STEELE, ET AL. v. UNITED STATES OF AMERICA

Filing 64

MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth on August 8, 2016.(lcrcl3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
)
ADAM STEELE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
)
______________________________________ )

Civil Case No. 14-1523 (RCL)

MEMORANDUM OPINION
Currently before the Court is plaintiffs’ Motion for Reconsideration [56] of the Court’s
Order and Memorandum Opinion [54, 55] granting in part and denying in part plaintiffs’ motion
for class certification [46]. Upon consideration of plaintiffs’ motion, defendant’s response [59],
plaintiffs’ reply [60], defendant’s notice of supplemental authority [61] and plaintiffs’ response to
that authority [62], along with the applicable law and the entire record herein, the Court will
GRANT plaintiffs’ motion for reconsideration. Accordingly, the Court finds that it has subject
matter jurisdiction under the Administrative Procedure Act (APA) over plaintiffs’ request for
monetary relief, or restitution. Additionally, after finding it has the proper jurisdiction, the Court
will GRANT plaintiffs’ motion [46] for class certification in its entirety and certify plaintiffs’
proposed class as it relates to the monetary relief portion of this case.
As stated, the Court will grant plaintiffs’ motion to reconsider the Court’s Order and
accompanying Memorandum Opinion on class certification, dated February 9, 2016. In that Order,
the Court certified the following class as it relates to plaintiffs’ request for declaratory relief: “All

individuals and entities who have paid an initial and/or renewal fee for a PTIN, excluding Allen
Buckley, Allen Buckley LLC, and Christopher Rizek.” See Order 1, ECF No. 54. Further, the
Court denied plaintiffs’ motion for certification as it related to their request for restitution. More
specifically, the Court ruled that plaintiffs had not yet demonstrated that this Court holds subject
matter jurisdiction over plaintiffs’ request for monetary relief because it was unclear whether or
not the United States had waived its sovereign immunity over that aspect of the case. See Mem.
Op. 18-23, ECF No. 55.
As the Court explained in its previous Order, questions of sovereign immunity bear
jurisdictional significance, and therefore must be determined at the outset of a lawsuit. See, e.g.,
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court
cannot proceed at all in any case.”) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)); Mem.
Op. 19-20. Moreover, the APA contains only a limited waiver of sovereign immunity, Geronimo
v. Obama, 725 F. Supp. 182, 186 (D.D.C. 2010) (quotation omitted), which applies exclusively to
“action[s] seeking relief other than money damages.” 5 U.S.C. § 702; see also Benoit v. US Dep’t
of Agric., 608 F.3d 17, 19 (D.C. Cir. 2010). In its previous Order, the Court found that plaintiffs’
request for restitution could potentially be construed as a request for money damages and therefore
ruled that plaintiffs had failed to sufficiently show the Court had jurisdiction over that portion of
the case. Accordingly, the Court denied plaintiffs’ motion for class certification as it related to
their request for restitution. Mem. Op. 22-23. The Court’s Order and Memorandum Opinion,
however, made explicit that its ruling was subject to reconsideration and invited the parties to
submit additional briefing on whether plaintiffs’ request for restitution is subject to the
government’s waiver of sovereign immunity.

2

Responding to that invitation, plaintiffs filed a motion for reconsideration [56] and argued
that for the purposes of their request for restitution, the government has waived its sovereign
immunity under both the APA1 and the Little Tucker Act—though waiver would be sufficient
under either one of the statutes. After considering this motion, defendant’s response, plaintiffs’
reply, and the applicable law, the Court finds that under the APA, the government has waived its
sovereign immunity for the purposes of plaintiffs’ request for restitution and that therefore, subject
matter jurisdiction exists for that aspect of the case.2 In coming to this conclusion, the Court
principally relies on America’s Community Bankers v. FDIC, which held that jurisdiction under
the APA existed in a case where plaintiffs similarly alleged that the government had “improperly
collected” certain fees and then brought suit against the government to “get their money back.”
200 F.3d 822, 830 (D.C. Cir. 2000). As such, the Court will grant plaintiffs’ motion for
reconsideration, finding that it has jurisdiction under the APA over the entirety of this case.
Moreover, after ruling that the proper subject matter jurisdiction exists, the Court finds that
plaintiffs have satisfied the class certification requirements of Federal Rule of Civil Procedure
(FRCP) 23(b)(3) as it relates to their request for restitution. The Court will adopt a hybrid approach,
certifying a 23(b)(2) class for plaintiffs’ claims for declaratory relief and a 23(b)(3) class for their

1

Although plaintiffs state their claim under both the APA and the Little Tucker Act, see Am. Compl. ¶ 5
(stating that the Court has subject matter jurisdiction under 5 U.S.C § 702, 28 U.S.C. § 1331, and 28 U.S.C.
§ 1346(a)), the APA is the “first and primary statute” plaintiffs specifically invoke. See Mem. Op. 21.
The parties discuss at length whether the Court has jurisdiction under the Little Tucker Act. See Pls.’ Mot.
for Recons. 5-7, ECF No. 56; United States’ Response to Pls.’ Mot. for Recons. 9-13; Pls.’ Reply in Supp.
of Recons. 5-7, ECF No. 60. Notably, the United States does not even directly dispute jurisdiction under
the Little Tucker Act, stating “this Court may have subject matter jurisdiction under the Little Tucker Act
over plaintiffs’ monetary claims based solely on [31 U.S.C. § 9701].” United States’ Response to Pls.’ Mot.
for Recons. 13 Additionally, the government has submitted a supplemental notice of authority highlighting
a recent case where the Court of Federal Claims was determined to have exclusive jurisdiction under the
Tucker Act, as opposed to the Little Tucker Act. See ECF No. 61. Because the Court has determined
jurisdiction exists under the APA—the statute in which plaintiffs primarily rely on to press their claims—
the Court need not rule on whether or not, and to what extent, the Little Tucker Act confers subject matter
jurisdiction.
2

3

claims for monetary relief. Building off of its previous Memorandum Opinion and Order, the Court
will now certify the following proposed class under FRCP 23 for the entirety of this case: “All
individuals and entities who have paid an initial and/or renewal fee for a PTIN, excluding Allen
Buckley, Allen Buckley LLC, and Christopher Rizek.”
I. BACKGROUND
As explained in detail in the original Memorandum Opinion dated February 9, 2016,3 this
case deals with the Department of the Treasury (Treasury) and Internal Revenue Service’s (IRS’s)
requirement that compensated tax return preparers both obtain and pay for a preparer tax
identification number (PTIN). On September 30, 2010, a Treasury regulation became effective
requiring that “all tax return preparers must have a preparer tax identification number or other
prescribed identifying number that was applied for and received at the time and in the manner,
including the payment of a user fee, as may be prescribed by the Internal Revenue Service.” 26
C.F.R. § 1.6109-2(d). Consistent with this regulation, the IRS then began to charge $64.25 for the
initial PTIN registration fee and $63 for each annual renewal—with $50 of each fee going to the
IRS for processing the application and the remainder going to third-party vendors for administering
the application process. Am. Compl. ¶¶ 13, 21. On October 30, 2015, the IRS then issued
temporary regulation 26 C.F.R. § 300.13T, which lowered the PTIN application and renewal fees
to $33 and eliminated any fee charged by third party vendors. In bringing this lawsuit, plaintiffs
argue that the IRS is not authorized to require payment for a PTIN—i.e., the user fee—and even

3

This Memorandum Opinion is meant to be read in conjunction with the Memorandum Opinion issued on
February 9, 2016. Much of the legal analysis in that Opinion, especially the analysis surrounding 31 U.S.C.
§ 9701(b)’s “service or thing of value” standard, is relevant to this case’s ongoing class certification issues,
and is hereby incorporated by reference.

4

if the IRS is authorized to charge the fee, that fee is excessive4 and therefore invalid at its current
level.
In its February 9, 2016 Memorandum Opinion, the Court provided ample detail of the
statutory framework underpinning the PTIN and its user fee, the recent efforts the IRS has taken
to regulate compensated tax return preparers, and the legal theories plaintiffs have crafted in an
effort to partially or totally invalidate the PTIN user fee. The Court need not rehash those details
here. For present purposes, it is sufficient to note that plaintiffs brought two separate and alternate
claims, each of which seeks both declaratory relief and restitution. While plaintiffs’ first claim
alleges that “the IRS lacks legal authority to charge a fee for the issuance or renewal of a PTIN,”
Am. Compl. ¶ 39, their second claim alternatively argues that even “if the IRS has legal authority
to charge a fee for the issuance or renewal of a PTIN, the fees charges exceed the amount that can
be charged under 31 U.S.C. § 9701.” Id. at ¶ 46.5
In pressing these separate, alternative legal theories, plaintiffs seek both declaratory relief
and restitution. First, plaintiffs request the Court grant “a judgment declaring that the IRS lacks
legal authority to charge a fee for issuance or renewal of a PTIN,” or alternatively, “a judgment
declaring that the fees charged for the issuance and renewal of a PTIN are excessive.” Am. Compl.
15. In addition to this declaratory relief, plaintiffs separately seek restitution for the PTIN fees that
they claim have been unlawfully assessed to date. Id. Plaintiffs believe that if the IRS has exceeded

For a discussion of the excessive fee standard, see section II.B.1 of the Court’s February 9, 2016
Memorandum Opinion.
4

5

Under 31 U.S.C. § 9701, Congress authorized federal agencies to charge a user fee in exchange for
providing a “service or thing of value.” The government argues that the IRS is authorized to charge a PTIN
User Fee under this statutory provision because the agency is providing a “thing of value” to PTIN holders
by granting them “the ability to prepare tax returns for compensation.” United States Opp’n to Pls.’ Mot.
for Class Certification 1, ECF No. 50. For a discussion of 31 U.S.C. § 9701, see section II.B.1 of the Court’s
February 9, 2016 Memorandum Opinion.

5

its statutory authority by imposing the PTIN fee, then the agency should be forced to return all of
the fees it has unlawfully charged since 2010 when the regulation was first put into place. In other
words, plaintiffs do not solely want to halt the continued implementation a rule they believe to be
unlawful—they also want their money back.
After bringing these claims, plaintiffs sought to certify the entire case as a class action
under FRCP 23. More specifically, they moved the Court to certify the following class: “All
individuals and entities who have paid an initial and/or renewal fee for a PTIN, excluding Allen
Buckley, Allen Buckley LLC, and Christopher Rizek.” In making this motion, plaintiffs suggested
that the Court adopt a “hybrid approach,” meaning that their request for a declaratory judgment
would be certified under 23(b)(2) and their request for restitution would be certified under 23(b)(3)
in order to grant class members certain protections including the right to opt out at the monetary
relief phase. See Pls.’ Reply in Supp. of Class Certification 6, ECF No. 53.
In responding to this motion, defendants also made certain distinctions between plaintiffs’
request for declaratory relief and their request for restitution. First, defendants explained—and
plaintiffs agreed—that for the requested declaratory relief, a class could only be certified under
FRCP 23(b)(2). See United States’ Opp’n to Pls.’ Mot. for Class Certification 2, 17; Pls.’ Reply
in Supp. of Class Certification 6. Further, although IRS did not directly challenge plaintiffs on
Rule 23(a)’s prerequisites,6 the agency argued that certification was inappropriate under FRCP
23(b)(2) because it did not act on grounds “generally applicable to the class.” Id. at 17. More
specifically, the IRS argued that the proposed class loses its necessary cohesion under FRCP
23(b)(2) because “plaintiffs’ claims impair the rights of unnamed CPAs, attorneys, and [enrolled
IRS agents] to seek relief or alternative theories not available to unlicensed return preparers.”

6

For the details of defendant’s arguments, see Mem. Op. 10, ECF No. 55.

6

United States’ Opp’n to Pls.’ Mot. for Class Certification 2. The Court, however, rejected that
argument and found that because the “IRS imposes the same fee for each PTIN application and
the IRS has stated the cost of processing PTIN applications does not vary, . . . the IRS has ‘acted
on grounds that apply generally to the class.’” Mem. Op. 16 (quoting Fed. R. Civ. P. 23(b)(2)).
Accordingly, the Court certified the proposed class under FRCP 23(b)(2) as it relates to plaintiffs’
request for declaratory relief.
After certifying the class as it related to declaratory relief, the Court turned to the class
certification issues surrounding plaintiffs’ request for restitution, and ultimately expressed
overriding jurisdictional concerns. Although the government contended that certification was
inappropriate under FRCP 23(b)(3) because “individual issues predominate over class issues,”
United States’ Opp’n to Pls.’ Mot. for Class Certification 2, the Court did not evaluate that
argument. Instead, the Court denied plaintiffs’ motion for certification as it related to monetary
relief, finding that plaintiffs had not yet demonstrated the government had properly waived its
sovereign immunity for that portion of the case. As discussed, plaintiffs brought their claims
primarily under the APA, see Am. Compl. ¶ 42, and as the Court noted, the APA expressly does
not waive sovereign immunity for actions seeking money damages. 5 U.S.C. § 702; see also Benoit
v. US Dep’t of Agric., 608 F.3d 17, 19 (D.C. Cir. 2010). Although plaintiffs labeled their claim
“restitution,” the Court noted that “‘restitution’ in the judicial context commonly consists of
money damages,” and does not necessarily represent an equitable action for specific relief. Bowen
v. Massachusetts, 487 U.S. 879, 917 n.2 (1988) (Scalia, J., dissenting) (citing E. Farnsworth,
Contracts § 12.20, p. 911 (1982)). And importantly, the waiver of sovereign immunity is a
prerequisite for subject matter jurisdiction. See, e.g., Webman v. Fed. Bureau of Prisons, 441 F.3d

7

1022, 1025 (D.C. Cir. 2006) (“It is axiomatic that the United States may not be sued without its
consent and that the existence of consent is a prerequisite for jurisdiction.”).
In other words, if plaintiffs’ request for restitution was effectively a demand for “money
damages,” then the Court would lack jurisdiction over that portion of plaintiffs’ claims. Because
the Court cannot certify a class before making a finding that it has subject matter jurisdiction over
the class members’ underlying claim(s), see, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1998) (“Without jurisdiction the court cannot proceed at all in any case.”), the Court denied
plaintiffs’ class certification motion as to their request for restitution, subject to reconsideration.
After the Court partially denied plaintiffs’ class certification motion, plaintiffs submitted a
motion for reconsideration at the Court’s invitation. In it, they focus extensively on America’s
Community Bankers v. FDIC, 200 F.3d 822 (D.C. Cir. 2000), to argue that the restitution of PTIN
fees allegedly unlawfully collected since 2010 would not constitute “money damages” under the
APA. According to their argument, because the APA waives sovereign immunity for “action[s]
seeking relief other than money damages,” and plaintiffs do not seek money damages—but rather
“restitution,” a form of equitable relief—the APA waives sovereign immunity for the entirety of
the case.
II. LEGAL ANALYSIS
The Court will grant plaintiffs’ motion for reconsideration, finding that under America’s
Community Bankers, the Court has jurisdiction to consider plaintiffs’ request for restitution. After
determining that the proper jurisdiction exists, the Court will adopt a hybrid approach and certify
the class under FRCP 23(b)(2) as to plaintiffs’ claims for declaratory relief and under FRCP
23(b)(3) as to plaintiffs’ claims for restitution.

8

A. Jurisdiction
The Court finds that it has jurisdiction under the APA to hear the monetary relief portion
of this case because such relief is best characterized as “restitution,” as opposed to “money
damages.” The task before the Court is to determine the most accurate way to describe plaintiffs’
demand that the IRS return to them the total amount of PTIN user fees the agency has allegedly
unlawfully assessed since 2010. If such relief constitutes “money damages,” then as stated, this
Court lacks jurisdiction under the APA, as such relief would fall outside of the scope of the APA’s
waiver of sovereign immunity.7 If on the other hand, plaintiffs’ demand for money can be more
accurately described as “restitution,” or some other form of equitable relief, then the APA would
waive the government’s sovereign immunity and empower this Court to certify plaintiffs’
proposed class and ultimately grant them their requested relief, if such action is otherwise
warranted.
Operating under this legal framework, plaintiffs and defendant take opposing positions.
Plaintiffs emphasize that “‘money damages’ refers to ‘a sum of money used as compensatory
relief—that is, ‘to substitute for a suffered loss,” whereas specific remedies, such as restitution,
“are not substitute remedies at all” but “attempt to restore [a] plaintiff to that which it was entitled
from the beginning.” Pls.’ Mot. for Recons. 3 (citing Bowen v. Massachusetts, 487 U.S. 879, 895
(1988)). Because they want the IRS to return to them only the “very thing to which [they were]
entitled,” they are not seeking any form of substitute compensation and their request can most
accurately be described as restitution. Id. (citing Bowen, 487 U.S. at 895). To support this
argument, plaintiffs rely heavily on America’s Community Bankers, where the D.C. Circuit ruled

7

As stated, the Court may still be empowered to order such relief under the jurisdiction conferred by the
Little Tucker Act; however, the Court need not determine the existence or scope of such jurisdiction.

9

somewhat succinctly that “[w]here a plaintiff seeks an award of funds to which it claims
entitlement under a statute, the plaintiff seeks specific relief, not damages.” 200 F.3d at 829.
The defendant characterizes plaintiffs’ requested relief in very different terms, claiming
instead that plaintiffs essentially allege that they suffered economic harm when they were illegally
forced to pay a PTIN fee and now seek money damages as compensation. Essentially, defendant
argues that “plaintiffs allege that they have been injured by paying the PTIN User Fee. The
requested remedy for that injury is repayment of the amount determined to be illegal.” United
States’ Response to Pls.’ Mot. for Recons. 2. Bearing in mind that “a suit ‘seeking to recover a
past due sum of money that does no more than compensate a plaintiff’s loss is a suit for damages,
not specific relief,” defendants argue that plaintiffs’ request for the return of all (or the excess
amount) of PTIN fees is compensatory and therefore must be characterized as “money damages.”
Id. at 9 (citing Bowen, 487 U.S. at 918 (Scalia, J., dissenting)).
In evaluating these arguments, the Court agrees with plaintiffs and finds that America’s
Community Bankers is controlling and plaintiffs’ request for the total or partial return of their
previously paid PTIN fees is properly characterized as “restitution.” America’s Community
Bankers involved the FDIC’s invocation of sovereign immunity after plaintiffs sued the agency
under the APA for allegedly “retain[ing] funds” that it had “improperly collected.” 200 F.3d at
830. Plaintiffs brought suit to “get their money back,” and the D.C. Circuit squarely held that this
requested remedy could not be characterized as “money damages” and therefore fell under the
APA’s relatively broad waiver of sovereign immunity. Id. Indeed, because such a remedy would
simply restore the plaintiffs to their original position, the relief was “equitable, . . . not
compensatory.” Id. at 831.

10

The underlying facts and statutory scheme of America’s Community Bankers is somewhat
complex. The case centered on assessments the FDIC made on its member financial institutions
to maintain certain reserve-to-deposits ratios of insurance funds the agency controlled. Id. at 833.
The opinion describes in detail the legal status and interplay between many different governmentsponsored insurance funds, but for present purposes, it is sufficient to say that the FDIC was only
authorized to make certain assessments “‘when necessary, and only to the extent necessary’ to
maintain [] reserves at the designated reserve ratio.” Id. at 825 (citing 12 U.S.C. §
1817(b)(2)A)(i)). After paying these fees, the member institutions brought a claim against the
government under the APA, alleging that the agency charged them an amount in excess of its
statutory authority. Id. at 830. Importantly, plaintiffs sought, among other things, to “get their
money back.” Id.
In response, the FDIC argued that plaintiffs’ requested relief “constituted money damages
beyond the scope of the APA’s jurisdictional grant.” Id. at 829. The Circuit Court rejected the
government’s argument and ruled as follows:
[T]his case questions whether the government can retain funds which originally
belonged to Bankers’s members. . . . Bankers is not seeking compensation for
economic losses suffered by the government’s alleged wrongdoing; Bankers wants
the FDIC to return that which rightfully belonged to Bankers’s member institutions
in the first place. Bankers alleges that the FDIC violated the terms of [the statutory
scheme] by assessing more in the fourth quarter of 1996 than the statutory scheme
permitted. If Bankers is correct in its statutory interpretation, then the FDIC
improperly collected money from Bankers’s members, and they are entitled under
the statutory scheme to get their money back.
Id. at 830.
The case currently before the Court is nearly identical. Similar to America’s Community
Bankers, this case “questions whether the government can retain funds which originally belonged
to [the plaintiffs].” Id. As plaintiffs point out, they allege that the IRS violated federal law by

11

“assessing more” in PTIN fees “than the statutory scheme permitted,” id. at 830, which in
plaintiffs’ view is either no fee at all or a fee limited to the cost of providing a “service or thing of
value” under 31 U.S.C. § 9701. See Pls.’ Mot. for Recons. 4. As such, plaintiffs “are not seeking
compensation for economic losses suffered by the government’s alleged wrongdoing;” rather, they
want the government to return that which “rightfully belonged to them in the first place.”
America’s Community Bankers, 200 F.3d at 830. The Court therefore finds that, as in America’s
Community Bankers, plaintiffs’ request for monetary relief constitutes restitution, not money
damages, and accordingly falls under the APA’s waiver of sovereign immunity.
Other courts in this circuit have come to the same conclusion. In Holly Sugar Corp. v.
Veneman, for example, the court ruled that the plaintiffs were requesting specific relief, not
“money damages” under the APA, when they sought to retrieve a portion of interest payments
made to the USDA under a loan assistance program offered to sugar farmers. 355 F. Supp. 2d 181
(D.D.C. 2005), rev’d on other grounds, 437 F.3d 1210 (D.C. Cir. 2006). Essentially, the plaintiffs
argued that the government had charged them a rate of interest one percent higher than was
permitted by statute and sought “reimbursement for the amount of additional interest.” Id. at 193.
The court emphasized that the plaintiffs sought “only that to which they were entitled . . . and thus
the relief requested was other than money damages.” Id.; see also Zellous v. Broadhead Assocs.,
906 F.2d 94, 96 (3d Cir. 1990) (ruling that after HUD allegedly charged plaintiffs impermissibly
excessive rent, plaintiffs’ request for reimbursement from the agency was not a claim “for money
damages and . . . the district court [could] award complete relief under the [sovereign immunity]
waiver of § 702 of the Administrative Procedure Act”).
Defendant attempts to distinguish the present matter from America’s Community Bankers
and this line of cases by arguing that the relevant precedent only governs situations where

12

plaintiffs seek “adjustments to ongoing relationships” and where the requested relief sought is
“purely injunctive.” United States’ Response to Pls.’ Mot. for Recons. 6. Neither of these
arguments is persuasive. First, there is no requirement that plaintiffs must seek an “adjustment to
an ongoing relationship” in order to have their requested relief categorized as “restitution.” It is
true that in Bowen v. Massachusetts, the Supreme Court stated that the plaintiffs requested relief
was not an “award of damages,” but rather “an adjustment—and, indeed, usually a relatively minor
one—in the size of the federal grant to the State that is payable in huge quarterly installments.”
487 U.S. 879, 893 (1988). The Court, however, never stated that a payment must be an
“adjustment” in order to qualify as equitable relief. The Opinion simply described one instance
where a payment of money was a form of specific relief, rather than money damages—it did not
describe the only such instance. Indeed, America’s Community Bankers, which is binding on this
Court, specifically interpreted and explained the rule set forth in Bowen and omitted any
discussion whatsoever of adjustments to ongoing relationships. The Circuit interpreted Bowen’s
ruling, in its entirety, as follows:
The pivotal analysis in distinguishing specific relief available under the APA from
unavailable money damages comes from our opinion in Md. Dep’t of Human Res.
v. Dep’t of Health and Human Servs., 763 F.2d 1441 (D.C. Cir. 1985), which the
Supreme Court adopted in Bowen v. Massachusetts, 487 U.S. 879 (1988). Not all
forms of monetary relief are money damages. See Md. Dep’t of Human Resources,
763 F.2d at 1447. Rather, money damages represent compensatory relief, an award
given to a plaintiff as a substitute for that which has been lost; specific relief in
contrast represents an attempt to restore to the plaintiff that to which it was entitled
from the beginning. . . . Where a plaintiff seeks an award of funds to which it claims
entitlement under a statute, the plaintiff seeks specific relief, not damages. See,
e.g., Bowen, 487 U.S. at 901.
As is obvious, the Circuit applied the rule laid out in Bowen and made no mention of the supposed
requirement that equitable relief takes the form of an “adjustment to an ongoing relationship.” As

13

such, the Court will reject the government’s first explanation for why America’s Community
Bankers’s reasoning and holding should not apply in this case.
Like the suggested requirement that plaintiffs seek an “adjustment to an ongoing
relationship,” defendant’s second argument that the requested relief must be “purely injunctive”
is also off base. In the Court’s view, it is unclear how this requirement squares with the legal
analysis and conclusions presented in the cases the parties primarily cite to. In these cases, as in
the present case, the plaintiffs sought a refund or reimbursement of fees they argued were
improperly collected. See Bowen v. United States, 487 U.S. 879, 910 (1988) (“[S]ince the orders
are for specific relief (they undo the Secretary’s refusal to reimburse the State) rather than for
money damages (they do not provide relief that substitutes for that which ought to have been done)
they are within the District Court’s jurisdiction under § 702’s waiver of sovereign immunity.”);
America’s Cmty. Bankers v. FDIC, 200 F.3d 822, 829 (D.C. Cir. 2000) (“The district court held
that . . . the refund Bankers seeks is unavailable under 5 U.S.C. § 702)); Holly Sugar Corp. v.
Veneman, 355 F. Supp. 2d 181, 193 (D.D.C. 2005) (“Here, as in Bowen and Zellous, the plaintiffs
merely seek ‘reimbursement’ for the amount of additional interest the CCC charged them in
violation of the Act.”). And importantly, in all of these cases, the Court characterized plaintiffs’
request for a refund or reimbursement as specific relief, not as money damages. The present matter
is no different, as plaintiffs simply seek that which they were “entitled [to] from the beginning.”
America’s Cmty. Bankers, 200 F.3d at 829. For these reasons, the Court finds that § 702 of the
APA waives sovereign immunity for plaintiffs’ request for monetary relief and that it has
jurisdiction to hear that portion of the case.

14

B. Certification of the Portion of the Matter Relating to Plaintiffs’ Request
for Restitution
After determining that subject matter jurisdiction exists, the Court will grant plaintiffs’
motion to certify the proposed class as it relates to their request for restitution. The Court finds that
the class certification analysis relating to declaratory relief detailed in its February 9, 2016
Memorandum Opinion is fully applicable to plaintiffs’ request for monetary relief. See Mem. Op.
14-18.
In arguing against certification for declaratory and monetary relief, the United States
focuses on the differences between various subsets of class members—specifically attorneys,
enrolled agents, CPAs, and unlicensed tax return preparers. Importantly, the proposed class is
comprised of all these subgroups, each of which, as defendant points out, has differing
“educational, testing, training, [and licensing] requirements.” United States’ Opp’n to Pls.’ Mot.
for Class Certification 18. Moreover, each group takes “different advantage of the benefit provided
by the Service,” that is, the ability to prepare tax returns for compensation. Id. With respect to
declaratory relief, the IRS argued that these differences run afoul of FRCP 23(b)’s requirement
that the class be “cohesive.” Id. at 21. For restitution, the defendant similarly argued that,
certification under FRCP 23(b)(3) is inappropriate because in light of the differences between the
class’s subgroups, “individual issues predominate over class-wide issues.”8 Id. at 13.
In its February 9, 2016 Memorandum Opinion, the Court rejected defendant’s argument
concerning declaratory relief and will now apply the same reasoning to reject the defendant’s
argument concerning monetary relief. As the Court has already ruled, defendant’s contention that

The government conceded that for the monetary relief portion of plaintiffs’ first claim—that the IRS does
not have the authority to issue any PTIN fee—a class can be certified under FRCP 23(b)(3), as class issues
will predominate over individual issues. See United States’ Opp’n to Pls.’ Mot. for Class Certification 15.
The United States, however, challenges certification under the monetary relief portion of plaintiffs’ second
claim—that the fee imposed was excessive.
8

15

members of the plaintiff class will receive varying benefits from the PTIN overlooks that “the
measure of fees [imposed under § 9701, which the government uses to justify the PTIN fees,] is
the cost of the government of providing the service, not the intrinsic value of the service to
the recipients.” Seafarers Int’l Union of N. Am. v. US Coast Guard, 81 F.3d 179, 185 (D.C.
Cir. 1996). Because the IRS has stated time and again that the cost of issuing a PTIN is the same
regardless of who receives the pin number (attorneys, CPAs, etc.), see Mem Op. 15, the question
of whether the PTIN fee is authorized—or excessive—will be answered in the same way for every
class member. Therefore, focusing on costs, class-wide issues predominate over the issues of
individual class members, making class certification for plaintiffs’ request for restitution
appropriate under FRCP 23(b)(3). Consistent with this analysis, the Court will certify the
following class as it relates to restitution: “All individuals and entities who have paid an initial
and/or renewal fee for a PTIN, excluding Allen Buckley, Allen Buckley LLC, and Christopher
Rizek.” As such, this entire case—each of plaintiffs’ two, alternative claims and their request for
both declaratory and monetary relief—is now certified as a class action.
III. CONCLUSION
Upon consideration of plaintiffs’ motion for reconsideration, defendant’s opposition,
plaintiffs’ reply, the entire record herein, and the applicable law, the Court will GRANT plaintiffs’
motion for reconsideration. America’s Community Bankers v. FDIC, presents binding precedent
and requires a finding that under the APA, the government has waived its sovereign immunity for
the portion of this case relating to plaintiffs’ request for restitution. The Court therefore has the
proper subject matter jurisdiction to proceed with every aspect of this case.
Moreover, the Court finds that certification under FRCP 23(b)(3) is appropriate for
plaintiffs’ request for restitution, as class-wide issues predominate over the issues of individual

16