Case: 19-2357 Document: 39 Page: 1 Filed: 07/02/2020
United States Court of Appeals for the Federal Circuit ______________________
BANK OF AMERICA CORPORATION, Plaintiff-Appellee
v.
UNITED STATES OF AMERICA, Defendant-Appellant ______________________
2019-2357 ______________________
Appeal from the United States District Court for the Western District of North Carolina in Nos. 3:17-cv-00546- RJC-DSC, Chief Judge Robert James Conrad, Jr. ______________________
Decided: July 2, 2020 ______________________
TIMOTHY S. BISHOP, Mayer Brown, LLP, Chicago, IL, argued for plaintiff-appellee. Also represented by MARJORIE MARGOLIES; GEOFFREY M. COLLINS, Croton-on- Hudson, NY; BRIAN WRIGHT KITTLE, New York, NY.
NORAH BRINGER, Tax Division, United States Depart- ment of Justice, Washington, DC, argued for defendant-ap- pellant. Also represented by ELLEN PAGE DELSOLE, RICHARD E. ZUCKERMAN. ______________________ Case: 19-2357 Document: 39 Page: 2 Filed: 07/02/2020
Before LOURIE, LINN, and WALLACH, Circuit Judges. WALLACH, Circuit Judge. Appellee Bank of America Corporation (“Bank of Amer- ica”) filed a complaint against Appellant the United States (“Government”) in the U.S. District Court for the Western District of North Carolina (“District Court”), seeking, inter alia, interest on Federal tax overpayments arising under 26 U.S.C. § 6611. The Government moved to sever Bank of America’s overpayment interest claims exceeding $10,000 and to transfer them to the U.S. Court of Federal Claims or, alternatively, to dismiss them for lack of subject matter jurisdiction. The District Court denied the Government’s motion. See Bank of Am. Corp. v. United States (“Order”), No. 3:17-cv-546-RJC-DSC, 2019 WL 2745856, at *4 (W.D.N.C. July 1, 2019) (Order); see also Bank of Am. Corp. v. United States (“Recommendation”), No. 3:17-cv- 546-RJC-DSC, 2019 WL 1349687 (W.D.N.C. Jan. 10, 2019). The Government appeals. We have jurisdiction pursu- ant to 28 U.S.C. § 1292(d)(4)(A). We vacate and remand. BACKGROUND In January 2009, Bank of America acquired Merrill Lynch & Co., Inc. (“Merrill Lynch”). J.A. 13. In Octo- ber 2013, Merrill Lynch “merged with and into” Bank of America. J.A. 13. In September 2017, Bank of America filed a complaint against the Government in the District Court, J.A. 1217, which, as amended, sought to recover overpaid interest on Federal tax underpayments as well as additional interest on Federal tax overpayments arising under 26 U.S.C. §§ 6601 and 6611, respectively, J.A. 10–22 (Third Amended Complaint); see 26 U.S.C. §§ 6601(a) (“If any amount of tax . . . is not paid . . . , interest on such amount . . . shall be paid for the period from such last date to the date paid.”), 6611(a) (“Interest shall be allowed and paid upon any overpayment in respect of any internal rev- enue tax[.]”). Relevant here, Bank of America sought to Case: 19-2357 Document: 39 Page: 3 Filed: 07/02/2020
BANK OF AMERICA CORPORATION v. UNITED STATES OF 3 AMERICA
recover additional overpayment interest arising from Fed- eral tax overpayments made by Merrill Lynch (“the Merrill Lynch overpayment interest claims”). J.A. 10–11. In September 2018, the Government moved to sever the Merrill Lynch overpayment interest claims exceeding $10,000, and requested that the District Court transfer them to the Court of Federal Claims or, alternatively, dis- miss them for lack of subject matter jurisdiction. J.A. 1093–94; see J.A. 1088–114 (Brief in Support of Motion to Transfer or, in the Alternative, to Dismiss for Lack of Subject Matter Jurisdiction), 1117 (“Table Summarizing Relief Requested”). 1, 2
1 The parties distinguish overpayment interest claims “that accompany tax refund claims,” from those “for interest only,” the latter of which the parties refer to as “stand-alone” overpayment interest claims. Appellant’s Br. 1–2 n.1; see, e.g., id. at 1; Appellee’s Br. 3. While it is unclear from the record whether all of the Merrill Lynch overpayment interest claims are “stand-alone” claims, see J.A. 18 (Bank of America explaining only that “[t]he amounts sought in [its] Third Amended Complaint do not include” “certain refunds for Merrill Lynch” (emphasis added)), the parties agree that each of the overpayment in- terest claims sought to be severed by the Government, is a “stand-alone” claim, see Appellant’s Br. 1; Appellee’s Br. 3. 2 Presumably, the Government did not move to transfer or dismiss the Merrill Lynch overpayment interest claims not exceeding $10,000, based on the Government’s understanding that district courts have jurisdiction con- current with the Court of Federal Claims over overpay- ment interest claims not exceeding $10,000. See Appellant’s Br. 1–2 n.1 (asserting that “[u]nder 28 U.S.C. § 1346(a)(2), overpayment interest claims not exceeding $10,000 may be brought in district court”); id. at 8 (similar); see also 28 U.S.C. § 1346(a)(2) (providing, in relevant part, Case: 19-2357 Document: 39 Page: 4 Filed: 07/02/2020
In January 2019, the Magistrate Judge assigned to the case found that “[t]he weight of authority . . . has upheld” the conclusion that district courts have “subject matter ju- risdiction over overpayment interest claims pursuant to 28 U.S.C. § 1346(a)(1)[,]” Recommendation, 2019 WL 1349687, at *2 (citing E.W. Scripps Co. v. United States, 420 F.3d 589, 596–97, 598 (6th Cir. 2005)), and recom- mended that the Government’s Motion be denied, id. at *3. In July 2019, the District Court affirmed and adopted the Magistrate Judge’s recommendation, and denied the Gov- ernment’s Motion. Order, 2019 WL 2745856, at *4. DISCUSSION The sole issue on appeal is whether 28 U.S.C. § 1346(a)(1) provides district courts with jurisdiction over “stand-alone” overpayment interest claims exceeding $10,000. See Appellant’s Br. 1; Appellee’s Br. 3; see also Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1039 (Fed. Cir. 2016) (en banc) (explaining that our “function [i]s lim- ited to deciding” only those “issues raised on appeal by the parties”). Because the plain language of § 1346(a)(1) ex- cludes overpayment interest claims, we hold that it does not. I. Standard of Review and Legal Standard “Under 28 U.S.C. § 1292(d)(4)(A), our jurisdiction is re- stricted to a review of [a] district court’s denial of [a] motion to transfer . . . to the Court of Federal Claims. We conduct this review de novo.” Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303, 1307 (Fed. Cir. 2007) (footnote omitted); see 28 U.S.C. § 1292(d)(4)(A) (providing, in relevant part, that
that “district courts shall have original jurisdiction, concur- rent with the . . . Court of Federal Claims, of . . . [a]ny other civil action or claim against the United States, not exceed- ing $10,000 in amount, founded . . . upon any Act of Con- gress”). Case: 19-2357 Document: 39 Page: 5 Filed: 07/02/2020
BANK OF AMERICA CORPORATION v. UNITED STATES OF 5 AMERICA
we “have exclusive jurisdiction of an appeal from an inter- locutory order of a district court of the United States . . . granting or denying, in whole or in part, a motion to trans- fer an action to the . . . Court of Federal Claims”). “Statutory interpretation is an issue of law that we re- view de novo.” Power Integrations, Inc. v. Semiconductor Components Indus., LLC, 926 F.3d 1306, 1313 (Fed. Cir. 2019) (citation omitted). “When [construing] any stat- ute, we look first to the statutory language.” Strategic Hous. Fin. Corp. of Travis Cty. v. United States, 608 F.3d 1317, 1323 (Fed. Cir. 2010) (citing Jimenez v. Quarterman, 555 U.S. 113, 118 (2009); Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)); see Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017) (“We . . . begin and end our inquiry with the text, giving each word its ‘ordinary, contemporary, common meaning.’” (quoting Walters v. Metro. Ed. Enters., Inc., 519 U.S. 202, 207 (1997))). If the statutory language is clear, “and the legislative history does not show that congressional intent was clearly con- trary to the section’s apparent meaning, th[e] meaning of the statute controls, and there is nothing else for us to re- view.” DeCosta v. United States, 987 F.2d 1556, 1558 (Fed. Cir. 1993) (footnote and citation omitted). Our construc- tion “must,” however, “to the extent possible, ensure that the statutory scheme is coherent and consistent.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008). “If a taxpayer overpays its taxes, the [Internal Revenue Service (‘IRS’)] owes the taxpayer interest on that amount[.]” Energy E. Corp. v. United States, 645 F.3d 1358, 1359 (Fed. Cir. 2011); see 26 U.S.C. § 6611(a). Dis- trict courts have original jurisdiction, concurrent with the . . . Court of Federal Claims, of . . . [a]ny civil action against the United States for the recovery of any internal-revenue tax alleged to have been errone- ously or illegally assessed or collected, or any Case: 19-2357 Document: 39 Page: 6 Filed: 07/02/2020
penalty claimed to have been collected without au- thority 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). II. The District Court Improperly Concluded that 28 U.S.C. § 1346(a)(1) Provides Districts Courts with Jurisdiction over Overpayment Interest Claims The District Court concluded that 28 U.S.C. § 1346(a)(1) provides district courts with jurisdiction over overpayment interest claims. See Order, 2019 WL 2745856, at *1. The District Court found the U.S. Court of Appeals for the Sixth Circuit’s “rationale in Scripps [to be] persuasive[,]” id. at *2 (citing Scripps, 420 F.3d at 597), and like “most courts that have considered the issue[,]” de- termined that “the broad language of § 1346(a)(1)—specif- ically the phrase ‘any sum’—includes overpayment interest[,]” id. Thus, the District Court concluded, with minimal additional analysis, that it had jurisdiction over the Merrill Lynch overpayment interest claims, including those exceeding $10,000. See id. at *4. 3 The Government contends that the District Court erred, however, as “Scripps rests on flawed reasoning[,]”and instead argues that we should adopt the U.S. Court of Appeals for the Sec- ond Circuit’s rationale in Pfizer Inc. v. United States, 939 F.3d 173 (2d Cir. 2019), to reach the opposite conclusion, Appellant’s Br. 26–27. For all the reasons discussed below, we agree with the Government.
3 Although asked repeatedly to explain the lack of analysis in the District Court’s Order, counsel for Bank of America failed to provide any explanation. See Oral Arg. at 18:43–21:05, http://oralarguments.cafc.uscourts.gov/de- fault.aspx?fl=2019-2357.mp3. Case: 19-2357 Document: 39 Page: 7 Filed: 07/02/2020
BANK OF AMERICA CORPORATION v. UNITED STATES OF 7 AMERICA
A. The Plain Language of 28 U.S.C. § 1346(a)(1) Excludes Overpayment Interest Claims When interpreting a statute, we begin with the statu- tory language. See Strategic Hous., 608 F.3d at 1323. To fall within the scope of § 1346(a)(1), Bank of America’s overpayment interest claims must be an “action . . . for the recovery” of one of three things: (1) an “internal-revenue tax alleged to have been erroneously or illegally assessed or collected”; (2) a “penalty claimed to have been collected without authority”; or (3) “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). We agree with the Second Circuit’s analysis in Pfizer—and neither party disputes—that “[t]he first two categories listed in § 1346(a)(1) plainly do not apply in this case[,]” as overpay- ment interest claims are neither an “internal-revenue tax” nor a “penalty.” Pfizer, 939 F.3d at 176; see id. at 176–77. See generally Appellant’s Br.; Appellee’s Br. Turning to the third category of § 1346(a)(1), again, we agree with the Second Circuit, and conclude that the plain language of the statute dictates that this category—and particularly the term “any sum”—refers to amounts that have been previously paid to, or collected by, the IRS, which excludes overpayment interest. See Pfizer, 939 F.3d at 178 (“Th[e] statute contemplates an amount of money— a ‘sum’—previously assessed or retained by the [G]overn- ment[.]”); id. at 179 (“Overpayment interest is not such an amount, and so it does not fall with the meaning of ‘any sum[.]’”). The text of § 1346(a)(1) requires that the “sum” sought to be recovered must “have been excessive or . . . wrongfully collected[.]” 28 U.S.C. § 1346(a)(1) (emphasis added). Congress’s use of the present-perfect tense “have been,” “indicates that the ‘sum’ must have been ‘excessive’ or ‘wrongfully collected’ at some point in the past[.]” Pfizer, 939 F.3d at 179; see THE CHICAGO MANUAL OF STYLE § 5.132 (17th ed. 2017) (“The present-perfect tense . . . denotes an act, state, or condition that is now completed or continues Case: 19-2357 Document: 39 Page: 8 Filed: 07/02/2020
up to the present[.]”). Additionally, while the term “any sum” “in isolation” may be “susceptible of multiple and wide-ranging meanings[,]” in the context of § 1346(a)(1), the term is properly “narrowed by the commonsense canon of noscitur a sociis—which counsels that a word is given more precise content by the neighboring words with which it is associated.” United States v. Williams, 553 U.S. 285, 294 (2008). Specifically, “any sum” is recited within § 1346(a)(1) as the last in a list of “terms that plainly refer to amounts [a] taxpayer has previously paid[,]” namely, taxes and penalties as recited in the first two categories of § 1346(a)(1). Pfizer, 939 F.3d at 178–79. Construing “any sum” “in harmony with these more specific terms” thus re- inforces the conclusion that “any sum” refers to an amount that has been “excessive” or “wrongfully collected” at some point in the past. Id. at 178. Accordingly, the plain lan- guage of § 1346(a)(1) dictates that the term “any sum” re- fers to amounts that have been previously paid to, or collected by, the IRS, which, overpayment interest “[b]y its nature, . . . is not[.]” Id. at 179; see Int’l Bus. Machines Corp. v. United States, 201 F.3d 1367, 1372 (Fed. Cir. 2000) (“If th[e] language [of the statute] is clear and unambigu- ous, then it controls[.]”). B. The Plain Meaning of 28 U.S.C. § 1346(a)(1) Is Consistent with the Tax Code’s Broader Statutory Scheme The conclusion that § 1346(a)(1) does not cover over- payment interest claims is consistent with the tax code’s broader statutory scheme, see Ali, 552 U.S. at 222, partic- ularly the tax code’s disparate treatment of overpayment interest, see Alexander Proudfoot Co. v. United States, 454 F.2d 1379, 1384 (Ct. Cl. 1972) (explaining that the “[tax] [c]ode deals quite differently with . . . interest payable by the Government on overpayments”). For example, while the tax code explicitly provides that underpayment interest is to be treated as a tax, see 26 U.S.C. § 6601(e)(1) (entitled, “Interest treated as tax[,]” and providing, in relevant part, that underpayment interest “shall be assessed, collected, Case: 19-2357 Document: 39 Page: 9 Filed: 07/02/2020
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and paid in the same manner as taxes”), the code grants no similar consideration to overpayment interest, see, e.g., id. § 6611(a) (providing that “[i]nterest shall be allowed and paid upon any overpayment in respect of any internal rev- enue tax” without requiring that such interest be treated as a tax). Additionally, while the tax code prescribes a lim- itations period within which a claim for credit or refund, including claims for underpayment interest, must be filed, see id. § 6511(a) (providing a limitations period for filing a “[c]laim for credit or refund of an overpayment of any tax imposed”); see also United States v. Dalm, 494 U.S. 596, 601 (1990) (explaining that “§ 1346(a)(1) must be read in conformity with” § 6511(a)), no such limitations period is provided for the recovery of overpayment interest. Instead, overpayment interest claims are governed by “the general six-year [limitations period] that applies to suits against the [G]overnment[.]” Gen. Elec. Co. & Subsidiaries v. United States, 384 F.3d 1307, 1312 (Fed. Cir. 2004); see 28 U.S.C. § 2401(a) (providing that “every civil action com- menced against the United States shall be barred unless the complaint is filed within six years after the right of ac- tion first accrues”). Finally, the Supreme Court has instructed that § 1346(a)(1) “must [also] be read in conformity with” 26 U.S.C. § 7422(a). Dalm, 494 U.S. at 601. Sec- tion 7422(a) recites language identical to that at issue in § 1346(a)(1). 4 As the District Court noted, “a plain reading
4 Section 7422(a) provides that [n]o suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally as- sessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any man- ner wrongfully collected, until a claim for refund or Case: 19-2357 Document: 39 Page: 10 Filed: 07/02/2020
of the qualifying header in § 7422(a)—‘No suit prior to fil- ing claim for refund’—explicitly limits [the statute] to re- fund suits.” Order, 2019 WL 2745856, at *3. While the District Court found it significant “that § 1346(a)(1) in- cludes no such heading[,]” id., we find Congress’s use of identical language more telling, see Sorenson v. Sec’y of the Treasury., 475 U.S. 851, 860 (1986) (“The normal rule of statutory construction assumes that identical words used in different parts of the same act are intended to have the same meaning.” (internal quotation marks and citation omitted)); see also Caminetti v. United States, 242 U.S. 470, 489 (1917) (explaining that “the title of an act cannot over- come the meaning of plain and unambiguous words used in its body”). Accordingly, the conclusion that § 1346(a)(1) does not cover overpayment interest claims is consistent with the tax code’s broader statutory scheme. 5
credit has been duly filed with the Secretary, ac- cording to the provisions of law in that regard, and the regulations of the Secretary established in pur- suance thereof. 26 U.S.C. § 7422(a) (emphasis added). 5 Apart from the tax code, Congress requires district courts to allow overpayment interest “[i]n any judgment” awarding a refund for tax overpayment. 28 U.S.C. § 2411. Thus, if § 1346(a)(1) were construed to cover overpayment interest claims, which, by definition, include overpayment interest claims that accompany tax refund claims, § 2411 would be rendered essentially superfluous. See Ishida v. United States, 59 F.3d 1224, 1230 (Fed. Cir. 1995) (“The rules of statutory construction require a reading that avoids rendering superfluous any provision of a statute.”). Case: 19-2357 Document: 39 Page: 11 Filed: 07/02/2020
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C. The Legislative History of 28 U.S.C. § 1346(a)(1) Does Not Clearly Contradict the Plain Meaning of the Statute 6 Turning to the legislative history of § 1346(a)(1), we discern “no ‘clearly expressed legislative intent . . . ’ that would warrant a different construction” than that dictated by the statute’s plain language. Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 261 (1994) (quoting Reves v. Ernst & Young, 507 U.S. 170, 177 (1993)); see DeCosta, 987 F.2d at 1558. Rather, the legislative history is, at best, am- biguous, lacking any “clear expression” of congressional in- tent to include overpayment interest claims within the scope § 1346(a)(1). Aaron v. Sec. & Exch. Comm’n, 446 U.S. 680, 697 (1980); see Milner v. Dep’t of Navy, 562 U.S. 562, 572 (2011) (“We will not . . . allow[] ambiguous legislative history to muddy clear statutory language.”). During a hearing before a subcommittee (“the Subcom- mittee”) of the U.S. Senate Committee on the Judiciary, a witness raised the question of whether Congress should further amend § 1346(a)(1) to include overpayment inter- est claims. See Civil Actions in District Courts to Recover Taxes: Hearing Before a Subcommittee of the S. Comm. on the Judiciary on S. 252 (“Senate Hearing”), 83rd Cong. 12 (1953) (statement of J. G. Sourwine, counsel to the Subcom- mittee) (“[T]here is a question involved of whether there should be an amendment of [the] statute . . . , in order to cover . . . th[e] . . . authority to sue for interest withheld[.]”).
6 “Although we do not believe the statutory language [of § 1346(a)(1)] is ambiguous, we nonetheless consider the legislative history” addressed by the parties on appeal. California v. Am. Stores Co., 495 U.S. 271, 285 (1990). Compare Appellant’s Br. 54–58 (arguing that “[t]he legis- lative history supports limiting § 1346(a)(1) to refund claims”), with Appellee’s Br. 35–43 (arguing that “[t]he leg- islative history of [§] 1346(a)(1) confirms that it grants ju- risdiction for overpayment interest claims”). Case: 19-2357 Document: 39 Page: 12 Filed: 07/02/2020
The Subcommittee, however, left this question unan- swered. Indeed, despite recommendations to “redraft[]” § 1346(a)(1) to make the statute’s scope—and thus, Con- gress’s intent—“clear” concerning the inclusion of claims for interest, Senate Hearing at 11 (statement of W. A. Suth- erland, on behalf of the Tax Section, American Bar Associ- ation); see, e.g., id. (statement of W. A. Sutherland) (expressing his desire to “see [§ 1346(a)(1)] broadened . . . to cover” interest claims by the use of “some other” lan- guage), 14 (statement of George H. Foster) (proposing that “a suit for . . . interest . . . might be . . . covered” under § 1346(a)(1) “with [the] language . . . used to confer juris- diction on the Court of Claims”), the statute was not fur- ther amended. Whether the Subcommittee “thought the[se] [recommendations] unwise . . . or unnecessary, we cannot tell; accordingly, no inference can properly be drawn from [its] failure . . . to act.” United States v. Price, 361 U.S. 304, 312 (1960). On appeal, much of Bank of America’s arguments con- cern the import of witness testimony before the Subcom- mittee. See, e.g., Appellee’s Br. 21–23, 40–41. “Such testimony[,]” however, “should not be accorded undue weight as an indication of legislative intent, . . . since the views expressed by witnesses at congressional hearings are not necessarily the same as those of the legislators ulti- mately voting on the bill.” Austasia Intermodal Lines, Ltd. v. Fed. Mar. Comm’n, 580 F.2d 642, 645 (D.C. Cir. 1978) (citing McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 493–94 (1931) (explaining that “statements . . . made to committees of Congress . . . are without weight in the interpretation of a statute”)). 7 Moreover, the witness
7 To the extent Bank of America relies on statements of a legislator, those statements are irrelevant to the issue raised on appeal. See Appellee’s Br. 8–10 (quoting 61 CONG. REC. 7444, 7506 (1921) (statement of Sen. Jones) Case: 19-2357 Document: 39 Page: 13 Filed: 07/02/2020
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testimony on which Bank of America relies is inconclusive, with the witnesses disagreeing as to the relevant scope of § 1346(a)(1). Compare, e.g., Senate Hearing at 14 (state- ment of W. A. Sutherland) (explaining that he could “hardly see how” a taxpayer could bring a claim for recov- ery of interest in a district court “under the language of the statute”), with id. (statement of Maso B. Leming, Assistant Chief Counsel, Bureau of Internal Revenue) (agreeing that under the language of § 1346(a)(1) “a taxpayer could bring his action for the recovery of interest”). Bank of America also overstates the significance of a letter sent to the Sub- committee, see Appellee’s Br. 15, 22, purporting to show that district courts had previously exercised jurisdiction over “a number of suits . . . for interest[,]” Senate Hearing at 12 (statement of Maso B. Leming). In fact, the letter
(not addressing stand-alone overpayment interest claims, but explaining, in relevant part, that he proposed to amend the jurisdictional provision that is now § 1346(a)(1), to “remedy th[e] situation” caused by the Supreme Court’s de- cision in Smietanka v. Indiana Steel Co., 257 U.S. 1 (1921), holding that a suit against a deceased tax collector could not be maintained, “by providing that . . . claimant[s] may sue the United States” in district courts)); see also Flora v. United States, 357 U.S. 63, 71–72 (1960) (explaining that the “narrow-stated purpose” of Senator Jones’s proposed amendment “refutes any suggestion that Congress in- tended . . . to expand or even to restate the jurisdiction of . . . [d]istrict [c]ourt[s] in refund suits”). Additionally, the statements cited by Bank of America concern “the views of [only] a single legislator,” which “are not control- ling.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 385 (2012); see Consumer Prod. Safety Comm’n v. GTE Sylva- nia, Inc., 447 U.S. 102, 118 (1980) (“[O]rdinarily even the contemporaneous remarks of a single legislator who spon- sors a bill are not controlling in analyzing legislative his- tory.”). Case: 19-2357 Document: 39 Page: 14 Filed: 07/02/2020
identified only six cases concerning claims “for the recovery of interest[.]” Senate Hearing at 13. Of these six cases, the “district court declined jurisdiction” in two them, and of the remaining four cases, the letter acknowledged that in “only [two] cases . . . was the [c]ourt’s jurisdiction questioned.” Id. In a first of these two cases, the letter explained that the district court “assumed jurisdiction” under a since-su- perseded statute, and that in the second, the district court “entertained jurisdiction” under a different subsection en- tirely, namely, 28 U.S.C. § 1346(a)(2). Id. The letter is, at best, unhelpful. In sum, on this record, we discern “no . . . ‘clearly ex- pressed legislative intent . . . contrary’” to the plain lan- guage of § 1346(a)(1). Scheidler, 510 U.S. at 261 (quoting Reves, 507 U.S. at 177); see DeCosta, 987 F.2d at 1558; see also Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 634 n.9 (2018) (“Although the parties paint dueling portraits of the legislative history, the murky waters of the Congres- sional Record do not provide helpful guidance in illuminat- ing Congress’s intent in this case.”). Accordingly, the plain meaning of § 1346(a)(1) controls. See Aaron, 446 U.S. at 697; Milner, 562 U.S. at 572. D. The District Court’s Reliance on Scripps Was Misplaced The District Court’s reliance on Scripps was misplaced. In Scripps, the Sixth Circuit did not engage in the “word- by-word analysis” we endorsed when construing the iden- tical language of § 7422(a). Strategic Hous., 608 F.3d at 1326; see id. (explaining that “[a] word-by-word analy- sis” of § 7422(a) “demonstrates that a claim to recover an arbitrage rebate would be a claim to recover ‘any sum al- leged to have been excessive or in any manner wrongfully collected’”). Instead, the Sixth Circuit considered the phrase “excessive sum,” which is not used in the entirety of § 1346. See Scripps, 420 F.3d at 597 (“Moreover, the ‘exces- sive sum’ phrase does encompass suits seeking recovery of Case: 19-2357 Document: 39 Page: 15 Filed: 07/02/2020
BANK OF AMERICA CORPORATION v. UNITED STATES OF 15 AMERICA
statutory interest on overpayments . . . . If the Government does not compensate the taxpayer for the time-value of the tax overpayment, the Government has retained more money than it is due, i.e., an ‘excessive sum.’” (emphases added)); see also 28 U.S.C. § 1346(a)(1) (providing district courts with jurisdiction over “any sum alleged to have been excessive[,]”not over any “excessive sum” (emphasis added)). Moreover, as the Second Circuit recognized in Pfizer, the Sixth Circuit’s conclusion in Scripps—as with Bank of America’s arguments on appeal—is based, in large part, on an incorrect reading of Flora v. United States (“Flora II”), 362 U.S. 145 (1960). In Flora II, the Supreme Court ex- plained that “‘any sum,’ instead of being related to ‘any in- ternal-revenue tax’ and ‘any penalty,’ may refer to amounts which are neither taxes nor penalties[,]” and that “[o]ne ob- vious example of such a ‘sum’ is interest.” Id. at 149 (em- phasis added); see Scripps, 420 F.3d at 597 (stating that, in Flora II, the “the Supreme Court [held] that the term ‘any sum’ includes interest”). We agree with the Second Circuit, however, that “[r]ead properly,” the Supreme Court in Flora II “plainly had additional tax assessments in view when it mention[ed] ‘interest’ as a ‘sum’ under § 1346(a)(1).” Pfizer, 939 F.3d at 178. Indeed, the Supreme Court found “it . . . significant that many old tax statutes described the amount which was to be assessed under cer- tain circumstances as a ‘sum’ to be added to the tax, simply as a ‘sum,’ as a ‘percentum,’ or as ‘costs.’” Flora II, 362 U.S. at 149–50 (emphasis added). Thus, “Flora [II] is inapplica- ble to the question we face.” Pfizer, 939 F.3d at 177. Accordingly, the District Court improperly concluded that § 1346(a)(1) provided it with jurisdiction over the Mer- rill Lynch overpayment interest claims. Rather, the Court of Federal Claims has exclusive jurisdiction over those claims, see 28 U.S.C. § 1491(a)(1) (providing, in relevant part, that “[t]he . . . Court of Federal Claims shall have ju- risdiction to render judgment upon any claim against the Case: 19-2357 Document: 39 Page: 16 Filed: 07/02/2020
United States founded . . . upon . . . any Act of Congress”); cf. Gen. Elec., 384 F.3d at 1312 (explaining that overpay- ment interest is “a general debt of the [G]overnment, which is not subject to the special rules associated with the ad- justment and collection of obligations under the tax laws”), and therefore, those claims must be severed and trans- ferred. CONCLUSION We have considered Bank of America’s remaining ar- guments and find them unpersuasive. Accordingly, the Or- der of the U.S. District Court for the Western District of North Carolina is VACATED AND THE CASE IS REMANDED