Bank of America Corporation v. United States

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.
______________________
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2 BANK OF AMERICA CORPORATION v. UNITED STATES OF
AMERICA
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
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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,
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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”).
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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
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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.
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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
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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,
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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 Ҥ 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
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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.”).
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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”).
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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)
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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.”).
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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
16 BANK OF AMERICA CORPORATION v. UNITED STATES OF
AMERICA
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