Petition — Kleiboemer v. District of Columbia

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Po ee

Office - Supreme Court, U.S.

BR _ oo Ps FILED

that DEC 5 1983

No.

ALEXANDER L, STEVAS,

= — — 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

AXEL-FELIX KLEIBOEMER, et al.,

Petitioners,

Vv.

THE DISTRICT OF COLUMBIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

BRADLEY G. MCDONALD

JOHN F. KARL, JR.

McDONALD & KARL

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 338-7800

PHILIP L. KELLOGG

JAMES L. LYONS

KELLOGG, WILLIAMS & LYONS

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 785-8292

Attorneys for Petitioners

Fees al

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

te

QUESTIONS PRESENTED

1. Whether members of a prevailing duly certified

class action were denied due process by the refusal of the

trial court to order refunds of $1.8 million of illegally

collected tax money to 2,711 class members?

2. Whether the American Pipe doctrine requires that

the period for filing administrative claims for tax re-

funds established by District of Columbia law be tolled

where the trial court upheld the tax and bound all mem-

bers of the class to that judgment and where the tax is

later held to be ultra vires?

(i)

TABLE OF CONTENTS

OPINIONS AND ORDERS BELOW ......0000. eee.

I al eadethin-edidendekschicsatnenineceseaneneneiinnts

CONSTITUTIONAL PROVISIONS INVOLVED ........

STATEMENT OF THE CASE ..............:c.:ccsscssssssssssesceess

A. Procedural Background ......................cc.sss0ss00000

B. Court of Appeals Decisions ................................

C. Post-Appeal Proceedings ...................c...cccceeeeeeee

I snesocettiananennctine

E. Federal Questions Properly Raised ...................

REASONS FOR GRANTING PETITION ....................

I.

II.

ITl.

This Court Should Grant Review Because the

Due Process Clause Is Violated by the District of

Columbia’s Refusal to Refund All of the Ultra

Vires, Unlawfully Collected Tax Money ..............

This Court Should Grant Review Because Ap-

plication of the District of Columbia Refund

Statute so as to Deny Benefits of the Class Action

Judgment Is a Denial of Due Process ................

This Court Should Grant Review Because the

Holding of the Court of Appeals Is Inconsistent

With the American Pipe Doctrine of Equitable

Tolling of Statutes of Limitation Articulated in

Crown, Cork & Seal Co., Inc. v. Parker ..............

dca detsisoasenenebteeienmneneditnbanceesnecensetntion

APPENDIX

A. Opinion of the District of Columbia Court of

Appeals, March 22, 1988 25000002... ..eeeeeeeee

(iii)

11

16

la

iv

TABLE OF CONTENTS—Continued

. Supplemental Opinion of the District of Colum-

bia Court of Appeals, September 7, 1983 ..........

. Order of the Superior Court of the District of

Columbia, Tax Division, October 17, 1977 ........

. Order of the Superior Court of the District of

Columbia, Tax Division, October 27, 1977 ........

. Order of the Superior Court of the District of

Columbia, Tax Division, March 28, 1979 ..........

. Order of tne Superior Court of the District of

Columbia, Tax Division, April 5, 1979 ..............

. Letter from the Department of Finance and

Revenue, Government of the District of Colum-

TE NS. Seat or Be SEL eo oe er oe

. Class Claim for Refund of District of Columbia

Unincorporated Business Tax, December 11,

TN. cn soces escosicieiteschdetaipnieseacbaeeatde haan enki

Vv

TABLE OF CASES

Albemarle Paper Co. Vv. Moody, 422 U.S. 405

ES eae ts NENA ST Sema Bes. eee ee

American Pipe & Construction Co. v. Utah, 414

a ees

Anderson Vv. Celebrezze, 460 U.S. ——, 108 S.Ct.

I na iialinialed

Apartment & Office Building Ass’n v. Washington,

DOB Bee Be CAG, Bi. TTD acccncsiciccntetcscesnccncee

Bishop V. District of Columbia, 401 A.2d 955 (D.C.

I IIE siecle sichcocnidsaltiacahatiderndsimiahinenpiacsonstnediolen

Bishop V. District of Columbia, 411 A.2d 997 (D.C.

App.), cert. denied, 446 U.S. 966 (1980) ..........

Board of County Comrs. v. Seber, 130 F.2d 663

(10th Cir. 1942), affd. 318 U.S. 705 (1943) .......

Board of Regents Vv. Roth, 408 U.S. 564 (1972).......

Carpenter Vv. Shaw, 280 U.S. 363 (1980) ........ Sian

Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S.

~~ 5» B B. __- yeti sagUay. cin eee

District of Columbia v. Green, 310 A.2d 848 (D.C.

PII, MIU nictitececinticsuhitis Deanna ath eadilisthoaiiahansipihensabhans

District of Columbia v. Keyes, 362 A.2d 729 (D.C.

App. 1976), cert. denied, 430 U.S. 968 (1977)...

Frick v. Commonwealth of Pennsylvania, 268 U.S.

A ID eisai acipescepinetcecninkcnpieatielichoninsti hci chanalaniiahiuaikiaesd

Hansberry Vv. Lee, 311 U.S. 87 (1940) ..00000

Hewitt v. Helms, 459 U.S. ——, 108 S.Ct. 846

IY cha inck cic tichncuciadch cosdnaliethmocanamiebiectnen settled

Landon v. Plasencia, 459 U.S. ——, 108 S.Ct. 324

EIR EINES SE SACRO cls wicca Po ea Po

Laskey Vv. International Union (UAW), 638 F.2d

+ RR er ed ed

Lee V. Osceola & Little River, 268 U.S. 648 (1925)..

Lehr v. Robertson, 463 U.S. ——, 108 S.Ct. 2985

CINE -cikitinschacsth ss tenodthcieis deisecaiiiocicciienataioidadaasbcvaitic hese

Mennonite Board of Missions v. Adams, 462 U.S.

—, 108 S.Ct. 2706 (1988) 20... eeeeee

Mullane v. Central Hanover Bank & Trust Co., 889

U.S. 806 (1950)

Page

9, 10

16-19

vi

TABLE OF CASES—Continued

Page

Pernell v. Southall Realty, 416 U.S. 363 (1974).... 16

Research Corp. Vv. Asgrow Steel Co., 425 F.2d 1059

I cag A acti india Silane 12

United Airlines, Inc. v. McDonald, 482 U.S. 385

a RTE SDE eh ee A SL ESR ee Oe 17

Ward v. Board of County Comrs., 258 U.S. 17

I cclceiiatataistetantincosenscita lace Acathienaiesdeddevinanbsadaiainene 9, 10

Whalen v. United States, 445 U.S. 684 (1980) ......... 16

Zipes V. Trans World Airlines, Inc., 455 U.S. 385

Se ah Ont ee ee 17

CONSTITUTIONAL PROVISIONS

Fifth Amendment of the United States Constitu-

I electssticaccacs aseneaeit alee dactidibabinadintaaibenchanmsenisiinianed passim

STATUTES AND RULES

Rule 23 of the Rules of Civil Procedure of the

Superior Court of the District of Columbia ........ passim

Section 1-147(a) (5) of the District of Columbia

I NE i nieeeinsiede 2-3

Section 47-1586j of the District of Columbia Code

INP IIIGED . cicsiiisinataeaieninisascinissonipsdiiassbiteltnichinscinisibdenstetsigsbasisc passim

OTHER AUTHORITIES

Restatement of Judgment, §§ 45(c), 68(i) (1942).. 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No.

AXEL-FELIX KLEIBOEMER, et al.,

Petitioners,

Vo

THE DISTRICT OF COLUMBIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

Petitioner Axel-Felix Kleiboemer respectfully petitions

for a writ of certiorari on behalf of the class to review

the judgment of the District of Columbia Court of Ap-

peals, entered on September 7, 1983, upholding the deci-

sion of the trial court denying the refund of $1.8 million

of taxes illegally collected by the District of Columbia

Government from 2,711 prevailing class members.

OPINIONS AND ORDERS BELOW

The opinion of the District of Columbia Court of Ap-

peals holding the tax in question illegal is reported at 401

A.2d 955. The en hance opinion affirming the decision of

the division is reported at 411 A.2d 997. The opinion of

the District of Columbia Court of Appeals ruling that

the respondent is not required to refund all of the tax

illegally collected is reported at 458 A.2d 731 and ap-

2

pears in the Appendix (“App.”) at la-12a. The supple-

mental opinion of the court of appeals denying petition-

ers’ request for rehearing appears at App. 13a-21a.

JURISDICTION

The opinion of the District of Columbia Court of Ap-

peals in this case was issued on March 22, 1983. The

supplemental opinion denying petitioners’ petition for re-

hearing was issued on September 7, 1983. The jurisdic-

tion of this Court is invoked under 28 U.S.C. Section

1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall . . . be deprived of life, liberty, or

property, without due process of law.

STATEMENT OF THE CASE

A. Procedural Background

On October 21, 1975, Section 47-1574 of the District of

Columbia Code (Supp. V 1978) became effective. Under

the terms of this law the District of Columbia imposed

an unincorporated business tax on unincorporated profes-

sionals and personal service businesses (“professional

tax” or “commuter tax”). Pursuant to Section 47-1589e

of the District of Columbia Code, respondent has the

power to fine and imprison individuals who willfully re-

fuse to pay this tax.

On March 25, 1976, petitioner Axel-Felix Kleiboemer

filed his 1975 District of Columbia Unincorporated Busi-

ness Tax return and paid the required tax. With his

payment, petitioner Kleiboemer filed a claim for refund,

contending that the tax was imposed on the “personal

income” of nonresidents in violation of Section 602 (a)

(5) of the Home Rule Act, Section 1-147(a) (5) of the

3

District of Columbia Code (Supp. II, 1975). On March

26, 1976, the District of Columbia Department of Fi-

nance and Revenue denied his claim for refund.

On April 5, 1976, Kleiboemer filed a class petition

seeking the refund of “‘all amounts paid by all taxpayers

who are members of the petitioner’s class pursuant to the

challenged tax ....” By motion filed April 30, 1976,

Kleiboemer moved the Superior Court for a class deter-

mination pursuant to Civil Rule 23(b) (1), as made ap-

plicable to proceedings in the Tax Division by Tax Rule

3.

The trial court entered an order dated October 17,

1977,’ granting petitioner Kleiboemer’s motion for class

determination:

FURTHER ORDERED that the class shall consist

of all nonresidents who are subject to the tax in

question by virtue of engaging in unincorporated

personal service businesses in the District of Colum-

bia and who have paid the tax.

Order of October 17, 1977, at 2. (App. at 28a).

The trial judge stated in detail the rationale for certi-

fying the case as a class action under Rule 23(b) (1)

(A):?

1 The order was entered on October 18, 1977. We refer to this

order as the October 17, 1977, order to distinguish it from the Or-

der and Opinion signed, dated and entered October 18, 1977, dis-

missing the petitions for refunds on the merits.

2 Super. Ct. Civ. Rule 23(b) (1) (A) is identical to federal Rule

23. This rule provides:

(b) CLASS ACTIONS MAINTAINABLE. An action may be

maintained as a class action if the prerequisites of subdivision

(a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against

individual members of the class would create a risk of (A)

inconsistent or varying adjudications with respect to in-

dividual members of the class which would establish in-

compatible standards of conduct for the party opposing the

4

After reviewing Super. Ct. Civ. R. 23 and the

applicable cases, this Court is satisfied that peti-

tioners can maintain this action as a class action

under Rule 23(b) (1) (A) and arguably under Rule

23(b)(1)(B). The Court relies only on Rule 23(b)

(1)(A). ef. McDonnell Douglas Corp. v. United

States District Court for the Central District ‘of

California, 528 F.2d 1088 (9th Cir. 1975); Landau

v. Chase Manhattan Bank, N.A., 367 F. Supp. 1992

(S.D.N.Y. 1978); Goldman v. First National Bank

of Chicago, 56 F.R.D. 587 (N.D. Ill. 1972). Here as

distinguished from the above cases, the failure to

maintain a class action would impose incompatible

standards of conduct on the District of Columbia.

This is not a simple action for a money judgment

but rather a case which calls into question a tax

statute of the District. It is therefore possible that a

contrary opinion could impose upon the District in-

compatible standards of conduct; collecting the tax

from some and not from others. Moreover, this

Court cannot overlook the impact on the fiscal af-

fairs of the District of Columbia in the event of in-

consistent decisions. For these reasons the Court

concludes the case is properly brought under Rule

23(b) (1) (A),

(App. at 23a). In a separate order entered on October

18, 1977, the trial judge ruled that the tax was lawful

and dismissed the petitions for refunds with prejudice.

Each class member was bound by the trial court’s order

upholding the tax.

Thereafter, on October 27, 1977, the trial judge

modified his order of October 18, 1977, by hold-

ing that the tax impermissibly discriminated against

calendar-year taxpayers in favor of fiscal-year taxpayers

and that the calendar-year taxpayers were entitled to

a refund of al) taxes paid by them prior to December 1,

1975. (App. at 24a-25a). The trial court stated that

“lalny members of the clase who were fiscal year tax-

payers and had perfected their claim for refund as pro-

5

vided by law, would now be entitled to a refund or credit

consistent with the above [opinion]... .” Memorandum

Order of October 27, 1977, at 8. In a separate judgment

order, also entered on October 27, 1977, the trial court

ruled as follows:

ORDERED that the class consists of those non-

resident taxpayers who have paid the unincorpo-

rated business franchise tax pursuant to D.C. Code

1973, See. 47-1574b (Supp. IV, 1977) except for

Richard A. Bishop (See Tax Docket No. 2862), and

it is further

ORDERED that the members of the class shall be

entitled to refund of taxes, consistent with the Opin-

ion and Order as modified by the Memorandum Or-

der, provided they have complied with or comply

with D.C. Code 1978, Sec. 47-1586j.*

*Cf.: D.C. v. Keyes, 362 A.2d 729 (D.C. App. 1976).

(App. at 24a-25a).

The first paragraph of the October 27, 1977, judgment

order recited anew and did not change the class defini-

tion contained in the October 17, 1977, certification or-

der. Thus, as of October 27, 1977, the class remained

“those nonresident taxpayers who have paid the [tax]

except for Richard A. Bishop.”

Petitioner Kleiboemer appealed the October 18, 1977,

order ruling the tax valid. Respondent appealed the Oc-

tober 27, 1977, order granting an 1l-month refund of

the tax. The District did not appeal the separate order

of October 17, 1977, granting class certification and de-

fining the class as those nonresidents who had paid the

tax.’

* At no time during the briefing and oral argument before the

District of Columbia Court of Appeals did the District challenge the

class action certification or the October 17, 1977, definition of the

class. The court of appeals in its April 20, 1/79, opinion expressly

recognized the class as consisting of “all nonresident professionals

6

In December 1978, the District of Columbia mailed a

notice to those taxpayers who were continuing to pay the

illegal tax, advising them of respondent’s view that they

were required to file claims for refund for 1975 by April

15, 1979, in the event the tax might be held illegal by

a subsequent decision of the court of appeals. The Dis-

trict had a list of taxpayers that included the names and

addresses of those individuals who did not receive the

December 1978 notice; however, respondent chose not to

notify these individuals by mail. As a result, a large

number of taxpayers never received actual notice by

mail of the purported requirement that they file a claim

for refund. However, the trial court held that constitu-

tionally adequate notice had been given to class members

regarding the administrative claim requirement. (App.

at 26a-28a). Petitioners filed a notice of appeal from this

decision,

B. Court of Appeals Decisions

On April 20, 1979, the District of Columbia Court of

Appeals unanimously held the tax on nonresident profes-

sionals and other nonresident owners of personal service

businesses to be ultra vires as “an invalid exercise of the

city council’s legislative authority under the Home Rule

Act.” Bishop vy. District of Columbia, 401 A.2d 955, 961

(D.C. App. 1979). Sitting en banc, the court of appeals

affirmed the earlier opinion holding the tax invalid.

411 A.2d 997 (D.C.App.) (en banc), cert. denied, 446

U.S. 966 (1980). The en bane opinion observed that

“Congress expressly and specifically withheld the District

of Columbia Council’s authority to impose a tax on the

income of nonresidents.” Jd, 411 A.2d at 999. The trial

court’s judgment of October 18, 1977, denying petition-

ers’ claims for refund of the tax paid was reversed.

subject to the tax and who had paid the tax, except for appellant

Bishop.” Bishop Vv. District of Columbia, 401 A.2d at 956 n.5.

A

7

C. Post-Appeal Proceedings

On October 22, 1980, the trial court entered a compre-

hensive judgment order which provided that the “District

of Columbia is directed to refund the... . tax paid by or

on behalf of petitioner Axel-Felix Kleiboemer, all mem-

bers of the class...” The October 22 order repeated

the definition of the class created by the October 17, 1977

order, that is, “all nonresident professionals . . . who

have paid the tax... .” The District of Columbia re-

served the right to argue that class members, in addition

to being members of the class, were required to file indi-

vidual claims for refunds within three years from the

time the tax was paid to obtain the return of the money

they paid pursuant to the wltra vires tax.*

On September 24, 1981, the trial court ruled that “the

timely filing of individual claims [for refund under

D.C. Code Section 47-1586j] by affected taxpayers is a

prerequisite to refunds in this suit.” This ruling denied

refunds to 2,711 class members and allowed the District

of Columbia to retain $1.8 million of tax money that

had been illegally collected from unincorporated profes-

sionals residing outside of the District of Columbia.

(App. at 29a-30a).

D. Second Appeal

The court of appeals upheld the decision of the trial

court that technical compliance with Section 47-1586j

was a prerequisite for obtaining a refund for the ultra

vires tax. (App. at la-10a, 18a-19a). The court held

that the exhaustion of remedies doctrine and the imposi-

tion of a requirement of filing individual administrative

* By the time the mandate had returned to the tria! court, the

three-year period for filing administrative claims for refunds es-

tablished by Section 47-1586j of the District of Columbia Code had

expired. This section provides in pertinent part that:

No... refund shall be allowed after three years from the time

the tax was paid unless before the expiration of such period a

claim therefor is filed by the taxpayer.

8

claims for refund were legitimate state interests justify-

ing the District’s refusal to refund all of the illegally

collected tax. (App. at 5a-7a). Although the court had

previously declared the tax unlawful, the court con-

cluded that denial of the refunds to class members who

did not file apparently futile claims for refunds did not

violate due process “because the trial court decision was

appealed and subject to reversal.” (App. at 20a). The

eoirt of appeals also concluded that the doctrine of

equitable tolling was not available to the class. (App.

at 8a-10a, 18a-19a).

E. Federal Questions Properly Raised

The federal questions raised in this petition were spe-

cifically decided by the District of Columbia Court of

Appeals. Petitioners argued that the Due Process Clause

of the Fifth Amendment of the Constitution required the

refund of all of the illegally collected tax money to all

class members, irrespective of whether they had filed

claims for refund during the period in which the tax had

been upheld by a decision of the trial court. The court

of appeals rejected petitioners’ argument that it would

be extremely harsh and fundamentally unfair “to deny

refunds to some class members.” (App. at 7a n.6, 20a).

The Court also turned down petitioners’ claim that:

[Mjembers of the class, having been bound by the

trial court judgment adverse to them until this court

reversed it (after the statutory period for claims

expired), would be denied due process if they were

denied the benefits of this court’s final judgment

holding the tax illegal.

(App. at 20a.)

The court of appeals also rejected petitioners’ alterna-

tive argument that timely filing of the class action claim

for refund tolled the statute of limitations for filing re-

funds under this Court’s doctrine of equitable tolling as

articulated in American Pipe and its progeny.

9

I. This Court should grant review because the Due Proc-

ess Clause is violated by the District of Columbia’s

refusal to refund all of the ultra vires, unlawfully

collected tax money.

The imposition of the professional tax in this case is a

per se violation of petitioners’ right to due process:

{T]he exaction by a state of a tax which it is with-

out power to impose is a taking of property without

due process of law in violation of the Fourteenth

Amendment.

Frick v. Commonwealth of Pennsylvania, 268 U.S. 473,

488-489 (1925). Where there is “no power to impose a

tax, its exaction is a taking of property without due

process of law... .” Lee v. Osceola & Little River, 268

U.S. 643, 646 (1925).

Long ago this Cet made clear that a taxing author-

ity is obligated : .efund all money where payment of

an illegal tax was made under compulsion. Ward v.

Board of County Comrs., 253 U.S. 17 (1920). In reach-

ing this conclusion, the Court relied on the well-settled

rule that money obtained through unlawful means may

be recovered, since reaching the contrary result of al-

lowing the taxing authority to retain the funds would

be nothing short of saying that it could take or appro-

priate property of the taxpayer arbitrarily and without

due process of law. /d. at 24.

In Carpenter v. Shaw, 280 U.S. 363 (1930), this Court

required Oklahoma to refund a tax on Indian property

that had been declared exempt from taxation by an Act

of Congress; the Court did so despite the state’s argu-

ment that petitioners were barred from obtaining re-

funds because they failed to comply with a precondition

imposed by state statute requiring initial timely payment

of the tax.

10

This Court stated: “{A] denial by a state court of a

recovery of taxes exacted in violation of the laws or

Constitution of the United States by compulsion is itself

in contradiction of the Fourteenth Amendment.” Jd. at

369. Under Carpenter v. Shaw, a state court may not

deny a tax refund in a lawsuit where class members

failed to comply with similar state-imposed administra-

tive requirements for obtaining refunds of an illegally

imposed tax on income | apes: exempt by an Act of

Congress. 280 U.S. at 369.

Several years after Shaw, this Court affirmed a court

of appeals decision upholding the right of the taxpayer

to recover payments of certain taxes levied contrary to

an express Act of Congress in face of an argument iden-

tical to that advanced by respondent—that is, a tax-

payer who does not pursue the exclusive statutory reme-

dies provided by the state may not recover the taxes

paid. Board of County Comrs. v. Seber, 318 U.S. 705,

719 (1943). The court of appeals held that the right to

recover taxes that are illegal and void because they are

beyond the jurisdiction of the taxing authority cannot be

made to depend upon any state procedural requirements,

since the effect of upholding the state’s requirement of

compliance with its procedural requirements would deny

a vested right or immunity granted by a law of the

United States. 130 F.2d 663, 671 (10th Cir. 1942).

Just as the Indian lands that were the subject of liti-

gation in Ward, Shaw, and Seber were specifically ex-

empted from taxation by an Act of Congress, so also

were the incomes of nonresident professionals exempted

by Congress from the commuter tax levied by respond-

ent. Petitioners have been denied their due process

rights just as were the prevailing petitioners in Ward,

Shaw, and Seber. Accordingly, the judgment of the court

of appeals should be reversed.

11

II. This Court should grant review because application of

the District of Columbia refund statute so as to deny

benefits of the class action judgment is a denial of due

process.

The court of appeals decision that due process is not

violated by denying class members the benefit of the

judgment declaring the commuter tax to be ultra vires is

in conflict with four due process cases decided by this

Court last term.

The requirements imposed by the Due Process Clause

are “flexible and variable” depending on the particular

factual situation. Hewitt v. Helms, 459 U.S. , 103

S.Ct. 846, 850 (1983). When the Due Process Clause is

“invoked in a novel context,” a court must “begin the

inquiry with a determination of the precise nature of

the private interest that is threatened by the state.”

Lehr v. Robertson, 463 U.S. ——, 103 S.Ct. 2985, 2990

(1983).

{T]he courts must consider the interest at stake for

the individual, the risk of an erroneous depriva-

tion of that interest through the procedures used as

well as the probable value of additional or different

safeguards, and the interest of the government in

the procedures under scrutiny.

Landon v. Plasencia, 459 U.S. ——, 108 S.Ct. 324, 330

(1983).

In passing judgment, the Court must not only de-

termine the legitimacy and strength of each of these

interests, it must also consider the extent to which

those interests make it necessary to burden the plain-

tiff’s rights.

Anderson v. Celebrezze, 460 U.S. ——, 103 S.Ct. 1564,

1570 (1983). This Court must determine whether the

procedures used meet the essential test of fairness under

the Due Process Clause. Landon v. Plasencia, 459 U.S.

at ——, 103 S.Ct. at 30. Under this due process analysis,

the decision of the court of appeals should be reversed.

12

By virtue of the court of appeals decision, respondent

may retain approximately $1.8 million of the tax money

that was collected pursuant to an illegal tax. (App. at

29a-30a). Petitioners have two separate property inter-

ests that have been abridged by this decision. The first

of these is petitioners’ interest in the millions of dollars

of taxes collected pursuant to the now invalidated tax

law and the deprivation of the use of these funds since

they were collected. Board of Regents v. Roth, 408 U.S.

564, 572 (1972). Petitioners have a second property in-

terest which arises from the trial court’s decision certi-

fying the class and the ultimately favorable class action

judgment of October 22, 1980.

Under Rule 23, members of a class who are not present

as parties to the litigation are bound by a judgment

where they are adequately represented by an individual

who meets the requirements of Rule 23. Hansberry v.

Lee, 311 U.S. 37, 42-43 ‘1940). Petitioner was found to

be an “adequate” class representative and the rights of

class members were fully litigated before the trial court.

Class members were bound by the judgment and thus

barred from filing other lawsuits in the District of Co-

lumbia or in other jurisdictions by the doctrine of res

judicata. Id. See also Laskey v. International Union

(UAW), 638 F.2d 954, 956 (6th Cir. 1981); Research

Corp. Vv. Asgrow Steel Co., 425 F.2d 1059 (7th Cir.

1970). ”

Petitioners’ due process property interests must be

considered in light of the legitimacy and strength of the

interests asserted by respondent in denying these claims

for refunds. The court of appeals justified refusal to re-

fund the illegal tax by noting that “the financial inter-

ests of the District and the public interest would not “be

served by allowing taxpayers in such a case to bypass

statutory procedures for refund.” (App. at 7a). The

court reasoned that since respondent could not know the

full extent of its liability for refunds and could not plan

its burden accordingly, respondent had a strong interest

13

in requiring the filing of an administrative claim for

refund. (App. at 7a). This reasoning is erroneous.

Respondent was placed on notice with the filing of

the class action lawsuit for refunds filed only a short

time after the tax was passed and before the first tax

returns were due. The lawsuit apprised respondent of

the extent of its liability because the lawsuit attacked

the power of respondent to levy the tax. Thus, respond-

ent knew the amount of money that the professional tax

had brought into its treasury and the amount of money

that would have to be refunded if the tax were declared

illegal.

Respondent also advances the argument that its inter-

est in the strict construction of tax refund statutes jus-

tifies retention of these funds. Allowing a refund of the

illegal tax would have little or no precedential effect on

future decisions of the District of Columbia courts which

are asked to interpret tax laws that are not ultra vires.

Moreover, respondent’s interest in retaining the $1.8 mil-

lion at issue is of dubious legitimacy, because these funds

were collected illegally on the basis of a tax that is ultra

vires.

Respondent further asserts an interest in the exhaus-

tion of remedies doctrine (requiring that taxpayers

file an administrative claim! which justifies retention of

the illegally collected tax money. Whatever abstract in-

terest a state may have in the exhaustion doctrine in the

normal course, such an interest is at best minimal where

the tax is ultra vires. Respondent’s interest in imposing

an exhaustion requirement is particularly weak because

of the numerous exceptions to this doctrine under Dis-

trict of Columbia law. Exhaustion of administrative

remedies is not a jurisdictional absolute; for example,

taxpayers have been allowed in the past to bypass the

administrative process to proceed with an action in court

where, as here, the taxpayers had no meaningful abil-

14

ity to obtain relief at the administrative level. District

of Columbia v. Green, 310 A.2d 848, 856 (D.C.App.

1973). Accord, District of Columbia v. Keyes, 362 A.2d

729, 737 (D.C.App. 1976), cert. denied, 430 U.S. 968

(1977). Apartment & Office Building Ass’n. v. Washing-

ton, 343 A.2d 323, 331-332 (D.C.App. 1975). Thus, re-

spondent’s interest in requiring the exhaustion of ad-

ministrative remedies does not justify the retention of

the illegally collected tax money.

Moreover, whatever interest respondent might have in

requiring the exhaustion of administrative remedies and

in strict construction of its tax statutes is mooted by the

class claim for refund. On December 11, 1978, petitioner

Kleiboemer filed an administrative claim for refund on

behalf of all individuals in the plaintiff class. (App. at

3la-32a). The filing of a class claim for refund by the

court-appointed class representative was particularly ap-

propriate in these circumstances; class members were

bound by the October 1977 judgment holding the tax law-

ful and any subsequent suit would have been barred by

the doctrine of res judicata. Hansberry v. Lee, supra,

311 U.S. at 42-43. The class claim substantially com-

plied with every requirer nt imposed by Section 47-1586j

of the District of Columbia Code.® Under these circum-

stances, respondent’s interest in the exhaustion of rem-

edies doctrine and strict construction of its tax statutes

is fully satisfied.

5 The class claim was made in writing under oath and was filed

with the appropriate officials on behalf of the class as described

and defined in the trial court’s order of October 17, 1977. The class

claim set forth the specific ground on which the claim for refund

was grounded, i.e., that the tax violated the Home Rule Act and was

therefore ultra vires. (App. at 3la-32a).

On December 26, 1978, the District of Columbia Department of

Finance and Revenue denied the class claim. On January 3, 1979,

the trial judge ruled that the class claim did not constitute sufficient

compliance with Section 47-1586j of the District of Columbia Code.

On January 19, 1979, petitioners filed a notice of appeal from the

order rejecting the class claim for refund.

15

The denial of due process is particularly egregious in

these circumstances because many individuals who did

not file claims for refunds never received the notice sent

in December 1978 to certain taxpayers. (See App. at 28a,

80a). The Deceniber 1978 notice informed taxpayers

that respondent intended to bar their claims if they did

not file claims for refunds. Respondent actually had a:

list of the names and addresses of taxpayers who paid

the tax, were class members, and who did not receive

actual notice by mail that they might be required to file

claims for refunds.

The absence of actual notice runs contrary to the basic

tenet of due process that requires “at a minimum...

that deprivation of life, liberty or property by adjudica-

tion be preceded by notice... .” Mullane v. Central Han-

over Bank & Trust Co., 389 U.S. 306, 313 (1950).

Notice by mail or other means as certain to ensure

actual notice is the minimum constitutional precon-

dition to a proceeding which will adversely affect

liberty or property interests of any party, whether

lettered or well versed in commercial practice, if its

name and address are reasonably ascertainable.

Mennonite Board of Missions v. Adams, 462 U.S. ——,

103 S.Ct. 2706, 2712 (1983). Respondent could have pro-

vided actual notice.®

Due process and fundamental fairness require that

because all class members were bound by the trial court’s

judgment, respondent must be bound by the reversal of

that judgment. Parties to litigation are bound with respect

to every matter that is litigated. Restatement of Judg-

ments, §§ 45(c), 68(i) (1942). In sum, failure to bind

respondent denies petitioners their right to due process.

Accordingly, the decision of the court of appeals should

be reversed.

® Respondent rejected as untimely the claims for refunds of

$1,494,248 filed by 1,160 taxpayers for the tax years 1975 and

1976. (App. at 30a).

16

III. This Court should grant review because the holding

of the court of appeals is inconsistent with the Ameri-

can Pipe doctrine of equitable tolling of statutes of

limitation articulated in Crown, Cork & Seal Co., Inc.

v. Parker.

If respondent may, consistent with due process, re-

quire individual claims for refunds under Section 47-

1586j of the District of Columbia Code, the doctrine of

equitable tolling of statutes of limitations is applicable

to these facts.’ The decision holding that Section 47-1586j

mandates individual claims for refund by all class mem-

bers would deprive class members of the benefit of class

membership simply because these individuals did not file

an apparently futile administrative claim for refund.

Such a ruling in effect decertifies the class after final

judgment and excludes class members from the benefit of

the decision that the tax was ultra vires.

To protect the policies behind the class action proce-

dure, this Court held:

[T]he commencement of a class action suspends the

applicable statute of limitations as to all asserted

members of the class who would have been parties

had the suit been permitted to continue as a class

action.

7 Petitioners believe their claim to equitable tolling of the statute

of limitations raises an issue of great significance that is a matter

of general nationwide application. Even if the court of appeals de-

cision is a matter of “state” law, this Court is “not prevented from

reviewing decisions of the District of Columbia Court of Appeals in

the same jurisdictional sense that [the Court] is barred from re-

viewing a state court’s interpretation of a state statute.” Whalen

v. United States, 445 U.S. 684, 687-688 (1980) (citations omitted).

Deference to the court of appeals’ construction of local federal! leg-

islation is inappropriate in “exceptional situations where egregious

error has been committed.” Pernell v. Southhall Realty, 416 U.S.

863, 369 (1974) (citations omitted).

The class action rule of the trial court—which is identical to

Fed.R.Civ. Pro. 23—was made applicable to the Tax Division of the

Superior Court by Public Law 98-407.

17

American Pipe & Construction Co. vy. Utah, 414 U.S. 5388,

554 (1974), cited in Crown, Cork & Seal Co., Ince. V.

Parker, 462 U.S. ——, 108 S.Ct. 2882, 2395 (1983).

“The filing of a class action tolls the statute of limita-

tion as to all asserted members of the class.” 103 S.Ct.

at 2395 (citation omitted). Thus, the statute of limita-

tions with respect to the claims of the class should be ex-

tended from the time the class action was filed until the

time of decertification of the class.

In further explaining the doctrine of equitable tolling

articulated in American Pipe, this Court has rejected

arguments similar to those made by respondent regard-

ing the adequacy of notice. United Airlines, Inc. v. Me-

Donald, 432 U.S. 385 (1977). In McDonald, the Court

-upheld the adequacy of the notice to the defendant pro-

vided by the class action complaint, noting that “[t]he

lawsuit had been commenced by the timely filing of a

complaint for classwide relief, providing [the defend-

ant] with ‘the essential information necessary to deter-

mine both the subject matter and size of the prospective

litigation.’” Id. at 392-93, quoting American Pipe, 414

U.S. at 555.

The doctrine of equitable tolling has also been applied

in class actions to toll time requirements for filing ad-

ministrative claims. For example, once a member of a

class files a complaint with the Equal Employment Op-

portunity Commission in a Title VII case, the adminis-

trative requirement of filing a claim under 42 U.S.C.

§ 2000e-5(d) is tolled as to all members of the class if

the class is ultimately certified and as to all purported

class members if the class is not certified, or is subse-

quently decertified. See Zipes v. Trans World Airlines,

Inc., 455 U.S. 385 (1982). Albemarle Paper Co. V.

Moody, 422 U.S. 405, 414 n.8 (1975).

The application of the equitable tolling doctrine of

American Pipe and its progeny to this case is particu-

larly appropriate.

18

To hoid to the contrary would frustrate the prin-

cipal function of a class suit, because then the sole

means by which members of the class could assure

their participation in the judgment if notice of the

class suit did not reach them until after the running

of the limitation period would be to file earlier in-

dividual motions to join or intervene as parties—

precisely the multiplicity of activity which Rule 23

was designed to avoid in those cases where a class

action is found ‘superior to other available methods

for the fair and efficient adjudication of the con-

troversy.’ Rule 23(b) (3).

We think no different a standard should apply to

those members of the class who did not rely upon

the commencement of the class action ‘or who were

even unaware that such a suit existed) .... It fol-

lows that even as to asserted class members who

were unaware of the proceedings brought in their

interest or who demonstrably did not rely on the

institution of those proceedings, the later running

of the applicable statute of limitations does not bar

participation in the class action and in its ultimate

judgment.

American Pipe, 414 U.S. at 551-52 (footnote omitted).

When, as here, the time period for filing administra-

tive claims has expired five days prior to the court of

appeals’ decision invalidating the tax, failure to toll the

three-year period would “frustrate the principal function

of a class suit... .” Jd. at 551. Moreover, the sole pur-

pose for the three-year period in the statute is, like the

purpose of the limitation statute tolled in American Pipe,

to require action to be taken within a certain time,

namely, to notify respondent within three years from

the payment of a tax that the taxpayer seeks a refund

and the grounds therefor. Petitioner Kleiboemer did

this, both for himself and for members of the class,

within months after the first payment of estimated tax

had been due, and before the first tax returns were due.

19

Thus, the imposition of the three-year period here would

not promote the purpose of the statute.

Just as the Court squarely rejected the argument that

American Pipe doctrine should be limited to extending

the statute of limitations to intervenors or that exhaus-

tion of remedies is required in class actions under Title

VII, so also should this Court recognize the application

of the doctrine of equitable tolling on these facts.

In the absence of equitable tolling, those taxpayers who

paid the professional tax would be unable to obtain the

return of the funds that had been illegally taken from

them. Failure to require the return of all of the illegally

collected tax would reward the District of Columbia for

its ultra vires action.

In sum, if individual claims for refund under Section

47-1586j of the District of Columbia Code are consistent

with due process, fundamental fairness requires equita-

ble tolling of the statutes of limitations for filing admin-

istrative «laims for refunds of the ultra vires tax from

the filing of the class action petition for refund on April

6, 1976, to the date of this Court’s ruling.

20

CONCLUSION

The petition for a writ of certiorari should be granted

and the decision of the District of Columbia Court of

Appeals should be reversed because respondent’s refusal

to refund all of the money collected under the ultra vires

tax denies class members due process. Alternatively, if

the Court does not conclude that denial of refunds of the

illegal tax to all class members automatically violates

the Due Process Clause of the Constitution, the Court

should grant a writ of certiorari to rule that the doc-

trine of equitable tolling applies to these facts.

Respectfully submitted,

BRADLEY G. MCDONALD

JOHN F. KARL, JR.

MCDONALD & KARL

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 338-7800

PHILIP L. KELLOGG

JAMES L. LYONS

KELLOGG, WILLIAMS & LYONS

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 785-8292

Attorneys for Petitioners

~

APPENDICES

la

APPENDIX A

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 79-123, 79-547, and 81-1232

AXEL-FELIX KLEIBOEMER, RICHARD A. BISHOP, et al.,

. Appellants,

DISTRICT OF COLUMBIA,

Appellee.

Appeal from the Superior Court of the

District of Columbia

Civil Division

(Hon. John D. Fauntleroy, Trial Judge)

(Argued November 3, 1982 Decided March 22, 1983)

Bradley G. McDonald, with whom Philip L. Kellogg,

James L. Lyons, John M. Bixler, and Ronald D. Aucutt

were on the briefs, for appellants.

Richard L. Aguglia, Assistant Corporation Counsel, with

whom Judith W. Rogers, Corporation Counsel, Charles L.

Reischel, Deputy Corporation Counsel, and James E.

Lemert, Assistant Corporation Counsel, were on the brief,

for appellee.

Before KERN, PkYOR and BELSON, Associate Judges.

KERN, Associate Judge: This appeal is the residuum

of the convoluted litigation which ultimately resulted in

a decision by this court en bane (one judge dissenting)

that the City Council had impermissibly imposed a tax

on nonresident unincorporated professionals and personal

service businesses. Bishop v. District of Columbia, 411

A.2d 997 (en banc), cert. denied, 446 U.S. 966 (1980).

Questions of statutory interpretation are presented in

this appeal: the meaning and applicability to the instant

2a

case of D.C. Code § 47-1586j(a) (1973), requiring a tax-

payer to file an administrative claim of overpayment of

ax within a fixed period of time, and D.C. Code § 47-

2413(c) (1973), providing for the payment of interest

on overpayments of taxes.

I

The events pertinent to this appeal occurred as follows.

In March 1976, appellant Kleiboemer paid the now inval-

idated tax and promptly filed an individual administrative

claim for refund, which the District denied. Thereupon,

he filed a class action petition for refund in the Tax

Division of the Superior Court seeking a refund of “all

amounts paid by all taxpayers who are members of the

petitioner’s class.” (Record at 16.) In October 1977, the

trial court granted appellant’s motion for class action de-

termination, pursuant to Super. Ct. Civ. R. 23(b)(1) (A)!

and ordered that

the class shall consist of all nonresidents who are

subject to the tax in question . .. and who have

paid the tax.

(Record at 47.) The trial court during October 1977 en-

tered two further orders holding the tax unlawful but

declaring that appellant Kleiboemer and members of the

class who were fiscal year taxpayers were entitled to a

refund for all taxes paid prior to December 1, 1975, “pro-

vided they have complied with or comply with... § 47-

1586j.” (Record at 82.)

It is agreed by the parties that if § 47-1586j is ap-

plicable to all nonresident taxpayers who paid the tax in

1 The rule provides in pertinent part:

An action may be maintained as a class action if .. . the prose-

cution of separate actions by ... individual members of the

class would create a risk of . . . inconsistent or varying adjudi-

cations with respect to individual members of the class which

would establish incompatible standards of conduct for the

party opposing the class... .

3a

1975, their claims for refund must have been filed by

April 15, 1979. In December 1978, appellant Kleiboemer

filed with the District, on behalf of the class, a claim for

refund, which the District denied. Soon thereafter, the

trial court ruled that the class claim for refund filed by

appellant Kleiboemer did not comply with the provisions

of § 47-1586j, but concluded that “individual notice to the

members of the class of the statutory requirement to file

a claim for refund is appropriate.” (Record at 110.) No-

tice of the filing requirement was then included in the

District’s mailing of 1978 tax return forms. However,

some erstwhile members of the class did not actually re-

ceive the mailing, because they no longer operated unin-

corporated businesses in the District and hence were no

longer obligated to file a return. Accordingly, the court

in March 1979 directed the District to issue a press re-

lease to publicize the need by those who had paid the

tax for 1975 to file a refund claim by April 15, 1979. On

April 5, 1979, the court held that sufficient notice had

been given to the class members regarding the adminis-

trative claim requirement. (Record at 138.) On April

15, the filing deadline for the 1975 tax year expired.

After the tax was held invalid, first by a division of

this court, then by the full court en banc, the parties

entered into a consent judgment, pursuant to which the

class members were again notified, by a mailing, of the

requirement that they file an administrative claim. At

the time of that second mailing, however, the filing dead-

line for taxable years 1975 and 1976 had already expired.

On September 24, 1981, the trial court ruled as follows

on the issues which had been left unresolved by the earlier

consent judgment: (1) that “the timely filing of individ-

ual claims [for refund] at the administrative level by

affected taxpayers is a prerequisite to refunds in this

suit”; and (2) that interest should be computed “from

the date such individual claims are timely filed until

the date of the making of the refund.” (Record at 176.)

4a

It is from these September 24 rulings that the present

appeal is taken.

II

As to the requirement of an individual claim for re-

fund, § 47-1586j(a) provides in pertinent part as follows:

No... refund shall be allowed after three years

from the time the tax was paid unless before the

expiration of such period a claim therefor is filed

by the taxpayer....

It is agreed that a number of nonresidents who paid the

tax for the years 1975 and/or 1976 did not file a claim

for refund of such tax payments within three years. Ap-

pellants, however, urge that the whole purpose of a class

action pursuant to Rule 23(b) (1) (A)—to eliminate the

possibility of inconsistent adjudications if each member

of the class were to sue individually—is frustrated by

requiring that each taxpayer who is a member of the

class must have filed an administrative refund claim in

order to obtain a refund after the tax has been judicially

determined to be unlawful. However, in District of Co-

lumbia v. Keyes, 362 A.2d 729 (D.C. 1976), cert. denied,

430 U.S. 968 (1977), we held that a class action? for

2It is not significant that Keyes did not involve a certified class

action. The rules of the Tax Division at that time did not include

class certification procedures; however, the court in Keyes recog-

nized that new class action rules had been adopted and specifically

stated that “this decision may be considered to have precedential

effect in future class action tax refund cases.” Jd. at 732 n.5, 736.

Further, as pointed out in the District’s brief, at the time Congress

directed the Superior Court to adopt class action rules for tax cases,

the federal courts consistently held that the filing of an adminis-

trative claim was a prerequisite to recover refunds. See, e.g.,

Heisler v. United States, 463 F.2d 375 (9th Cir. 1972) (per curiam),

cert. denied, 410 U.S. 927 (1978) (class action); McConnell v.

United States, 295 F. Supp. 605 (E.D. Tenn. 1969) (class action).

There is no reason to believe that Congress intended a different

rule for the District of Columbia. See District of Columbia Real

Property Tax Revision Act of 1974, Pub. L. No. 93-407, § 428, 88

Stat. 1036, 1057 (1974).

5a

refund of taxes paid was incorrectly entertained by the

trial court because the taxpayers seeking refund had not

first filed an administrative claim for refund.

Appellants contend (Brief at 18) that the trial court’s

ruling “would undercut the policy of Rule 23... to al-

low class representatives to vindicate the rights of those

who lack the knowledge or resources to pursue a remedy

individually and to obtain justice in the courts.” How-

ever, as we pointed out in Keyes, the Congress enacted

specific legislation in § 47-1586j requiring an individual

to file a refund claim and we may not ignore such a legis-

lative mandate.* This is particularly true since, as we

explained in Keyes, supra, 362 A.2d at 732, the remedy is

purely statutory: “[rJecovery of taxes illegally or erro-

neously assessed and voluntarily paid ... is a matter

within the purview of the legislative branch.” We fur-

ther noted, “Tax statutes are necessarily formalistic and

often technical. It is essential that we adhere to their

technicalities, even if at times a seeming hardship results

to the taxpayer.” 7d. at 737. This is so particularly be-

cause the statutory prerequisite of a claim for refund is

jurisdictional, as we also noted in Keyes. Id. at 733.‘

3 We note that the trial court did require the District to notify

taxpayers by public announcement of the need to file their refund

claims within a certain time period, and that the trial court later

held that the taxpayers had had reasonable and sufficient notice.

Under these circumstances, the members of the class must be

deemed to have the knowledge to take the steps required by statute.

4 Accordingly, we cannot agree either with appellants’ argument

that, even if an administrative claim must be filed, the claim for

refund filed by appellant Kleiboemer on behalf of the entire class

satisfies the requirements of § 47-1586j. The statute plainly states

that the claim must be filed “by the taxpayer.” Moreover, the trial

court specifically ruled on January 3, 1979, that Kleiboemer’s claim

for refund on behalf of the class did not comply with § 47-1586j or

with the order of October 27, 1977 requiring compliance with § 47-

1586j. Appellants did not appeal from the January 3 order. Dellums

v. Powell, 184 U.S. App. D.C. 324, 566 F.2d 216 (1977), cert.

denied, 438 U.S. 916 (1978), cited in appellants’ reply brief, is

6a

Appellants also maintain that in this case Keyes does

not require the filing of individual claims for refund by

members of the class because the filing requirement—

essentially an application of the doctrine of exhaustion of

remedies—need not be met when resort to the adminis-

trative process would be futile. However, we specifically

rejected that argument in Keyes. There we acknowledged

that, in District of Columbia v. Green, 310 A.2d 848, 856

(D.C. 1973), we had permitted taxpayers who had by-

passed the administrative process to proceed with an ac-

tion in court in part because those taxpayers had “ ‘no

meaningful ability to challenge [the] assessment at all’”

at the administrative level. Jd. at 734 n.11. However, in

Keyes we emphasized that the futility of the administra-

tive appeal was only one of the several “extraordinary

circumstances” on which we had based the Green deci-

sion; that “only injunctive relief was sought’; and that

“it would be a rare instance when taxpayers would not

bypass [the administrative procedure] at great peril.”

Id.5

distinguishable: it involved a broad statute expressly permitting

notice of a claim against the District to be given by the claimant’s

agent. Id. at 336-37; 566 F.2d at 228-29. Moreover, the cc urt in

Dellums found that notice by agent would not conflict with the

purposes of that claim requirement; whereas, in this case, the pur-

poses of the limitation period discussed infra, at 8-9, would not be

served by a departure from the express terms of the statute or by

a holding that “substantial compliance” satisfies the statute.

* Appellants also cite to Thorn v. Jefferson County, —— Ala.

, 875 So. 2d 780 (Ala. 1979), where the Supreme Court of

Alabama held that the administrative remedy need not be ex-

hausted when a class action is brought challenging a tax as illegal

and void. However, the court in Thorn relied upon Graves v. Mc-

Donough, 264 Ala. 407, 88 So. 2d 371 (1956), where the adminis-

trative remedy provided by statute gave aggrieved taxpayers only

twenty days in which to object to the tax, as compared with the

three-year period for filing claims under § 47-1586j.

Ta

Instead, we explained in Keyes that the extraordinary

equitable considerations were not present which had led

us in Green to permit a limited exception to an essential

requirement of the purely statutory refund procedure.

Nor are they present in the instant case. It was not

until October 17, 1977, that the tax in question in this

case was initially held unlawful—a year and one half

after it first came due for the 1975 tax year. An appeal

was taken promptly from that ruling. Thus it is not un-

reasonable to conclude that aggrieved taxpayers had

ample opportunity prior to the ruling of October 17,

1977, to pursue their statutory remedy with some hope

that they might be successful. Even following the trial

court decision upholding the tax, the possibility of rever-

sal endured until the appeals process was completed.’*

During the period of litigation, extensive efforts were

exerted, by mail and by publication, to inform taxpayers

of the need to file a claim; and the trial court expressly

held such notice to be sufficient. Tie trial court’s orders

of October 27, 1977 and January 3, 1979 made it clear to

appellants that individual claims for refund were a nec-

essary precondition to collecting refunds, yet appellants

did not appeal from those orders. In fact, appellants

conceded the necessity of claims for refund soon after

the October 27 order issued. (Record at 84-85.)

In addition, although without question the District

had “notice” of the class action challenging the legality

of the tax, absent the expected filing of claims at the ad-

ministrative level, the District could not know the full

extent of its liability for refunds and could not plan its

budget accordingly. As we noted in Keyes, supra, 362

A.2d at 736-37, the financial interests of the District and

the public interest would not be served by allowing tax-

payers in such a case to bypass the statutory procedures

for refund.

* Accordingly, we do not find persuasive appellants’ argument

that a requirement of strict compliance with the statute is funda-

mentally unfair.

Finally, appellants cite to American Pipe & Construc-

tion Co. v. Utah, 414 U.S. 5388 (1974), and urge (Brief

at 35) that even were we to conclude § 47-1586j required

individual taxpayers for 1975 and 1976 to file refund

claims, nevertheless the three-year limitation period for

filing the administrative claims should be deemed tolled

from the time the class action was filed in April 1976

until this court’s ruling on appea! as to the applicability

of § 47-1586j to the instan. case. Appellants also cite two

decisions in class action discrimination cases, see, ¢.9.,

Barrett v. United States Civil Service Commission, 439

F. Supp. 216 (D.D.C. 1977), in which the equitable toll-

ing doctrine for class actions has been held to toll the

limitations period for administrative complaints. How-

ever, in determining in any given instance whether a

statute of limitations should be tolled, we must examine

the legislative purposes behind the limitation provision

to determine whether they are effectuated by the tolling.

Timoni v. United States, 185 U.S. App. D.C. 407, 412,

419 F.2d 294, 299 (1969), citing Burnett v. New York

Central R.R. Co., 8380 U.S. 424, 426 (1965).

The policy considerations which favor a tolling of the

limitation periods in discrimination suits brought under

remedial statutes are not present in the context of a chal-

lenge to a tax statute. As we have said, supra at 6, tax

statutes are to be strictly construed. In addition, one

of the important purposes served by the three-year filing

deadline for tax refund claims is a practical one—to pro-

tect the District against financial instability by setting

a date certain by which the District may know the pre-

cise extent of its liability for refunds. See supra, at 8;

District of Columbia v. Keyes, supra, 362 A.2d at 736-37.

Moreover, implicit in the Supreme Court’s opinion in

United Airlines, Inc. v. McDonald, 482 U.S. 385 (1977),

was the view that tolling is proper with respect to a par-

ticular cause only for so long as the class action con-

tinues to protect that cause. Once a final ruling adverse

9a

to the class is entered and becomes appealable, tolling is

no longer proper.’

Here, the trial court in October 1977 ruled that those

taxpayers who paid the tax for 1975 were entitled to re-

funds “provided they have complied with or comply

with ... §$ 47-1586j.” In January 1979, the trial court

ruled that appellant Kleiboemer’s claim for refund filed

on behalf of the class did not comply with § 47-1586).

Thus, the issue of the applicability of § 47-1586j to the

members of the class was raised early on and was sus-

ceptible to appeal by appellants.* Under these circum-

stances we cannot agree that compliance with the statute

TIn United Airlines, the Supreme Court held that, where class

certification had been denied early in a case but was not appealable

until final judgment, and where the named parties had declined to

appeal from that order, post-judgment intervention hy putative class

members was permissible for purposes of appealing the denial of

class certification. 432 U.S. at 394-96. In so holding, the Court

noted that, once the order became final and appealable, it was “‘criti-

cal” that the appeal was taken promptly: “In short, as soon as it

became clear ... that the interests of the unnamed class members

would no longer be protected .. . [respondent] promptly moved to

intervene to protect those interests.” Jd. at 394.

®To be appealable, an order must be final. D.C. Code §11-

721(a) (1981). However, final orders for purposes of the statute

are not limited to final judgments which terminate the action.

Frost v. Peoples Drug Store, Inc., 327 A.2d 810, 812 (D.C. 1974).

The test of finality is whether the orders requiring individual com-

pliance with § 47-1586j disposed entirely of that issue; or whether

they were “open, unfinished, or inconclusive,” or were “but steps

towards final judgment.” See Crown Oil and Wax Company of

Delaware v. Safeco Insurance Co. of America, 429 A.2d 1376, 1879

(D.C. 1981); Trilon Plaza Co. v. Allstate Leasing Corp., 399 A.2d

34, 87 (D.C. 1979), quoting Cohen v. Beneficial Industrial Loan

Corp., 3837 U.S. 541, 546 (1949). Applying these principles to the

two orders here, we conclude that they were final and appealable

with respect to the applicability of § 47-1586j to the instant case.

We do not view the October 27 order as having reconstituted the

class for purposes of challenging the legality of the tax.

~

10a

was tolled solely by reason of the fact that appellants

pursued their challenge to the validity of the tax.

Accordingly, we find no error in the trial court’s Sep-

tember 1981 ruling that the timely filing of individual

claims for refund at the administrative level was a pre-

requisite to recovery of refunds following this court’s

decision that the tax was unlawful.

III

We turn next to the second statute in question, § 47-

2413 (c), which provides in pertinent part as follows:

(I]f it is determined by the . . . Superior Court that

there has been an overpayment of any tax... in-

terest shall be allowed and paid on the overpayment

... from the date the overpayment was paid until

the date of refund, but with respect to that part of

any overpayment which was not assessed and paid

as a deficiency or as additional tax interest shall be

allowed and paid only from the date of filing a claim

for refund or a petition to the Superior Court....

(Emphasis added.) The trial court here concluded that

under the statute interest on the District’s refund of

taxes paid by the nonresidents (and determined to have

been unlawfully imposed) was to be computed only from

the date each such taxpayer filed his claim for refund

rather than from the date such taxpayer paid the tax

which this court invalidated. Appellants concede (Brief

at 43) that most of the taxpayers who paid the tax did

not pay as the result of an assessment of deficiency by

the District. Accordingly, we are constrained by the ex-

press language of the statute set forth above to uphold

the trial court’s ruling that interest on the taxpayer’s

payment of the tax, not assessed as a deficiency or as

additional tax, must run from the date the taxpayer filed

a petition or claim for refund, rather than from the

date the taxpayer overpaid the tax.

lla

However, appellants (Brief at 43) point to the fact

that they filed in the trial court pleadings challenging

the validity of the tax at issue “prior to Anvil 15, 1976,

the earliest date on which any of the taxes involved were

deemed to have been paid.” They argue from this fact

that the District was “apprised” at this early date of its

potential liability to the taxpayers for the return—with

interest—of the tax paid, should it be declared to have

been illegally imposed. Therefore, appellants urge, they

met the purpose of the statute, as reflected by its his-

tory,® viz., to alert the District to its potential liability;

and that by reason of the petitions filed interest should

be paid from the date of overpayment or the due date of

the return, whichever is later.'’

The House and Senate committee reports do not, in our

view, suggest that § 47-2413(c) should be given any

construction other than its plain meaning. They refer to

the District’s being apprised of the fact that “an” over-

payment has been claimed, thus suggesting that individ-

ual claims or petitions were intended. Further, the

language of the committee reports does not indicate that

® See H.R. REP. No. 1977, 82d Cong., 2d Sess. 4 (1952); S. Rep.

No. 1471, 82d Cong., 2d Sess. 4 (1952).

10 Appellants also point to the fact that the statute refers to the

filing of either a claim or a petition to the Superior Court, and that

the words “by the taxpayer,” included in § 47-1586j, are conspicu-

ously absent from § 47-2418(c). (Reply Brief at 8.) It is there-

fore arguable that the class action petition filed by appellant Klei-

boemer triggered the allowance of interest for the entire class.

However, we must construe the statute as a whole, in context, ac-

cording to common understanding of its terms. Although § 47-

2413(c) does not expressly require that a petition or claim be filed

“by the taxpayer,” it refers only to “an” overpayment or “the”

overpayment, and references in every other subsection of § 47-2413

are to “the taxpayer.” Moreover, there is no indication whatsoever

in the legislative history of § 47-2418 that Congress had anything

other than the filing of a claim or petition by the individual tax-

payer in mind when it enacted § 47-2413.

12a

mere notice that the taxing statute has been challenged

will be sufficient to comply with § 47-2413(c). Indi-

vidual claims are needed, as we have discussed, supra at

8-9, so that the District will know the exact amount of

refunds actually claimed and can plan accordingly. Since

we are interpreting and applying a statute which is clear

on its face, and since appellants have not persuaded us

that the language of the statute admits of more than its

natural meaning, we are obliged to apply § 47-2413(c)

as written. Caminetti v. United States, 242 U.S. 470,

485 (1917); 2A Sutherland, Statutes And Statutory

Construction § 46.01 (1973).

Therefore, we also affirm the trial court’s ruling that

interest on the amounts refunded to the taxpayers in

the instant case who did not pay the tax because of an

assessment of deficiency runs from the respective dates

they filed their claims for refund, rather than from the

dates they paid the tax.

Accordingly, there being no error in either of the

challenged rulings, the judgment of the trial court is

affirmed.

So ordered,

13a

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 79-128, 79-547, and 81-1232

AXEL-FELIX KLEIBOEMER, RICHARD A, BISHOP, et al.,

Appellants,

Ve

DISTRICT OF COLUMBIA,

Appellee.

Appeal from the Superior Court of the

District of Columbia

(Hon. John D. Fauntleroy, Trial Judge)

(Argued November 3, 1982 Decided September 7, 1983)

Bradley G. McDonald, with whom Philip L. Kellogg,

James L. Lyons, John M. Bixler, and Ronald D. Aucutt

were on the briefs, for appellants.

Richard L. Aguglia, Assistant Corporation Counsel,

with whom Judith W. Rogers, Corporation Counsel,

Charles L. Reischel, Deputy Corporation Counsel, and

James E. Lemert, Assistant Corporation Counsel, were

on the brief, for appellee.

Before KERN, PRYOR and BELSON, Associate Judges.

SUPPLEMENTAL OPINION UPON APPELLANTS’

PETITION FOR REHEARING

The division in its opinion issued on March 22, 1983

characterized, prophetically as it turns out, this case as

“the residuum of .. . convoluted litigation.” Kleiboemer

v. District of Columbia, 458 A.2d 731, 732 (D.C. 1983).

Appellants in their petition for rehearing point out two

misstatements which crept into the opinion through cleri-

cal error, viz., two references to the trial court’s October

ld4a

17, 1977 order as holding the tax at issue “unlawful”

when in fact the court held the tax lawful. Appellants

also point to an error in the statement of facts under-

girding this court’s conclusion that the trial court’s judg-

ment should be affirmed. Appellants, hereafter denomi-

nated petitioners, urge that such errors materially influ-

enced the outcome of the appeal and require reconsidera-

tion by the division of its holding, as well as suggest that

certain of their arguments were not fully considered.

First, dealing with the clerical errors to be corrected,

the word “unlawful” appearing in the middle of the first

full paragraph in Part I of the division opinion, 458 A.2d

at 732, describing the trial court’s order, should have

read “lawful”; and the word “unlawful” appearing on

the ninth line of the last paragraph on 458 A.2d at 734

also should have read “lawful.”

Next, we turn to the petitioner’s assertion of factual

error with respect to the orders entered by the trial court

in the instant case.

I,

There were three orders of the trial court relating to

the requirement for individual administrative claims as

a prerequisite to taxpayers’ collecting refunds. On Octo-

ber 27, 1977, in ordering refunds for certain fiscal year

taxpayers, the court stated that those taxpayers were

entitled to refunds “provided they have complied with or

comply with D.C. Code 1978, § 47-1586j.” The taxpayers

did not appeal from that order. On January 3, 1979, the

trial court ruled that Kleiboemer’s claim for refund on

behalf of the class did not comply with § 47-1586j or with

the order of October 27, 1977. A timely appeal was

taken from the January 3 order on January 19 (No. 78-

123) and again on May 7, 1979 (No. 79-547). On Sep-

1The appeal taken on January 19 was an appeal only from

the January 3 order. The second appeal was taken following

the trial court’s decision of the case-in-chief and was consolidated

with the first appeal.

<2

l5da

tember 24, 1981, the trial court ruled that timely indi-

vidual administrative claims were a prerequisite for re-

funds, and that interest was to be computed from the

date of the individual claims. A timely appeal was taken

from that order (No. 81-1232) and was consolidated with

the earlier appeals from the January 3 order.

The division stated in its opinion that an appeal was

taken only from the September 24, 1981 rulings and that

neither the October 27, 1977 order nor the January 3,

1979 order was appealed; in fact, the January 3 order

was appealed.

The division concluded, 458 A.2d at 734 n.4, that the

class claim for refund filed by Kleiboemer does not satisfy

§ 47-1586j because (a) the plain language of the statute

requires individual claims, (b) petitioners “did not ap-

peal from the January 3 order,” and (c) Dellums v.

Powell, 184 U.S. App. D.C. 324, 566 F.2d 216 (1977),

cert. denied, 438 U.S. 916 (1978), cited in petitioners’

brief on appeal, is distinguishable. Petitioners contend

that, because the court viewed this issue as waived by

failure to appeal, it was never considered on the merits,

and the California cases cited in their brief were never

considered.

However, the essential reason for the division holding

was that the plain language of the governing statute re-

quired it. The additional two reasons referred to above

were more in the nature of persuasive discussion. More-

over, the two principal California cases which petitioners

contend the division should have discussed in the opinion

are not precisely on point. San Jose v. Superior Court of

Santa Clara County, 12 Cal. 8d 447, 525 P.2d 701 (1974);

Lattin v. Franchise Tax Board, 75 Cal. App. 3d 377, 142

Cal. Rptr. 180 (1977). The San Jose case concerned a

statutory claim requirement as a prerequisite to the main-

tenance of a class action for damages, not as a prerequi-

site to collecting a tax refund. The statute at issue in

that case (apparently a general claims statute), unlike

16a

the District of Columbia tax statute at issue here, ex-

pressly permitted a claim to be filed “by the claimant or

by a person acting on his behalf.” San Jose, supra at 12

Cal. 3d at 455, 525 P.2d at 706 (emphasis added). The

Lattin case was very closely analogous to District of

Columbia v. Keyes, 362 A.2d 729 (D.C. 1976), cert.

denied, 430 U.S. 968 (1977), in that it concerned the

requirement of an administrative claim for refund as a

prerequisite to maintaining a class action challenging the

validity of the tax, in contradistinction to an ancillary

suit seeking recovery once the tax has been held invalid.

Lattin relied almost entirely upon the San Jose case in

holding that the administrative claim requirement would

be satisfied for purposes of class action certification by

a claim filed on behalf of the class.2 As with the San

Jose case, the context was thus different from that of

the instant case, where the class action suit has already

been decided and the issue is instead whether individual

claims are required for recovery.

Further, although petitioners contend that the perti-

nent tax statute involved in Lattin was virtually identi-

cal to § 47-1586j, they cited only the portion of the Cali-

fornia tax code which, like part of § 47-1586j, requires

the claim to be in writing and to state the specific

grounds for the claim. Petitioners did not mention that

portion of the California tax code which, like § 47-1586},

requires a claim for refund to be filed “by the taxpayer.” °

2? Although the court in Lattin referred to the suit as seeking

refunds for the class, the court stated that “ ‘the sole issue pre-

sented on this appeal is whether or not a class should be certified

and represented by Appellants Lattin.’” 75 Cal. App. 3d at 379,

142 Cal. Rptr. at 132. The plaintiffs in that case sovght to have

the applicable California tax statute declared unconstitutional.

3 Petitioners cited (Brief at 32) CaL. Rev. & Tax Cope § 19055

(West 1970). The pertinent section of the California code, Cal.

Rev. & Tax Code § 19053 (West Supp. 1970-82), does, like the

D.C. Code, require a claim to be timely filed “by the taxpayer.”

However, as discussed above, Lattin dealt with the necessity of a

17a

Moreover, the policy considerations underlying both those

California cases was governmental immunity, not ex-

haustion of administrative remedies. Those opinions held

that substantial compliance with the claims statutes by

the filing of a class claim was sufficient, but, as we have

explained, for different purposes than in the instant case.

Finally, even if we viewed those cases as persuasive, this

court certainly need not follow them.

In reciting the factors in this case which weigh against

permitting an exception, pursuant to District of Columbia

v. Green, 310 A.2d 848, 856 (D.C. 1973), to the require-

ment that an administrative claim be filed, as a prerequi-

site to suit, the division states, 458 A.2d at 735, in part

incorrectly, that petitioners did not appeal from the Octo-

ber 27 and January 3 orders which made it clear that

individual claims were required. Petitioners do not spe-

cifically address how this particular error here may have

affected the rationale. However, deletion of the erroneous

statement of fact from the opinion affects the list of

equitable factors in this section only minimally. We are

still left with the following:

The tax was not initially held lawful until a year

and one-half after it came due and that decision was

promptly appealed, so that taxpayers might have

pursued their administrative remedies with some

hope of success.*

claim’s having been filed and rejected as a precondition to main-

taining a lawsuit to recover upon payment of a tax which is void,

presumably pursuant to Cal. Rev. & Tax Code § 19082 (West 1970)

(creating the right of action after claim denied if tax void). Lattin

did not concern the claim as a precondition actually to collecting

a refund if the class suit were successful, as here; and the court

in Lattin did not construe the California code provision which is

the companion to that portion of § 47-1586j at issue in this case.

4 The argument is made that once the trial court upheld the tax,

most taxpayers would not likely have filed a claim at all, consider-

ing it pointless. It was not until 5 days after the expiration dof

the statutory period for filing claims for the 1975 tax year that a

18a

Extensive notice of the claim requirement was

given in the media, in business and professional pub-

lications, by mail, and in seminars.

The trial court expressly held this notice to be

sufficient.

No appeal was taken from the October 27 order

first giving petitioners notice that individual claims

were required (and petitioners appeared to under-

stand that the October 27 order did require indi-

vidual claims).

At 458 A.2d at 735-36, in the discussion of equitable

tolling, we explain that tolling is no longer proper once

a final ruling adverse to the class is entered and be-

comes appealable (and is not appealed). We then reason,

458 A.2d at 736 n.8, that the October 27, 1977, and Jan-

uary 3, 1979, orders were final and appealable with re-

spect to the applicability of § 47-1586j and that tolling is

not proper (since they were not appealed). Petitioners

maintain that the division’s decision on equitable tolling

was materially and adversely influenced by the incorrect

assumption that the January 3 order was not appealed

when it was, in fact, promptly appealed.

Since the October 27 ruling was in the context of an

order directing refunds for only a limited group of these

taxpayers (1975 fiscal-year basis taxpayers), it might

not be viewed, standing alone, as resolving the issue suffi-

ciently for all affected taxpayers as to make clear that

the class action would no longer protect their interests in

this respect if the order were not appealed. See Klei-

boemer, supra, 458 A.2d at 735-36 n.7. Also, consider-

ing how the October 27 order was worded (“provided

that” the taxpayers comply with the claim requirement),

and considering that this part of the order apparently

division of this court held the tax unlawful. However, this argu-

ment must be viewed in light of the considerable publicity sur-

rounding this litigation and the claim requirement.

19a

was not a major controversy, if at all, at the time (since

the focus was on the validity of the tax), we recognize

that the decision as to whether it was a final, appealable

order was a close one. Further, petitioners contend that

the October 27 order left open the question whether a

class claim for refund satisfied § 47-1586).

However, we still conclude that the October 27, 1977,

order constituted a final order which should have been

appealed if petitioners were to avail themselves of equi-

table tolling. Accordingly, since the filing deadline for

the 1975 tax year did not expire until a year and one-

half later, on April 15, 1979, equitable tolling is not ap-

propriate. The order certainly settled the question finally

for the taxpayers who were to get refunds at that time,

and it put the petitioners on clear notice that compliance

with § 47-1586j was required. The trial court cited

Keyes in its October 27 order, and in so doing, it further

signaled that individual compliance was contemplated,

because Keyes emphasized strict construction of tax re-

fund statutes. The fact that petitioners vigorously pur-

sued various avenues for notifying individual taxpayers

of the requirement (even though they urged the suf-

ficiency of a class claim) indicates that they understood

the October 27 order, literally read, to require individual

claims.

II.

Finally, we turn to several additional assertions of

error raised in the petition for rehearing:

At 458 A.2d at 735, the division states that “appellants

conceded the necessity of claims for refund soon after

the October 27 order issued.” We cite to petitioners’ mo-

tion for an order compelling the District to include notice

to taxpayers of the filing requirement in the December

1978 tax mailings. Petitioners argue that they took such

action only out of an abundance of caution, to protect

their clients’ interests. However, in that motion peti-

tioners referred to the October 27 order and described the

20a

administrative “claims” (not singular, as if they believed

a single class claim might suffice) as being “necessary.”

Since only the petitioners themselves can say how they

construed the October 27 order at that time, perhaps to

say that they “conceded” the issue was to use too strong

a word. However, their actions in pursuing individual

notice, and their language in this motion, are a fair indi-

cation that they understood individual notice to be re-

quired and therefore should have appealed the October

27 order. The District cites to the transcript of October

7, 1978, at 39, where counsel for petitioner described the

October 27 ruling as specifically requiring the “members

of the class” (not the class as an entity) to comply with

§ 47-1586j, as support for this reading as to how the

October 27 ruling was understood by petitioners.

Petitioners contend as well that the division opinion

failed to address their argument that members of the

class, having been bound by the trial court judgment ad-

verse to them until this court reversed it (after the statu-

tory period for claims expired), would be denied due

process if they were denied the benefits of this court’s

final judgment holding the tax illegal. This argument

was made in less than 3 pages of a 49-page brief. No

cases were cited in direct support of the argument, and it

was essentially urged that it would be extremely harsh

and fundamentally unfair to reach the result the divi-

sion did reach. This argument was addressed in the

division opinion, 458 A.2d at 735 n.6, in which we state

that, because the trial court decision was appealed and

subject to reversal, this contention was unpersuasive.

We remain of that view.

Petitioners also make several arguments in which they

urge that the division erred in concluding that interest

on the amounts refunded to most taxpayers runs from

the dates they filed individual claims for refund, rather

than from the dates they paid the tax. We have thor-

oughly considered each of petitioners’ arguments on the

2la

interest issue and find them insubstantial.° The division

opinion rests upon a straightforward reading of D.C.

Code § 47-2413(c) (1973).

In sum, therefore, each of petitioners’ assertions of

error is either unfounded or had no substantial impact

upon the division’s holdings. Accordingly, the petition for

rehearing is denied.

So ordered.

5 Petitioners maintain that the division opinion disregards the

differences between subsection (c) and other subsections of

§ 47-2413. However, it is precisely because the other subsections

of § 47-2413 pertain to subject matter affecting only individual

taxpayers that we concluded subsection (c) also must concern

only individual taxpayers. Petitioners also argued at length that

the fiscal concerns of the District are entirely different with re-

spect to interest than in the context of the main claim for a refund.

However, this argument overlooks the fact that a greater sum of

money is at stake for the District on the interest issue than on

the question of recovery on the main claims. Brief for Appellee at

App. 1. With respect to petitioners’ contentions concerning the use

of legislative history in the division opinion, we note that the

language of § 47-2413(c), in the context of the entire section, has

a plain and natura! meaning. Petitioners’ position, viz., that the

petition filed in April 1976 in this case fulfilled the statutory re-

quirement, is arguable only because of the omissi-a of specific

reference to the individual taxpayer.

22a

APPENDIX C

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

TAX DIVISION

Docket No. 2379

AXEL-FELIX H. KLEIBOEMER,

Petitioner,

Vv.

DISTRICT OF COLUMBIA,

Respondent.

ORDER GRANTING PETITIONER’S

MOTION FOR CLASS DETERMINATION

Upon consideration of petitioner’s Motion for Class

Determination, respondent’s response thereto and good

cause appearing therefore, the Court finds as follows:

1. The class is so numerous that joinder of all mem-

bers is impracticable.

2. There are questions of law and fact common to the

class.

3. The claims of the representative party are typical

of the claims of the class.

4. The representative party will fairly and adequately

protect the interests of the class.

5. The within suit is maintainable as a class action

pursuant to the provisions of Rules 23(b)(1)(A) and

23(b) (1) (B) of the Superior Court Civil Rules.

WHEREFORE, IT IS HEREBY ORDERED by the

Court this 17th day of October, 1977, that the within

cause of action may and shall be maintained as a class

action; and it is

23a

FURTHER ORDERED that the class shall consist of

all non-residents who are subject to the tax in question

by virtue of engaging in unincorporated personal service

businesses in the District of Columbia and who have paid

the tax.*

/s/ John Garrett Penn

JOHN GARRETT PENN

Judge

* After reviewing Super. Ct. Civ. R. 23 and the applicable cases,

this Court is satisfied that petitioners can maintain this action as

a class action under Rule 23(b)(1)(A) and arguably under Rule

23(b)(1)(B). The Court relies only on Rule 28(b)(1) (A). cf.

McDonnell Douglas Corp. vy. United States District Court for the

Central District of California, 523 F.2d 1083 (9th Cir. 1975);

Landau v. Chase Manhattan Bank, N.A., 367 F. Supp. 1992 (SD

NY 1973); Goldman vy. First National Bank of Chicago, 56 FRD

587 (ND Ill. 1972). Here as distinguished from the above cases,

the failure to maintain a class action would impose incompatible

standards of conduct on the District of Columbia. This is not a

simple action for a money judgment but rather a case which calls

into question a tax statute of the District. It is therefore possible

that a contrary opinion could impose upon the District incom-

patible standards of conduct; collecting the tax from some and not

from others. Moreover, this Court cannot overlook the impact on

the fiscal affairs of the District of Columbia in the event of incon-

sistent decisions. For these reasons the Court concludes the case

is properly brought under Rule 23(b) (1) (A).

As to petitioner Bishop, he has requested that he not be included

as a member of this class. While to allow him to opt out of a

23(b) (1) action is unusual, the problems of opting out are not

involved here since Bishop has actually joined with Kleiboemer ard

both cases have been presented on joint records and joint argu-

ments.

24a

APPENDIX D

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

TAX DIVISION

Docket No. 2379

AXEL-FELIX KLEIBOEMER,

Petitioner,

Vv.

DISTRICT OF COLUMBIA,

Respondent.

[Filed Oct. 27, 1977]

ORDER

Pursuant to the Opinion and Order entered in this case

on October 18, 1977, as modified by the Memorandum

Order, entered on October 27, 1977, it is hereby

ORDERED that the class consists of those non-resident

taxpayers who have paid the unincorporated business

franchise tax pursuant to D.C. Code 1973 Sec. 47-1574b

(Supp. IV 1977), except for Richard A. Bishop (see Tax

Docket No. 2362), and it is further

ORDERED that the petitioner, Axel-Felix Kleiboemer,

is hereby granted a refund for the franchise tax he paid

for the period January 1, 1975 through November 30,

1975, together with interest as provided by law, and it

is further

ORDERED that the members of the class shall be

entitled to refund of taxes, consistent with the Opinion

and Order as modified by the Memorandum Order, pro-

25a

vided they have complied with or comply with D.C. Code

1973, Sec. 47-1586j.*

/s/ John Garrett Penn

JOHN GARRETT PENN

Judge

Dated: October 27, 1977

*Cf: D.C. v. Keyes, 362 A.2nd 729 (D.C. App. 1976).

26a

APPENDIX E

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

TAX DIVISION

Docket No. 2379

AXEL-FELIX KLEIBOEMER,

Petitioner,

Vv.

DISTRICT OF COLUMBIA,

Respondent.

[Filed Mar. 23, 1979]

ORDER

Upon consideration of the report regarding the feasi-

bility of identifying class members who were not pre-

viously mailed a notice pursuant to this Court’s order

of December 20, 1978, and of the supplemental plead-

ings of the parties and argument of counsel, it is hereby

ORDERED, that respondent District of Columbia shall,

not later than March 22, 1979, issue a press release to

the various District of Columbia media in its normal

manner,* notifying members of the class who were not

previously mailed a notice pursuant to this Court’s order

of December 20, 1978, of their right to file claims for

refunds respecting 1975 and subsequent tax years.

*In the normal course of business, the District’s press releases

are dispatched to the Washington Post, Washington Star, Asso-

ciated Press, UPI, 6 local weeklies (e.g., the Afro-American), the

four major television stations and approximately 12 local radio

stations by any one or all of the following three methods: a record-

ing line, mailings and/or by actual delivery of the press release

to the press room in the District Building.

27a

Such press release shall consist of an announcement

indicating its general purpose, that is, to notify those

class members who were not reached by the District’s

December, 1978 mailing of their right to file claims for

refunds respecting 1975 and subsequent tax years. A

copy of the notice mailed in December, 1978 shall be

appended to the announcement; and it is further

ORDERED, that if the notice information in the press

release described above is disseminated in any reasonable

manner by one of the two major local newspapers (the

Washington Post or the Washington Star), no further

notice to the affected class members shall be required.

If the press release described above is not disseminated

by either of the two major local newspapers (the Wash-

ington Post or the Washington Star), in any reasonable

manner, but by various other news media as described

in this Order, whether further notice to affected class

members shall be reauired is at the discretion of the

Court.

/s/ John Garrett Penn

JOHN GARRETT PENN

Judge

3/21/79.

28a

APPENDIX F

SUPERIOR COURT OF THE

DISTRICT OF COLUMBIA

Tax Division

Docket No. 2379

AXEL-FELIX KLEIBOEMER,

. Petitioner,

DISTRICT OF COLUMBIA,

Respondent.

{Filed Apr. 6, 1979]

ORDER

Upon consideration of this Court’s order of March 21,

1979 (filed March 23, 197%), and it appearing to the

Court that the District of Columbia issued a press release

to the various District of Columbia media notifying mem-

bers of the class who were not previously mailed a notice

pursuant to this Court’s order of December 20, 1978, of

their right to file claims for refunds respecting 1975 and

subsequent tax years; and it further appearing that the

notice information in the press release was broadcast over

three local radio stations (WHUR, WOOK, WGMS), and

published in the Washington Informer on March 29, 1979,

and in the Washington Post on April 5, 1979, it is hereby

ORDERED, that the notice information of the District

of Columbia’s press release was disseminated in a reason-

able manner within the meaning of this Court’s order of

March 21, 1979; that no further notice to the affected

class members shall be required pursuant to this Court’s

order of March 21, 1979; and that counsel for the class

members have fulfilled their obligations to the class as

regards informing the class of the necessity to file claims

for refunds.

/s/ Jonn Garrett Penn

Judge

April 5, 1979

29a

APPENDIX G

GOVERNMENT OF THE DISTRICT OF COLUMBIA

DEPARTMENT OF FINANCE AND REVENUE

Associate Director for

Audit, Compliance &

Investigation Administration

June 25, 1982

MEMORANDUM

Richard L. Aguglia

Assistant Corporation Counsel

TO:

FROM:

SUBIECT: Professional Tax Refund

J. Walter Lund

Associate Director

[SEAL]

Per your request of June 17, 1982, information concern-

ing professional tax refunds as of June 24, 1982 is as

follows:

I. Amount of claims and refunds paid, by year:

TAX YEAR

1975

1976

1977

1978

1979

1980

1981

NUMBER OF CLAIMS

1035

1290

DOLLARS

$ 4,044,823.57

5,488,567.29

6,333,133.34

7,8380,758.81

6,029,550.39

1,002,587.44

17,705.82

$30,247,126.66

30a

II. Number of taxpayers (claims who failed to file, by year:

TAX YEAR NUMBER OF CLAIMS DOLLARS

¢ (*Estimated)

1975 99 $ 25,245.00

1976 506 68,101.00

1977 429 113,146.00

1978 407 92,895.00

1979 110 13,728.00

1980 -0- -0-

1551 ¢ asi5

III. Number of taxpayers (claims who filed too late, by year:

TAX YEAR NUMBER OF CLAIMS DOLLARS**

1975 444 $ 459,784.00

1976 mG 1,034,459.00

1160 $1,494,243.00

* Based on known businesses. Estimate based on judgment of

income to be attributed to D.C. residents. These figures do

not include potential] claims from other firms or individuals.

** Includes interest computed to June 1, 1982.

If you have any questions on this material, please call

me.

JWL/rap

ec: Carolyn L. Smith

3la

APPENDIX H

CLAIM FOR REFUND OF DISTRICT OF COLUMBIA

UNINCORPORATED BUSINESS TAX

To: GOVERNMENT OF THE DISTRICT OF COLUMBIA

Department of Finance and Revenue

Tax Audit and Liability Division

300 Indiana Avenue, N.W.

Washington, D.C. 20001

1. Introduction. By petition filed in the Tax Division

of the Superior Court of the District of Columbia April 5,

1976, petitioner Axel-Felix H. Kleiboemer, appealed the

denial of his claim for refund of amounts paid pursuant

to the District of Columbia Unincorporated Business Tax,

47 D.C. Code § 1574, et seg., on behalf of himself and all

members of the class of similarly situated taxpayers. By

order entered October 17, 1977, Judge John Garrett Penn

directed that the case would be maintained as a class

action. By subsequent order entered October 27, 1977,

Judge Penn directed that all members of the class were

entitled to refund of amounts paid pursuant to the tax

for the period January 1 through November 30, 1975,

provided the members of the class complied with the

provisions of 47 D.C. Code 1586).

2. Identification of Taxpayers. This claim for refund is

made on behalf of all non-residents who are subject to the

District of Columbia Unincorporated Business Tax by

virtue of owning and engaging in the conduct of unin-

corporated personal service businesses in the District of

Columbia and who have paid the tax, except for Richard

A. Bishop (see Tax Docket No. 2362). See orders of

Judge Penn dated October 17, 1977, October 18, 1977, and

October 27, 1977, attached.

8. Amounts to Be Refunded. All amounts paid by the

class of taxpayers identified above pursuant to the D.C.

82a

Unincorporated Business Tax, 47 D.C. Code 1574, et seq.,

from January 1, 1975, to and including the date of filing

of this claim for refund, and appropriate interest.

4, Kind of Tax. The D.C. Unincorporated Business Tax,

47 D.C. Code 1574, et seq.

5. Grounds for Claim for Refund.

A. As to all amounts paid for the period January

1, 1975, through November 30, 1975: the tax is

illegal because it unconstitutionally discrimi-

nates between calendar year and certain fiscal

year taxpayers, as per Memorandum Order of

Judge Penn dated October 27, 1977.

B. As to all amounts paid for the periods from

January 1, 1975, through the date of filing of

this claim for refund:

(1) The tax is prohibited by 1 D.C. Code

147(a) (5), (1973 ed., Supp. V, 1978) ;

(2) The tax denies these taxpayers due proc-

ess and. equal protection of the laws as

guaranteed by the United States Consti-

tution; and

(3) The tax was enacted without “adequate

public notification” as required by 1 D.C.

Code 144(c) (1978 ed., Supp. V, 1978).

/8/

Co-Counsel for Petitioner Kleiboe-

mer and the class designated by or-

ders of Judge Penn dated October

17, 1977, and October 27, 1977,

Kleiboemer v. District of Columbia,

Tax Docket No. 2379.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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