54 Fed. Cl. 630 | Fed. Cl. | 2002
OPINION
Plaintiff is a state-owned Canadian power generating corporation that purchased millions of tons of U.S. coal in the six years leading up to the filing of this action. The price that plaintiff paid for that coal included the cost of the coal excise taxes imposed under 26 U.S.C. § 4121(a) and reclamation fees imposed under 30 U.S.C. § 1232. Plaintiff brings this action to recover these
I. Facts
Ontario Power Generation (“OPG” or plaintiff) is a corporation owned by, and organized under the laws of, the province of Ontario, Canada. OPG was the ultimate purchaser and user of coal purchased from various U.S. suppliers during the years in question. Plaintiff claims that these suppliers collected from it, by including in the price of the coal, the Black Lung Excise Tax required by 26 U.S.C. § 4121 (the Coal Tax), as well the reclamation fee required by 30 U.S.C. § 1232. OPG alleges that it, in effect, paid the Coal Tax and reclamation fee, averring further that this tax and fee, insofar as they applied to their transactions, violated the Export Clause of the Constitution, Article I, § 9, cl. 5.
Plaintiff filed its original complaint in this case on December 15, 2000. On July 31, 2001, it amended that complaint, seeking recovery of both the Coal Tax and reclamation fees, alleging that both “have been illegally exacted from plaintiff in contravention of the Export Clause.”
On October 18, 2001, the United States filed a motion for judgment on the pleadings and for dismissal. Defendant’s motion challenges both plaintiffs standing to bring an action to recover with respect to the Coal Tax and the jurisdiction of this court to hear plaintiffs claim regarding the reclamation fees. On March 5, 2002, Mingo Logan Coal Co., Ashland Coal, Inc., and Arch Coal Sales, Inc., collectively filed a motion for judgment on the pleadings and for dismissal of OPG’s complaint (the third parties’ motion).
II. Discussion
Today, this court filed an opinion and order in Emerald International Corp. v. United States, 54 Fed.CI. 674 (2002), granting the defendant’s motion for summary judgment and dismissing the complaint therein. In that case, this court held that a domestic coal broker, who purchased coal for purposes of resale to various international customers, lacked constitutional standing to assert a damage claim under the Export Clause. This court further held Emerald could not pursue a recovery under the Tucker Act on several other theories: (i) as a takings claim based upon the Fifth Amendment; (ii) an illegal exaction claim; and (iii) a claim based upon an implied contract.
In the court’s view, Emerald disposes of all of the claims raised by Ontario in the case sub judice. While defendant does not, for purposes of this motion, challenge plaintiffs constitutional standing to bring Export
Breaking new ground, the court also finds that OPG, as a foreign consumer of coal, fails to meet prudential standing requirements. According to the Supreme Court, the prudential standing question is “whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In more familiar terms, the issue is “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). While this test, at least in some contexts, is “not meant to be especially demanding,” Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987),
For our purposes, the question then is whether plaintiffs interests are arguably within the “zone of interests” to be protected by the Export Clause. That clause provides that “[n]o Tax or Duty shall be laid on Articles exported from any State.” U.S. Const. Art. I, § 9, cl. 5. Plaintiff claims that its interests are within the relevant zone because the Clause was adopted to “protect international free trade.” Defendant, joined by the intervening defendants, disagrees and retorts that “[t]he U.S. Constitution ... is not a draft version of GATT: the Framers did not intend to benefit foreign purchasers.”
Plaintiff, however, cites that portion of United States v. Hvoslef, 237 U.S. 1, 15, 35 S.Ct. 459, 59 L.Ed. 813 (1915), in which the Supreme Court stated that “the purpose of the [Export Clause] is that exportation, all exportation, shall be free from national burden.” Viewed in context, however, this quote merely refuted the contention that “there should be enforcement [of the Export Clause] only so far as necessary to prevent ... discrimination” between or among the States. 237 U.S. at 15, 35 S.Ct. 459. Indeed, while the court is mindful of the need to avoid converting the prudential standing analysis into a full blown consideration of the merits, it remains that countless decisions have described the purpose of the Export
Based on the foregoing, this court concludes that plaintiff is not arguably within the zone of interests protected by the Export Clause and thus lacks prudential standing to bring any claims predicated upon that clause. This conclusion draws further support from cases which indicate that another consideration in assessing prudential standing is that “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim on the legal rights or interests of third parties.” Warth, 422 U.S. at 499, 95 S.Ct. 2197. Here, plaintiff is essentially asserting the rights of the coal producers, upon whom the exactions in questions were actually imposed. Of course, it is well-accepted that the Congress, may if it wishes, expressly override prudential considerations of standing and authorize the filing of a law suit. See Bennett, 520 U.S. at 162-63, 117 S.Ct. 1154. But, this court sees no evidence of this here. Per contra. The case law suggests that plaintiffs illegal exaction claim fails to state a claim under the Tucker Act. See Casa De Cambio Comdiv S.A., De. C.V. v. United States, 291 F.3d 1356 (Fed.Cir.2002), aff'g, 48 Fed.Cl. 137 (2000). This, indeed, was the conclusion of this court on analogous facts in Emerald, 54 Fed.Cl. at 684.
For these reasons, this court GRANTS defendant’s motion to dismiss plaintiffs complaint for lack of standing. The Clerk is hereby ordered to dismiss plaintiffs complaint. On or before January 10, 2003, defendant and the third-party defendants shall file a joint status report with the court indicating how, if at all, they intend to proceed with respect to the third-party actions associated with this case.
. In reviewing the sufficiency of the complaint pursuant to a motion to dismiss, this court must presume that the factual allegations included in the complaint are true. Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988).
. By order dated June 8, 2001, this court directed the Clerk to give notice of this matter to all "persons” listed in an Appendix A attached to said order. The full style of this matter includes all 49 entities listed in this Appendix, but only six of these parties actually filed pleadings of some sort in this action. Four — Mingo Logan Coal Co., Ashland Coal, Inc., Arch Coal Sales, Inc. and Alliance Coal LLC — filed answers to plaintiff’s complaint and have been listed as third-party defendants. Two — Seascape Coal Sales, Inc. and Riverton Coal Sales, Inc. — filed third-party complaints and have been listed as third-party plaintiffs. But, the answers and complaints filed by these third parties all essentially assert that they, and not plaintiff, are entitled to the taxes at issue. Some of these third parties have also filed separate lawsuits in this court, seeking to recover the same taxes at issue here. For ease of reference, the court will collectively refer to all these parties as "third-party defendants.”
. Similarly to the Coal Tax, the liability for paying the reclamation fee falls on the operators of the coal mines. Thus, 30 U.S.C. § 1232, states that "[a]ll operators of coal mining operations subject to the provisions of this chapter shall pay to the Secretary of the Interior ...” For purposes of the reclamation fee, an "operator” is “any person ... engaged in coal mining who removes ... more than 250 tons of coal by mining within 12 consecutive calendar months in any one location.” 30 U.S.C. § 1292(13).
. In Clarke, the Supreme Court suggested that the "zone of interests” test is most forgiving in the context of the " 'generous review provisions' ” of the Administrative Procedures Act, 479 U.S. at 400 n. 16, 107 S.Ct. 750 (quoting Data Processing, 397 U.S. at 156, 90 S.Ct. 827). The Court, nonetheless, indicated that the "zone of interests” inquiry remains relevant outside the APA context, albeit in a narrower fashion and with the possibility that other factors may be relevant in considering prudential standing. 479 U.S. at 400 n. 16, 107 S.Ct. 750. For the reasons that follow, this court does not believe that any of these nuances in the "zone of interests” test are determinative here.
. Justice Henry Baldwin actually published his concurring opinion in a supplementary volume entitled, A General View of the Origin and Nature of the Constitution and Government of the United States ... Together with the Opinions in the Cases decided at January Term, 1837, Arising on the Restraints on the Powers of the States (1837). According to two commentators, this "anomaly [arose] in part from [Court reporter] Peter’s poor relations with Justice Baldwin” and the justice’s inability to finish his opinions in time for publication. Morris L. Cohen & Sharon H. O’Connor, A Guide to the Early Reports of the Supreme Court 70 (1995).
. It appears from the convention debates, that opponents of the Export Clause, among them, James Madison, were fearful that adoption of the clause ultimately would inhibit free trade, by preventing the United States from negotiating favorable treaties. See 2 The Records of the Federal Convention of 1787 361 (Max Farrand ed.1966) (quoting James Madison on Aug. 21); see also Florida Sugar, 220 F.3d at 1335-36; Note, Constitutionality of Export Controls, 76 Yale L.J. 200, 202 (1966) (In adopting the clause, "the Convention was aware that it was depriving the new government of a tool for both domestic and foreign commercial policy.”). Indeed, a review of Madison’s notes of the debates on the Export Clause, which occurred primarily on August 16 and 21, 1787, reveals not the slightest concern about foreign consumers or free trade among either proponents or opponents of the provision. See 2 The Records of the Federal Convention of 1787 304-310 (Max Farrand ed.1966). Typical of the views expressed by the proponents were those of Mr. Elseworth, who is reported by Madison to have stated that — "There are solid reasons against. Congs. taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. The produce of different States is such as to prevent uniformity in such taxes. There are indeed but a few articles that could be taxed at all; as [tobacco] rice & indigo, and a tax on these alone would be partial & unjust. 3. The taxing of exports would engender incurable jealousies.” Id. at 360; see also 1 Joseph Story, Commentaries on the Constitution of the United States §§ 1013-15 (5th ed., 1905) (summarizing the debates).
. See United States v. United States Shoe Corp., 523 U.S. 360, 368, 118 S.Ct. 1290, 140 L.Ed.2d 453 (1998) (" '[T]he Framers sought to alleviate ... concerns [that Northern States would tax exports to the disadvantage of Southern States] by completely denying to Congress the power to tax exports at all.’ ” (quoting United States v. Int’l Bus. Machines Corp., 517 U.S. 843, 861, 116 S.Ct. 1793, 135 L.Ed.2d 124 (1996) (alternations in original))); Int’l Bus. Machines, 517 U.S. at 848, 116 S.Ct. 1793 ("We know historically that [the Export Clause] was one of the compromises which entered into and made possible the adoption of the Constitution. It is a restriction on the power of Congress ____” (quoting Fairbank v. United States, 181 U.S. 283, 290, 21 S.Ct. 648, 45 L.Ed. 862 (1901))); Florida Sugar, 220 F.3d at 1338 (clause designed to "protect against the federal government discriminatorily taxing the interstate commerce of a particular state or region”); Carnival Cruise Lines, Inc. v. United States, 200 F.3d 1361, 1364 (Fed.Cir.), cert. denied, 530 U.S. 1274, 120 S.Ct. 2741, 147 L.Ed.2d 1005 (2000) (same).
. Several cases, in fact, suggest a general hesitancy by courts to afford foreign entities and individuals standing to sue absent some indication from Congress that it intended a law with a domestic scope to be enforced by foreigners. See, e.g., Sacilor, Acieries et Laminoirs de Lorraine v. United States, 815 F.2d 1488, 1491 (Fed.Cir.1987), cert. denied, 484 U.S. 924, 108 S.Ct. 285, 98 L.Ed.2d 245 (1987) (holding European manufacturer of steel pipe lacked prudential standing to challenge denial of its request to allow further importation of pipe, finding that “it does not appear that Congress intended to rely on foreign manufacturers to challenge administrative application of American import laws”); Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1209-11 (5th Cir.1991) (finding that Canadian workers, affected by the loss of sales due to the EPA's ban of asbestos under the Toxic Substance Control Act, did not have standing to challenge the action because of the Act’s "national emphasis”).
. In Ashkir v. United States, 46 Fed.Cl. 438 (2000), this court held that a nonresident alien lacked standing to invoke the Takings Clause of the Fifth Amendment with respect to real property located in Somalia. The court found that neither the plaintiff nor his property possessed
