A word of caution is also warranted here. In Bedrosian, the Third Circuit Court of Appeals reasoned that because FBAR penalties represented a penalty collected “under the internal revenue laws,” see 28 U.S.C. § 1346(a)(1), that the rules of Flora should apply. The Bedrosian decision, thus far, has been an outlier.

On October 30, 2017, Anderson filed Form 843, Claim for Refund and Request for Abatement, for each of the tax periods at issue. Nearly three years later, Anderson filed its complaint against the Internal Revenue Service under 28 U.S.C. § 1346(a)(1) and I.R.C. § 7422, seeking the recovery of tax penalties and interest. The government filed a motion to dismiss, and the district court granted the government’s motion.

Brownback v. King, No. 19-546: Under the Federal Tort Claims Act (“FTCA”), a plaintiff is allowed to bring certain state-law tort suits against the Federal Government in federal court. An FTCA claim is actionable if it alleges the six elements listed in 28 U.S.C. §1346(b) of the Act, and a federal court’s jurisdiction over the claim is correspondingly limited to claims “actionable under §1346(b).” The FTCA also has a provision known as the judgment bar, which provides that “[t]he judgment in an action under 1346(b)” serves as a “complete bar” on any action by the plaintiff against the employee on the same subject matter.

The FTCA is recognized as providing a waiver of sovereign immunity and provides the sole basis of recovery for tort claims against the United States. See 28 U.S.C. § 1346 and § 2671, et seq.; In re Supreme Beef Processors, 468 F.3d at 252 n.4. But the Act provides that the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances.

The government moved to strike the jury demand and requested that a jury not be involved in any manner in determining its liability. The federal government argued that, because the plaintiffs have filed claims under the Federal Torts Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680 and 28 U.S.C. § 1346(b), the use of any jury is precluded under 28 U.S.C. § 2402 which states that “[a]ny action against the United States under section 1346 shall be tried by the court without a jury. . .” The Plaintiffs’ Steering Committee (“PSC”) and the nongovernmental defendants both opposed the motion.

f hydroelectric licensees is the safety of the project and its operations.Built in 1924, the Edenville Dam operated without a license until FERC issued one in 1998. FERC ordered the licensee to make some improvements, but the licensee became insolvent and sold the license to a new owner, who both failed to make the ordered improvements and committed further license violations.FERC then revoked the license in 2018, after which jurisdiction passed to the state of Michigan. Michigan permitted the former FERC licensee to continue operating the Edenville Dam, which continued until its bankruptcy following the partial collapse and flooding.Sovereign ImmunityThe United States cannot be sued absent its consent. Under the Federal Tort Claims Act, the United States has generally consented to liability for injuries or damages caused by any negligent or wrongful act of government employees who act within the scope of their office if a private party would have been liable in similar circumstances (28 USC § 1346(b)).The Federal Power Act, however, specifically asserts sovereign immunity regarding dam licensing. It provides that the licensee “shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed under the license and in no event shall the United States be liable therefor” (16 USC § 803(c)).Longstanding judicial precedent holds that where statutes governing the same issues appear to conflict, specific terms prevail over general terms. Here, whether a conflict existed turned on whether the phrase “constructed under the license” refers to the entire dam or merely “works appurtenant or accessory” to a dam.If the former, sovereign immunity would not attach to the Edenville Dam because it was built prior to being licensed, and the residents could proceed under the Federal Tort Claims Act. If the latter, then sovereign immunity would apply to all dams licensed

specific nature of RADV audits present a potential threshold legal question not found in most disputes over federal agency action. That threshold legal question involves the interaction of two statutes: the Administrative Procedure Act (APA) and the Tucker Act.Recall that the APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court ....” 5 U.S.C. §704. As described by the Supreme Court, this provision “makes it clear that Congress did not intend the general grant of review in the APA to duplicate existing procedures for review of agency action.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988).The Tucker Act, in turn, provides that the Court of Federal Claims in Washington, D.C., “shall have jurisdiction to render judgment upon any claim against the United States founded ... upon any express ... contract with the United States ....” 28 U.S.C. §1291(a)(1). This jurisdiction is exclusive for contract claims in excess of $10,000. See 28 U.S.C. §1346(a)(2) (providing district courts and the Court of Federal Claims with concurrent jurisdiction over contract claims against the United States “not exceeding $10,000 in amount”). And save for certain limited exceptions not relevant here, the Court of Federal Claims does not have authority to grant equitable remedies such as an injunction. See Richardson v. Morris, 409 U.S. 464, 465 (1973).Courts have wrestled with whether the potential availability of an action in the Court of Federal Claims negates an APA action in federal district court. For example, the United States Court of Appeals for the Federal Circuit has stated that a “claimant with an alternative adequate remedy in another court, such as the Court of Federal Claims, cannot seek review of agency action in a district court under the APA.” Consol. Edison Co. of N.Y. v. United States, 247 F.3d 1378, 1383 (Fed. Cir. 2001). In so concluding, the Federal Circuit found that utilities that had paid certain assessments to the Federal Governm

found that § 2409a(g) barred Petitioners’ claim for lack of subject matter jurisdiction, and the Ninth Circuit affirmed.The Supreme Court reversed, holding that § 2409a(g) is a “nonjurisdictional claims-processing rule,” created “to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” The Court contrasted such “procedural rules” with jurisdictional ones that “may be raised at any time” and “have a unique potential to disrupt the orderly course of litigation.” Under the “traditional tools of statutory construction,” the Court stated that it will “treat a procedural requirement as jurisdictional only if Congress clearly states that it is.” The Court noted that, in applying the “clear statement rule,” “most time bars are nonjurisdictional.”The Court could not find a clear jurisdictional statement in § 2409a(g) that “speaks only to a claim’s timeliness” and is “well afield” from the Act’s jurisdictional grant, 28 U.S.C. § 1346(f). The Court rejected the United States’ argument that prior Supreme Court opinions have interpreted § 2409a(g) as jurisdictional, as well as the dissenting opinion’s suggestion that courts should use different rules of interpretation for statutes that waive sovereign immunity, like the Quiet Title Act.Justice Sotomayor authored the majority opinion, joined by Justices Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson. Justice Thomas filed a dissenting opinion, joined by Chief Justice Roberts and Justice Alito.DOWNLOAD OPINION OF THE COURT

spill liability tax, which is imposed at 9 cents per barrel under Section 4611(b) and which the Fifth Circuit held to be unconstitutional, remains intact. In other words, the stakes for those taxpayers impacted by Section 4611’s environmental excise taxes will soon be far greater.Trafigura Trading LLC v. United States, 29 F.4th 286 (5th Cir. 2022). U.S. Const. art. I, § 9, cl. 5.Letter from Elizabeth B. Prelogar, Solicitor General, DOJ, to Nancy Pelosi, Speaker, US House of Representatives (Oct. 13, 2022). IRC § 4611(c)(2)(B). Unless otherwise stated, all Section references are to the Internal Revenue Code of 1986, as amended (IRC or the Code), and Treas. Reg. § references are to the regulations thereunder. IRC § 9509(b)(1). 33 U.S.C. § 2702(b).Trafigura Trading LLC v. United States, 485 F. Supp. 3d 822 (S.D. Tex. 2020). 29 F.4th at 294.Id. at 292.Id. at 293. IRC § 6511. Internal Revenue Manual 25.6.1.6.4 (Oct. 3, 2022).United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1 (2008). 28 U.S.C. §§ 1346(a)(1), 1402(a). 28 U.S.C. § 1491(a)(1). IRC § 6532(a). Pub. L. No. 117-169, 136 Stat. 1818 (2022). 136 Stat. at 1981-82. Section 4711(f)(2) does provide that “The Oil Spill Liability Trust Fund financing rate shall not apply after December 31, 2025.”[View source.]

The FTCA waives sovereign immunity for claims of personal injury or death caused by the federal government’s negligence “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In its motion to dismiss, EPA argued that it was covered by the FTCA’s “discretionary function” and “misrepresentation” exceptions.