Dekalb County, Georgia v. United States

In the United States Court of Federal Claims

No. 11-761 C

(Filed January 28, 2013)

********************* Money-Mandating Source of Law;

DEKALB COUNTY, GEORGIA, * Tucker Act, 28 U.S.C. § 1491(a)(1)

a political subdivision of the * (2006); Statute of Limitations,

State of Georgia, * 28 U.S.C. § 2501 (2006);

* Waiver of Sovereign Immunity;

Plaintiff, * State Taxation of Federal Property;

* Supremacy Clause, U.S. Const.

v. * Art. VI, cl. 2; Federal Facilities

* Section of the Clean Water Act,

THE UNITED STATES, * 33 U.S.C. § 1323 (2006); Subject

* Matter Jurisdiction, RCFC 12(b)(1);

Defendant. * Failure to State a Claim,

********************* RCFC 12(b)(6).

Sam L. Brannen, Jr., DeKalb County Law Department, with whom were

Lisa E. Chang and Duane D. Pritchett, Decatur, GA, for plaintiff.

Franklin E. White, Jr., United States Department of Justice, with whom were

Stuart F. Delery, Acting Assistant Attorney General, and Jeanne E. Davidson,

Director, Washington, DC, for defendant. Harold Askins, Department of Veterans

Affairs, Michael F. Kiely, United States Postal Service, James Misrahi,

Department of Health & Human Services, Centers for Disease Control, of counsel.

Lawrence R. Liebesman, Washington, DC, for amici curiae National

Association of Clean Water Agencies, National Association of Flood and

Stormwater Management Agencies, and American Public Works Association.

_________________________

OPINION

_________________________

BUSH, Judge.

Now pending before the court is defendant’s motion to dismiss and plaintiff

DeKalb County’s motion for summary judgment, both of which have been fully

briefed and are ripe for a decision by the court. Because the court concludes that

some of the claims set forth in the complaint were filed more than six years after

they first accrued, defendant’s motion to dismiss those claims under Rule 12(b)(1)

of the Rules of the United States Court of Federal Claims (RCFC) must be granted.

The court further holds that the remainder of the claims set forth in the complaint

fail to state a claim upon which relief can be granted and must be dismissed under

RCFC 12(b)(6). Accordingly, defendant’s motion to dismiss is granted, and

DeKalb County’s motion for summary judgment is denied.

BACKGROUND1

I. Factual History

A. The DeKalb County Municipal Separate Storm Sewer System

Most of the rain that falls on undeveloped land is absorbed into the ground.

But when land is developed, and the property is covered with impervious surfaces

such as buildings, parking lots, sidewalks, and roads, rainfall cannot be absorbed

and flows onto adjacent land in higher volumes and at higher velocities than if the

land had remained in an undeveloped state. This additional runoff increases the

risk of flooding for nearby properties and also contributes to water pollution

because the stormwater collects debris, chemicals, and other materials on the

pavement and other impervious surfaces as it travels towards natural waterways.

Stormwater runoff from impervious surfaces also impairs water quality through

erosion and sedimentation.

In response to the increased stormwater runoff attributable to development,

local governments have constructed and operated stormwater management systems

for many years. The cost of operating such systems has increased dramatically in

recent years, due to the accelerated pace of development and new requirements,

especially requirements related to the abatement of water pollution, imposed by

both state and federal law. While drainage and flood prevention were the primary

1

/ The facts recounted here are taken from the parties’ submissions in this case and are

undisputed. Unless otherwise noted, the court makes no findings of fact in this opinion.

2

impetus for the development of stormwater management systems, environmental

protection has become an increasingly important – perhaps the primary –

consideration in the design and management of such systems.

The Federal Water Pollution Control Act Amendments of 1972, Pub. L. No.

92-500, 86 Stat. 816, more commonly known as the Clean Water Act (CWA),

created the National Pollutant Discharge Elimination System (NPDES), which

requires a permit from either the Environmental Protection Agency (EPA), or an

EPA-approved state agency, in order to discharge any type of pollutant from a

point source into the waters of the United States. See 33 U.S.C. §§ 1311(a), 1342

(2006). In enacting the CWA, Congress declared that the statute’s purpose was

“to restore and maintain the chemical, physical, and biological integrity of the

Nation’s waters.” 86 Stat. 816. Further, “it [was] the policy of the Congress to

recognize, preserve, and protect the primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution.” Id.

In general, municipal separate storm sewer systems divert and collect

stormwater and then discharge that water, untreated, into natural waterways.

Because those systems discharge pollutants into the waters of the United States,

they are treated as point sources under the CWA, as amended, and are required to

obtain an NPDES permit, which imposes stringent requirements on their design

and operation.2 See 33 U.S.C. § 1342(p)(3)(B) (stating that NPDES permits for

municipal storm sewers must prohibit the discharge of anything other than

stormwater into the system and “shall require controls to reduce the discharge of

pollutants to the maximum extent practicable, including management practices,

control techniques and system, design and engineering methods, and such other

provisions as the Administrator or the state determines appropriate for the control

of such pollutants”).

DeKalb County, Georgia (the County), a political subdivision of the State of

Georgia, owns and operates the DeKalb County Municipal Separate Storm Sewer

System (the stormwater management system), which was developed over many

2

/ There was no NPDES permit requirement for stormwater discharges until Congress

passed the Water Quality Act of 1987, Pub. L. No. 100-4, sec. 405, 101 Stat. 7, 69-71. The EPA

promulgated the first regulations implementing the new requirement in 1990. National Pollutant

Discharge Elimination System Permit Application Regulations for Storm Water Discharges,

55 Fed. Reg. 47,990 (Nov. 16, 1990) (codified at 40 C.F.R. pts. 122-124).

3

years.3 Code of DeKalb County (County Code) § 25-360(c). The system is

operated in accordance with an NPDES permit issued by the State of Georgia and

is also subject to additional requirements under state law. See Compl. ¶ 13; Pl.’s

Resp. at 1-2.

In December 2003, the County’s board of commissioners adopted a new

stormwater management ordinance, which created a new stormwater utility that

would be “responsible for stormwater management throughout the county’s

jurisdictional limits, and [would] provide for the management, protection, control,

regulation, use, and enhancement of stormwater systems and facilities.” County

Code § 25-362(a). The board of commissioners transferred to the new stormwater

utility “operational control over the existing stormwater management systems and

facilities owned and heretofore operated by the county and other related assets,

including but not limited to properties upon which such facilities are located,

easements, rights-of-entry and access, and certain equipment.” Id. § 25-362(b).

Most relevant to this case, the stormwater ordinance established a new system of

“stormwater service fees” to fund the operations of the new utility. Id. § 25-365.

Under the ordinance, the owners of all developed property located within the

unincorporated portions of the county are required to pay an annual assessment

that is generally based on the impervious surface area located on the property.4

The charge assessed on developed properties is equal to $4.00 per month for each

3

/ The County is authorized to establish a stormwater management system under the

Home Rule section of the Georgia Constitution. See Ga. Const. 1983, Art. IX, sec. 2, par. III

(a)(6) (stating that counties may provide “[s]torm water and sewage collection and disposal

systems”). Under state statute, the County is authorized to “prescribe, revise, and collect rates,

fees, tolls, or charges” for systems, plants, works, instrumentalities, and properties “used or

useful in connection with the collection, treatment, and disposal of sewage, waste, and storm

water.” Ga. Code Ann. §§ 36-82-61(4)(C)(ii), 36-82-62(a)(3) (West 2012).

4

/ The ordinance applies only to the unincorporated portions of DeKalb County because

the County cannot exercise its authority within the boundaries of incorporated municipalities that

are located inside of its borders. See Ga. Const. 1983, Art. IX, sec. 2, par. III(b)(1) (“No county

may exercise any of the powers listed in subparagraph (a) of this Paragraph or provide any

service listed therein inside the boundaries of any municipality or any other county except by

contract with the municipality or county affected[.]”).

4

Equivalent Residential Unit (ERU).5 Id. § 25-365(b). Single-family dwellings are

assessed the rate applicable to one ERU; multiple-family dwellings are assessed the

rate applicable to one ERU, multiplied by the number of dwelling units on the

property, multiplied by an adjustment factor of 0.5; and all other developed

properties are assessed the rate applicable to one ERU for every 3000 square feet

of impervious surface area on the property, rounded up to the next highest tenth of

an ERU. Id. § 25-365(c)-(e).

The stormwater management charges do not apply to undeveloped land,

public rights of way, railroad rights of way, or “[a]ny property whereby one

hundred (100) percent of the stormwater runoff is contained on the premises and

no runoff enters into the stormwater management system.” Id. § 25-368. Further,

property owners may apply for credits against the stormwater assessment by

implementing specified systems and facilities on their own property, but the credits

may amount to no more than forty percent of the total charge. Id. § 25-369(a).

The ordinance provides that the revenue generated by the new assessments

must be deposited into an “enterprise fund,” which is to be used only for costs

incurred in connection with the stormwater management system. County Code

§ 25-364. Under the ordinance, the County may appropriate additional funds for

the system, but the revenue in the enterprise fund may not be devoted to any other

purpose. While revenue that is deposited into the enterprise fund may be pledged

“to the payment of principal of premium, if any, and interest on any revenue bonds

or other obligations lawfully issued or otherwise contracted for by the county as

may be provided in any resolution authorizing such bonds or obligations or in any

trust instrument relating to such bonds or obligations[,]” id. § 25-364(c), the

referenced bonds are limited to those related solely to the stormwater management

system, see Tr. at 35-36.

The ordinance provides that the “stormwater service fee shall accrue

beginning January 1, 2004, and shall be billed annually thereafter.” Id. § 25-366.

The charge may be billed separately or collected “with other fees for services, . . .

provided that in no instance shall the service charge constitute a direct lien against

the property.” Id. § 25-371(a). The County may send the bill for the assessment

5

/ The ERU was calculated based on the county’s median impervious coverage for a

statistical sampling of lots improved with detached, single-family dwellings. See County Code

§ 25-361 (definition of “Equivalent Residential Unit”).

5

through the mail or by other means, and that bill must indicate “the amount of the

bill, the date the payment is due, and the date when past due.” Id. § 25-371(b).

In practice, the County often includes the amount of the stormwater charge

due for each property owner as a line item on the annual bill sent during the

summer for fees and ad valorem taxes. Affidavit of John G. Booth (Booth Aff.)

¶ 6. The United States and other tax-exempt property owners, in contrast, are

billed for the assessment on a separate “Stormwater Utility Notice.” Id. The

County assesses these charges against its own property, and also pays stormwater

management charges imposed by municipalities and other counties in which it

owns property. See Affidavit of Joel Gottlieb ¶¶ 3-5.

B. The Federal Facilities Section of the Clean Water Act

Since its original enactment in 1972, the CWA has included a provision

known as the Federal Facilities Section, 33 U.S.C. § 1323 (2006), which requires

the federal government to meet the same water pollution abatement requirements

as those applicable to private entities.6 In this case, the County argues that the

Federal Facilities Section, which was amended in 1977 and again in 2011, waives

the federal government’s sovereign immunity from the stormwater utility charges

that plaintiff seeks to recover in this case. Because the Federal Facilities Section is

central to the County’s case, the court will examine its history in some detail.

1. The 1972 Version

In the Federal Water Pollution Control Act Amendments of 1972, the

relevant portion of the Federal Facilities Section read as follows:

Each department, agency, or instrumentality of the

executive, legislative, and judicial branches of the

Federal Government (1) having jurisdiction over any

property or facility, or (2) engaged in any activity

6

/ The various sections of the CWA are often referred to as they appeared in the law

enacted by Congress, rather than as they were ultimately codified in the United States Code.

The Federal Facilities Section, for example, is sometimes referred to as section 313 of the CWA,

even though it is codified at 33 U.S.C. § 1323. In this opinion, the court will refer to that section

as it was codified (i.e., as “section 1323”).

6

resulting, or which may result, in the discharge or runoff

of pollutants shall comply with Federal, State, interstate,

and local requirements respecting control and abatement

of pollution to the same extent that any person is subject

to such requirements, including the payment of

reasonable service charges.

Pub. L. No. 92-500, 86 Stat. 816, 875.

The Senate Report on the 1972 CWA states that the purpose of section 1323

was to “require[] that Federal facilities meet the same effluent limitations as private

sources of pollution, unless the Federal facility is specifically exempted by the

President.” S. Rep. No. 92-414, at 67, reprinted in 1971 U.S.C.C.A.N. 3668, 3733.

There is no discussion in either the text of the statute or in the Senate Report as to

what types of charges the term “reasonable service charges” was intended to

encompass.

2. The 1977 Version

In EPA v. California EPA ex rel. State Water Resources Control Board,

426 U.S. 200 (1976), the Supreme Court held that the Federal Facilities Section of

the CWA did not require federal agencies to meet state permitting requirements

related to the abatement of water pollution. The Supreme Court first explained that

federal properties “are subject to state regulation only when and to the extent that

congressional authorization is clear and unambiguous.” Id. at 211. Next, the Court

held that section 1323 did not expressly require federal agencies to obtain an

NPDES permit from the state to discharge effluents into navigable waters. Finally,

according to the Court, none of the express terms of section 1323 – including the

requirement that the federal government pay reasonable service charges – could be

read to contain an implied requirement to obtain such a permit.

Congress amended section 1323 in 1977, noting in the Senate Report on the

amendment that “[t]he act has been amended to indicate unequivocally that all

Federal facilities and activities are subject to all of the provisions of State and local

pollution laws.” S. Rep. No. 95-370, at 67 (1977), reprinted in 1977 U.S.C.C.A.N.

4326, 4392. The report explains that “the Supreme Court, encouraged by Federal

agencies, ha[d] misconstrued the original intent [of the 1972 law].” Id. The report

further notes that because

7

the substantive requirements of the act and of State and

local law would be unenforceable unless procedural

provisions were also met[,] section 313 is amended to

specify that, as in the case of air pollution, a Federal

facility is subject to any Federal, State, and local

requirement respecting the control or abatement of water

pollution, both substantive and procedural, to the same

extent as any person is subject to these requirements.

This includes, but is not limited to, requirements to

obtain operating and construction permits, reporting and

monitoring requirements, any provisions for injunctive

relief and such sanctions imposed by a court to enforce

such relief, and the payment of reasonable service

charges.

Id. at 4392-93. Section 1323, as amended in 1977 and as it still reads today, states

that

[e]ach department, agency, or instrumentality of the

executive, legislative, and judicial branches of the

Federal Government (1) having jurisdiction over any

property or facility, or (2) engaged in any activity

resulting, or which may result, in the discharge or runoff

of pollutants, and each officer, agent, or employee

thereof in the performance of his official duties, shall be

subject to, and comply with, all Federal, State, interstate,

and local requirements, administrative authority, and

process and sanctions respecting the control and

abatement of water pollution in the same manner, and to

the same extent as any nongovernmental entity including

the payment of reasonable service charges.

33 U.S.C. § 1323(a) (emphasis added to indicate changes made by amendment).

The amended section also states that its mandate applies “to any requirement,

whether substantive or procedural,” “to the exercise of any Federal, State, or local

administrative authority,” and “to any process and sanction, whether enforced in

Federal, state, or local courts or in any other matter.” Id. Finally, the 1977 version

of section 1323 states that “[t]his subsection shall apply notwithstanding any

8

immunity of such agencies, officers, agents, or employees under any law or rule of

law.” Id.

3. The 2011 Version

Despite the 1977 amendment to the Federal Facilities Section of the CWA,

the federal government routinely refused to pay the types of stormwater charges at

issue in this case, arguing that such charges were taxes rather than fees, and did not

fall within the waiver of immunity contained in section 1323(a). In response,

Senator Ben Cardin introduced a bill to add two new subsections to section 1323,

without changing the text of section 1323(a):

(c) Federal Responsibility for Stormwater Pollution.

Reasonable service charges described in subsection

(a) include reasonable fees or assessments made

for the purpose of stormwater management in the

same manner and to the same extent as any

nongovernmental entity.

(d) No Treatment as Tax or Levy. A fee or assessment

described in this section –

(1) shall not be considered to be a tax or other

levy subject to an assertion of sovereign

immunity; and

(2) may be paid using appropriated funds.

S. 3481, 111th Cong. (2010) (as introduced), 156 Cong. Rec. S4851, S4856.

In introducing his proposed amendment to the Federal Facilities Section,

Senator Cardin noted the government’s persistent refusal to pay reasonable

stormwater management charges, and explained that “[a]dopting the legislation

that I am introducing today will remove all ambiguity about the responsibility of

the Federal Government to pay these normal and customary stormwater fees.”

156 Cong. Rec. S4851, S4856 (2010) (statement of Senator Cardin).

Congress ultimately passed an amended version of Senator Cardin’s bill,

9

which the President signed into law on January 4, 2011:

(c) Reasonable Service Charges –

(1) In general. For the purposes of this Act,

reasonable service charges described in subsection

(a) include any reasonable nondiscriminatory fee,

charge, or assessment that is –

(A) based on some fair approximation of the

proportionate contribution of the property or

facility to stormwater pollution (in terms of

quantities of pollutants, or volume or rate of

stormwater discharge or runoff from the

property or facility); and

(B) used to pay or reimburse the costs associated

with any stormwater management program

(whether associated with a separate storm

sewer system or a sewer system that

manages a combination of stormwater and

sanitary waste), including the full range of

programmatic and structural costs

attributable to collecting stormwater,

reducing pollutants in stormwater, and

reducing the volume and rate of stormwater

discharge, regardless of whether that

reasonable fee, charge, or assessment is

denominated a tax.

Pub. L. No. 111-378, 124 Stat. 4128 (2011). In addition, the amendment stated

that federal agencies “shall not be obligated to pay or reimburse any fee, charge, or

assessment described in paragraph (1), except to the extent and in an amount

provided in advance by any appropriations Act to pay or reimburse the fee, charge,

or assessment.” Id. at 4128-29.

10

C. The Federal Properties in this Case

The United States owns a number of properties located within the county.

In this case, the County seeks to recover unpaid stormwater management charges

assessed against eighteen different properties – six owned by the United States and

twelve owned by the Postal Service – for the years 2005 through 2010. Plaintiff

asserts that the government has been inconsistent in its payment of stormwater

management charges for its properties, “paying the fees in full for some properties

and facilities and refusing to pay for other similar properties and facilities.”

Compl. ¶ 27. The County has demanded payment of the charges for many years,

and notified the government of its intent to pursue its claims in court in letters

dated March 9, 2010 and October 13, 2011. Id. ¶¶ 28-29.

The government concedes that it is now required, under section 1323, to pay

all stormwater management charges accruing after January 4, 2011, the date of the

most recent amendment to that section.7 In this case, the parties do not dispute

whether the government is required to pay those charges now and in the future.

Rather, the parties’ disagreement here centers on whether the government is liable

to the County for charges that were assessed against federal properties in the years

2005 through 2010.

II. Procedural History

On November 14, 2011, the County filed its complaint in this case, in which

it argues that the federal government has waived its sovereign immunity from

“reasonable service charges” under section 1323 of the Clean Water Act, and that

the stormwater management charges plaintiff seeks to recover in this case are

within the scope of that waiver. The County requests $281,553.12 in damages,

plus interest, attorneys’ fees, and other related expenses. The amount requested by

the County is limited to charges that accrued before section 1323 was amended on

7

/ While the government concedes that the 2011 amendment of section 1323 created a

prospective obligation to pay the County’s stormwater management charges, there is some

uncertainty with respect to the government’s diligence in making those payments. Compare

Pl.’s Resp. at 16 n.9 (stating that the United States has “paid the majority of such fees incurred

since § 1323(c) became law on January 4, 2011”) with Booth Aff. ¶ 9 (“No [fewer] than fifteen

(15) federal facilities are now delinquent in paying stormwater utility fees due DeKalb County

for calendar year 2011.”).

11

January 4, 2011.

On February 27, 2012, the government filed a motion to dismiss this action

pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). Defendant raises two arguments

in its motion to dismiss. First, defendant argues that any claims that accrued before

November 14, 2005 must be dismissed as untimely under 28 U.S.C. § 2501 (2006).

Second, defendant asserts that each of the County’s remaining claims must be

dismissed for failure to state a claim because those claims seek the recovery of

state taxes that were levied upon federal properties before the United States waived

its immunity from such taxes.

On April 30, 2012, the County filed its response to the government’s motion

to dismiss, as well as a motion for partial summary judgment in favor of plaintiff.

In response to defendant’s argument that some of the County’s claims were not

timely, plaintiff asserts that its stormwater management charges are not due until

December 31st of each year, and do not become delinquent until January 1st of the

following year. For that reason, plaintiff argues that none of its claims accrued

before January 1, 2006, which was less than six years before it filed its suit in this

court. With respect to defendant’s argument that the County’s charges are

impermissible taxes that were not covered by the pre-2011 version of section 1323,

plaintiff responds that its charges are not taxes but fees, which fall squarely within

the waiver of sovereign immunity contained in section 1323.

On May 7, 2012, the National Association of Clean Water Agencies, the

National Association of Flood and Stormwater Management Agencies, and the

American Public Works Association filed a motion for leave of the court to file an

amicus curiae brief in support of the County. The court granted that motion on

May 15, 2012. In their brief, amici argue that the 2011 amendment should not be

read to contain a new waiver of the government’s sovereign immunity. Instead,

according to amici, the 2011 amendment must be viewed as a mere clarification of

the waiver of sovereign immunity contained in the earlier version of section 1323.

For that reason, amici contend that the government is liable for the charges that

accrued before the 2011 amendment was enacted.

On July 20, 2012, defendant filed a reply in support of its motion to dismiss,

as well as its response to the County’s motion for summary judgment. In its reply,

the government rejects the County’s contention that none of the charges assessed in

2005 accrued until January 1, 2006. In that regard, the government notes that the

12

County sent the government an invoice for approximately half of those charges in

the summer of 2005, and that the invoice informed the government that the charges

were due no later than August 15, 2005. For that reason, the government argues

that any claims related to those charges accrued more than six years before the

complaint was filed in this case. The government further asserts that the charges at

issue in this case are taxes rather than fees, that the government had not waived its

immunity from such taxes until January 2011, and that the 2011 amendment cannot

be read as a clarification of an earlier waiver of immunity.

On September 25, 2012, the County filed its reply in support of its motion

for summary judgment. In its reply, the County disagrees with the legal tests

endorsed by the government in its motion, but further argues that its stormwater

utility charges are fees irrespective of which test is applied. The County also

endorses and adopts the principal argument advanced by amici in their brief, i.e.,

that the 2011 amendment to section 1323 may be applied retroactively as a

clarification of the earlier version of that section.

This matter was transferred to the undersigned pursuant to RCFC 40.1 on

October 17, 2012, and the court heard oral argument from counsel on the parties’

dispositive motions on November 30, 2012.8

DISCUSSION

I. Standards of Review

A. RCFC 12(b)(1)

In rendering a decision on a motion to dismiss for lack of subject matter

jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed

factual allegations to be true and must construe all reasonable inferences in favor

of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other

grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds v. Army

& Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). The relevant issue in

a motion to dismiss under RCFC 12(b)(1) “‘is not whether a plaintiff will

8

/ With the court’s permission, counsel for the County yielded a portion of his time for

oral argument to counsel for amici.

13

ultimately prevail but whether the claimant is entitled to offer evidence to support

the claims.’” Patton v. United States, 64 Fed. Cl. 768, 773 (2005) (quoting

Scheuer, 416 U.S. at 236). The plaintiff bears the burden of establishing subject

matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.

Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178,

189 (1936)), and must do so by a preponderance of the evidence, Reynolds, 846

F.2d at 748 (citations omitted). The court may look at evidence outside of the

pleadings in order to determine its jurisdiction over a case. Martinez v. United

States, 48 Fed. Cl. 851, 857 (2001) (citing RHI Holdings, Inc. v. United States, 142

F.3d 1459, 1461-62 (Fed. Cir. 1998); Rocovich v. United States, 933 F.2d 991, 993

(Fed. Cir. 1991)), aff’d in relevant part, 281 F.3d 1376 (Fed. Cir. 2002). “Indeed,

the court may, and often must, find facts on its own.” Id. If jurisdiction is found to

be lacking, this court must dismiss the action. RCFC 12(h)(3).

B. RCFC 12(b)(6)

It is well-settled that a complaint should be dismissed under RCFC 12(b)(6)

“when the facts asserted by the claimant do not entitle him to a legal remedy.”

Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). When considering

a motion to dismiss under this rule, “the allegations of the complaint should be

construed favorably to the pleader.” Scheuer, 416 U.S. at 236. “[W]hen the

allegations in a complaint, however true, could not raise a claim of entitlement to

relief,” dismissal is warranted under RCFC 12(b)(6). Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 558 (2007). To survive a motion to dismiss for failure to

state a claim, a complaint must contain “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Id. at 555.

While a complaint is not required to contain detailed factual allegations, it must

provide “enough facts to state a claim for relief that is plausible on its face.” Id. at

570. In order to meet the requirement of facial plausibility, the plaintiff must plead

“factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009).

II. Analysis

In its motion, defendant advances two separate grounds for dismissing the

claims set forth in the County’s complaint. First, defendant argues that any claims

related to stormwater utility charges that were billed to the government more than

14

six years before the complaint was filed are precluded by the court’s statute of

limitations and must be dismissed under RCFC 12(b)(1). Second, defendant

asserts that the remaining claims must be dismissed under RCFC 12(b)(6) because

(1) the County’s assessments constitute taxes; (2) the government did not waive its

immunity from state or local taxes used to fund stormwater management systems

until January 4, 2011; and (3) that waiver may not be applied retroactively to cover

stormwater utility charges that were levied before that date.

The court must first address the County’s assertion that defendant’s motion

to dismiss must be converted into a motion for summary judgment because it relies

on material outside of the pleadings. That assertion is incorrect for three reasons.

First, the court is not required to convert a motion to dismiss into a motion for

summary judgment unless the court relies upon evidence outside of the pleadings

in resolving the motion. See RCFC 12(d) (requiring conversion only when

“matters outside the pleadings are presented to and not excluded by the court”)

(emphasis added). Neither of the documents attached to the government’s motion

to dismiss is necessary to the court’s resolution of that motion.

Furthermore, to the extent that the court must rely on any material outside of

the pleadings in this case, such reliance is limited to the government’s motion to

dismiss under RCFC 12(b)(1). The requirement set forth in RCFC 12(d) – i.e., that

motions to dismiss must be treated as motions for summary judgment when the

court relies on evidence outside of the pleadings – is, by its own terms, limited to

motions to dismiss under RCFC 12(b)(6) and RCFC 12(c). In resolving motions to

dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), in contrast,

the court is free to make findings of fact based on evidence not contained in the

pleadings. See Rocovich, 933 F.2d at 993; Martinez, 48 Fed. Cl. at 857.

Finally, both of the documents attached to the government’s motion to

dismiss are matters of public record that were printed from the County’s own

website. The court may consider those documents in resolving the motion to

dismiss without converting that motion into one for summary judgment. See

Sebastian v. United States, 185 F.3d 1368, 1374 (Fed. Cir. 1999) (“In deciding

whether to dismiss a complaint under Rule 12(b)(6), the court may consider

matters of public record.”).

15

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

In its motion to dismiss, defendant argues that this court does not have

jurisdiction over any claims for the recovery of stormwater utility charges that

were billed to the government more than six years before the County filed its

complaint in this case. Because the complaint was filed on November 14, 2011,

defendant argues that the County’s attempt to recoup unpaid stormwater charges

that were billed more than six years before that date are untimely under 28 U.S.C.

§ 2501. Further, although the issue was not raised by defendant, the court must

determine whether plaintiff has identified a money-mandating source of

substantive law for purposes of this court’s jurisdiction under the Tucker Act,

28 U.S.C. § 1491(a)(1) (2006). For the reasons set forth below, the court holds

that plaintiff has identified a money-mandating source of law, but further

concludes that the County’s claims to recover stormwater utility charges that were

billed to the government before November 14, 2005 are untimely and must be

dismissed under RCFC 12(b)(1).

1. The Court Does Not Possess Subject Matter Jurisdiction

over Claims for the Recovery of Stormwater Utility Charges

Billed to Defendant before November 14, 2005

Section 2501 provides in relevant part that “[e]very claim of which the

United States Court of Federal Claims has jurisdiction shall be barred unless the

petition thereon is filed within six years after such claim first accrues.” 28 U.S.C.

§ 2501. The United States Supreme Court has held that the six-year limitations

period is an absolute jurisdictional bar that cannot be waived by the government.

See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34 (2008)

(holding that the statute of limitations contained in section 2501 is jurisdictional

and is not subject to tolling, waiver, or estoppel). The County filed its suit on

November 14, 2011. In order to be considered within the limitations period set

forth in section 2501, the County’s claims must have accrued no earlier than

November 14, 2005. If any of its claims accrued before that date, then the court is

without jurisdiction to hear them. The Federal Circuit has explained that a claim

first accrues for purposes of the six-year limitations period “when all the events

have occurred which fix the liability of the Government and entitle the claimant to

institute an action.” Alder Terrace, 161 F.3d at 1377.

The County asserts that the stormwater management charges it levied on

16

federal properties in 2005 were not due until the end of that year and did not

become delinquent until January 1, 2006. See Booth Aff. ¶ 5. In addition, the

County contends that a claim seeking payment for services rendered accrues, and

the statute of limitations begins to run, only when “‘the last services are

rendered.’” Pl.’s Resp. at 19 (quoting Empire Inst. of Tailoring, Inc. v. United

States, 142 Ct. Cl. 165, 168 (1958)). Inasmuch as the charges for 2005 were based

on services that plaintiff argues were rendered until December 31, 2005, the

County contends that its claims related to the recovery of those charges were

timely because they did not accrue more than six years before the complaint was

filed in this case.

Defendant, in contrast, contends that under the continuing claims doctrine,

“‘the cause of action for pay or compensation accrues as soon as the payor fails or

refuses to pay what the law (or the contract) requires; there is no other condition

precedent to the accrual of the cause of action.’” Def.’s Reply at 7 (quoting

Friedman v. United States, 310 F.2d 381, 385 (Ct. Cl. 1962)). Furthermore,

according to defendant, “‘where the payments are to be made periodically, each

successive failure to make proper payment gives rise to a new claim upon which

suit can be brought.’” Id. at 8 (citation omitted). The government received an

invoice for stormwater management charges in the summer of 2005. On that

invoice, the County stated that the stormwater utility charge is calculated on an

annual basis, but is due in two equal installments on August 15, 2005, and

November 15, 2005. See Booth Aff. Ex. 1. Based on that invoice, the government

argues that any of the County’s claims related to stormwater charges levied on

federal properties in the first half of 2005 are untimely.9

The County does not dispute that it sent an invoice to the government for its

charges in July 2005, see Tr. at 53, and that invoice expressly states that the

charges “are due in two equal installments: August 15th and November 15th,”

Booth Aff. Ex. 1. The County argues, however, that the dates indicated on the

9

/ In its motion, defendant asserts that the County’s stormwater management charges

accrue on a continuous basis beginning on January 1st of each year. Based on that assertion,

defendant argues that more than ten months’ worth of the charges imposed on federal properties

in 2005 are time-barred under section 2501. In its reply in support of its motion, however, the

government appears to have abandoned that argument, instead asserting that the County’s claims

are untimely with respect to half of the stormwater management charges levied in 2005 – i.e.,

those included on the July 2005 invoice.

17

invoice are not really due dates. Rather, plaintiff contends those dates allow

property owners to prepay their stormwater charges as an administrative

convenience, but the charges were not actually due until December 31, 2005. Id.

¶¶ 5-7.

The County’s argument is not, however, supported by the record in this case.

Nothing in the stormwater ordinance states that stormwater management

assessments are due on December 31st, or that they are not considered delinquent

until January 1st of the following year. Instead, the ordinance states that “[t]he

stormwater service fee shall accrue beginning January 1, 2004, and shall be billed

annually thereafter.” County Code § 25-366. The ordinance also requires the

County to inform property owners of the date on which the charges are due, and

requires property owners to pay a one percent per month late fee for charges that

are delinquent.10 Id. § 25-371(b). The County sent the government an invoice for

stormwater utility charges in July 2005, and that invoice unequivocally informed

the government that half of its annual liability for those charges was due no later

than August 15th of that year. Because the government did not pay the

assessments for the first half of 2005 by the specified date, the County could have

commenced an action to recover those charges the next day, on August 16, 2005.

Thus, the deputy tax commissioner’s statement that the charges were not actually

delinquent until January 1st of the next year cannot override the August 15th

deadline imposed by the County’s invoice or suspend the accrual of the County’s

claims for purposes of the limitations period. For the foregoing reasons, the court

holds that any claims related to stormwater charges for the first half of 2005 were

untimely and must be dismissed under RCFC 12(b)(1).

2. Section 1323(a) of the Clean Water Act Is a

Money-Mandating Source of Law for Purposes

of this Court’s Jurisdiction under the Tucker Act

With respect to the remaining claims presented by plaintiff, in order to

establish jurisdiction in this court, the County must demonstrate that the

10

/ While the County describes the stormwater assessment as an annual charge, and the

ordinance states that those charges shall be billed annually, see County Code § 25-366, the

ordinance states that the charges are to be calculated on a monthly, rather than annual, basis, see

id. § 25-365(b) (“The stormwater service charge per equivalent residential unit shall be four

dollars ($4.00) per month or as amended by official action of the governing authority.”).

18

government has consented to suit and that there is a substantive legal basis for such

claims. See United States v. White Mountain Apache Tribe, 537 U.S. 465, 472

(2003) (White Mountain Apache) (“Jurisdiction over any suit against the

Government requires a clear statement from the United States waiving sovereign

immunity, together with a claim falling within the terms of the waiver.”)

(citations omitted).

The County asserts that this court has jurisdiction over its claims under the

Tucker Act,11 which provides in relevant part that the

United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against

the United States founded either upon the Constitution, or

any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with

the United States, or for liquidated or unliquidated

damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). The Federal Circuit has explained that the Tucker Act

“does two things: (1) it confers jurisdiction upon the Court of Federal Claims over

the specified categories of actions brought against the United States, and

(2) it waives the Government’s sovereign immunity for those actions.” Fisher v.

11

/ The County also asserts that this court may exercise jurisdiction over suits against the

Postal Service under 39 U.S.C. § 401 (2006). With respect to federal jurisdiction, however, that

section simply provides that the Postal Service may “sue and be sued in its official name.” Id.

§ 401(1). Another section of the same title addresses suits by and against the Postal Service, but

that section states only that “the United States district courts shall have original but not exclusive

jurisdiction over all actions brought by or against the Postal Service.” 39 U.S.C. § 409(a)

(2006). Defendant does not contest this court’s jurisdiction over the Postal Service under the

Tucker Act, and this court routinely exercises such jurisdiction. See generally Emery Worldwide

Airlines, Inc. v. United States, 49 Fed. Cl. 211, 220 (noting that the Postal Service is an “agency”

under 28 U.S.C. § 451 (2006) and is therefore subject to this court’s jurisdiction under the

Tucker Act), aff’d, 264 F.3d 1071, 1080 (Fed. Cir. 2001). The County is incorrect, however, in

its assertion that the Postal Service may be named as a separate defendant in this case, distinct

from the United States. Under the Tucker Act, the United States is the only defendant over

which this court may properly exercise subject matter jurisdiction. 28 U.S.C. § 1491(a)(1); see

also RCFC 10(a) (noting that the United States must be designated as the defendant in this

court).

19

United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part).

However, the statute “does not create a substantive cause of action; in order to

come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff

must identify a separate source of substantive law that creates the right to money

damages.” Id.

The substantive source of law upon which the County relies to establish this

court’s subject matter jurisdiction under the Tucker Act is section 1323(a), which

states that

[e]ach department, agency, or instrumentality of the

executive, legislative, and judicial branches of the

Federal Government (1) having jurisdiction over any

property or facility, or (2) engaged in any activity

resulting, or which may result, in the discharge or runoff

of pollutants, and each officer, agent, or employee

thereof in the performance of his official duties, shall be

subject to, and comply with, all Federal, State, interstate,

and local requirements, administrative authority, and

process and sanctions respecting the control and

abatement of water pollution in the same manner, and to

the same extent as any nongovernmental entity including

the payment of reasonable service charges.

33 U.S.C. § 1323(a) (emphasis added).

Importantly, section 1323(a) states that the government “shall” be subject to

federal, state, and local water pollution requirements “including the payment of

reasonable services charges.” In general, the Federal Circuit has held that when

Congress uses the mandatory term “shall” in a statute to describe the government’s

obligation to make a payment to a party or group, the statute is money mandating.

See Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 877 (Fed. Cir. 2007)

(noting that “use of the word ‘shall’ generally makes a statute money-mandating”);

Agwiak v. United States, 347 F.3d 1375, 1380 (Fed. Cir. 2003) (“We have

repeatedly recognized that the use of the word ‘shall’ generally makes a statute

money-mandating.”). Defendant does not contend that the government has any

discretion to choose whether to comply with the requirements of section 1323;

rather, the dispute between the parties is over the precise scope of that provision –

20

i.e., whether the term “reasonable service charges” includes the type of charges at

issue in this case.

In order to waive the government’s sovereign immunity, Congress must use

language that is unequivocal and unambiguous. See United States v. Mitchell,

445 U.S. 535, 538 (1980) (noting that a waiver of sovereign immunity must be

“unequivocally expressed”). In contrast, the

“fair interpretation” rule demands a showing

demonstrably lower than the standard for the initial

waiver of sovereign immunity. “Because the Tucker Act

supplies a waiver of immunity for claims of this nature,

the separate statutes and regulations need not provide a

second waiver of sovereign immunity, nor need they be

construed in the manner appropriate to waivers of

sovereign immunity.” It is enough, then, that a statute

creating a Tucker Act right be reasonably amenable to

the reading that it mandates a right of recovery in

damages. While the premise to a Tucker Act claim will

not be “lightly inferred,” a fair inference will do.

White Mountain Apache, 537 U.S. at 472-73 (citations omitted).

As the court will discuss below, Congress did not waive the government’s

immunity from the type of charges at issue in this case until January 4, 2011.12

However, that conclusion – that the County’s stormwater management charges are

not covered by the pre-2011 version of section 1323 – does not require the court to

dismiss the County’s claims under RCFC 12(b)(1). Rather, as the Federal Circuit

has explained,

[a]ssuming that the Court of Federal Claims has taken

jurisdiction over the cause as a result of the initial

determination that plaintiff’s cause rests on a money-

12

/ There are two types of sovereign immunity implicated in this case. First, there is the

government’s immunity from suit, which was waived by the Tucker Act. In addition, there is the

government’s immunity from state and local taxation to fund stormwater management systems,

which, as discussed in detail below, was not waived until January 4, 2011.

21

mandating source, the consequence of a ruling by the

court on the merits, that plaintiff’s case does not fit

within the scope of the source, is simply this: plaintiff

loses on the merits for failing to state a claim on which

relief can be granted.

Fisher, 402 F.3d at 1175-76. The same is true here. The court may exercise

jurisdiction over the County’s claims in this case, at least those that are timely,

because section 1323 may fairly be interpreted to mandate the payment of money

by the government. Notwithstanding that jurisdictional basis, the County has

failed to state a claim upon which relief can be granted because it has failed to

demonstrate that its stormwater management charges fall within the scope of

section 1323.

B. Motion to Dismiss for Failure to State a Claim

In its motion to dismiss under RCFC 12(b)(6), defendant argues that the

charges the County seeks to recover in this case are taxes that may not be imposed

on federal properties or facilities without the prior consent of the United States.

Defendant concedes that Congress waived the government’s immunity from such

taxes when it amended section 1323 on January 4, 2011, but argues that the waiver

contained in the 2011 amendment cannot be applied retroactively, nor may it be

viewed as an attempt by Congress to clarify an earlier waiver of immunity. In

order to resolve the government’s motion, the court must address three separate

questions.

First, are the stormwater management charges at issue in this case properly

viewed as taxes or fees? Second, if the charges are taxes rather than fees, did the

government unequivocally and unambiguously waive its immunity from such taxes

in the 1977 amendments to the Clean Water Act? Finally, if the government did

not clearly waive its sovereign immunity in 1977, may the 2011 amendment be

given retroactive effect as a mere clarification of the 1977 waiver, rather than as a

new and separate waiver of sovereign immunity?

The court concludes that the County’s stormwater management charge is a

tax that cannot be imposed upon federal properties without the consent of the

United States. The court further holds that Congress did not unequivocally waive

the federal government’s sovereign immunity from state taxation in 1977, and that

22

the 2011 amendment cannot be applied retroactively as a clarification of the initial

waiver of sovereign immunity. For those reasons, the court must grant defendant’s

motion to dismiss under RCFC 12(b)(6).

1. DeKalb County’s Stormwater Utility Charge Is a Tax

It is a fundamental principle of constitutional law that the United States is

immune from direct taxation by state and local governments, including counties.

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); see also Lee v. Osceola &

Little River Rd. Improvement Dist. No. 1 of Mississippi Cnty., Mo., 268 U.S. 643,

620 (1925) (“It was settled many years ago that the property of the United States is

exempt by the Constitution from taxation under the authority of a State as long as

title remains in the United States.”).

The federal government’s immunity from state and local taxation is based

upon the Supremacy Clause, U.S. Const. Art. VI, cl. 2, and is therefore absolute.

See United States v. Delaware, 958 F.2d 555, 558 (3d Cir. 1992) (noting that the

Supreme Court has adopted a broad reading of “the Supremacy Clause, viewing all

state taxes on federal entities as insults to national sovereignty and impermissible

burdens on federal operations”); see also United States v. New Mexico, 455 U.S.

720, 733 (1982) (noting that “the Court has never questioned the propriety of

absolute federal immunity from state taxation”); United States v. City of Columbia,

914 F.2d 151, 153 (8th Cir. 1990) (“Unlike the states’ immunity from federal

taxation, which is somewhat limited, the United States’ immunity from state

taxation is a ‘blanket immunity.’”) (citation omitted).

Notwithstanding the absolute prohibition on state taxation, the government

may be charged for services rendered or for its use of state or local property. See,

e.g., Packet Co. v. Keokuk, 95 U.S. 80, 85-86 (1877) (holding that a charge for the

use of a public wharf was a user fee rather than a tax for constitutional purposes);

Cincinnati v. United States, 153 F.3d 1375, 1376 (Fed. Cir. 1998) (“One issue

courts have had to decide is whether the assessment in question should be

characterized as a tax, and thus impermissible when imposed on a federal entity, or

whether the assessment should be considered a fee for services provided to the

federal entity, and therefore permissible.”).

In short, there is no question that states cannot tax the federal government

without its consent, but it is also clear that state governments may charge the

23

federal government a reasonable and nondiscriminatory fee for services rendered.

Here, the court must determine whether the charges at issue in this case are most

appropriately characterized as taxes or fees. The parties disagree on the answer

to that question, and they cite different legal standards in reaching their divergent

conclusions.

Before addressing the standards proposed by the parties, the court notes that

it matters little that the Georgia Supreme Court has determined that the type of

stormwater utility assessments at issue in this case are fees rather than taxes. See

McLeod v. Columbia Cnty., 599 S.E.2d 152, 154-55 (Ga. 2004). That decision

does not affect the outcome here: “Where a federal right is concerned we are not

bound by the characterization given to a state tax by state courts or Legislatures, or

relieved by it from the duty of considering the real nature of the tax and its effect

upon the federal right asserted.” Carpenter v. Shaw, 280 U.S. 363, 367-68 (1930).

Indeed, the state court addressed the issue only because a federal district court had

remanded the case after determining that the charges were taxes under federal law.

See McLeod v. Columbia Cnty., 254 F. Supp. 2d 1340, 1344-49 (S.D. Ga. 2003)

(holding that a county’s stormwater management charges were taxes for purposes

of the Tax Injunction Act, 28 U.S.C. § 1341 (2006)).

For the same reason, the court is not bound by the County’s characterization

of its charges as “stormwater service fees” in the stormwater ordinance. See

Collins Holding Corp. v. Jasper Cnty., S.C., 123 F.3d 797, 800 n.3 (4th Cir. 1997)

(“Whether the body imposing the assessment labels it as a tax or a fee is not

dispositive because the label is not always consistent with the true character of the

assessment.”) (citation omitted). Instead, in seeking to draw a line between an

impermissible tax and a permissible fee, the court must “consider all the facts and

circumstances of record in the case and assess them on the basis of the economic

realities to determine the essential nature of the [charge].” City of Columbia,

914 F.2d at 154 (citation omitted).

a. The Massachusetts Test

The County argues that the test set forth in Massachusetts v. United States,

435 U.S. 444 (1978), presents the most appropriate means of determining whether

the stormwater charges in this case are permissible fees or impermissible taxes.

While the decisions of the Supreme Court are, of course, binding on this court,

the issues addressed in that case are not the issues now before this court, and the

24

holding in that case does not apply here. First, the issue before the court in this

case is whether the County’s stormwater management charges are fees or taxes,

while the issue before the Supreme Court in Massachusetts was whether a federal

tax imposed upon state property was reasonable. Further, this case requires the

court to determine whether the County’s stormwater charges are barred under the

Supremacy Clause, while the Supreme Court’s decision in Massachusetts was

based not on that clause, but on the states’ implied immunity from federal taxes.

i. Massachusetts Did Not Draw a Line between

Permissible Fees and Impermissible Taxes

In Massachusetts, the state argued that its implied immunity from federal

taxation prohibited the assessment of an annual registration tax on a state-owned

helicopter that was used exclusively for essential police functions. In reviewing

the constitutional validity of that tax, the Supreme Court created a three-part test,

which provides that federal taxes imposed on a state or its property do not violate

that state’s implied immunity from federal taxation when: (1) the tax is imposed in

a nondiscriminatory manner; (2) the tax is a fair approximation of the benefits

received by the taxed entity; and (3) the tax does not produce revenues that exceed

the cost of the benefits provided. Massachusetts, 435 U.S. at 467. While the tax at

issue in Massachusetts was designed to resemble a user fee in some respects, there

was no dispute that the tax was in fact a tax.

Thus, the court is not faced with a choice between two competing tests for

determining whether a particular charge is a fee or a tax. The Massachusetts test

does not address that issue; instead, that test answers an entirely different question:

when do federal taxes imposed on a state or its property unduly interfere with the

traditional and essential functions of the state, thereby violating that state’s implied

immunity from federal taxation? In other words, the Massachusetts test does not

attempt to draw a line between fees and taxes, but instead determines whether a tax

is reasonable.

The Massachusetts test might be useful for evaluating whether the County’s

stormwater management charges are reasonable, but it cannot determine whether

25

they are fees.13 In fact, Congress adopted the basic framework of that test in the

2011 amendment to section 1323. Because the waiver contained in section 1323 is

limited to “reasonable service charges,” the new language in the statute ensures

that the government’s liability under that section is in fact limited to charges that

are reasonable. In this case, however, the government does not contest or dispute

the reasonableness of the County’s stormwater charges. See Tr. at 22-23. Rather,

the government argues only that the charges are taxes, and that Congress did not

waive the government’s immunity from such taxes until January 4, 2011.

ii. The Supreme Court’s Holding in Massachusetts

Was Not Based on the Supremacy Clause

The Supreme Court’s analysis in Massachusetts is also inapposite because it

was not based upon the Supremacy Clause. In contrast to the federal government’s

immunity from state and local taxation, which is based on the Supremacy Clause,

the states’ immunity from federal taxation “was judicially implied from the States’

role in the constitutional scheme.” Massachusetts, 435 U.S. at 455. For that

reason, state immunity from federal taxation is not absolute, in sharp contrast to the

federal government’s categorical immunity from state taxation. See City of

Columbia, 914 F.2d at 153 (“Generally, the states are immune from federal

taxation that would unduly burden essential state functions. Federal immunity

from state taxation, however, is a blanket immunity and is not subject to the same

limits.”).

The Supremacy Clause categorically prohibits state and local taxation of

federal property. For that reason, the test described in Massachusetts – which is

used to determine whether federal taxes on state-owned property violate that state’s

implied immunity from federal taxation – cannot be applied in this case. See, e.g.,

Oneida Tribe of Indians of Wisconsin v. Village of Hobart, No. 10-C-137, 2012

13

/ Indeed, in the case of United States v. Renton, No. C11-1156, 2012 WL 1903429

(W.D. Wash. May 25, 2012), upon which the County and amici rely in this case, the court there

noted that the Massachusetts test is used to evaluate the reasonableness of a particular charge,

not to determine whether that charge is a tax or a fee. See id. at *7 (“[T]he factors in the

Massachusetts test have been recognized as a test of the reasonableness of regulatory charges.”),

n.5 (“The issue here . . . is not whether reasonable service charges for stormwater programs are

taxes, but the use of the Massachusetts factors in determining the reasonableness of regulatory

charges.”).

26

WL 3839570, at *6 n.5 (E.D. Wis. Sept. 5, 2012) (“Federal immunity from state

taxation is predicated on the Supremacy Clause whereas state immunity from

Federal taxation is implied from the states’ relationship to the national government

within the constitutional scheme. The difference is significant and makes the two

analytically distinct. Massachusetts is accordingly inapplicable here.”)

(emphasis and citation omitted). In sum, the Massachusetts test does not apply

here because it addresses a different question than the one now before this court,

and it is based upon a different constitutional provision than the one this court must

now apply.14

b. The San Juan Cellular Test

Defendant urges this court to adopt the legal framework first established in

San Juan Cellular Telephone Co. v. Public Service Commission, 967 F.2d 683

(1st Cir. 1992). There, the United States Court of Appeals for the First Circuit

explained that a number of courts have been required to draw a line between

permissible fees and impermissible taxes, and noted that those courts

have sketched a spectrum with a paradigmatic tax at one

end and a paradigmatic fee at the other. The classic “tax”

is imposed by a legislature upon many, or all citizens.

It raises money, contributed to a general fund, and spent

for the benefit of the entire community. The classic

“regulatory fee” is imposed by an agency upon those

14

/ The County and amici note that the United States Court of Appeals for the First

Circuit used the three-part Massachusetts test to evaluate the validity of a state charge imposed

on the federal government in Maine v. Department of Navy, 973 F.2d 1007 (1st Cir. 1992), and

thus argue that the application of the test is not limited to those situations in which the federal

government has imposed a tax on a state government. In that case, however, the First Circuit did

not apply the test set forth in Massachusetts to determine whether the charge at issue was a fee or

a tax. Instead, the question before that court was whether the charges at issue – which the parties

agreed were fees – were unreasonable. The First Circuit noted that the government had waived

its immunity only with respect to reasonable service charges, and then applied the

Massachusetts test for the purpose of evaluating the government’s contention that the licensing

fees imposed by the state were unreasonably high. The statute at issue in Maine was the

Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k (2006), which contains a

provision that is substantially similar to the Federal Facilities Section of the Clean Water Act.

27

subject to its regulation. It may serve regulatory

purposes directly by, for example, deliberately

discouraging particular conduct by making it more

expensive. Or, it may serve such purposes indirectly by,

for example, raising money placed in a special fund to

help defray the agency’s regulation-related expenses.

Id. at 685 (citations omitted).

Many courts have borrowed the analysis in San Juan Cellular to distinguish

permissible fees from impermissible taxes. See, e.g., Valero Terrestrial Corp. v.

Caffrey, 205 F.3d 130, 134-36 (4th Cir. 2000); Collins Holding, 123 F.3d at

800-01; McLeod, 254 F. Supp. 2d at 1345-48; Oneida Tribe, 2012 WL 3839570, at

*6-*8. Those courts have applied that analysis as a three-part inquiry that asks the

following questions. First, which governmental entity imposed the charge? Next,

which parties must pay the charge? And finally, for whose benefit are the revenues

generated by the charge spent?

The County and amici argue that San Juan Cellular, and many of the other

cases that applied its analysis, are simply inapplicable here because the question in

those cases was whether the charge at issue was a fee or a tax for purposes of the

Tax Injunction Act (TIA), 28 U.S.C. § 1341, and not whether a state charge could

be assessed against federal property without violating the Supremacy Clause.15

While that observation is correct, the court does not find it to be particularly

relevant. Unlike the test in Massachusetts, which the County and amici contend is

applicable here, the analysis in San Juan Cellular actually addresses the issue that

is now before the court. The court finds the analysis in San Juan Cellular to be

persuasive and holds that the use of a three-part test based on that analysis

represents an appropriate approach to drawing the line between fees and taxes.

Finally, as discussed in more detail below, the third – and most important – factor

of the San Juan Cellular inquiry is fully consistent with the Supreme Court’s

observation that a government agency that provides a service “may exact a fee for

a grant which, presumably, bestows a benefit on the applicant, not shared by other

15

/ In San Juan Cellular, the First Circuit determined whether a regulatory charge was a

fee or a tax under the Butler Act, 48 U.S.C. § 872 (2006), a statute designed to minimize the

interference of federal courts with the collection of taxes imposed under the laws of Puerto Rico,

in the same way that the TIA minimizes such interference with respect to state and local taxes.

28

members of society.” Nat’l Cable Television Ass’n v. United States, 415 U.S. 336,

340-41 (1974). The court notes the legal context in which the San Juan Cellular

analysis was first developed, but nonetheless holds that it is the more appropriate

analytical framework for the question now before the court.

i. Which Entity Imposed the Charge?

First, the court must examine which governmental entity imposed the charge

in this case. When an assessment is imposed by a legislative body, rather than an

administrative agency, it is more likely to be viewed as a tax than as a fee. See

San Juan Cellular, 967 F.2d at 686. Here, the stormwater charges were adopted,

and their precise amounts were set, by the County’s board of commissioners.

The stormwater utility does not have the authority to revise the rates set forth in the

ordinance; instead, the specified rates may be amended only by action of the

“governing authority” – i.e., the County’s board of commissioners and chief

executive. See County Code § 25-365(b) (“The stormwater service charge per

equivalent residential unit shall be four dollars ($4.00) per month or as amended

by official action of the governing authority.”) (emphasis added).

Some courts have noted that “[i]f the responsibility for administering and

collecting the assessment lies with the general tax assessor, it is more likely to be a

tax; if this responsibility lies with a regulatory agency, it is more likely to be a fee.”

Collins Holding, 123 F.3d at 800. Here, the County’s stormwater charges are

billed to the government on an invoice from the County’s tax commissioner. See

Booth Aff. Ex. 1. The County’s deputy tax commissioner, who is also its director

for delinquent collections, “oversee[s] collection of delinquent stormwater utility

fees on behalf of DeKalb County, Georgia.” Id. ¶ 3. The stormwater utility does

not collect the assessments that are ultimately deposited into the enterprise fund.

The stormwater charges in this case were adopted and set by the County’s

legislative body, and they are collected by the County’s tax collector. Those facts,

under the first prong of the San Juan Cellular test, suggest that the stormwater

assessments in this case are taxes rather than fees.

ii. Which Parties Must Pay the Charge?

Next, the court must examine which parties are subject to the assessments.

If the charge is imposed upon all citizens, or a broad class of them, then the charge

is more likely to be a tax; if the charge is imposed only upon a narrow group, then

29

the charge is more likely to be a fee. San Juan Cellular, 967 F.2d 685. Here, the

County’s stormwater management charge is not assessed against a narrow group of

residents or businesses; instead, the assessment is levied against every single owner

of developed property in the unincorporated portions of the county.16

The stormwater charge is assessed against every dwelling in the county, as

well as “commercial and office buildings, industrial and manufacturing buildings,

storage buildings and storage areas covered with impervious surfaces, parking lots,

parks, recreation properties, public and private schools and universities, research

stations, hospitals and convalescent centers, airports, and agricultural uses covered

by impervious surfaces.” County Code § 25-361 (providing definitions of “single

dwelling lot,” “multiple dwelling lot,” and “other developed land”); id. § 25-365

(setting the charges applicable to single dwelling lots, multiple dwelling lots, and

other developed land). The ordinance further notes that the majority of the land

within the unincorporated portion of the county is in fact developed. Id.

§ 25-360(d).

In sum, the stormwater charges that the County seeks to recover in this case

are imposed upon every homeowner who lives in the unincorporated portion of the

county and every business that is located there, as well as every other lot that is

covered with any impervious surface, ranging from the smallest doghouse to the

largest church, airport, or sports stadium. Because the County’s stormwater charge

is not assessed against a narrow group, but is instead imposed on the majority of

property in the unincorporated portions of the county, see id. § 25-360(d), the

second factor of the San Juan Cellular inquiry also suggests that the charge is a

tax.

16

/ The term “developed land” is defined as all property that is not “undeveloped land,”

which is in turn defined as “a lot in its unaltered natural state and which has no pavement,

asphalt, or compacted gravel surfaces or structures which create an impervious surface that

would prevent infiltration of stormwater or cause stormwater to collect, concentrate, or flow in a

manner materially different than that which would occur if the land was in an unaltered natural

state.” County Code § 25-361. In other words, with the exception of rights of way – both public

and railroad – developed land includes any property covered with any amount of impervious

surface.

30

iii. For Whose Benefit Are the Revenues Spent?

Finally, the court must examine for whose benefit the revenues generated by

the charge are spent. If the County spends the revenue to provide a benefit for the

general public, then the charge is more likely to be a tax, but if the revenue is spent

to provide a particularized benefit for a narrow group, or to offset the cost of

regulating a narrow group, then the charge is more likely to be a fee. Here, the

court concludes that the stormwater management charges are used to finance

benefits that inure primarily to the benefit of the general public.

The First Circuit has explained that the third part of the San Juan Cellular

inquiry is often the most important: “[c]ourts facing cases that lie near the middle

of this spectrum have tended . . . to emphasize the revenue’s ultimate use, asking

whether it provides a general benefit to the public, of a sort often financed by a

general tax, or whether it provides more narrow benefits to regulated companies or

defrays the agency’s costs of regulation.” San Juan Cellular, 967 F.2d at 685.

The stormwater ordinance describes the purpose of the utility, noting that the

“provision of stormwater management services and facilities in DeKalb County

promotes an essential regulatory purpose by controlling where stormwater runoff

flows and how it is disposed, and thereby reducing flooding, erosion and water

pollution caused by stormwater runoff.” County Code § 25-360(e). Further, the

ordinance explains that

[t]he board of commissioners is responsible for the

protection and preservation of the public health, safety,

and welfare of the community, and finds that it is in the

best interest of the health, safety, and welfare of the

citizens of the county and the community at large to

proceed with the development, implementation, and

operation of a utility for stormwater management

accounted for in the county budget as a separate

enterprise fund dedicated solely to stormwater

management and to institute funding methods associated

therewith.

Id. § 360(g); see also Tr. at 36 (noting that revenue deposited in the enterprise fund

is spent to further the purposes of drainage control and flood control), 38

31

(explaining that the stormwater utility promotes the essential regulatory purposes

of preventing floods, erosion, and water pollution).

The purposes of the stormwater ordinance, and of the stormwater system –

i.e., flood prevention and the abatement of water pollution – are benefits that are

enjoyed by the general public. For that reason, the charge is more properly viewed

as a tax than as a fee. See San Juan Cellular, 967 F.2d at 685 (noting that the

revenue from a tax “is spent for the benefit of the entire community”). Those

benefits are public; they are not individualized services provided to particular

customers.

The presence of a stormwater management system, and the imposition of

charges to fund that system, create reciprocal benefits and burdens for nearly all

owners of developed property within the unincorporated areas of DeKalb County.

While each property owner is burdened by payment of the charge, and enjoys no

special benefit by virtue of the connection of its own property to that system, the

property owner does derive a benefit from the fact that stormwater runoff from

other properties is collected and diverted by the system. That benefit, however, is

one that is shared with nearly every other member of the community. In short,

flood control is a public benefit, and charges to pay for that benefit are typically

viewed as taxes. See, e.g., United States v. City of Huntington, W.V., 999 F.2d 71,

73 (4th Cir. 1993) (explaining that because flood control and fire prevention are

both “core government services,” assessments to pay for those services are taxes).

The abatement of water pollution is also an important benefit of the system,

and it is likewise a public benefit that is shared with the rest of the community.

The owners of developed property, who pay the stormwater management charges,

receive no special benefit from clean rivers, streams, and lakes that is not also

enjoyed by the general public. Cf. Mildenberger v. United States, 91 Fed. Cl. 217,

245-47 (2010) (noting that water pollution is a harm that is experienced not only

by riparian landowners, but by the public as a whole), aff’d, 643 F.3d 938

(Fed. Cir. 2011).

The stormwater system is a local infrastructure improvement that provides

benefits – i.e., drainage, flood protection, and water pollution abatement – not only

to the owners of developed property who pay stormwater utility charges, but also

to the owners of undeveloped property, who do not pay the charge, and to other

members of the general public who may not own any property in the county at all.

32

The Supreme Court has noted that “[a]ssessments upon property for local

improvements are involuntary exactions, and in that respect stand on the same

footing with ordinary taxes.” Hagar v. Reclamation Dist. No. 108, 111 U.S. 701,

707 (1884).

In addition to listing the generalized public benefits discussed above, the

ordinance also states that the stormwater management system provides

a specific service to property owners by assisting in the

property owner’s legal obligation to control stormwater

runoff from their property and ensure that runoff does not

flow upon their neighbors in greater quantities than it

would if the property were in an undeveloped state.

By mitigating the impact of stormwater runoff from

developed property, the stormwater management system

helps prevent damage that would subject a property

owner to civil liability.

County Code § 25-360(f). The County argues that it is this service – the reduction

in the risk of legal liability due to damage from stormwater runoff – that transforms

the assessment here into a fee rather than a tax.

The court first notes that it is not clear whether defendant would in fact be

subject to any liability for damage to neighboring properties due to stormwater

runoff from federal facilities. During oral argument, counsel for amici suggested

that the government might be subject to an action under the citizen-suit provision

of the CWA, 33 U.S.C. § 1365 (2006), but both he and counsel for the County

were uncertain as to whether the government might be subject to liability for either

trespass or nuisance under the common law of Georgia.17 However, the court need

not determine the extent of the government’s liability for such damage because the

so-called “benefit” cited by the County is problematic in a number of respects.

17

/ The court notes that the government might be subject to suit in certain circumstances

under the Takings Clause of the Fifth Amendment. See, e.g., Ridge Line, Inc. v. United States,

346 F.3d 1346 (Fed. Cir. 2003) (evaluating whether the construction of a Postal Service facility,

which dramatically increased the flow of stormwater onto a downhill property, could effect a

taking of a flowage easement requiring the payment of just compensation to the owner of the

affected property).

33

First, the stormwater ordinance expressly provides that every property owner

is responsible for managing the flow of stormwater runoff on its own property,

regardless of whether those owners have remitted the stormwater charges imposed

by the County:

[e]very owner of real property located in the

unincorporated area of the county, and every person who

serves as a contractor or developer for the purpose of

developing real property located in the unincorporated

area of DeKalb County shall provide, manage, maintain,

and operate on-site stormwater management systems and

facilities sufficient to collect, convey, detain, control and

discharge stormwater in a safe manner consistent with all

DeKalb County ordinances and development regulations,

and the laws of the State of Georgia and the United States

of America.

County Code § 25-372. The ordinance further states that “[a]ny failure to meet this

obligation shall constitute a nuisance and be subject to an abatement action filed by

any damaged party or DeKalb County in any court of competent jurisdiction.” Id.

In short, payment of the charge does not appear to relieve any property owner of its

liability for damage to neighboring properties caused by stormwater runoff.

In addition, even if payment of the stormwater charges effectively protected

property owners from such liability, there is no apparent relationship between the

value of the benefit and the amount of the charge. The stormwater assessment is

generally based on the amount of impervious surface on the charged property.

While that measurement may provide a rough approximation of the quantity of

stormwater runoff generated by that property, it does not have any clear connection

to the amount of damage such runoff might cause to neighboring properties and,

consequently, the property owner’s potential liability for such damage. Instead, the

damage due to stormwater runoff from a particular property will depend upon a

number of other factors, such as topography, whether the surrounding properties

are developed, and the types of improvements located on those properties.18

18

/ This absence of proportionality might be more relevant to the reasonableness of the

charge, rather than whether the charge is a fee or a tax, but the court believes that the apparent

lack of proportionality also undermines the County’s argument that “liability protection” is an

34

While user fees are generally based on the quantum of services that are

provided, the assessments in this case are not necessarily based on the benefits

provided to each owner of developed property. First, the stormwater charges in

this case are based not on the benefits derived by the payor, but by the anticipated

burden that its property imposes on the stormwater system. However, the burden

imposed on the system by the runoff from the property, and the benefits conferred

upon that property by the system are not the same thing. There may be properties,

for example, that impose significant burdens on the stormwater system while

deriving no substantial benefit from that system (e.g., a property with extensive

impervious coverage that is located on the top of a hill). Similarly, there may be

properties that have little impact on the stormwater system that receive substantial

benefits from that system (e.g., a small home on a large, otherwise undeveloped lot

that is located downhill from extensive development). Second, even if the benefits

conferred on specific properties and the burdens those properties impose on the

system were treated as if they were the same, the amount of the charge does not

depend upon the burden actually imposed on the system by a particular property.

Regardless of how much rain falls on a property, and how much of that rain

actually leaves the property and flows into the system, the charge remains the

same. See Cincinnati v. United States, 39 Fed. Cl. 271, 276 (1997) (“Under the

system enacted by the City of Cincinnati, during a month of drought or a month of

flooding, the federal government would be assessed the same amount of storm

drainage charges.”).

In further support of its position, the County argues that its charges should

be viewed as fees because they are deposited into a separate enterprise fund that

may be used only for costs related to the stormwater management system, rather

than being directed into the County’s general revenue account. See Pl.’s Resp. at

18. The fact that the revenue generated by the stormwater management charge is

segregated from other revenue, and is ultimately deposited into a separate

enterprise fund, is not a sufficient basis for determining that the charge is a fee.

See Valero, 205 F.3d at 135 (explaining that “[i]f the revenue of the special fund is

used to benefit the population at large then the segregation of the revenue to a

special fund is immaterial”) (citation omitted). Here, the revenue from the charge

is used to fund a stormwater management system that benefits the public at large,

so the fact that the revenue is segregated into a separate account is not especially

individualized service provided to property owners in exchange for payment of the charge.

35

relevant.19

The court does not doubt the precarious financial situation of the County and

other similarly situated counties and municipalities all over the country. The cost

of operating stormwater management facilities has increased dramatically in recent

years, and much of that increase is attributable to new requirements imposed by the

federal government. Further, the tax-exempt status of federal facilities and other

properties that impose significant burdens on the stormwater management system

has severely limited the ability of local governments to fully recoup those costs.

In light of the difficulties – both legal and political – of raising taxes, many

counties and municipalities have attempted to structure their taxes as user fees to

avoid the legal restrictions that apply to the former but not to the latter.

Unfortunately, the nature of a stormwater management system, which

benefits the public without providing any individualized, measurable benefit to

individual property owners, does not lend itself to a system of funding based on

user fees. The United States Court of Appeals for the Ninth Circuit has noted that

“[w]hen a fee is imposed on the United States for the purpose of extracting by fee

that which cannot be extracted by taxation, the imposition of that fee may violate

the Supremacy Clause.” Novato Fire Prot. Dist. v. United States, 181 F.3d 1135,

1139 (9th Cir. 1999) (citations omitted). The stormwater management charges at

issue are a mechanism designed to raise revenue from the federal government and,

of course, other property owners to cover the rapidly increasing costs of a local

improvement that benefits the public as a whole. See Amicus Br. at 8-9

(explaining that “municipalities began to enact and enforce stormwater ordinances

starting in the 1990s, such as [impervious area charges] to cover the increasingly

stringent costs of stormwater controls”).

19

/ In San Juan Cellular, the First Circuit also noted that a particular charge may be an

impermissible tax if it is used to pay for a public benefit that is often financed with taxes.

967 F.2d at 685. In holding that the stormwater charges assessed by another Georgia county

were taxes rather than fees, the United States District Court for the Northern District of Georgia

noted that “[s]torm water management was and is the type of service that is often funded through

general tax revenue.” McLeod, 254 F. Supp. 2d at 1348; see also Financing Stormwater

Facilities: a Utility Approach (1991), at 1 (“Stormwater management historically has been

financed with general revenues from property taxes.”), available at

http://stormwaterfinance.urbancenter.iupui.edu/PDFs/APWAmanual.pdf.

36

In summary, the court concludes that under the San Juan Cellular test, the

stormwater management charges assessed by the County are impermissible taxes

that may not be imposed on federal properties without the government’s consent.

The charges are set by the County’s legislative body, they are imposed on every

owner of developed property in the unincorporated portion of the county, and they

are used to provide benefits that are enjoyed by the public as a whole.

c. The Involuntary Nature of the Charge

The government argues that the charges in this case should be viewed as

taxes because they are involuntary, while the County asserts that its assessments

are a fee for services rather than “an inescapable charge based solely upon the mere

fact of property ownership.” Pl.’s Resp. at 17 n.10. In addition to finding that the

County’s stormwater charges are taxes under the San Juan Cellular test, the court

further concludes that the charges more closely resemble taxes due to their

involuntary nature.

In National Cable, 415 U.S. at 340, the Supreme Court explained that

“[a] fee is incident to a voluntary act.”20 In a number of other cases, the Court has

contrasted the voluntary nature of a fee with the mandatory nature of a tax.

See, e.g., United States v. LaFranca, 282 U.S. 568, 572 (1931) (explaining that

taxes are “enforced contribution[s] to provide for the support of government”);

Hagar, 111 U.S. at 707 (explaining that “[a]ssessments upon property for local

20

/ The County argues that the standard set forth in National Cable should not be applied

here because that standard was based on the specific statute at issue in that case. There, the

petitioner had challenged licensing charges imposed upon cable television companies by the

Federal Communications Commission (FCC) pursuant to the Independent Offices Appropriation

Act of 1952, 31 U.S.C. § 9701 (2006), which authorized certain agencies to impose service

charges based on, inter alia, the value of the services provided to the recipient. The Court held

that Congress had not delegated the power of taxation to the FCC, and that the power granted to

the agency under the statute must therefore be limited to the authority to impose fees rather than

taxes. The Supreme Court reversed the lower appellate court with instructions to remand the

case to the FCC so the agency could determine whether its proposed service charges were

proportionate to the cost of the services that were actually provided to the regulated companies.

The language from National Cable upon which the court now relies, however, is contained

within a general discussion of the essential differences between fees and taxes, and its

applicability is not limited to the facts of that case. In any event, National Cable is not the only

case in which the Supreme Court has described fees as voluntary and taxes as compulsory.

37

improvements are involuntary exactions, and in that respect stand on the same

footing with ordinary taxes”).

Fees generally fall into two broad categories: user fees, which a government

may charge in exchange for services or the use of government-owned property, and

regulatory fees, which are charges that are imposed by a regulatory agency to

recoup its costs of regulation. In both cases, the payment of the fee is voluntary.

With a user fee, one can avoid the charge by not accepting the government’s

services or by not using the government’s property. With a regulatory fee, one can

avoid the charge by not engaging in the regulated activity. See City of Columbia,

914 F.2d at 156 (“When the United States purchases water, electricity, and related

services, and then pays the utility bill, it does so as a vendee pursuant to its

voluntary, contractual relationship with the City. The City imposes the charge not

in its capacity as a sovereign, but as a vendor of goods and services.”).

Here, those subject to the stormwater utility charge have no choice but to

pay that charge. The government never requested stormwater management

services from the County, and it cannot simply decline to use those services.

Instead, the government’s liability arises solely from its status as the owner of

developed property located within the unincorporated part of the county. See id. at

155 (noting that “[t]he United States’ obligation to pay [a user fee] arises only from

its consensual purchase of the City’s property; it does not arise automatically, as

does tax liability, from the United States’ status as a property owner”). The

Federal Circuit has held that a stormwater management charge that is based solely

on the mere ownership of property is involuntary. See Cincinnati, 153 F.3d at

1377-78. There, the court explained that a charge applicable to all owners of

developed property and based on the amount of runoff the property was expected

to generate was not a voluntary purchase of services:

The storm drainage service charge was not imposed as a

result of a consensual arrangement between the city and

the United States, as would be true in the case of a

voluntary purchase of utilities or other services. Instead,

the stormwater drainage service charge was an

assessment imposed on the United States involuntarily,

by virtue of its status as a property owner. While the

United States may be said to be a beneficiary of the storm

drainage services provided by the city, it was not offered

38

the opportunity to choose whether to accept those

benefits, and it cannot be said to have taken any action

(other than not moving out of Cincinnati when the

charges were assessed) to indicate its willingness to pay

the charges.

Id. The Federal Circuit concluded that the involuntary nature of the stormwater

charge defeated the city’s assertion of an implied-in-fact contract for services.21

In addition, the County cannot realistically terminate service to any property

due to the nonpayment of stormwater charges. During oral argument, when the

court asked counsel for the County whether it was physically possible to deny any

particular property owner the benefits of the stormwater management system, he

responded that the County could “plug up the drainage system with concrete.”22

Tr. at 94. However, the County has a legal obligation to operate its stormwater

management system in accordance with the requirements set forth in its NPDES

permit, and disabling portions of that system would be an abdication of its legal

21

/ The Federal Circuit expressly declined to address whether the stormwater charge in

that case was a fee or a tax, Cincinnati, 153 F.3d at 1378, and noted that the involuntary nature

of a charge, without more, is not necessarily sufficient to transform the charge into a tax:

The involuntary nature of the charge, however, is not dispositive.

There may be some instances in which a municipal assessment is

involuntarily imposed but would nonetheless be considered a

permissible fee for services rather than an impermissible tax.

Id. Here, the court’s determination that the County’s stormwater management charges are taxes

is not based solely on the involuntary nature of those charges. Rather, the compulsory nature of

the charge is just one consideration in addition to the court’s determination that the assessment is

a tax under the San Juan Cellular test.

22

/ The court did not understand counsel’s response to be a serious answer to the court’s

question. If the County were to physically obstruct the storm drains closest to the government’s

facilities, runoff from those facilities would almost certainly find its way into the stormwater

management system somewhere else, while possibly causing damage to other nearby properties.

With the exception of some fanciful approaches, such as acquiring land around the perimeter of

the federal properties to construct levies that completely prevent stormwater runoff from leaving

those properties, there does not appear to be any physical means of denying any particular

property owner the benefits of the stormwater management system.

39

responsibility to manage the stormwater within its service area, including runoff

that originates on federal properties.

If it were possible to deny any particular property owner the benefits of the

stormwater management system, one would expect the ordinance to provide for the

termination of services due to nonpayment. Instead, the ordinance provides that

“[u]npaid stormwater service fees shall be collected by filing suit to collect on an

unpaid account and by using all methods allowed by Georgia law to collect on any

judgment obtained thereby.” County Code § 25-371(a). Because the default

method of addressing nonpayment is litigation, rather than termination of service,

the stormwater management charges at issue in this case yet again appear to be

taxes rather than fees. See City of Columbia, 914 F.2d at 155 (noting that “while

failure to pay a tax results in civil and sometimes criminal penalties, the failure to

pay a portion of a utility rate results in termination of services”).

Finally, the County argues that its stormwater management charges are

voluntary because property owners may receive credits against the charges for

adopting specified stormwater management systems on their own property, and

may even receive a complete exemption from the charges if they manage 100

percent of the rainfall on their property on their own land. The court does not

believe that the availability of such credits and exemptions alters the nature of the

charge – it is still a tax, regardless of whether some of those subject to the tax may

receive a partial or even total exemption by constructing and operating costly

stormwater management facilities on their own property. In addition, the credits –

in contrast to the full exemption – may amount to no more forty percent of the

assessed charge, so that property owners who manage ninety-nine percent of their

stormwater on-site will still be subject to sixty percent of the normal assessment.

See County Code § 25-369(a). Finally, as the government has noted, the Internal

Revenue Code, Title 26 of the United States Code (2006), provides a number of

credits and exemptions from tax liability, but those credits and exemptions do not

transform federal taxes into fees.

2. Section 1323(a), prior to the 2011 Amendment, Did Not

Waive the Federal Government’s Sovereign Immunity

from State or Local Taxation

The County and amici argue that the language of section 1323 – even before

it was amended in 2011 – represents an unequivocal waiver of the government’s

40

immunity from the type of stormwater management charges at issue in this case.

The government concedes that section 1323, as amended in 2011, subjects it to

prospective liability for stormwater management charges, whether characterized as

fees or taxes, but argues that the 1977 version of that section did not contain an

unambiguous waiver of the government’s sovereign immunity from state or local

taxes. The court agrees with the government.

For the reasons discussed by the court above, “it is well settled that, absent

express congressional authorization, a State cannot tax the United States directly.”

Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 175 (1989). To waive the

government’s sovereign immunity, Congress must express its intent to do so in

terms that are unequivocal and unambiguous. See F.A.A. v. Cooper, 132 S. Ct.

1441, 1448 (2012) (“We have said on many occasions that a waiver of sovereign

immunity must be ‘unequivocally expressed’ in statutory text.”) (citation omitted).

For that reason, “[a]ny ambiguities in the statutory language are to be construed in

favor of immunity, so that the Government’s consent to be sued is never enlarged

beyond what a fair reading of the text requires.” Id. (citations omitted).

In addition, “[a] statute’s legislative history cannot supply a waiver that does

not appear clearly in any statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996);

see also Cooper, 132 S. Ct. at 1448 (“Legislative history cannot supply a waiver

that is not clearly evident from the language of the statute.”) (citation omitted).

The standards applicable to a waiver of sovereign immunity are not lowered simply

because section 1323 purports to place the federal government on the same footing

as private parties. Instead, “statutes placing the United States in the same position

as a private party [must be] read narrowly to preserve certain immunities that the

United States has enjoyed historically.” Library of Congress v. Shaw, 478 U.S.

310, 320 (1986).

There is no question that section 1323(a) waives the federal government’s

immunity from “reasonable service charges,” but the scope of that waiver is far

from clear. First, the term is not defined in the statute, and dictionary definitions

do not support the County’s arguments here. See Black’s Law Dictionary 1491

(9th ed. 2009) (defining a “service charge” as “[a] charge assessed for performing a

service, such as the charge assessed by a bank against the expenses of maintaining

or servicing a customer’s checking account”). The definition of “service charge”

more closely corresponds with the definition of a fee, see id. at 690 (a “charge for

labor or services”), than with the definition of a tax, see id. at 1594 (a “charge, usu.

41

monetary, imposed by the government on persons, entities, transactions, or

property to yield public revenue”).

Second, the more circumscribed reading of the 1977 version of section 1323

– i.e., that the term “reasonable service charges” includes fees but not taxes – is

also supported by the term that Congress actually used: reasonable service

charges. The Federal Facilities Section does not waive the government’s immunity

from all “reasonable charges,” which might provide a somewhat more plausible

basis for concluding that the term includes taxes in addition to fees. Instead, the

term is qualified, and suggests that Congress intended to limit its waiver to fees

that were imposed in connection with the provision of a service. See id. at 1491

(defining the term “service” as “[t]he act of doing something useful for a person or

a company, usu. for a fee”) (emphasis added).

The Supreme Court has explained that a statute purporting to waive the

government’s immunity is ambiguous “if there is a plausible interpretation of the

statute that would not authorize money damages against the Government.”

Cooper, 132 S. Ct. at 1448. Here, there is at least one plausible interpretation of

section 1323 that would not authorize the damages the County seeks in this case:

that section 1323 waives the government’s immunity from fees but not from taxes.

Section 1323, as it existed before January 2011, could be interpreted to waive the

government’s immunity from both regulatory fees, such as the fees charged to

process a permit application, and user fees, such as fees charged for the provision

of water or the disposal and treatment of sanitary sewage. On the other hand,

section 1323 need not be read to waive the government’s sovereign immunity from

state or local taxes, such as the stormwater management charges at issue in this

case. When faced with two plausible readings of a waiver of sovereign immunity,

one broad in scope and one narrow, the court must interpret the statute narrowly.

Lumbermens Mut. Cas. Co. v. United States, 654 F.3d 1305, 1311 (Fed. Cir. 2011)

(noting that any waiver of sovereign immunity must be “unequivocally expressed

in statutory text and will be strictly construed, in terms of its scope, in favor of the

sovereign”) (citation and internal quotations omitted).

In sum, the version of section 1323 that existed prior to January 4, 2011 did

not contain an unambiguous waiver of the government’s sovereign immunity from

state or local taxes. In fact, amici appear to concede that the 1977 version of the

statute is not amenable to a broader construction. See Tr. at 65-66 (“I don’t think

you can read [the 1977 version of section 1323] to say that Congress waived

42

[sovereign immunity] for something that would meet the test of a tax.”). In any

case, the County and amici argue that Congress passed the 2011 amendment to

clarify the intended meaning of section 1323. For that reason, the County and

amici contend that section 1323 must be read as if it had always been so clarified.

3. Section 1323(c) Cannot Be Treated as a Clarification of an

Earlier Waiver of the Government’s Sovereign Immunity if

Doing So Would Expand the Scope of the Original Waiver

In their brief to the court, amici assert that the 2011 amendment was nothing

more than a clarification of an earlier waiver of sovereign immunity contained in

the 1977 amendments to the Clean Water Act. In support of that argument, amici

cite the decision of the United States Court of Appeals for the Eleventh Circuit in

Piamba Cortes v. American Airlines, Inc., 177 F.3d 1272 (11th Cir. 1999). There,

the court held that an amendment will be viewed as a clarification of an earlier

statute when: (1) the language of the earlier statute was ambiguous and in need of

clarification; and (2) Congress has declared its intent to clarify the earlier statute.

Id. at 1283-84. In their brief, amici also reference the Ninth Circuit’s decision in

United States v. Sanders, 67 F.3d 855, 856 (9th Cir. 1995), which explained that

“when an amendment is a clarification, rather than an alteration, of existing law,

then it should be used in interpreting the provision in question retroactively.”

In its reply in support of its motion for summary judgment, the County adopts the

clarification argument advanced by amici. Unfortunately for the County, the

standard set forth in Piamba Cortes is fundamentally inconsistent with the

standards for a waiver of sovereign immunity.

In normal circumstances, when a waiver of sovereign immunity is not

involved, a court can discern the meaning of ambiguous statutory language by

reference to extrinsic evidence of congressional intent. However, such evidence is

generally limited to legislative history that preceded the enactment of the statute.

See, e.g., Ogilvie v. United States, 519 U.S. 79, 90 (1996) (noting that “the view of

a later Congress cannot control the interpretation of an earlier enacted statute”);

United States v. Prince, 361 U.S. 304, 313 (1960) (“[T]he views of a subsequent

Congress form a hazardous basis for inferring the intent of an earlier one.”).

Piamba Cortes provides an exception to that general rule of statutory construction,

allowing a court to treat an amendment to an ambiguous statute as a “clarification”

of that statute, and to interpret the statute as if it had always been so clarified –

essentially giving the amendment retroactive effect.

43

While there is no requirement that statutes be applied only prospectively,

there is a strong presumption against retroactive application: “The presumption

against retroactive application is deeply rooted in our jurisprudence and embodies

a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Prods.,

511 U.S. 244, 265 (1994). When a statute effects a substantive change in the law,

it cannot be applied retroactively unless Congress has expressly indicated its intent

that the statute be given retroactive effect. See Travenol Labs. v. United States,

118 F.3d 749, 752 (Fed. Cir. 1997) (noting that “retroactivity in general is not

favored in the law and, accordingly, legislation will be applied only prospectively

unless Congress has clearly expressed a contrary intention”). In Piamba Cortes,

however, the Eleventh Circuit explained that the usual concerns about retroactive

application of a statutory amendment are not implicated when the amendment

merely clarifies prior law rather than effecting a substantive change in the law.

177 F.3d at 1283. For that reason, an amendment that does nothing more than

clarify existing law may be given retroactive effect even in the absence of a clear

statement from Congress indicating that the amendment is to be applied

retroactively.

In contrast to most statutes, however, a waiver of sovereign immunity must

be expressed in clear and unambiguous terms, and any ambiguities contained in the

statute must be resolved in favor of immunity. See Cooper, 132 S. Ct. at 1448.

Further, a court may not examine legislative history or any other type of extrinsic

evidence of congressional intent in interpreting the scope of the waiver. See id.

Rather, any waiver of sovereign immunity must be “unequivocally expressed in

statutory text and will be strictly construed, in terms of its scope, in favor of the

sovereign.” Lumbermens, 654 F.3d at 1311 (emphasis added). For that reason, it

does not appear that Congress could ever clarify the scope of an earlier waiver of

sovereign immunity under Piamba Cortes because a statute may be clarified only if

it is ambiguous, while a statute can effect a waiver of sovereign immunity only if it

is unambiguous. Here, the court has already determined that the 1977 version of

section 1323 did not contain a clear, unambiguous waiver of the government’s

sovereign immunity from taxes. Because the earlier version of section 1323 was

ambiguous with respect to whether it waived the government’s immunity from

taxes, there was no effective waiver from taxes in 1977 that could have been later

44

clarified in 2011.23

The court disagrees with the contrary conclusion of the United States

District Court for the Western District of Washington in United States v. Renton,

No. C11-1156, 2012 WL 1903429 (W.D. Wash. May 25, 2012). In that case, the

district court concluded that the government was liable to two municipalities for

stormwater charges assessed against federal property in years prior to the adoption

of the 2011 amendment to section 1323. The district court first held that the 1977

version of that section contained an unambiguous waiver of the government’s

immunity from “reasonable service charges.” Next, the court determined, based

largely on legislative history, that the 2011 amendment was not a new waiver of

sovereign immunity, but was instead a mere clarification of the earlier version of

section 1323. Finally, because it held that the 2011 amendment clarified the earlier

version of the statute, the court concluded that traditional canons of statutory

construction required the amendment to be given retroactive effect. There are at

least two problems with the district court’s analysis.

First, while the district court properly held that the 1977 version of section

1323 contained an unambiguous waiver of the government’s sovereign immunity

from “reasonable service charges,” it failed to appreciate that the scope of the

disputed term was, in fact, ambiguous. As discussed above, there are at least two

plausible interpretations of the term “reasonable service charges”: first, that the

term encompasses both fees and taxes, and, in the alternative, that the term is

limited to fees alone. Because ambiguities must be resolved in favor of immunity,

the district court should have concluded that the 1977 version of section 1323,

prior to its amendment in 2011, did not waive the government’s sovereign

immunity from state and local taxation. Instead, the district court adopted the more

expansive interpretation of section 1323 and, based on that faulty premise, held

that the 2011 amendment was nothing more than a clarification of a pre-existing

waiver of immunity from taxes. See Lumbermens, 654 F.3d at 1311 (explaining

23

/ In effect, the County is caught in a catch-22 of sorts, caused by the incompatibility of

the Piamba Cortes test with the exceedingly high and rigid standards that are applied to any

waiver of sovereign immunity. The court cannot view the 2011 amendment as a clarification

with retroactive effect unless the 1977 version of section 1323 was ambiguous in its scope.

However, if the earlier version of section 1323 was in fact ambiguous, then the 2011 amendment

cannot have retroactive effect because Congress did not waive the government’s immunity from

taxes by using clear and unambiguous language in 1977.

45

that a waiver of sovereign immunity must be “unequivocally expressed in statutory

text and will be strictly construed, in terms of its scope, in favor of the sovereign”)

(citation and quotations omitted).

Finally, because it determined that the 2011 amendment was a clarification

of an existing waiver, rather than a new waiver of immunity, the district court

placed extensive weight on the legislative history of that amendment. However, as

noted above, the 1977 version of section 1323 did not contain an unambiguous

waiver of immunity from state and local taxes, so the 2011 amendment must be

interpreted as a new waiver of sovereign immunity, the limitations of which were

to be determined solely with reference to its express language. For that reason, the

district court was not permitted to turn to the legislative history of the 2011

amendment in discerning its meaning. See Cooper, 132 S. Ct. at 1448

(“Legislative history cannot supply a waiver that is not clearly evident from the

language of the statute.”); Lane, 518 U.S. at 192 (“A statute’s legislative history

cannot supply a waiver that does not appear clearly in any statutory text.”).

In summary, because the 1977 version of section 1323 did not clearly waive

the government’s immunity from state or local taxes, the 2011 amendment to that

section must be treated as a new waiver of the government’s sovereign immunity.

The amendment cannot be treated as a clarification of an earlier waiver because

such treatment would expand the waiver beyond the unambiguous language of

section 1323 as it existed before the date of the amendment. This court cannot

apply the new waiver contained in the 2011 amendment retroactively unless

Congress expressly stated its intent to give the amendment retroactive effect.

Neither the County nor amici argue that the amendment contains a new waiver of

immunity that Congress intended to have retroactive effect, and the court does not

discern any such intent in either the text or the history of the 2011 amendment.24

24

/ The County and amici do not argue that the amendment contained a new waiver of

sovereign immunity that Congress intended to have retroactive effect. See Pl.’s Resp. at 19 n.11

(stating that “[t]his Court need not apply the Stormwater Amendment retroactively in order to

find in favor of DeKalb County”); Amicus Br. at 14 n.21 (noting that “this is not a case

involving the retroactivity of [the 2011 amendment]”). Unless Congress uses clear terms to

express its intent that a statute be applied retroactively, the statute will not be given such effect.

See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 237 (1995) (noting that “statutes do not apply

retroactively unless Congress expressly states that they do”) (emphasis in original). There is no

language in the 2011 amendment expressly indicating that Congress had intended it to apply

retroactively, nor is such an intent visible in the legislative history of the amendment. Instead,

46

Because the 2011 amendment cannot be applied retroactively, the County may not

recover the stormwater charges it seeks to collect in this case.

CONCLUSION

The County’s claims related to stormwater management charges assessed in

the first half of 2005 accrued more than six years before this suit was filed and

must be dismissed as untimely. The remaining claims seek to recover local taxes

that were assessed against the federal government before Congress waived the

government’s immunity from such taxes; those claims must be dismissed for

failure to state a claim upon which relief can be granted. Because the County’s

claims must be dismissed, the court cannot grant its motion for summary judgment

on those claims. In accordance with the foregoing, it is hereby ORDERED that:

(1) Defendant’s Motion to Dismiss, filed February 27, 2012, is

GRANTED;

(2) Plaintiff’s Motion for Partial Summary Judgment, filed

April 30, 2012, is DENIED;

(3) The Clerk’s Office is directed to ENTER final judgment in

favor of defendant, DISMISSING the complaint as follows:

(a) The claims related to stormwater utility charges billed to

defendant before November 14, 2005, shall be dismissed

under RCFC 12(b)(1), without prejudice; and

(b) The remaining claims in the complaint shall be dismissed

under RCFC 12(b)(6), with prejudice.

(4) No costs.

the amendment simply states that federal agencies are responsible for stormwater charges under

section 1323, without regard to whether they are called fees or taxes. For that reason, the court

may not apply the 2011 amendment retroactively to permit the County to recover the charges it

seeks to collect in this case.

47

/s/Lynn J. Bush

LYNN J. BUSH

Judge

48