BROWN, Circuit Judge:
After illegally collecting a three percent excise tax, the Internal Revenue Service ("IRS" or "the Service") created a refund procedure for taxpayers to recoup their money. That procedure, Appellants argue, is unlawful. We have no occasion to visit the merits of Appellants' claims, as we granted rehearing en banc only to determine whether we have the authority to hear the case. We do.
The Internal Revenue Code imposes a three percent excise tax on phone calls. 26 U.S.C. § 4251. Telephone service providers collect the tax and pay it over to the IRS. See id. § 4291. Individual taxpayers
Multiple corporate taxpayers brought refund suits claiming the excise tax was illegal and several circuits, including this one, concluded time-only rate structures render calls nontaxable under the Code. Nat'l R.R. Passenger, 431 F.3d at 375-76. While these lawsuits proceeded, the IRS remained adamant regarding the continuing applicability of the excise tax. After it lost an appeal in the Eleventh Circuit, see Am. Bankers Ins. Group v. United States, 408 F.3d 1328 (11th Cir.2005), the Service declared it would continue to litigate the applicability of the tax and directed phone service providers to continue collecting the tax, even from individuals in the Eleventh Circuit's jurisdiction. Notice 2005-79. The IRS further ordered taxpayers to continue paying the tax, but permitted place-holder refund claims "for overpayments." Id. Taxpayers were advised, however, the Service would not process place-holder refund claims while related cases remained pending in federal courts of appeals. Id.
The IRS lost in each of the five circuits that considered its application of § 4251. All held the tax inapplicable to long-distance rates calculated without reference to distance. Reese Bros., Inc. v. United States, 447 F.3d 229, 231 (3d Cir.2006); Fortis, Inc. v. United States, 447 F.3d 190, 191 (2d Cir.2006); Nat'l R.R. Passenger, 431 F.3d at 374; OfficeMax, Inc. v. United States, 428 F.3d 583, 585 (6th Cir.2005); Am. Bankers Ins. Group, 408 F.3d at 1338. On May 26, 2006, after the last of these rulings came down, the IRS issued Notice 2006-50, discontinuing the excise tax for phone charges based solely on transmission time. See I.R.S. Notice 2006-50, 2006-1 C.B. 1141 ("Notice 2006-50").
Notice 2006-50 provided a one-time exclusive mechanism for taxpayers to obtain a refund for excise taxes erroneously collected between February 28, 2003, and August 1, 2006.
Various lawsuits challenged the lawfulness and adequacy of the refund process. See In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig., 469 F.Supp.2d 1348 (J.P.M.L.2006) (Transfer Order). The Multidistrict Litigation ("MDL") Panel consolidated and transferred three district court cases, Cohen, Sloan, and Gurrola into an MDL proceeding before the United States District Court for the District of Columbia. Id. at 1350. In each of the three consolidated suits, Appellants purported to represent a class of taxpayers who lacked the resources or expertise necessary to individually seek a refund under Notice 2006-50, or amounts at stake sufficient to make individual actions worthwhile.
The district court dismissed the cases after concluding Appellants failed to exhaust the administrative remedies for their refund claims and failed to state valid claims under federal law. In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig., 539 F.Supp.2d 281, 287 (D.D.C.2008) ("[N]o refund claim, no refund suit."). That court further found Notice 2006-50 was an "internal policy," did not adversely affect Appellants, and therefore constituted unreviewable agency action. Id.; see 5 U.S.C. § 702; Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154,
A divided panel of this court reversed, holding Notice 2006-50 constituted final agency action reviewable under the APA. Cohen, 578 F.3d 1, 4-14 (D.C.Cir.2009). Before doing so, the majority rejected two challenges to the court's jurisdiction. In the majority's view, neither the Anti-Injunction Act ("AIA"), which provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person," 26 U.S.C. § 7421(a), nor the Declaratory Judgment Act ("DJA"), which authorizes declaratory relief except "with respect to Federal taxes," 28 U.S.C. § 2201(a), stripped the court of jurisdiction to hear Appellants' claims for equitable relief. Cohen, 578 F.3d at 5. Although the text of the AIA and DJA differ, the majority reasoned, our circuit precedent held the two "coterminous." Id. Thus, if one did not bar Appellants' APA claims, neither did the other. Id. at 13 (citing "Americans United" Inc. v. Walters, 477 F.2d 1169, 1176 (D.C.Cir.1973), rev'd on other grounds sub nom. Alexander v. "Americans United" Inc., 416 U.S. 752, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974) ("The breadth of the tax exception of [the DJA] is co-extensive with the effect of [the AIA], and so the applicability of the latter to our situation is determinative of jurisdiction.")).
The panel dissent, on the other hand, argued the DJA barred Appellants' APA claims. In the dissent's view, our precedent required the AIA and DJA to be read coterminously, but permitted us to select the broader of the two provisions as the baseline. As between the two, the dissent argued "reading the two statutes to coterminously bar declaratory and injunctive relief with respect to federal taxes is consistent with precedent, adheres to the plain text of the later-enacted [DJA], and corresponds to the well-established principle that challenges to tax regulations should be brought in refund suits." Id. at 18 (Kavanaugh, J., dissenting). The dissent also argued Appellants' claims were not ripe because Appellants had not filed refund requests under Notice 2006-50. Id. at 20 (citing Stephenson v. Brady, 927 F.2d 596 (table), 1991 WL 22835, at *1, 1991 U.S.App. LEXIS 2886, at *4 (4th Cir.1991) (per curiam)).
On September 21, 2009, the IRS petitioned the court for rehearing en banc. We granted the petition, limiting our en banc review to four questions, all concerning (1) whether we have jurisdiction and (2) whether Appellants state a valid claim upon which relief may be granted. Our review is de novo. Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253 (D.C.Cir.2008).
We address jurisdiction first. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). In that regard, two different questions are pertinent: Does section 10(a) of the APA, 5 U.S.C. § 702, waive sovereign immunity with respect to Appellants' claims, and does the AIA, DJA, or both provide "other limitations on judicial review?" 5 U.S.C. § 702.
Our jurisdiction extends generally to cases and controversies involving questions of federal law. 28 U.S.C. § 1331. The APA — a federal law — provides a "generic cause of action in favor of persons aggrieved by agency action," though it is not an independent source of jurisdiction. Md. Dep't of Human Res. v. Dep't of Health & Human Servs., 763 F.2d 1441, 1445 n. 1 (D.C.Cir.1985); cf. Natural Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 318 (D.C.Cir.1988) ("Congress has seen fit to provide broadly for judicial review of those actions, affecting as they do the lives and liberties of the American people. This is fully in keeping with fundamental notions in our policy that the exercise of governmental power, as a general matter, should not go unchecked."); Trudeau, 456 F.3d at 183 ("[T]he APA does not afford an implied grant of subject matter jurisdiction permitting federal judicial review of agency action.") (quoting Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
In contrast, "[s]overeign immunity is jurisdictional" and "[a]bsent a waiver,... shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Appellants, who seek only equitable relief, argue Congress provided the necessary waiver of immunity in § 702, which reads in part:
5 U.S.C. § 702. We agree. Even construing § 702 "strictly," as the Service requests, see Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260-61, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999), there is no doubt Congress lifted the bar of sovereign immunity in actions not seeking money damages. See Trudeau, 456 F.3d at 186. The IRS is not special in this regard; no exception exists shielding it — unlike the rest of the Federal Government — from suit under the APA. See e.g., Foodservice & Lodging Inst. v. Regan, 809 F.2d 842 (D.C.Cir.1987) (per curiam) (concluding the district court allowed under the APA a challenge to an IRS regulation unrelated to the assessment or collection of tax); Tax Analysts & Advocates v. Shultz, 376 F.Supp. 889, 892 (D.D.C.1974) (invalidating a Revenue Ruling under the APA, quoted approvingly in Hibbs v. Winn, 542 U.S. 88, 103, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004)); Nat'l Restaurant Ass'n v. Simon, 411 F.Supp. 993, 995-99 (D.D.C.1976) (allowing a challenge to a Revenue Ruling to proceed under the APA).
The IRS insists § 702's waiver of sovereign immunity does not apply here because it does not encompass review of actions "committed to agency discretion." 5 U.S.C. § 701(a)(2). We previously rejected this argument when the Service couched it in terms of a want of "final agency action" under § 704, see Cohen, 578 F.3d at 7-10, and did not request briefing on the issue in our order granting en banc review. There is no need to revisit the issue now. Put simply, "Notice 2006-50 binds the IRS." Cohen, 578 F.3d at 8. Because the IRS "forfeited the discretion it retained prior to issuing the notice," id. at 8, we need not address whether the APA's "final agency action" requirement limits its waiver of sovereign immunity. In any event, we have previously held it did not. Trudeau, 456 F.3d at 187 ("We also hold that the waiver applies regardless of whether the FTC's press release constitutes `final agency action.'").
Even though § 702 waives the Government's immunity, it preserves "other limitations on judicial review" and does not "confer[] authority to grant relief if any other statute ... expressly or impliedly forbids the relief which is sought." 5 U.S.C. § 702; see Schnapper v. Foley, 667 F.2d 102, 108 (D.C.Cir.1981) (stating the Government's immunity remains intact when "another statute expressly or implicitly forecloses injunctive [or declaratory] relief"); Smith v. Booth, 823 F.2d 94, 97 (5th Cir.1987) (same); Fostvedt v. United States, 978 F.2d 1201, 1204 (10th Cir.1992) (same); see also H.R.REP. NO. 94-1656, at 12, reprinted in 1976 U.S.C.C.A.N. 6121, 6132-33 (stating that § 702 of the APA is to have no effect on limitations and prohibition of the AIA and DJA). The IRS argues the AIA and DJA provide such "other limitations" on our review. At the en banc stage, we may "set aside [our] own precedent" reading the two statutes as coterminous. Critical Mass Energy Project v. NRC, 975 F.2d 871, 876 (D.C.Cir. 1992); see also id. at 880 (Randolph, J., concurring) (noting stare decisis is "most compelling" in cases of statutory interpretation) (quoting Hilton v. S.C. Pub. Rys. Comm'n, 502 U.S. 197, 205, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991)). We therefore address separately whether each statute limits judicial review under the APA.
The dissent suggests these questions of statutory interpretation are academic. Diss. Op. at 745 n. 12. But this statement is puzzling. These questions are the same ones the dissent raised at the panel stage, the same questions the court granted en banc review to consider, and the same questions the court asked the litigants to address. The court did not grant en banc review to reconsider whether this case was ripe, or whether Appellants failed to exhaust their administrative remedies.
Enacted in 1867, the AIA "apparently has no recorded legislative history, but its language could scarcely be more explicit." Bob Jones Univ. v. Simon, 416 U.S. 725, 736, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974) (footnote omitted). It states:
26 U.S.C. § 7421(a). "The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund." Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962) (interpreting AIA by looking at "comparable" Tax Injunction Act ("TIA") of 1937, 50 Stat. 738 (codified as amended at 28 U.S.C. § 1341)). As the Supreme Court explained, the provision reflected "appropriate concern about the... danger that a multitude of spurious suits, or even suits with possible merit, would so interrupt the free flow of revenues as to jeopardize the Nation's fiscal stability." Alexander v. "Americans United" Inc., 416 U.S. 752, 769, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974) (Blackmun, J., dissenting); see also California v. Grace Brethren Church, 457 U.S. 393, 410, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982) (interpreting TIA).
The AIA has "almost literal effect": It prohibits only those suits seeking to restrain the assessment or collection of taxes. Bob Jones, 416 U.S. at 737, 94 S.Ct. 2038 (quoting Williams Packing, 370 U.S.
This suit does not seek to restrain the assessment or collection of any tax. The IRS previously assessed and collected the excise tax at issue. The money is in the U.S. treasury; the legal right to it has been previously determined. As a result, this suit is similar to Hibbs. Hearing it — whatever its merit — will not obstruct the collection of revenue as in Snyder, alter Appellants' future tax liabilities as in Bob Jones,
But the IRS thinks otherwise. The Service argues the Court has construed the AIA to preclude suit in similar circumstances. In support, the Service points to United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008), and United States v. Dalm, 494 U.S. 596, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). But Clintwood Elkhorn and Dalm are distinguishable. The Court's focus in each was on how the AIA and § 7422(a), together, establish the statutory conditions upon which a taxpayer may bring a refund suit without interrupting the orderly assessment and collection of taxes. Clintwood Elkhorn and Dalm do not speak to suits outside the § 7422(a) refund process. See Dalm, 494 U.S. at 601, 110 S.Ct. 1361.
The IRS envisions a world in which no challenge to its actions is ever outside the closed loop of its taxing authority. It argues assessment and collection are part of a "single mechanism" that ultimately determines the amount of revenue the Treasury retains. Because this suit will ultimately affect the money Treasury retains, the IRS argues, it involves "assessment and collection."
The IRS has a third theory — this one structural rather than textual. The IRS argues, as did the dissent at the panel stage, that the AIA bars Appellants' APA claims because a complex regulatory scheme requires that "challenges to tax laws, regulations, decisions, or actions ordinarily be brought in refund suits after plaintiffs have sought a refund from, and exhausted their administrative remedies with, the IRS." Cohen, 578 F.3d at 17 (Kavanaugh, J., dissenting). But this neglects the nuance. The Supreme Court, this court, and other circuits have allowed challenges to tax laws outside the context of a 26 U.S.C. § 7422(a) proceeding (a refund suit). For example, in South Carolina v. Regan, the Supreme Court rejected the IRS's argument that, because a taxpayer could have filed a refund suit instead, the AIA prohibited a suit in which South Carolina challenged the constitutionality of a federal statute imposing restrictions on the state's issuance of bonds. 465 U.S. at 378, 104 S.Ct. 1107. The Court concluded the AIA "was intended to apply only when Congress has provided an alternative avenue for an aggrieved party to litigate its claims on its own behalf." Id. at 381, 104 S.Ct. 1107. For reasons developed more fully below, a refund suit is not an "alternative avenue" here.
Similarly, this court has allowed constitutional claims against the IRS to go
Having established our authority to hear Appellants' claim for injunctive relief, we pause to consider whether it is necessary, or prudent, to wander further. Appellants claim not to care about the declaratory relief they seek, as it may become academic if they succeed in enjoining the IRS. Even so, Appellants refuse to waive the argument. Admittedly, it is odd "to think that a court with authority to issue [an injunction] is without power to declare the rights of the parties in connection therewith." Tomlinson v. Smith, 128 F.2d 808 (7th Cir.1942). Nevertheless, establishing our jurisdiction over Appellants' claim for declaratory relief is not an academic exercise. Appellants do not abandon their claim and the DJA is a distinct grant of judicial authority, separate and apart from the court's power to award injunctive relief under 28 U.S.C. § 1331. Moreover, if the district court determines an injunction is not warranted on remand, questions about its jurisdiction to hear Appellants' claim for declaratory relief will unnecessarily prolong the case even further. We therefore venture onward, and consider whether the DJA is an "other limitation[] on judicial review," 5 U.S.C. § 702, precluding the court's power to award Appellants the declaratory relief they seek.
As before, our inquiry begins with the statutory text. Unlike the AIA, the DJA seems to carve out of its ambit any suit "with respect to Federal taxes." 28 U.S.C. § 2201(a). But precedent interprets the DJA and AIA as coterminous. See E. Kentucky Welfare Rights Org. v. Simon, 506 F.2d 1278, 1284 (D.C.Cir.1974); "Am. United" Inc., 477 F.2d at 1176. In other words, "with respect to Federal taxes" means "with respect to the assessment or collection of taxes." This interpretation is consistent with law in several other circuits. See United Mine Workers of Am. 1992 Benefit Plan v. Leckie Smokeless Coal Co. (In re Leckie Smokeless Coal Co.), 99 F.3d 573, 583-84 (4th Cir.1996); Ecclesiastical Order of ISM of AM v. IRS, 725 F.2d 398, 404-05 (6th Cir.1984); Perlowin
The panel dissent read things differently. While acknowledging our prior interpretation of the AIA and DJA as coterminous, the dissent questioned such cases' precedential value, and wondered why a coterminous reading of the two statutes narrowed the scope of the DJA rather than broadening the scope of the AIA. Cohen 578 F.3d at 18. Favoring the latter, the dissent concluded the text of the DJA (and deductively that of the AIA) "squarely precludes this APA suit at this time." Id. at 17. But the dissent went further, suggesting our precedent stemmed from a different and unruly era in which judges viewed statutory text not as an analytic starting point, but as a necessary formality in crafting opinions. To remedy this, the dissent urged the "en banc Court [to] clear this up," "pay greater attention to statutory text," and "not find [the AIA and DJA] coterminous." Id. at 19 n. 6.
So is Appellants' APA challenge properly characterized as a suit "with respect to Federal taxes"? It is in the sense the action is against the IRS, the agency charged with administering our federal tax system, and concerns refund procedures for a previously collected federal tax. This suit eludes that characterization in the sense its result — regardless of who wins — will not directly affect the disposition of any federal tax. Even if Appellants win, it does not follow that they are entitled to a tax refund. Whatever Appellants ultimately hope to achieve, this is not a refund suit. The IRS may still adopt a new version of the same notice after fixing any substantive and procedural defects. Which scope of "with respect to Federal taxes" is correct then — the broad one or the narrow one?
Despite our obligation to begin with the statutory text, discerning our jurisdiction to hear Appellants' request for declaratory relief must come not from staring hard at the phrase "with respect to Federal taxes," but from its context — linguistic, historical, and functional. A fuller consideration of the phrase reveals that both "actions brought under section 7428 of the Internal Revenue Code of 1986, [and] a proceeding under section 505 or 1146 of title 11," are outside the tax exception. 28 U.S.C. § 2201(a). To oust the courts of jurisdiction, it is not enough that claims relate in the loose sense to "Federal taxes"; they must also not pertain to the status and classification of section 501(c)(3) organizations (i.e., 26 U.S.C. § 7428 proceedings), unpaid tax liability of the debtor in a Chapter 11 reorganization (i.e., 11 U.S.C. § 505 proceedings), or the tax effects of a Chapter 11 reorganization plan if not obtained from the IRS within 270 days (i.e., 11 U.S.C. § 1146 proceedings). These carve outs are notable: first, because they cabin the phrase "with respect to Federal taxes," thus implying an all-encompassing reading is inappropriate, and second, because each relates to tax assessment or collection, thus suggesting the term "Federal taxes" similarly pertains to assessment or collection.
The earliest cases construing the DJA's tax exception also rejected a broad construction of the statute. In Tomlinson v. Smith, 128 F.2d 808 (7th Cir.1942), for example, the IRS sought to collect a partnership's taxes from the owners of a property leased by the partnership. The property's trustee sued the IRS in federal court seeking declaratory relief concerning title to the debt. The IRS argued the court was precluded by the DJA from declaring the parties' rights concerning the property, because the action related to federal taxes and impinged on the Service's
Id. (emphasis added).
The Second Circuit relied on Tomlinson in a 1962 decision involving similar facts. Bullock v. Latham, 306 F.2d 45, 47 (2d Cir.1962). Although Bullock v. Latham did not explicitly hold the AIA and DJA were co-extensive, it quoted Tomlinson's determination that the court's ability to provide injunctive relief was "determinative of its jurisdiction" to provide declaratory relief. Id. at 47. Bullock thus follows Tomlinson by reading the DJA's federal tax exemption narrowly. It applies to "controversies involving tax liabilities of parties qua taxpayers," but not all conceivable controversies relating to Federal taxes, even those altering the Service's ability to assess and collect. Id. at 48.
Congress did not intend to provide declaratory relief for litigants when the AIA barred injunctive relief. Holding to the contrary, as the IRS urges, would vitiate the structural design of the DJA. The legislative history speaks directly to this point. A year after passing the DJA, in § 405 of the Revenue Act of 1935, Congress amended the statute to expressly except disputes "with respect to Federal taxes." The Senate Finance Committee Report explained the animating purpose of the amendment, noting "[t]he application of the Declaratory Judgments Act to taxes would constitute a radical departure from the long-continued policy of Congress (as expressed in [the AIA] and other provisions) with respect to the determination, assessment, and collection of Federal taxes." S.REP. NO. 74-1240, at 11 (1935) (emphasis added).
When reading the legislative history, the Supreme Court declared: "[i]t is clear enough that one `radical departure' which was averted by the amendment was the potential circumvention of the `pay first and litigate later' rule by way of suits for declaratory judgments in tax cases." Flora v. United States, 362 U.S. 145, 165, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). By design, the DJA tax exception serves a critical but limited purpose. It strips courts of jurisdiction to circumvent the AIA by providing declaratory relief in cases "restraining the assessment or collection of any tax." 28 U.S.C. § 2201(a). Our prior case law — that from another era — also acknowledged the instructive role the DJA's legislative history plays in its construction. See, e.g., E. Ky. Welfare Rights Org., 506 F.2d at 1285 n. 11 (citing examples of 1935 cases attempting to circumvent the prohibitions of the AIA by using the DJA); "Americans United" Inc., 477 F.2d at
Of course, "it is the enacted text rather than the unenacted legislative history that prevails." Owner-Operator Indep. Drivers Ass'n, Inc. v. Mayflower Transit, LLC, 615 F.3d 790, 792 (7th Cir.2010) (Easterbrook, J.). "Legislative history — what would in contract interpretation be called extrinsic ambiguity — does not justify revising a text that has no intrinsic ambiguity or any difficulty in application." Id. Here, "with respect to Federal taxes" is intrinsically ambiguous. It does not bar all suits against the IRS, and thus does not encompass everything conceivably "with respect to Federal taxes." Having eliminated this broad interpretive gloss, what is and is not "with respect to Federal taxes" is left a mystery, with no great direction from the statutory text. Although we have questioned the utility of relying on legislative history, see, e.g., Block v. Meese, 793 F.2d 1303, 1309-10 (D.C.Cir.1986) (Scalia, J.), the legislative history of the DJA is quite small — a single paragraph — and surprisingly straightforward. It bears repeating: "Your committee believes that the orderly and prompt determination and collection of Federal taxes should not be interfered with." S.REP. NO. 74-1240, at 11 (1935) (emphasis added).
Finally, a functional concern exists with construing the DJA's exception to bar relief otherwise allowed under the AIA. The court would have jurisdiction to enjoin the parties appearing before it, but not to declare their rights. This defies common sense, however, "since an injunction of a tax and a judicial declaration that a tax is illegal have the same prohibitory effect on the federal government's ability to assess and collect taxes." Wyoming Trucking Ass'n, Inc. v. Bentsen, 82 F.3d 930, 933 (10th Cir.1996). A non-coterminous reading of the two statutes thus poses an insurmountable obstacle. The court would not have jurisdiction to provide declaratory relief but could effectively do so anyway.
The Supreme Court suggested an answer to this riddle in Hibbs. Recall, Arizona taxpayers challenged the constitutionality of an Arizona statute permitting tax credits for contributions to Arizona parochial schools. 542 U.S. at 92, 124 S.Ct. 2276. To determine whether jurisdiction existed, the Court had to interpret the Tax Injunction Act (TIA), 28 U.S.C. § 1341. The TIA, "modeled" after the AIA, id. at 102, 124 S.Ct. 2276, "shields state tax collections from federal-court restraints," id. at 104, 124 S.Ct. 2276. Before beginning its interpretive quest, the Court "identif[ied] the relief sought." Id. at 99, 124 S.Ct. 2276. As Appellants do here, the Arizona taxpayers sought both an injunction and a declaratory judgment. Id. Rather than bifurcate the inquiry, however, as we do here, the Court classified the requested remedies as a single form of relief — "prospective relief only." Id. ("Respondents seek prospective relief only. Specifically, their complaint requests `injunctive relief....' Complaint 7, App. 15.... [,] a `declaration....' Ibid. [and] `[a]n order....' Complaint 7-8, App. 15."); see also Grace Brethren Church, 457 U.S. at 408, 102 S.Ct. 2498 ("[T]here is little practical difference between injunctive and declaratory relief.").
A coterminous reading of the DJA and the AIA makes sense in light of Hibbs, which construed the relief Appellants seek in the singular, as equitable relief, and not separately, as an injunction and declaratory judgment. In this light, the case is greatly simplified. The DJA falls out of
But what to make of the bugle sounding the textualist battle cry? It is true, the AIA and DJA use different words. But this observation does not beget a certain interpretive result. A baker who receives an order for "six" donuts and another for "half-a-dozen" does not assume the terms are requests for different quantities of donuts. Similarly, a man does not receive different directions to Dupont Circle if he is told by one person to "take the Metro" and by another to "catch the Red Line." What the AIA accomplishes by denying its application to "any suit for the purpose of restraining the assessment or collection of any tax" the DJA accomplishes by an exception "with respect to Federal taxes." By nature, language is simultaneously robust and precise. Different verbal formulations can, and sometimes do, mean the same thing.
In sum, we hold that APA § 702's waiver of sovereign immunity permits Appellants' APA cause of action and neither the AIA nor DJA otherwise limits our review.
We now consider whether Appellants state a valid cause of action. Under § 704, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."
The IRS and the dissenting opinion contend § 7422(a) of the Internal Revenue Code, the refund suit mechanism, provides Appellants the relief they seek.
At first blush, § 7422(a) does not apply. This is not a suit "for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected." Id. Even if Appellants are entirely successful, they cannot recover the wrongfully assessed tax unless they follow whatever new administrative procedures the IRS decides to implement.
The dissent assumes a refund suit provides an adequate remedy at law. If this were the case, it is undisputed Appellants would have to proceed through Notice 2006-50. If adequate, Notice 2006-50 would render Appellants' claims unripe before they filed their refund actions. See Full Value Advisors, LLC v. SEC, 633 F.3d 1101, 1108 (D.C.Cir.2011) ("[Petitioner's] failure to fully comply with the Commission's process (i.e. exhaust) has left some of its claims unfit for review (i.e. unripe) and that is perhaps not surprising given the two doctrines' common origins; they are both `prudential doctrines' designed to `respond to pragmatic concerns about the relationship between courts and agencies.'" (quoting John Doe, Inc. v. Drug Enforcement Admin., 484 F.3d 561, 567 (D.C.Cir.2007))).
But the adequacy of Notice 2006-50 is the gravamen of Appellants' suit. Appellants claim Notice 2006-50 is unlawful, and therefore inadequate, because it was not subject to notice and comment rulemaking and is substantively unreasonable. As a result, Appellants argue they do not have to comply with Notice 2006-50 to challenge it. In support they cite McCarthy v. Madigan, a case where the Supreme Court cites several cases in which circumstances weighed against requiring administrative exhaustion. 503 U.S. 140, 147-49, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). In Barry v. Barchi, a horse trainer challenged a New York law allowing for summary suspension of his professional license without a presuspension hearing. 443 U.S. 55, 60-62, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979). The Board suspended Barchi's license for fifteen days, a time period shorter than the thirty days in which the Board had to issue a final order. Id. at 59, 61, 99 S.Ct. 2642. In Gibson v. Berryhill, a state board, composed entirely of members of the optometry association, sought to revoke the licenses of a small number of optometrists who worked for a corporation, a violation of the association's membership code. 411 U.S. 564, 567-68, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). The threatened optometrists argued the Board was unconstitutionally constituted. Id. at 569-70, 93 S.Ct. 1689. Finally, in McCarthy itself, the Court declined to require exhaustion because the Court found "Congress ha[d] not meaningfully addressed the appropriateness of requiring exhaustion in this context" and the plaintiff's "individual interests outweigh[ed] countervailing institutional interests favoring exhaustion." 503 U.S. at 149, 112 S.Ct. 1081. The Court concluded: "exhaustion has not been required where the challenge is to the adequacy of the agency procedure itself, such that `the question of the adequacy of the administrative remedy ... [is] for all practical purposes identical with the merits of [the plaintiff's] lawsuit.'" Id. at 148, 112 S.Ct. 1081 (quoting Barchi, 443 U.S. at 63, 99 S.Ct. 2642).
In sum, this suit is sui generis. Allowing Appellants to proceed without first filing a refund claim will not open the courthouse door to those wishing to avoid administrative exhaustion procedures in other cases. In the tax context, the only APA suits subject to review would be those cases pertaining to final agency action unrelated to tax assessment and collection. More broadly, litigants could not avoid exhaustion when challenging agency decisionmaking, because McCarthy and its progeny apply only when litigants challenge the exhaustion scheme itself. And once litigated, precedent would preclude later litigants challenging exhaustion procedures from relying on McCarthy in a court that had previously rejected the same argument.
The dissent argues Appellants fail to exhaust their claims under either § 703 or § 704 of the APA because a tax refund suit is an otherwise adequate procedure "for a taxpayer to wrangle with the IRS over taxes, refunds, or the legality of IRS tax collection or refund practices." Diss. Op. at 739. But this argument conflates the existence of an alternative remedy with an "adequate remedy." Even if equitable relief were possible in a § 7422 proceeding, it would be cold comfort to direct Appellants to proceed in a series of individual suits, submitting themselves one by one to the very refund procedures that they claim to be unlawful. The dissent suggests Appellants could avoid this inefficiency by winning a single case that would have preclusive effect across the nation. But the IRS has already shown itself unwilling to accept the binding effect of judicial opinions from one circuit to another, and the Supreme Court is highly unlikely to provide a nationwide decree because it rarely grants certiorari in an individual tax refund dispute. Another obstacle to Supreme Court review arises where, as here, the taxpayer wins at the appellate stage and is left with no avenue for seeking certiorari. See Electr. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S.Ct. 860, 83 L.Ed. 1263 (1939) ("A party may not appeal from a judgment or decree in his favor...."); Camreta v. Greene, ___ U.S. ____, 131 S.Ct. 2020, 2030, 179 L.Ed.2d 1118 (2011) ("As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party.") Furthermore, the cases upon which the dissent relies are inapposite. Clintwood Elkhorn, Hibbs, "Americans United", and Bob Jones involved taxpayer challenges to the validity of an individual tax — paradigmatic refund suits. See e.g., Clintwood Elkhorn, 553 U.S. at 4, 128 S.Ct. 1511 (coal tax); Hibbs, 542 U.S. at 103-04, 124 S.Ct. 2276 (parochial school tax credits). For example, "Americans United" and Bob Jones Univ. addressed corporations' status as § 501(c)(3) tax-exempt non-profit organizations. See "Americans United" Inc., 416 U.S. at 762, 94 S.Ct. 2053; Bob Jones, 416 U.S. at 746-47, 94 S.Ct. 2038. None of the cases involved a challenge to an IRS regulation, action, or procedure unrelated to the individual assessment or collection of taxes. Cf. Foodservice & Lodging Inst., 809 F.2d at 846 n. 10 (allowing APA challenge
Finally, the dissent concocts an extravagant scenario in an effort to show that a refund suit would be an adequate alternative remedy. In the dissent's view, Appellants should have "skip[ped] the administrative process altogether and directly file[d] tax refund suits under 28 U.S.C. § 1346(a)(1)." Diss. Op. at 741. Then, in order to rebuff the IRS's inevitable motion to dismiss for failure to exhaust administrative remedies, the Appellants could assert that, under McCarthy, their lack of exhaustion is excusable because the IRS's administrative remedies are unreasonable and unlawful. Id.
The first problem is, as explained above, this is not a refund suit — Appellants are seeking equitable relief rather than "recovery of any internal revenue tax." 26 U.S.C. § 7422(a). Therefore allowing Appellants' APA suit to proceed does not "duplicate existing procedures for review of agency action." Bowen v. Mass., 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). Indeed, allowing judicial review of Appellants' APA suit is consistent with the APA's underlying purpose — "remov[ing] obstacles to judicial review of agency action," Id. at 904, 108 S.Ct. 2722 (quoting Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591, 99 L.Ed. 868 (1955)), — and the proper construction of § 704, Bowen, 487 U.S. at 904, 108 S.Ct. 2722 (rejecting a "restrictive" interpretation of § 704). Even putting that aside, however, the dissent's theory could contradict the language of § 7422, which states: "No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax ... until a claim for refund or credit has been duly filed with the Secretary." This language seems not to make an exception for suits challenging the legality of administrative procedures. Without deciding whether a McCarthy-based objection to exhaustion procedures is cognizable in a refund suit, we note that in McCarthy itself, "Congress ha[d] not meaningfully addressed the appropriateness of requiring exhaustion." 503 U.S. at 149, 112 S.Ct. 1081. And for this reason, it is far from clear Appellants could challenge Notice 2006-50 in a refund suit without first having to proceed through it.
The dissent's defense of the IRS's prerogatives is ironic. The IRS promulgated Notice 2006-50 as a way to avoid thousands of successful corporate refund suits and to spare individuals, who — unlike their corporate counterparts — had no incentive to pursue costly litigation against the IRS. By promulgating the 2006 rule, the IRS effectively conceded a case-by-case resolution would be both inefficient and unfair. The moral of the dissent's story is that such remedies are now perfectly adequate.
The IRS argues this suit is not ripe because it is a "pre-enforcement" action. The aim of the ripeness doctrine is to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). "The ripeness inquiry probes the fitness for review of the legal issue presented, along with (in at least some cases) `the hardship to the parties of withholding court consideration.'" Teva Pharm. USA, Inc. v. Sebelius, 595 F.3d 1303, 1308 (D.C.Cir.2010) (quoting
We rejected the Service's pre-enforcement argument at the panel stage and did not grant en banc review to reconsider it. The panel held this case was a post-enforcement action, and therefore fit for review, because Notice 2006-50 constituted final and reviewable agency action barring Appellants "from pursuing their refunds in court by virtue of the fact that they did not exhaust their administrative remedies under the only available avenue — Notice 2006-50." Cohen, 578 F.3d. at 6-13; cf., McGuirl v. United States, 360 F.Supp.2d 129, 132 (D.D.C.2004) (reviewing post-enforcement challenge); Nat'l Restaurant Ass'n, 411 F.Supp. at 995-99; Tax Analysts & Advocates, 376 F.Supp. at 892, quoted approvingly in Hibbs, 542 U.S. at 103-04 & n. 6, 124 S.Ct. 2276.
The dissent tweaks this argument by describing this case as a "pre-application" challenge, rather than a "pre-enforcement" challenge. Diss. Op. at 745. Thus, the dissent shifts focus from the fitness of Notice 2006-50, which the dissent concedes, Diss. Op. at 742-43, to the alleged "benefit" Appellants seek, i.e. the hardship inquiry. Diss. Op. at 744. But again, conceiving of Appellants as taxpayers looking for a handout is flawed. The APA does not offer any monetary award. Nor is the money the IRS wrongfully took a benefit the Service may choose (or not choose) to bestow upon Appellants, such as amnesty for undocumented immigrants, see Reno v. Catholic Social Services, 509 U.S. 43, 46, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), or a government certification, see Toilet Goods Ass'n, Inc. v. Gardner, 387 U.S. 158, 161, 165, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967).
The dissent argues any delay caused by filing individual refund claims would not "constitute [a] sufficient hardship." Diss. Op. at 743. But, in the context of APA challenges, we have previously said "[lack of] hardship cannot tip the balance against judicial review," Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 440 F.3d 459, 465 (D.C.Cir.2006) (quoting Nat'l Mining Ass'n, 324 F.3d at 756-57) (alterations in original), "is largely irrelevant," Electric Power Supply Ass'n v. FERC, 391 F.3d 1255, 1263 (D.C.Cir.2004), and "is not an independent requirement divorced from the consideration of the institutional interests of the court and agency," AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C.Cir.2003). "[O]nce we have determined that an issue is clearly fit for review, there is no need to consider `the hardship to the parties of withholding court consideration.'" Action for Children's Television v. FCC, 59 F.3d 1249, 1258 (D.C.Cir.1995) (quoting Abbott Labs., 387 U.S. at 149, 87 S.Ct. 1507). When the hardship Appellants suffer is compliance
The practical consequence of the dissent's ripeness argument is a judicially created exemption for the IRS from suit under the APA. There may be good policy reasons to exempt IRS action from judicial review. Revenue protection is one. See Hibbs, 542 U.S. at 104-05, 124 S.Ct. 2276. But Congress has not made that call. Cf. 5 U.S.C. § 701(b)(1)(A)-(H) (stating exceptions to the APA's definition of "agency"); Hibbs, 542 U.S. at 105, 124 S.Ct. 2276 ("Nowhere does the legislative history announce a sweeping congressional direction to prevent `federal-court interference with all aspects of state tax administration.'"); Armstrong v. Bush, 924 F.2d 282, 289 (D.C.Cir.1991) (concluding, based on the legislative history of the APA, Congress "wanted to avoid a formalistic definition of `agency'"). And we are in no position to usurp that choice on the basis of ripeness. Cf. Mayo Found. for Med. Educ. & Res. v. United States, ___ U.S. ____, 131 S.Ct. 704, 713, 178 L.Ed.2d 588 (2011) (noting in the context of tax regulations "the importance of maintaining a uniform approach to judicial review of administrative action") (quoting Dickinson v. Zurko, 527 U.S. 150, 154, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)).
The litigation position of the IRS throughout the history of the excise tax has been startling. But the taxpayers' response to Notice 2006-50 is not so shocking. After conceding the excise tax was collected illegally, the Service set up a virtual obstacle course for taxpayers to get their money back.
This suit is not about the excise tax, its assessment, or its illegal collection. Nor is it about the money owed the taxpayers. This suit is about the obstacle course, and the decisions made by the IRS while setting it up. As a result, we have federal question jurisdiction, and neither the AIA nor the DJA provide a limitation on our exercise of it. Because Appellants have no other adequate remedy at law, the district court should consider the merits of their APA claim on remand.
So ordered.
KAVANAUGH, Circuit Judge, with whom Chief Judge SENTELLE and Circuit Judge HENDERSON join, dissenting:
From 2003 to 2006, millions of Americans paid excessive taxes on long-distance telephone calls. In 2006, the Government announced that it would refund the overpaid taxes. In IRS Notice 2006-50 (in what we will refer to as the 2006 "refund rules"), the Government established a simple process for obtaining refunds. Taxpayers who wanted to claim a standard refund amount — ranging from $30 to $60 — could simply check a box on their 2006 income tax returns. Those who wished to claim an amount greater than the standard amount could file a Form 8913 with their 2006 income tax returns and itemize the refund due. And those who would not otherwise file a tax return for 2006 could file a newly created Form 1040EZ-T to claim the standard amount, and attach
Approximately 90 million Americans followed those simple instructions and promptly received their refunds. As remedial government programs go, this one worked reasonably well.
The ten individual plaintiffs in this case were aware of the 2006 refund rules. But so far as the record reveals, none of them chose any of the readily available alternatives for obtaining a refund. None checked the standard refund box on their 2006 tax returns. Nor did any file a Form 8913 with their 2006 tax returns to claim a refund amount greater than the standard refund. Nor did any file a Form 1040EZ-T. Nor did any file a tax refund suit to complain about the amount available from the IRS or the refund rules.
Instead, plaintiffs decided to up the ante. They filed a purported class-action lawsuit in U.S. District Court. Plaintiffs sued under the Administrative Procedure Act, claiming that the IRS's 2006 refund rules were promulgated without proper notice and that the refund scheme would not fully compensate them for their overpaid taxes. Plaintiffs seek declaratory and injunctive relief. They want a judicial declaration that the refund scheme is unlawful and an injunction ordering the Government to devise a new refund process so as to correct the alleged flaws.
The reader may wonder why plaintiffs didn't simply file the relevant forms with the IRS to get refunds, and if dissatisfied with the amounts they received or with the IRS's refund rules, bring individual tax refund suits. After all, each plaintiff could have raised complaints about the refund rules in such a case, and each plaintiff's litigation would have long since concluded by now. The answer seems to be that plaintiffs are litigating primarily on behalf of others, not themselves. Plaintiffs' ultimate objectives are class certification and a court order that the U.S. Government pay billions of dollars in additional refunds to millions of as-yet-unnamed individuals who never sought refunds from the IRS or filed tax refund suits. It seems that plaintiffs have deliberately avoided filing individual refund claims with the IRS and filing tax refund suits because they think they have a better chance of obtaining class certification if they don't take those steps. And class certification is a necessary prerequisite to the class-wide jackpot plaintiffs are seeking here.
In any event, regardless of this case's unusual background and its potentially large effect on the U.S. Treasury, the present appeal raises only a straightforward legal question.
The issue, boiled down to its essentials, is whether plaintiffs can raise their objections to the 2006 refund rules in this APA suit — or instead must raise their claims in tax refund suits after first filing refund claims with the IRS. It is important to underscore that the fundamental issue here is timing: It concerns when plaintiffs
For two alternative reasons, plaintiffs cannot maintain this APA suit. First, the APA itself bars this suit because plaintiffs have an adequate alternative judicial remedy, namely tax refund suits. Second, under the ripeness doctrine, plaintiffs must file refund claims with the IRS before bringing suit to challenge the 2006 refund rules. We will address each point in turn.
The Government contends that the Administrative Procedure Act itself bars plaintiffs from maintaining this APA suit. See Gov't Br. at 63. We agree. Under §§ 703 and 704 of the APA, plaintiffs cannot maintain this APA suit because they have an alternative congressionally specified judicial forum in which to pursue their complaints about the 2006 refund rules — namely, a tax refund suit.
The APA provides for judicial review of agency action. But the APA may not be invoked when Congress has specified other judicial review procedures. Section 703 of the APA states: "The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute," provided that the statutorily specified review proceeding is not "inadequa[te]." 5 U.S.C. § 703 (emphasis added). Relatedly, § 704 of the APA provides: "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704 (emphasis added).
For our purposes, both provisions make the same point: A party cannot bring a freestanding APA suit when Congress has specified a different judicial review procedure "relevant to the subject matter," so long as that congressionally specified review procedure is "adequate." See, e.g., ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 101 (1947) (describing adequate remedy under § 704 by cross-reference to § 703).
As the Supreme Court has explained, the APA "does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures." Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988).
Here, Congress has established a judicial procedure that, to use the terms of § 703, is "relevant to the subject matter" — namely, a tax refund suit. Section 1346(a)(1) of Title 28 provides:
As the Supreme Court and this Court have explained on many occasions, the tax refund suit is a statutorily designed judicial procedure for a taxpayer to wrangle with the IRS over taxes, refunds, or the legality of IRS tax collection or refund practices. See generally United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4, 128 S.Ct. 1511, 170 L.Ed.2d 392 (2008); Hibbs v. Winn, 542 U.S. 88, 103-04, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004); United States v. Williams, 514 U.S. 527, 536, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995); Alexander v. "Americans United" Inc., 416 U.S. 752, 762, 94 S.Ct. 2053, 40 L.Ed.2d 518 (1974); Bob Jones Univ. v. Simon, 416 U.S. 725, 746-47, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974); Inv. Annuity, Inc. v. Blumenthal, 609 F.2d 1, 9 (D.C.Cir.1979).
The only remaining question is whether the tax refund suit is "adequate" here. It plainly is. In tax refund suits, plaintiffs and others similarly situated could obtain judicial review of their complaints about the 2006 refund rules. In such suits, plaintiffs could obtain the larger refunds
Because plaintiffs can raise their objections to the 2006 refund rules and obtain tax refunds and appropriate equitable relief in a tax refund suit, the tax refund suit is an adequate alternative judicial procedure.
The majority opinion seems to think that, in invoking §§ 703 and 704, we are advancing an exhaustion argument. See Maj. Op. at 731-33. We are not. There is a difference between (i) the doctrine requiring exhaustion of administrative remedies and (ii) the §§ 703/704 principle that applies when, as here, Congress has provided alternative judicial procedures. Bowen, 487 U.S. at 903, 108 S.Ct. 2722. The Supreme Court in Bowen distinguished those two principles. Id. at 902-03, 108 S.Ct. 2722. The majority opinion here melds them into an undifferentiated stew and then uses administrative exhaustion case law to try to respond to our §§ 703/704 argument. The cases concerning exhaustion of administrative remedies are not responsive to our §§ 703/704 argument. The §§ 703/704 question is whether the tax refund suit is the proper judicial forum specified by Congress for plaintiffs to raise their claims.
In response to this point, the majority opinion relies heavily on McCarthy v. Madigan, 503 U.S. 140, 148, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992), which says that administrative exhaustion sometimes may not be required when a plaintiff challenges the adequacy of the administrative procedures themselves. Reliance on McCarthy simply highlights the majority opinion's confusion about the §§ 703/704 issue and about the distinction between exhaustion of administrative remedies and alternative judicial procedures. In tax refund suits, plaintiffs can raise all of their arguments — including about the adequacy of the administrative exhaustion requirement that applies in tax refund suits as a result of 26 U.S.C. § 7422(a). To be very clear and very specific: Plaintiffs here could try to skip the administrative process altogether and directly file tax refund suits under 28 U.S.C. § 1346(a)(1). In such tax refund suits, if plaintiffs had not first exhausted their administrative remedies, the IRS no doubt would move to dismiss the suits because of plaintiffs' failure to exhaust
In sum, the tax refund suit is the proper judicial forum for plaintiffs to raise their complaints about the 2006 refund rules. Because the tax refund suit is a special statutory judicial review proceeding relevant to the subject matter and because it is an adequate forum, plaintiffs cannot maintain this APA challenge to the 2006 refund rules.
The Government alternatively raises a mix of administrative exhaustion, finality, and ripeness principles in arguing that plaintiffs must file refund claims with the IRS before suing. See Gov't Br. at 54-69. Those three doctrines are notoriously intermingled. See 2 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 15.17 (5th ed.2010) (exhaustion, finality, and ripeness "overlap significantly, and ... are sometimes indistinguishable"); Ticor Title Ins. Co. v. FTC, 814 F.2d 731 (D.C.Cir.1987) (three-judge panel issued three separate opinions for a unanimous conclusion: one based on exhaustion, one based on finality, and one based on ripeness).
We conclude that the ripeness doctrine precludes consideration of plaintiffs' claims at this time and requires plaintiffs to file refund claims with the IRS before suing. (The ripeness bar is separate from and in addition to the APA §§ 703/704 bar that we discussed above.)
"Ripeness is a justiciability doctrine" that is "drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction." Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 807-08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). A challenge to an agency regulation is ripe for judicial review where (i) the issue is fit for decision and (ii) delay would impose hardship on the plaintiffs. In the classic formulation, the Supreme Court stated that a claim is ripe where "the legal issue presented is fit for judicial resolution, and where [the] regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious penalties attached to noncompliance." Abbott Laboratories v. Gardner, 387 U.S. 136, 153, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).
The principal issue here concerns the second prong of the ripeness doctrine: hardship. Do the 2006 refund rules require, in the words of Abbott Laboratories,
To borrow the words of a recent Supreme Court ripeness decision, the 2006 tax refund procedure "does not command anyone to do anything or to refrain from doing anything; it does not grant, withhold, or modify any formal legal license, power, or authority; it does not subject anyone to any civil or criminal liability; and it creates no legal rights or obligations." Nat'l Park Hospitality Ass'n, 538 U.S. at 809, 123 S.Ct. 2026 (applying Abbott Laboratories and quoting Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998)) (alterations omitted). Rather, the refund rules mark a path for taxpayers to obtain money back from the Government. The refund scheme "leaves a [taxpayer] free to conduct its business as it sees fit." Nat'l Park Hospitality Ass'n, 538 U.S. at 810, 123 S.Ct. 2026. Thus, requiring plaintiffs to challenge the refund rules only after they apply to the IRS for refunds will have "no irremediably adverse consequences" for plaintiffs. Id. (alteration omitted).
Moreover, it is well settled that the mere "burden of participating in further administrative and judicial proceedings does not constitute sufficient hardship" for purposes of the ripeness analysis. AT&T Corp. v. FCC, 349 F.3d 692, 702 (D.C.Cir. 2003); see also Ohio Forestry Ass'n, 523 U.S. at 734-35, 118 S.Ct. 1665 (burden of going through additional proceedings is not a sufficient hardship to render an agency action ripe for review); Nuclear Energy Institute, Inc. v. EPA, 373 F.3d 1251, 1313 (D.C.Cir.2004) (requiring party to raise claims in agency and judicial proceedings "works no hardship ... sufficient to render its claims ripe"); Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1205 (D.C.Cir.1998) (requiring party to raise claim in agency proceeding is not sufficient hardship for purposes of ripeness); Florida Power & Light Co. v. EPA, 145 F.3d 1414, 1421 (D.C.Cir.1998) ("The only conceivable hardship Florida P & L will endure as a result of postponement is the burden of participating in further administrative and judicial proceedings. Such claims, however, do not constitute sufficient hardship for the purposes of ripeness."). Here, therefore, the burden of filing a refund claim with the IRS before suing does not constitute sufficient hardship for purposes of the Abbott Laboratories ripeness inquiry.
Plaintiffs and the majority opinion suggest that it would be easier to mount one APA challenge rather than a series of
Put simply, the general ripeness principle that emerges from the case law and that governs here is this: When an agency rule prohibits conduct backed by sanctions or imposes an obligation backed by sanctions, an aggrieved party often may challenge the rule immediately and need not wait to challenge it in its defense to an enforcement action after violating the rule. The rationale is that a party should not be forced into the "dilemma" of violating an allegedly unlawful rule and risking a heavy sanction "if they've guessed wrong and the rule is upheld in the penalty proceeding." Abbs v. Sullivan, 963 F.2d 918, 926 (7th Cir.1992) (internal citations omitted); see also Reno v. Catholic Social Services, Inc., 509 U.S. 43, 57, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (describing this "dilemma"). By contrast, as the Supreme Court decided in Reno v. Catholic Social Services, when an agency rule establishes criteria for an individual to obtain money or a benefit of some kind from the government, a party must first apply to the government for the money or benefit before bringing suit to challenge the agency rule. See 509 U.S. at 57-61, 113 S.Ct. 2485. Requiring a party to apply for the money or benefit before suing to challenge the agency rule does not pose the Abbott Laboratories "dilemma" because the party will not face any sanctions if the rule is ultimately upheld.
Allowing this APA suit to go forward at this time is flatly inconsistent with the ripeness principles articulated in cases such as Abbott Laboratories, Reno v. Catholic Social Services, and National Park Hospitality Association. Plaintiffs must file a refund claim with the IRS before bringing suit.
It is true that our Court — albeit not the Supreme Court — has sometimes permitted judicial review when an issue was fit for resolution, notwithstanding a lack of hardship to the plaintiffs from waiting, so long as there were "no significant agency or judicial interests militating in favor of delay." Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 440 F.3d 459, 465 (D.C.Cir.2006) (quoting Nat'l Mining Ass'n v. Fowler, 324 F.3d 752, 756-57 (D.C.Cir.2003)); see also Electric Power Supply Ass'n v. FERC, 391 F.3d 1255, 1263 (D.C.Cir.2004) ("The hardship prong under the ripeness doctrine is largely irrelevant in cases ... in which neither the agency nor the court have a significant interest in postponing review."); AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C.Cir. 2003) ("where there are no institutional interests favoring postponement of review,
But here, there are "significant agency or judicial interests militating in favor of delay." Nat'l Ass'n of Home Builders, 440 F.3d at 465. Those interests are some of the very interests that are protected by the ripeness doctrine: the courts' interest in not "entangling themselves in abstract disagreements over administrative policies," and the IRS's interest in being protected from "judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories, 387 U.S. at 148-49, 87 S.Ct. 1507; see also Ohio Forestry Ass'n, 523 U.S. at 735-37, 118 S.Ct. 1665. For example, plaintiffs claim that it was too difficult for taxpayers to gather the paperwork needed to justify a claim for more than the standard refund amount. That is precisely the kind of claim where court review would benefit from prior agency application and analysis. Indeed, if the agency agreed with a taxpayer's argument on that issue, there would be no need for judicial involvement at all. Also, plaintiffs claim that the IRS did not provide adequate notice of the refund procedure. That too is the kind of claim where judicial resolution would benefit from a considered agency analysis of the design and limitations of the notification process.
In any event and perhaps more to the point, we don't need to guess how the Abbott Laboratories test applies to the kind of agency rule at issue here. The Supreme Court has told us how — in cases such as Reno v. Catholic Social Services and National Park Hospitality Association. Those cases stand for the proposition that pre-application challenges to rules that set forth criteria for government payments or benefits are not ripe.
Under the APA, plaintiffs must file tax refund suits to raise their complaints about the 2006 refund rules. Alternatively, the ripeness doctrine precludes plaintiffs from suing until after they file refund claims with the IRS. For either of those two alternative and independent reasons, plaintiffs' APA suit should be dismissed.
To begin with, the Declaratory Judgment Act bars declaratory relief "with respect to Federal taxes," 28 U.S.C. § 2201(a), and the Anti-Injunction Act bars injunctions "for the purpose of restraining the assessment or collection of any tax," 26 U.S.C. § 7421(a). By their terms, those statutory bars apply in APA suits as well as in tax refund suits. See 5 U.S.C. § 702 (preserving "other limitations on judicial review"). Therefore, if a taxpayer could obtain equitable relief in an APA suit, as plaintiffs here argue, the taxpayer could also obtain such relief in a tax refund suit. That point alone suffices to show that the tax refund suit is an adequate forum for plaintiffs to seek appropriate declaratory and injunctive relief.
In addition, precedent demonstrates that declaratory relief and injunctive relief are available in tax refund suits. The Supreme Court has indicated that injunctive relief is available in the tax context, despite the terms of the Anti-Injunction Act. See South Carolina v. Regan, 465 U.S. at 373-81 & 377-78 n. 16, 104 S.Ct. 1107; Bob Jones, 416 U.S. at 748 n. 22, 94 S.Ct. 2038. Moreover, the Supreme Court has suggested that injunctive relief would be available only in tax refund suits — and not in APA suits — where, as here, Congress has provided tax refund suits as "an alternative avenue for an aggrieved party to litigate its claims." South Carolina v. Regan, 465 U.S. at 381, 104 S.Ct. 1107; compare id. at 373-81 & 377-78 n. 16, 104 S.Ct. 1107 (injunction available in nontax-refund suit only because plaintiffs could not pursue tax refund suit) with Bob Jones, 416 U.S. at 748 & n. 22, 94 S.Ct. 2038 (injunction not available in APA suit because plaintiffs could pursue tax refund suit); see also Americans United, 416 U.S. at 761-62, 94 S.Ct. 2053. The Supreme Court has not had occasion to expressly state that it would allow claims for declaratory relief in tax refund suits, although that presumably also would be permitted under the South Carolina v. Regan/Americans United/Bob Jones reasoning. After all, injunctive relief typically entails a declaration plus an order to do or refrain from doing something, meaning that declaratory relief is, in essence, a lesser-included version of injunctive relief. As plaintiffs rightly say, it would be "logically incoherent" and "nonsensical" to allow injunctive relief but forbid declaratory relief. See Cohen Br. at 22, 37; see also California v. Grace Brethren Church, 457 U.S. 393, 408, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982) ("there is little practical difference between injunctive and declaratory relief").
Finally, it bears mention that the Government has acknowledged that plaintiffs could obtain appropriate declaratory and injunctive relief in tax refund suits. See Tr. of Oral Arg. at 39-41.
Contrary to what the Government argues, the § 7422(a) exhaustion requirement would apply not because § 7422(a) itself requires that this APA suit be deemed a tax refund suit preceded by exhaustion of administrative remedies. Rather, the § 7422(a) exhaustion requirement would apply because §§ 703 and 704 of the APA, in conjunction with 28 U.S.C. § 1346(a)(1), require plaintiffs to bring their claims in tax refund suits, and § 7422(a) in turn requires exhaustion in those tax refund suits.
