress
passed S. 252, 83d Cong. (1st sess. 1954), creating Pub. L. No. 83-559, 68 Stat. 589.
Sponsored by Georgia Senator Walter George, S. 252 was introduced as a “very simple
bill” with two modest goals: “to preserve the right of trial by jury to a [taxpayer claiming
a refund] and to permit [him] to bring his suit in the district court in the district in which
he lives.” Civil Actions in District Courts to Recover Taxes: Hearing Before the
Subcomm. on Improvements in Judicial Machinery of the S. Comm. on the Judiciary,
83d Cong. 2. (1953) [hereinafter S. 252 Hearings] (statement of Sen. George).
Congress had the recent reorganization of the nation’s internal revenue collection
in mind when it considered S. 252. Senator George stated that the bill was necessary
because “the reorganization of the Bureau of Internal Revenue created some doubt in the
minds of a great many lawyers whether the right of action [against the collector] would
survive.” S. 252 Hearings at 2 (statement of Sen. George). Senator George confirmed
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that the “right of action did survive . . . against the chief collector within [a] State.” Id.
What had been an action against the collector under the common law could now be
brought either as a personal suit against an IRS director, or as a suit against the United
States under § 1346(a)(1). However, because at the time S. 252 was passed the usual
taxpayer suit was a personal action against the collector, such an action had to be brought
in the judicial district in which the collector resided. See S. 252 Hearings at 3 (statement
of Elbert Tuttle, Treasury Department general counsel). Consequently, taxpayers who
lived in the collector’s judicial district had an advantage over those residing elsewhere.
Id. Congress sought to expand this benefit to all taxpayers. See id. at 2.
The only change S. 252 made to § 1346(a)(1) was to excise the two conditions for
district court jurisdiction (the $10,000 limit or the death of the tax collector), thereby
allowing all “internal-revenue tax” refund suits to be brought in district court. In effect,
S. 252 recognized that personal suits against the tax collector were a legal fiction, and
allowed those suits to be heard in their true form—as “a suit against the United States.”
S. 252 Hearings at 4 (statement of Mr. Tuttle). By converting tax actions from personal
suits against the collector into suits against the United States, S. 252 allowed the actions
to be brought in a taxpayer’s home district.
As S. 252’s limited purpose suggests, the bill was not intended to drastically alter
the type of claims that could be brought in federal courts. Rather, the bill merely changed
where those claims could be brought. After Pub. L. No. 83-559 was enacted, taxpayers
could file tax refund suits in their home districts, rather than being limited to the Court of
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Claims or the tax collector’s home district. But Pub. L. No. 83-559 was not intended to
provide “new substantive rights to the taxpayers; it simply makes it easier for them . . . to
sue in the jurisdiction in which they reside.” S. 252 Hearings at 4 (statement of J.G.
Sourwine, subcommittee counsel).
As this legislative history clarifies, S. 252 did not create any substantive rights that
did not exist before its enactment. Accordingly, the “substantive rights” granted by
§ 1346(a)(1), as amended by Pub. L. No. 83-559, go no further than the rights that existed
at common law against the tax collector. Moreover, the legislative history confirms that
the only “substantive right[],” S. 252 Hearings at 4, granted by § 1346(a)(1)—both before
and after its amendment—is the right to sue for a refund of taxes collected by the IRS or
the Bureau of Internal Revenue.
Reporting on S. 252, the House Committee on the Judiciary lists a personal suit
against the tax collector as one of the four ways “a Federal taxpayer who feels aggrieved
by a deficiency assessment against him may contest the Bureau of Internal Revenue’s
determination of a tax.” H.R. Rep. No. 83-659, at 1 (1953) (emphasis added). The
conference committee explained that S. 252 abolished “[t]he fiction that the [tax refund]
action is against an individual (i.e., the director or former director or former collector of
Internal Revenue).” H.R. Rep. No. 83-2276, at 2 (1954) (emphasis added). And the
Senate subcommittee report explains that the bill was proposed in response to the
reorganization of the Bureau of Internal Revenue, S. 252 Hearings at 2, and that the only
purpose of S. 252 is “to give the taxpayers throughout the country the same right that
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those taxpayers” who live in the same district as their Bureau of Internal Revenue tax
collector already possessed, S. 252 Hearings at 4, i.e., the right to bring a suit for
recovery of taxes that the Bureau of Internal Revenue illegally collected.
We are persuaded by this legislative history that, for purposes of district court
jurisdiction under 28 U.S.C. § 1346(a)(1), Congress intended the phrase “internal-
revenue tax” to mean taxes collected by the IRS. Suits for recovery of other fees and
taxes, even if they can be characterized as “internal revenue,” do not fall within the
statute’s ambit.
Although we announce this rule for the first time, we note that our interpretation
best harmonizes existing case law on § 1346(a)(1) and its interaction with related statutes.
First, by providing a uniform interpretation of the phrase “internal revenue” as between
§ 1346 and 26 U.S.C. § 7422, those statutes seamlessly interlock in the manner intended
by Congress. By using the same definition in both statutes, the provisions work together
to require that all tax refund claimants seeking relief in district court must first exhaust
their administrative remedies with the Secretary of the Treasury. The contrary
construction adopted in Horizon Coal and by the district court below would create a class
of claims over which district courts possessed jurisdiction regardless of exhaustion. See
42 F.3d at 239-40.
Further, our reading is consistent with case law from other jurisdictions
interpreting § 1346(a)(1)—with the exception of the aforementioned Sixth Circuit
analysis. The Internal Revenue Code provides that “[t]he Secretary [of the Treasury]
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shall collect the taxes imposed by the internal revenue laws.” 26 U.S.C. § 6301. We are
unable to find any case in which a district court refused § 1346(a)(1) jurisdiction over a
tax assessed under the Internal Revenue Code (and therefore within the IRS’ collection
authority). See, e.g., Pittston Co. v. United States, 199 F.3d 694, 701-02 (4th Cir. 1999)
(Coal Act premiums, 26 U.S.C. § 9701); Kaucky v. Sw. Airlines Co., 109 F.3d 349, 350
(7th Cir. 1997) (airline excise tax, 26 U.S.C. § 4261); Rue R. Elston Co. v. United States,
532 F.2d 1176, 1177 (8th Cir. 1976) (manufacturer excise tax, 26 U.S.C. § 4061); PNC
Bank, N.A. v. United States, No. 2:04CV1576, 2006 WL 1604678, at *1 (W.D. Pa. May
16, 2006) (unpublished) (federal telecommunications excise taxes, 26 U.S.C. § 4251);
Kanawha Dredging & Minerals Co. v. United States, No. 2:85-1306, 1987 WL 49371, at
*1 (S.D.W. Va. Dec. 1, 1987) (unpublished) (Black Lung excise tax, 26 U.S.C. § 4121).
In contrast, district courts have only refused § 1346(a)(1) jurisdiction for procedural
reasons, e.g., Flora, 362 U.S. at 146, or because the suit is not for a refund of taxes
collectible by the IRS. See, e.g., Murphy v. United States, 45 F.3d 520, 521, 523 (1st Cir.
1995) (claim regarding seizure of real estate); Cleveland Chair Co. v. United States, 526
F.2d 497, 499 (6th Cir. 1975) (action under Uniform Commercial Code); Dresser Indus.,
Inc. v. United States, 73 F. Supp. 2d 682, 692 (N.D. Tex. 1999) (claim for carry-forward
of tax credits); United States v. Raytown Lawnmower Co., 763 F. Supp. 411, 412-13
(W.D. Mo. 1991) (conversion and money received claims); DuPont Glore Forgan Inc. v.
Am. Tel. & Tel. Co., 428 F. Supp. 1297, 1307-08 (S.D.N.Y. 1977) (claim defendants
tortiously increased tax liability); Film Truck Serv., Inc. v. Nixon, 216 F. Supp. 77, 78
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(E.D. Mich. 1963) (property-seizure claim); cf. United States v. Tri-No Enters., Inc., 819
F.2d 154, 159 (7th Cir. 1987) (SMCRA reclamation fees are a form of excise tax, but are
not imposed by Subtitle D of the Internal Revenue Code and thus the Code’s statute of
limitations does not apply).
III
Unlike the majority opinion, which reads the pertinent statutory language as
ambiguous, the concurrence concludes the same language is unambiguous in agreeing
with the majority result. The concurrence provides an interesting and educational
elaboration of the history of the phrase “internal-revenue law,” but the majority declines
to incorporate the concurrence into its decision because it is well-established that, if an
act is unambiguous, that ends the matter and resort should not be had to the statutory
history. See United States v. Romero, 122 F.3d 1334, 1337 (10th Cir. 1997).
IV
Wyodak does not argue that the SMCRA reclamation fee is collected by the IRS.
Instead, it acknowledges that the fee is collected by OSM. Under the rule we announce
today, that ends the inquiry. 28 U.S.C. § 1346(a)(1) did not give the district court
jurisdiction over Wyodak’s claim, and Wyodak has not established an alternative basis
for district court jurisdiction. It must bring this claim in the Court of Federal Claims.
We VACATE the district court’s judgment and REMAND with orders to
DISMISS for lack of subject matter jurisdiction.
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09-8097, Wyodak Resources Dev. Corp. v. United States
GORSUCH, J., concurring.
I write separately because, to my mind, the plain language of 28 U.S.C.
§ 1346(a)(1) compels our decision to reverse. Section 1346(a)(1) gives district
courts the power to hear:
[a]ny civil action against the United States for the recovery of any
internal-revenue tax alleged to have been erroneously or illegally assessed
or collected, or any penalty claimed to have been collected without
authority or any sum alleged to have been excessive or in any manner
wrongfully collected under the internal-revenue laws.
Accordingly, there are only two ways the district court could’ve lawfully asserted
jurisdiction under § 1346(a)(1) to entertain Wyodak’s refund claim: if SMCRA
qualifies as an “internal-revenue law” or if SMCRA’s reclamation fee constitutes
an “internal-revenue tax.” 1 As it happens, neither of these conditions holds true,
and so I agree with my colleagues that the Court of Claims, not the district court,
is the appropriate forum for resolving this dispute.
To explain why this is so, I begin by examining what the terms “internal-
revenue tax” and “internal-revenue law” do and do not encompass as a matter of
1
Arguably, “any penalty claimed to have been collected without authority”
creates an additional route to jurisdiction, one that does not require a relationship
to either “internal-revenue taxes” or “internal-revenue laws.” Even assuming as
much, however, does not change the result, because at no point in this litigation
has Wyodak asserted that the reclamation fee is a penalty collected without
authority.
their plain meaning. I then turn to assess whether SMCRA’s reclamation fee falls
within either.
I
Beginning with the phrase “internal-revenue law,” it turns out that each of
those words had a specific and nuanced meaning when Congress wrote them into
§ 1346(a)(1)’s predecessor, the Revenue Act of 1921. See Flora v. United States,
357 U.S. 63, 65, 70 (1958) (noting that interpretation of § 1346 turns on the
meaning of these terms in 1921). Then (like now), there was substantial
disagreement about the distinction between constitutionally permissible taxes on
internal activity (allowed by Article I, § 8) and constitutionally impermissible
taxes on exports (enjoined by Article I, § 9). See, e.g., United States v. Hvoslef,
237 U.S. 1, 13 (1915); Thames & Mersey Marine Ins. Co. v. United States, 237
U.S. 19, 25 (1915); A.G. Spalding & Bros. v. Edwards, 262 U.S. 66 (1923);
United States v. Int’l Bus. Machs. Co., 517 U.S. 843, 846-49 (1996). And then
(like now), there was a brewing dispute over the role of Congress’s taxing power,
particularly whether certain congressional actions taking the guise of taxes were
actually regulations aimed at controlling private behavior — and, if so, whether
those actions exceeded Congress’s regulatory authority. See, e.g., Pace v.
Burgess, 92 U.S. 372, 376 (1875); Helwig v. United States, 188 U.S. 605, 610-11
(1903); Lipke v. Lederer, 259 U.S. 557, 561-62 (1922); Hill v. Wallace, 259 U.S.
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44, 67-69 (1922); Florida ex rel. McCollum v. U.S. Dep’t of Health and Human
Svcs., 716 F. Supp. 2d 1120, 1130 (N.D. Fla. 2010).
The distinctions along these two axes — between internal and external
taxes, on the one hand, and between revenue-raising taxes and regulatory fees, on
the other — often bore great consequence. Because of the constitutional
constraints on Congress’s regulatory power, hard-won social legislation often
could survive constitutional review only if it could convincingly invoke
Congress’s taxing authority. See, e.g., Child Labor Tax Case, 259 U.S. 20, 37-38
(1922) (penalty for employing child labor was not a tax). At the same time,
avoiding the “tax” category could be critical for complying with the Export
Clause. See, e.g., Pace, 92 U.S. at 375-76 (tobacco stamp fee not an
unconstitutional tax on exports). Congress was surely aware of these
contemporaneous contests over the scope of its taxing and regulatory powers.
And by choosing the term “internal-revenue tax,” the Legislature sought to pick a
side in and play off of both distinctions: internal as opposed to external; tax as
opposed to fee. Here, of course, there’s no question that SMCRA applies
internally. But much hinges on whether SMCRA is properly understood as
levying a tax or imposing a regulatory fee.
At the time Congress invoked this tax-fee distinction to limit the
jurisdiction of the district courts in § 1346(a)(1)’s predecessor statute, the
difference between a tax and a fee turned largely on legislative purpose. If a
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law’s purpose was to regulate private behavior, the costs imposed by it were
treated as fees — and so required justification under the legislature’s regulatory
authority. See 1 Thomas M. Cooley, The Law of Taxation § 27 (4th ed. 1924)
(“Duties, excises and license laws, having for their object the common benefit and
protection, and designed for the prevention or mitigation of evils, are not acts of
taxing power.”); Hill v. Kemp, 478 F.3d 1236, 1244 (10th Cir. 2007) (noting
distinction between tax and fee turned on purpose of the assessment and the use to
which the proceeds were put); see, e.g., Rhinehart v. State, 117 S.W. 508, 512-13
(Tenn. 1908) (holding fee on insurance contracts to create fund for investigating
fires was not a tax). Meanwhile, a charge imposed for the purpose of raising
general revenue was a tax, and so needed to be consistent with the sovereign’s
authorized taxing powers. See Cooley, supra, § 27 (“If revenue is the primary
purpose, the imposition is a tax.”); State ex rel. Wyatt v. Ashbrook, 55 S.W. 627,
629 (Mo. 1900) (department-store license fee was a tax because it bore no relation
to the preservation of the public health, morals, safety, or welfare); Village of
Lemont v. Jenks, 64 N.E. 362, 364 (Ill. 1902) (surcharge on public water supply
was a tax because it was imposed for the purpose of raising revenue). The
legislature’s choice of the word “tax” or “fee” might be indicative of a bill’s
purpose, but courts were willing to — and often did — look beyond the title of
the act to discern the legislature’s intentions. See Cooley, supra, § 37; Child
Labor Tax Case, 259 U.S. at 39; Wyatt, 55 S.W. at 629.
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The phrase “internal-revenue law” also carried a well-established meaning
in 1921. In fact, the term “revenue law” had long been used to circumscribe the
jurisdiction of federal courts. For example, Congress used the expression
“revenue law” back in 1844 when it sought to expand the Supreme Court’s
jurisdiction over tax appeals. Beginning in that year, the Supreme Court could
hear certain appeals without regard to the amount in dispute, but only when it
came to civil actions “for the enforcement of the revenue laws of the United
States.” Act of May 31, 1844, 5 Stat. 658; United States v. Hill, 123 U.S. 681,
684-85 (1887). And, even farther back, Congress had granted circuit courts
removal jurisdiction over suits against officers of the United States, but only if
the officer’s disputed conduct was under the color of “the revenue laws.” See Act
of Mar. 2, 1833, ch. 57, § 3, 4 Stat. 633; Cleveland, C., C. & I.R. Co. v. McClung,
119 U.S. 454, 460-61 (1886).
Given this history, it shouldn’t come as a surprise that federal courts had
the chance to define the term “revenue law” by 1921. As it turns out, the
Supreme Court had done so unequivocally and more than thirty years earlier:
[T]he term “revenue law,” when used in connection with the jurisdiction of
the courts of the United States, means a law imposing duties on imports or
tonnage, or a law providing in terms for revenue; that is to say, a law which
is directly traceable to the power granted to congress by section 8, art. 1, of
the constitution, “to lay and collect taxes, duties, imposts, and excises.”
Hill, 123 U.S. at 686 (1887); see also United States v. Mayo, 26 F. Cas. 1230,
1231 (C.C. Mass. 1813) (Story, J.) (defining revenue laws as “such laws as are
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made for the direct and avowed purpose for creating and securing revenue or
public funds for the service of the government”).
Given this definition, the relationship between the two prongs of
§ 1346(a)(1) turns out to be quite straightforward: an internal-revenue law is a
law that enacts an internal-revenue tax. See Cooley, supra, § 12 (“Any law which
provides for the assessment and collection of a tax to defray the expenses of
government is a revenue law.”) (internal quotation marks omitted). So, the
present question of jurisdiction under § 1346(a)(1) turns out to be a relatively
simple one: We need only determine whether the law at issue was enacted
pursuant to Congress’s power to tax or its power to regulate.
II
With this understanding of § 1346(a)(1)’s plain language in mind, it
becomes quickly evident that Congress was exercising its regulatory authority
when it passed SMCRA. The first clue comes from the declarations found in
SMCRA itself. The statute’s announced purpose is “to provide for cooperation
between the Secretary of the Interior and the States with respect to the regulation
of surface coal mining operations, and the acquisition and reclamation of
abandoned mines, and for other purposes.” Pub. L. No. 95-87, 91 Stat. 445
(1977). These “other purposes” turn out to be many but exactly none involves the
raising of revenue. See 30 U.S.C. § 1202. What’s more, Congress went to great
lengths to note the effects of surface mining on interstate commerce, see 30
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U.S.C. § 1201, and even limited certain provisions so that SMCRA would not
exceed Congress’s authority to regulate interstate commerce, see 30 U.S.C.
§ 1291(3) & (28)(A) — none of which would have been necessary, of course, if
Congress had simply wanted to pass a tax. And, if that weren’t a clear enough
indication of the Legislature’s idea, Congress used the term “fee” consistently and
throughout SMCRA. Emphatic in its silence, SMCRA contains not a single
reference to any federal tax.
Neither does this appear to have been a failure of vocabulary. To the
contrary, SMCRA stands in stark and telling contrast with another bill the same
Congress passed just six months later, the “Black Lung Benefits Revenue Act of
1977,” Pub. L. No. 95-227, 92 Stat. 11, codified at 26 U.S.C. § 4121 et seq. The
purpose of that Act, Congress proclaimed, was to “impose an excise tax on the
sale of coal.” Id. And it gets right to the point in doing so: “There is hereby
imposed . . . a tax.” Id. at §2(a). The name of the act, its declared purpose, and
its unequivocal use of the word “tax” leave little of Congress’s intent to question.
When it came to invoking its taxing power to raise revenue from mining
operations, Congress generally, and the 95th Congress in particular, plainly knew
how to do so.
Looking beyond form to substance only confirms that SMCRA is an act of
regulation, not taxation. SMCRA’s objective is plainly to “protect the
environment” by “assur[ing] that adequate procedures are undertaken to reclaim”
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surface mines. See 30 U.S.C. § 1202(d), (e). In service of this goal, SMCRA
imposes a fee on coal mining and commands that the resulting funds be used to
reduce and repair the damage caused by mining activities. See 30 U.S.C.
§ 1232(g). Some portion of the collected fees goes towards remedying past harms
— principally reclaiming surface mines abandoned prior to 1977. See
§§ 1232(g)(1), 1232(g)(3)(C), 1233(a)(1), and 1234. The balance of the collected
fees goes to avoiding new mining-related harms — funding emergency
reclamation projects, see §§ 1232(g)(3)(B) & 1240, subsidizing the costs of
complying with the regulation incurred by certain small-scale producers, see
§§ 1232(g)(3)(A) & 1257(c), and offsetting the expense of administering SMCRA
itself, see § 1232(g)(3)(D). But for all SMCRA does, providing for the general
revenue it does not. No portion of the assessment goes into the general bourse,
or, for that matter, towards any purpose other than ameliorating harms caused by
the mining industry. Cf. Hill v. Kemp, 478 F.3d at 1246 (specialty license plate
program was a tax because proceeds went to a wide array of public purposes
unrelated to the assessed activity).
Assessments of this sort, imposed on particular groups to offset the public
welfare harms their activities cause, were (at least in 1921) well-recognized as an
exercise of the sovereign’s regulatory, not taxing, authority. See Cooley, supra,
§ 28 (the police powers include the authority to levy fees on industries due to
their “special relation to property . . . or to business peculiarly troublesome or
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dangerous”); People v. Van Horn, 9 N.W. 246, 247 (Mich. 1881) (dog license fee
was not a tax because proceeds were reserved to compensate local sheep owners
for dog-related damage). In this case, Congress found that many mining
operations cause environmental harms that “adversely affect commerce and the
public welfare.” See 30 U.S.C. § 1201(c). SMCRA merely allocates the cost of
remedying those harms to the industry responsible for them — a classic use of
regulatory authority to protect the public welfare.
To be sure, for some of the time relevant to this litigation, the Secretary of
the Interior was authorized to transfer the interest earned on the reclamation fees
(and potentially a small amount of the fees themselves) to the United Mine
Workers of America Combined Benefit Fund. See “Energy Policy Act of 1992,”
Pub. L. 102-486, § 19143, 106 Stat. 2776, 3056. But even here the Secretary was
permitted to do so only for the purpose of funding the pension benefits of retired
miners — itself an effort to coordinate settlement of the industry’s collective
liabilities, not to enhance the general revenue. Besides and what’s more, even if
Congress had steered a modest portion of excess reclamation fees to other,
completely unrelated projects, that would not suffice to make their primary
purpose revenue-raising or otherwise convert them into taxes under the accepted
meaning of the term in 1921. See Cooley, supra, § 27 (“If the primary purpose of
the legislative body in imposing the charge is to regulate, the charge is not a tax
even if it produces revenue for the public.”); Rhinehart, 117 S.W. at 513 (“The
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provision that [] any surplus of the charge . . . shall be paid into the state treasury,
does not make that charge a tax for revenue.”). 2
Under the plain meaning of § 1346(a)(1), then, SMCRA isn’t a revenue
law. And its reclamation fee isn’t a tax. Accordingly, the district court had no
jurisdiction under § 1346(a)(1) to hear Wyodak’s lawsuit disputing its SMCRA
assessment, and Wyodak’s lawsuit should’ve been heard, if at all, only in the
Court of Claims. For this reason, I join the majority in remanding this case to the
district court with instructions to dismiss it.
2
Although the district court stated that “a plethora of decisions” had found
SMCRA’s coal reclamation fee to be a tax, in fact many of the cases the district
court cited do not actually decide whether SMCRA’s assessment is a tax or a fee.
For example, United States v. Tri-No Enters., Inc. merely held that the
reclamation fee was not a “civil fine, penalty, or forfeiture” for the purposes of a
statute of limitations. 819 F.2d 154, 158 (7th Cir. 1987). A penalty, of course, is
neither a tax nor a fee — and as such the Seventh Circuit didn’t have any reason
to consider the question. In fact, only two of the cases cited by the district court
seem to have actually decided whether SMCRA imposes a tax or a fee. Though
they both concluded it was a tax, however, neither did so for purposes of
§ 1346(a)(1). See United States v. River Coal, Co., 748 F.2d 1103, 1106-07 (6th
Cir. 1984) (reclamation fee not discharged under the repealed Bankruptcy Act of
1976); Consolidation Coal Co. v. United States, 64 Fed. Cl. 718, 732 (Fed. Cl.
2005), reversed and remanded on other grounds, 528 F.3d 1344 (Fed. Cir. 2008)
(reclamation fee a “tax” for purposes of the Export Clause). What’s more, neither
discussed the well-recognized principle that a valid regulatory fee could be
imposed on dangerous activities to offset the cost of protecting the public from
any resulting harms. But, as the question before us is limited to the scope of
§ 1346(a)(1), I express no opinion as to whether this common law principle,
though certainly forceful in 1921, is relevant to the interpretation of the word
“tax” in other contexts.
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Wyodak Resources Development Corp. v. United States
Court: Court of Appeals for the Tenth Circuit
Date filed: 2011-03-09
Citations: 637 F.3d 1127
Copy CitationsCombined Opinion