RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0330p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JEROME R. MIKULSKI; ELZETTA C. MIKULSKI, On

Behalf of Themselves and All Others Similarly

Situated,

Plaintiffs-Appellants,

v.

CENTERIOR ENERGY CORPORATION; FIRST ENERGY

CORPORATION; CLEVELAND ELECTRIC

ILLUMINATING COMPANY; THE TOLEDO EDISON

COMPANY,

Defendants-Appellees.

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No. 03-4486

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

Nos. 02-02440; 03-00191; 03-00192; 03-07043

—Donald C. Nugent, District Judge.

Argued: September 13, 2006

Decided and Filed: August 21, 2007 

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, Circuit

Judges.

_________________

COUNSEL

ARGUED: Eric H. Zagrans, ZAGRANS LAW FIRM, Elyria, Ohio, for Appellants. Mitchell G.

Blair, CALFEE, HALTER & GRISWOLD, Cleveland, Ohio, for Appellees. ON BRIEF: Eric H.

Zagrans, ZAGRANS LAW FIRM, Elyria, Ohio, Eben O. McNair IV, SCHWARZWALD &

McNAIR, Cleveland, Ohio, Robert D. Gary, Lorain, Ohio, Thomas R. Theado, GARY, NAEGELE

& THEADO, Cleveland, Ohio, for Appellants. Mitchell G. Blair, Colleen M. O’Neil, Tracy S.

Johnson, CALFEE, HALTER & GRISWOLD, Cleveland, Ohio, for Appellees.

BATCHELDER, J., delivered the opinion of the court, in which BOGGS, C. J., GILMAN,

GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. DAUGHTREY, J. (pp.

17-19), delivered a separate opinion concurring in part and dissenting in part, in which MARTIN,

MOORE, COLE, and CLAY, JJ., joined.

1
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 2

1

 The complaint also named Centerior’s successor company, First Energy Corporation, as a defendant.

Subsequently, the Mikulski plaintiffs filed three additional class-action complaints, asserting identical claims for three

other tax years and also naming Cleveland Electric Co. and Toledo Edison as defendants. The district court consolidated

the four lawsuits and the defendants are hereafter referred to collectively as “Centerior.”

_________________

OPINION _________________

ALICE M. BATCHELDER, Circuit Judge. The issue to be decided in the present case is

whether the substantial-federal-question doctrine provides federal subject-matter jurisdiction over

a state law claim on the basis that an embedded element of the claim concerns 26 U.S.C. § 312(n)(1),

an accounting rule in the federal tax code. We hold that it does not.

I.

Plaintiffs Jerome and Elzetta Mikulski filed a class action suit against Centerior Energy

Corporation (“Centerior”)1 in the Cuyahoga County (Ohio) Court of Common Pleas, alleging

fraudulent misrepresentation and breach of contract. For ease of introduction, we can ignore certain

details until later in the analysis and set out the underpinnings of this case without all their rough

edges. Simply put, Centerior interpreted 26 U.S.C. § 312(n)(1) to mean that, beginning with its

1985 fiscal year, it could no longer deduct certain interest expenses from its calculation of taxable

earnings. Therefore, Centerior did not deduct these expenses from its earnings, which made

Centerior appear more profitable but also increased Centerior’s tax liability. Because Centerior

declared and distributed dividends based on these reported earnings, the increased tax liability was

passed on to its shareholders via IRS forms 1099-DIV.

The plaintiffs contend that Centerior’s interpretation of § 312(n)(1), in regard to this

particular interest expense, was not only incorrect, but was fraudulent. The plaintiffs accuse

Centerior of intentionally overstating its earnings and profits during the time periods in question,

in order to make itself appear more profitable. In what turned out to be a critical response to an

interrogatory, the plaintiffs explained their theory in terms of 26 U.S.C. § 312:

Section 312(n)(1) states that no construction expenses incurred before January 1,

1985, may be considered in calculating a corporation’s earnings and profits.

Centerior [] included in its earnings and profits calculations for 1986 (and subsequent

years) more than $1.5 billion of construction expenses that its subsidiaries had

incurred in 1984 and earlier.

[Therefore,] Centerior violated the Internal Revenue Code by doing what Section

312(n)(1) of the Code specifically forbids.

Pls.’ Supp. Resp. to Interrog. No. 1 of Defs.’ Second Set of Interrogs (rearranged from original). 

To be clear, these “construction expenses” are actually interest expenses on long-term construction

loans that span the years in question, which are labeled “construction period carrying charges” in

§ 312(n)(1). Section 312(n)(1) actually states: “In the case of any amount paid or incurred for

construction period carrying charges . . . no deduction shall be allowed with respect to such

amount,” and there is no date provision in the codified statute. The essential point of this

interrogatory response, however, is that it invoked federal law, namely § 312(n)(1), as the basis for

the plaintiffs’ state law claim. Thus, the plaintiffs’ contend, based on this interpretation of

§ 312(n)(1), that Centerior (by overstating its earnings and profits) misrepresented to its shareholders
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 3

2

 The effective date was not codified, but was stated in the Act: “The provisions of paragraphs (1), (2), and

(3) of section 312(n) of the Internal Revenue Code of 1954 (as added by subsections (a) [of this section of this Act]) shall

apply to amounts paid or incurred in taxable years beginning after September 30, 1984.” Deficit Reduction Act of 1984,

Pub. L. No. 98-369, § 61(e), 98 Stat. 494 (1984). Centerior operates on a calender fiscal year, so the “taxable year

beginning after September 30, 1984” was Centerior’s fiscal year beginning on January 1, 1985.

(via IRS forms 1099-DIV) that their dividends were taxable, which caused those (now plaintiffclass) shareholders to erroneously overpay their federal and state income taxes.

Centerior disputed the plaintiffs’ interpretation of § 312(n)(1), particularly its effective date2

provision, which led to the question of whether § 312(n)(1) applied only to interest expenses actually

incurred after January 1, 1985 (as the plaintiffs argued), or if it instead applied to accumulated

interest expenses that related to construction projects that remained ongoing after January 1, 1985

(as Centerior had assumed). The plaintiffs concede that their claim will fail under the latter

construction; if Centerior complied with the accounting requirements in the statute, then it would

not be culpable for overstating its taxable earnings and profits or misreporting taxable dividends.

Centerior removed the case to federal court by asserting, based on the plaintiffs’ response

to the above-referenced interrogatory, that the complaint raised a substantial federal question, the

resolution of which was essential to the disposition of the plaintiffs’ claims. The plaintiffs moved

for a remand to state court, and the district court denied the motion, finding that the plaintiffs’ cause

of action, although presented as breach of contract and fraudulent misrepresentation, was actually

aimed at a tax refund and raised a substantial federal question involving federal tax law.

Centerior next filed a motion for judgment on the pleadings, arguing that the action was

expressly preempted by 26 U.S.C. § 7422, and implicitly preempted by the scope and complexity

of the Internal Revenue Code. The district court referred the case to a magistrate judge who

recommended judgment on the pleadings and documented three findings. First, the plaintiffs could

have raised the issue with the IRS, filed for a refund, or pursued administrative remedies, but they

did not. Second, if the court allowed the lawsuit to proceed, then it could be opening the federal

courts to litigation by every shareholder for misstatement of earnings and profits, by every employee

for overstatement of earnings on W-2 forms, and by every independent contractor for an overstated

1099 form. Third, the Internal Revenue Code was designed to avoid these types of actions and

instead allows injured taxpayers to proceed directly against the government for a refund.

The plaintiffs objected to the magistrate judge’s report and recommendation, arguing that

its principal error was in mischaracterizing their claim as one for a tax refund, which led to the

erroneous conclusion that the claims were preempted by federal tax law. At a hearing before the

district court, the plaintiffs refuted preemption and once again disputed removal jurisdiction. The

plaintiffs emphasized that their suit was based on state law claims for breach of contract and fraud,

not the alleged violation of the Internal Revenue Code. The district court rejected the plaintiffs’

arguments, adopted the magistrate judge’s recommendation, and granted judgment on the pleadings

in favor of Centerior. The district court concluded that the complaint relied on the interpretation of

the Internal Revenue Code, and therefore jurisdiction was proper based on either preemption or a

substantial question of federal law. The district court granted judgment on the pleadings based on

the plaintiffs’ failure to exhaust their remedies with the IRS.

The plaintiffs appealed to this court on the issue of federal subject-matter jurisdiction.

Mikulski v. Centerior, 435 F.3d 666, 671 (6th Cir. 2006) (rehearing en banc granted, opinion vacated

Apr. 26, 2006). The majority reversed, finding that the district court had misapplied both the

preemption and the substantial-federal-question doctrines, and consequently lacked subject-matter

jurisdiction. The entire panel agreed that the district court had erred in finding the plaintiffs’ claims

preempted by 26 U.S.C. § 7422. The majority further held that the mere presence of a federal statute
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 4

as an element of a claim does not present a substantial federal question. The dissent relied on

Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005),

to argue that the federal government has a substantial interest in the construction of 26 U.S.C.

§ 312(n)(1) because it affects the amount of federal tax a security holder must pay.

Centerior petitioned for rehearing en banc, asking: “Whether federal question jurisdiction

exists over state law claims when plaintiffs’ recovery depends upon a contested interpretation of

federal tax law?” This court granted the rehearing and vacated the panel opinion.

II.

When a decision on subject-matter jurisdiction concerns pure questions of law or application

of law to the facts, this court conducts a de novo review. Rodriguez v. Tenn. Laborers Health &

Welfare Fund, 463 F.3d 473, 475 (6th Cir. 2006). If the district court’s jurisdictional ruling was

based on the resolution of factual disputes, then we review those findings for clear error. Golden

v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir. 2005). The issue before us in this case is primarily

a question of law or an application of the law to the given circumstances. The district court

produced few factual findings in resolving the jurisdictional question in this case.

This is a case in which Ohio citizens sued an Ohio corporation in Ohio state court, and the

defendant corporation removed the case to federal court. Let there be no doubt that the plaintiffs

would prefer to be in state court. In the absence of diversity, a defendant may remove a civil action

from state court to federal court only if the plaintiff’s allegations establish “original jurisdiction

founded on a claim or right arising under” federal law. 28 U.S.C. § 1441(b). “To determine whether

the claim arises under federal law, we examine the ‘well pleaded’ allegations of the complaint and

ignore potential defenses[.]” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). Even “a

defense that relies on the preclusive effect of a prior federal judgment or the pre-emptive effect of

a federal statute will not provide a basis for removal.” Id. (citations omitted).

There are exceptions to the well-pleaded complaint rule. Id. One exception is the artfulpleading doctrine: plaintiffs may not “avoid removal jurisdiction by artfully casting their essentially

federal law claims as state-law claims.” Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 397

n.2 (1981) (quotation marks, citations, and edits omitted). A related exception is the completepreemption doctrine: removal is proper “when a federal statute wholly displaces the state-law cause

of action through complete pre-emption.” Beneficial Nat’l Bank, 539 U.S. at 8. A third exception

is the substantial-federal-question doctrine, which applies “where the vindication of a right under

state law necessarily turn[s] on some construction of federal law.” Franchise Tax Bd. v. Constr.

Laborers Vacation Trust, 463 U.S. 1, 9 (1983). Thus, under limited circumstances, a defendant may

force a plaintiff into federal court despite the plaintiff’s desire to proceed in state court.

We are mindful that state courts are generally presumed competent to interpret and apply

federal law. See Zwickler v. Koota, 389 U.S. 241, 245 (1967) (“During most of the Nation’s first

century, Congress relied on the state courts to vindicate essential rights arising under the

Constitution and federal laws.”). As the Seventh Circuit recently noted, “there is nothing unusual

about a court having to decide issues that arise under the law of other jurisdictions; otherwise there

would be no field called ‘conflict of laws’ and no rule barring removal of a case from state to federal

court on the basis of a federal defense.” Hays v. Cave, 446 F.3d 712, 714 (7th Cir. 2006). The

Supreme Court has explained this rule against removal on the basis of a federal defense:

Although such allegations show that very likely, in the course of the litigation, a

question under the Constitution would arise, they do not show that the suit, that is,

the plaintiff’s original cause of action, arises under the Constitution. For better or

worse, under the present statutory scheme as it has existed since 1887, a defendant
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 5

3

 Under Ohio law, the elements of a common law breach of contract are (1) that a contract existed, (2) that the

plaintiff fulfilled his obligations, (3) that the defendant unlawfully failed to fulfill his obligations, and (4) that damages

resulted from this failure. Lawrence v. Lorain County Cmty. Coll., 713 N.E.2d 478, 480 (Ohio App. 1998).

4

 Under Ohio law, the elements of common law fraudulent misrepresentation are: “(a) a representation or,

where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely,

with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge

may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the

representation or concealment, and (f) a resulting injury proximately caused by the reliance.” Burr v. Stark County Bd.

of Comm’rs, 491 N.E.2d 1101, 1102 (Ohio 1986) (paragraph two of the syllabus).

may not remove a case to federal court unless the plaintiff’s complaint establishes

that the case arises under federal law.

Franchise Tax Bd., 463 U.S. at 10 (quotation marks, citations, and edits omitted).

Resolution of this appeal will require an inquiry into the federal interest in having the federal

issue decided by a federal court, and we acknowledge this otherwise axiomatic premise — that state

courts are competent to interpret and apply federal law — in order to ensure that we do not

misconstrue the nature of the federal interest or become misled by some histrionic fear that allowing

state courts to decide federal law issues might lead to some disastrous consequence, such as 50

irreconcilable interpretations of the tax code, a potential race to the bottom, or diminished federal

tax revenues. While there is certainly a significant federal interest in avoiding each of these

consequences, the simple fact is that these are not the types of consequences to be considered by

courts. The legal analysis that guides this decision does not include consideration of the effect of

state versus federal adjudication on the outcome of any given case or issue. “[I]t is up to Congress,

not the federal courts, to decide when the risk of state-court error with respect to a matter of federal

law becomes so unbearable as to justify divesting the state courts of authority to decide the federal

matter.” Beneficial Nat’l Bank, 539 U.S. at 21 (Scalia, J., dissenting). Thus, our inquiry is

ultimately one of congressional intent, not policy or personal preference.

III.

Under the artful-pleading doctrine, a federal court will have jurisdiction if a plaintiff has

carefully drafted the complaint so as to avoid naming a federal statute as the basis for the claim, and

the claim is in fact based on a federal statute. Franchise Tax Bd., 463 U.S. at 22. A defendant

raising this doctrine may not rely on facts not alleged in the complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 397 (1987). “Although occasionally [a] removal court will seek to determine whether

the real nature of the claim is federal, regardless of plaintiff’s characterization, most of them

correctly confine this practice to areas of the law pre-empted by federal substantive law.” Id. at 397

n.11 (quotation marks and edits omitted) (citing Federated Dep’t Stores, 452 U.S. at 410 n.6

(Brennan, J., dissenting)). Thus, artful pleading and preemption are closely aligned.

Accepting the possibility that the plaintiffs may have carefully structured their complaint to

avoid federal jurisdiction, we consider whether the facts alleged in the complaint actually implicate

a federal cause of action. The plaintiffs have asserted two state, common-law causes of action: 

breach of contract3

 and fraudulent misrepresentation.4 The complaint specifies, in pertinent part:

23. . . . A shareholder’s stock certificate constitutes a written contract with

the issuing corporation.

24. Pursuant to relevant provisions of the Internal Revenue Code, including

[] Section 6042(c), a corporation paying dividends to its shareholders is obligated to

issue an accurate [IRS] Form 1099-DIV (or a substitute form) to its shareholders.
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 6

5

 The plaintiffs clarified their claims in a key interrogatory response, which demonstrates that, under their

particular theory, their alleged harm is actually incidental to the alleged wrong:

From its formation in 1986, [Centerior] deliberately and fraudulently manipulated its tax accounting

practices over a period of years in order to artificially inflate its ‘earnings and profits’ so that it would

look more profitable to its investors. This was vitally important to Centerior in 1986 because it needed

to justify the recent merger of CEI and Toledo Edison. In the process, however, Centerior defrauded

some 200,000 shareholders who lost more than $35 million from being wrongly instructed by

Centerior to pay too much in federal income taxes on their 1986 distributions alone.

Pls.’ Supp. Resp. to Interrog. No. 1 of Defs.’ Second Set of Interrogs. (footnote omitted).

 . . . 

28. Thus, by virtue of its written contract with its shareholders, Centerior

was contractually required accurately to report dividends and returns of capital to

every shareholder. To the extent such contractual obligations may not be specifically

stated in the written contract, such contractual terms are implied by operation of law.

29. Centerior breached its written contract with the Plaintiff class [] by

misreporting to class members [] the portion of the 1986 distributions which

constituted taxable dividends and the portion which constituted a return of capital.

30. Furthermore, in order for Centerior to fulfill its contractual obligation

accurately to report shareholder dividends and returns of capital, Centerior had the

additional obligation accurately to calculate its earnings and profits and the E&P of

its subsidiaries.

31. Centerior also breached its written contract with the Plaintiff class []

when it inaccurately calculated earnings and profits for purposes of determining the

portion of 1986 distributions which constituted taxable dividends, and thereby

understated that portion of the distributions which constituted a return of capital.

32. Centerior’s misreporting caused the members of the Plaintiff class [] to

overpay their respective income taxes for 1986 and all other relevant periods.

33. As a direct and proximate result of such overpayment, the members of

the Plaintiff class [] have been damaged in the amount of such overpayment, which

damages can be calculated for each class member [] on a class-wide basis.

So, both causes of action rely on the same premise: that Centerior overstated the amount of taxable

dividends it distributed in 1986 (and three other years), which caused its shareholders to overpay

their federal and state income taxes. Importantly, the plaintiffs do not state or imply a federal

Securities Exchange Act claim, in which investors allege that they were harmed through the

purchase or sale of mispriced shares.5

 These plaintiffs allege a traditional tort and breach of

contract.

In July 1996, Congress enacted 26 U.S.C. § 7434 as part of the Taxpayer Bill of Rights 2,

Pub. L. No. 104-168, 110 Stat. 1452 (1996), and created a private cause of action against anyone

“who willfully files a fraudulent information return” (e.g., IRS form 1099-DIV) that causes injury

to the purported recipient. This appears to provide a federal cause of action under the facts alleged

in the complaint, but because all of the events giving rise to the plaintiffs’ claims preceded the

enactment of § 7434 by almost ten years, § 7434 would be unavailable to these plaintiffs for these

claims. Furthermore, neither this section of the statute nor the Act itself contains any indication that
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 7

Congress intended it to be the exclusive remedy for a fraudulent overstatement of taxable dividend

distributions, so the plaintiffs’ claims do not necessarily state a federal claim.

Congress enacted 26 U.S.C. § 312 as part of the Deficit Reduction Act of 1984, Pub. L. No.

98-369, 98 Stat. 494 (1984), and § 312 governs certain earnings-and-profits calculations. According

to the plaintiffs’ complaint, the reason Centerior overstated the taxable portion of the distributions

(i.e., dividends) was because it miscalculated its earnings and profits. Under the Internal Revenue

Code, if a corporation has earnings and profits, then distributions to shareholders are considered

taxable “dividends” up to the amount of the earnings and profits. 26 U.S.C. § 316(a). But if

distributions exceed earnings and profits, then the distributions are considered tax-free “returns of

capital.” See Lewis v. CIR, 18 F.3d 20, 23 (1st Cir. 1994); Luckman v. CIR, 418 F.2d 381, 383 (7th

Cir. 1969). While we agree that § 312 affects the measure and calculation of a corporation’s

earnings and profits, it is only a guideline or instruction on proper tax accounting practices. It does

not include a civil suit provision or implicitly create a private cause of action. Similarly, 26 U.S.C.

§ 6042, which governs the reporting of dividend payments and the reporting of earning and profit

calculations, does not state or imply a private cause of action either.

Therefore, we must conclude that the Mikulski plaintiffs would not have had a federal,

statutory cause of action against Centerior on these or similar claims; that is, none of these statutes

provides a federal cause of action that might have been invoked by a less artfully drafted complaint.

We cannot conclude under these facts that the plaintiffs carefully drafted their complaint to avoid

a federal statute or federal cause of action. See Franchise Tax Bd., 463 U.S. at 22.

IV.

The complete-preemption doctrine applies in circumstances in which Congress may intend

the preemptive force of a federal statute to be so extraordinary that “any claim purportedly based

on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises

under federal law.” Caterpillar, 482 U.S. at 393. The Supreme Court has found complete

preemption in only three classes of cases: Section 301 of the Labor Management Relations Act of

1947 (LMRA), 29 U.S.C. § 185; the Employee Retirement Income Security Act of 1975 (ERISA),

29 U.S.C. §§ 1001-1461; and the National Bank Act, 12 U.S.C. § 38. See Beneficial Nat’l Bank, 539

U.S. at 7-9. Complete preemption requires a finding that “the federal statutes at issue provided the

exclusive cause of action for the claim asserted and also set forth procedures and remedies governing

that cause of action.” Id. at 7-8. To date, the Supreme Court has not found complete preemption

over claims that allege misreporting by corporations to their taxpaying shareholders.

This circuit has recognized that complete preemption is a limited rule. Although we held that

the National Flood Insurance Act, 42 U.S.C. § 4072, completely preempts state law because it

explicitly confers “original exclusive jurisdiction” on the federal district courts, Gibson v. Am.

Bankers Ins. Co., 289 F.3d 943, 947 (6th Cir. 2002), we have declined to extend complete

preemption to various statutes that lack similarly explicit language. See, e.g., Wellons v. Nw.

Airlines, Inc., 165 F.3d 493, 496 (6th Cir. 1999) (denying complete preemption under the Airline

Deregulation Act); Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1253 (6th Cir.

1996) (Airline Deregulation Act); Strong v. Telectronics Pacing Sys., Inc., 78 F.3d 256, 259 (6th Cir.

1996) (Medical Device Amendments to Federal Food, Drug, and Cosmetic Act); Gustafson v. Lake

Angelus, 76 F.3d 778, 783 (6th Cir. 1996) (Federal Aviation Act).

Congress has not created an exclusive federal remedy under the Internal Revenue Code for

the miscalculation of earnings and profits or the misreporting of taxable dividends. Congress knows

how to enact exclusive private rights of action when it chooses to do so, see Cent. Bank v. First

Interstate Bank, 511 U.S. 164, 176-77 (1994), and several provisions in the tax code expressly

prescribe an exclusive, private federal remedy. See, e.g., 26 U.S.C. § 6110(j)(1)(B) (“shall have as
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 8

an exclusive federal remedy”); 26 U.S.C. § 897(i)(4) (“the exclusive remedy for any person

claiming”); 26 U.S.C. § 7433(a) (“such civil action shall be the exclusive remedy”); 26 U.S.C.

§ 7433(e)(2)(A) (“petition shall be the exclusive remedy”). In contrast, neither of the provisions

relied upon by the Mikulski plaintiffs, 26 U.S.C. § 312(n)(1) or § 6042(c), contains any express

statement of an exclusive federal remedy. Even 26 U.S.C. § 7434, which creates a private right of

action against a company submitting a fraudulent information return, does not purport to be

exclusive.

Under 26 U.S.C. § 7422(a), no private action “shall be maintained in any court for the

recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or

collected, or . . . of any sum alleged to have been excessive or in any manner wrongfully collected,

until a claim for refund or credit has been duly filed with the Secretary.” This provision was

intended to provide taxpayers with a means to obtain relief from improper collections by tax

collectors while also protecting government collection officers from being sued by taxpayers. See

S. Rep. No. 89-1625 (1966), reprinted in 1966 U.S.C.C.A.N. 3676, 3681-82. We find no indication

that Congress intended this tax refund procedure to be a security holder’s exclusive remedy for a

company’s misreporting of dividends. Id. Although the federal courts have broadened § 7422 in

the “airline cases” and applied it to airlines that effectively act as agents for the IRS by collecting

excise taxes from passengers, see, e.g., Brennan v. Sw. Airlines Co., 134 F.3d 1405, 1409 (9th Cir.

1998); Sigmon v. Sw. Airlines Co., 110 F.3d 1200, 1203 (5th Cir. 1997); Kaucky v. Sw. Airlines Co., 109 F.3d 349 (7th Cir. 1997), that expansive application does not extend to the present case because

Centerior did not collect or withhold any taxes. Centerior was not acting as a collection agent for

or on behalf of the IRS. See In re Air Transp. Excise Tax Litig., 37 F. Supp. 2d 1133, 1137 (D.

Minn. 1999) (limiting the applicability of the airline cases to their unique circumstances).

The mere fact that the plaintiffs’ damages are calculated in terms of overpaid income taxes

does not necessitate the conclusion that the plaintiffs’ claim must actually be one for a federal

income tax refund. Cf. Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 453 (6th Cir. 2003)

(the underlying damages do not dictate the nature of a plaintiff’s claim). This is especially so for

the claim of state income taxes — the plaintiffs’ alleged overpayment of state income taxes

obviously does not assert a federal income tax refund claim. Perhaps more to the point, however,

is that the plaintiffs are not seeking a tax refund inasmuch as they are not accusing the IRS of any

wrongdoing. Under the plaintiffs’ theory, the IRS was an innocent third-party, who, like the

plaintiffs themselves, merely relied on the 1099-DIVs issued by Centerior, while Centerior was the

active (i.e., liable) tortfeasor. See Anza v. Ideal Steel Supply Corp., 547 U.S. --, 126 S. Ct. 1991,

2003-04 (2006) (Thomas, J., concurring) (noting that “courts have historically found proximate

causation . . . [even] for injuries where an innocent third party intervenes between the tortfeasor and

the victim, such that the innocent third party is the immediate cause of the injury” (citation and

emphasis omitted)). The same reasoning applies to the plaintiffs’ breach of contract claim. We

therefore conclude that 26 U.S.C. § 7422 does not preempt the present case.

The plaintiffs’ claims are not completely preempted by federal law and the district court

erred by concluding that they were. We find no basis for federal subject-matter jurisdiction based

on the well-pleaded complaint, the artful-pleading doctrine, or complete preemption.

V.

Under the substantial-federal-question doctrine, a state law cause of action may actually arise

under federal law, even though Congress has not created a private right of action, if the vindication

of a right under state law depends on the validity, construction, or effect of federal law. See

Franchise Tax Bd., 463 U.S. at 9; Shulthis v. McDougal, 225 U.S. 561, 569 (1912). “As an initial

proposition, then, the ‘law that creates the cause of action’ is state law, and original federal

jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 9

is a necessary element of one of the well-pleaded state claims, or that one or the other claim is

‘really’ one of federal law.” Franchise Tax Bd., 463 U.S. at 13. The mere presence of a federal

issue in a state law cause of action does not automatically confer federal question jurisdiction, either

originally or on removal. Such jurisdiction remains exceptional and federal courts must determine

its availability, issue by issue. The Supreme Court has developed a standard, through an evolving

case line, by which the federal interest in providing a forum for an issue is weighed against the risk

that the federal courts will be unduly burdened by a rush of state law cases.

In Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 199 (1921), the Supreme Court first

acknowledged that federal jurisdiction may exist over an ordinary state-law cause of action where

“the right to relief depends upon the construction or application of the Constitution or laws of the

United States, and that such federal claim is not merely colorable.” In Smith, a shareholder sued in

federal court to prevent a company’s directors from breaching their duty to the shareholders, as set

out by the state’s laws of incorporation. Id. at 214 (Holmes, J., dissenting). Specifically, the

plaintiff alleged that the Federal Farm Loan Act was unconstitutional, and therefore, an investment

in bonds issued under that Act would result in a defendant’s breach of duty. Id. at 198. The

Supreme Court, raising the jurisdictional question sua sponte, ultimately determined that federal

jurisdiction was proper because of the significant federal interest in determination of the

constitutionality of a federal statute. Id. at 201-02. Subsequent cases have narrowed and refined

the rule.

In Moore v. Chesapeake & Ohio Railway Co., 291 U.S. 205, 208 (1934), a railroad employee

sued his employer under the Kentucky Employers’ Liability Act, alleging that he was injured by

defective equipment. Under the state law, a violation of the Federal Safety Appliance Acts

constituted negligence per se and eliminated the defenses of contributory negligence and assumption

of risk. Id. at 212-13. The Supreme Court determined that federal jurisdiction was lacking because

the federal interest in a state law tort action was not significant. “The action fell within the familiar

category of cases involving the duty of a master to his servant . . . . The Federal statute, in the

present case touched the duty of the master at a single point, and . . . the right of the plaintiff to

recover was left to be determined by the law of the state.” Id. at 216-17.

Therefore, in the early cases, the Court decided substantial-federal-question jurisdiction

based solely on the magnitude of the federal interest. These two cases in particular highlight a

distinction between the significant federal interest in deciding the constitutionality of a federal

statute, a potential rebuke of congressional authority, as compared with the minimal federal interest

in the shaping of the scope of a state statutory duty, a task likely to recur routinely and repeatedly.

The Court has since added another dimension: the desire to protect the federal courts from the

burden of excessive litigation that is better suited to state courts.

In Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 805-06 (1986), the

plaintiffs sued a drug company on a state law tort claim, alleging that the drug company was

presumptively negligent because it had violated the branding provision of the federal Food, Drug,

and Cosmetic Act. In what appeared to be a departure from the federal-interest-based approach, the

Court introduced new factors, explaining that “the very reasons for the development of the modern

implied remedy doctrine — . . . [including] the increased volume of federal litigation . . . — are

precisely the kind of considerations that should inform the [substantial-federal-question decision].”

Id. at 811 (quotation marks and citations omitted). Under this approach, the Court placed significant

emphasis on the absence of a federal statutory cause of action: “the congressional determination that

there should be no federal remedy for the violation of this federal statute is tantamount to a

congressional conclusion that the presence of a claimed violation of the statute as an element of a

state cause of action is insufficiently substantial to confer federal-question jurisdiction.” Id. at 814

(quotation marks omitted). Based primarily on the absence of a “private, federal cause of action,”

the Court concluded that federal jurisdiction was lacking. Id. at 817.
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 10

In Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S.

at 310-11, the plaintiff filed a state law claim to quiet title, alleging that the defendant’s record title

was invalid because the IRS, in seizing the plaintiff’s property to satisfy a federal tax deficiency, had

failed to give the plaintiff proper notice pursuant to 26 U.S.C. § 6335(a). Although the complaint

did not set forth a federal cause of action, the Court recognized that the state law claim presented

a question of federal law. But this recognition did not end the inquiry as to whether the action

“arose under” federal law; it triggered further considerations. The Court observed, “the presence

of a disputed federal issue and the ostensible importance of a federal forum are never necessarily

dispositive; there must always be an assessment of any disruptive portent in exercising federal

jurisdiction [i.e., in the balance of federal and state judicial responsibilities].” Id. at 314.

In Grable, the Supreme Court, for the first time, brought its two concerns together into a

single standard, which it described as “the framework of examining the importance of having a

federal forum for the issue, and the consistency of such a forum with Congress’s intended division

of labor between state and federal courts.” Id. at 319. The Court then recognized that Grable’s

particular federal issue implicated the ability of the federal government (i.e., the IRS) “to vindicate

its own administrative action.” Id. at 315. The Court also acknowledged that the rarity of this issue

would “portend only a microscopic effect on the federal-state division of labor.” Id.

Because 26 U.S.C. § 6335(a), the federal tax code provision at issue in Grable, did not

provide for a private, federal cause of action, the Court was compelled to reconcile its decision with

its earlier opinion in Merrell Dow. Id. at 316-19. To do this, the Court introduced the “welcome

mat” metaphor:

[Merrell Dow] saw the missing cause of action not as a missing federal door key,

always required, but as a missing welcome mat, required in the circumstances, when

exercising federal jurisdiction over a state [] action would have attracted a horde of

original filings and removal cases raising other state claims with embedded federal

issues. For if the federal labeling standard without a federal cause of action could

get a state claim into federal court, so could any other federal standard without a

federal cause of action. And that would have meant a tremendous number of cases.

One only needed to consider the treatment of federal violations generally in garden

variety state tort law. The violation of federal statutes and regulations is commonly

given negligence per se effect in state tort proceedings. A general rule of exercising

federal jurisdiction over state claims resting on federal [] statutory violations would

thus have heralded a potentially enormous shift of traditionally state cases into

federal courts. Expressing concern over the increased volume of federal litigation,

and noting the importance of adhering to legislative intent, Merrell Dow thought it

improbable that the Congress, having made no provision for a federal cause of

action, would have meant to welcome any state-law tort case implicating federal law

solely because the violation of the federal statute is said to create a rebuttable

presumption of negligence under state law. In this situation, no welcome mat meant

keep out. Merrell Dow’s analysis thus fits within the framework of examining the

importance of having a federal forum for the issue, and the consistency of such a

forum with Congress’s intended division of labor between state and federal courts.

Id. at 318-19 (internal quotation marks, citations, footnotes, and edits omitted). The Grable Court

held that, in regard to the IRS’s pre-seizure notice provision, as implicated by a quiet title action,

the balance favored federal jurisdiction. Id. at 319-20.

In Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U.S. --, 126 S. Ct. 2121, 2126-27

(2006), the plaintiff was a health plan administrator operating pursuant to the Federal Employees
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 11

Health Benefits Act who sued to share in the defendant’s damage award obtained in a state court

personal injury suit. The Court did not shut the jurisdictional door propped open in Grable, but it

made clear that Grable is to be read narrowly: “Grable emphasized that it takes more than a federal

element to open the ‘arising under’ door. This case cannot be squeezed into the slim category

Grable exemplifies.” Id. at 2137 (internal quotation marks omitted). The Court also summarized

the factors that established the significance of the federal interest in Grable: “The dispute there

[1] centered on the action of a federal agency (IRS) and its compatibility with a federal statute,

[2] the question qualified as ‘substantial,’ and [3] its resolution was both dispositive of the case and

[4] would be controlling in numerous other cases.” Id. The Court found federal jurisdiction lacking

in Empire because the state-court tort action was between private parties, the federal issue did not

dispose of the case (i.e., “the bottom line practical issue is the share of the settlement properly

payable to Empire”), and the federal issue was too “fact-bound and situation-specific” for its

resolution to affect numerous other cases. Id.

The plaintiffs in the present case seek to rely on Centerior’s violation of an accounting

provision in the federal tax code to demonstrate that Centerior is liable for fraudulent

misrepresentation or breach of contract. From this perspective, the present case most closely

resembles Merrell Dow’s presumption of negligence for violating the branding provision of the

federal Food, Drug, and Cosmetic Act or Moore’s application of negligence per se for violating the

terms of the Federal Safety Appliance Acts, neither of which supported substantial-federal-question

jurisdiction. But the present case does not raise a question of mere compliance or noncompliance

with a federal statute; the question concerns the meaning of the statute, specifically, the effective

date provision. From this perspective, the present case more closely resembles Smith’s conclusive

determination or Grable’s decisive guidance on future application, both of which supported

substantial-federal-question jurisdiction. But, unlike Smith, the present case does not challenge the

constitutionality of the statute, and unlike Grable, it does not affect the manner in which the IRS

might vindicate its own administrative actions.

We must consider this case in “the framework of examining the importance of having a

federal forum for the issue, and the consistency of such a forum with Congress’s intended division

of labor between state and federal courts.” Grable, 545 U.S. at 319. The substantial-federalquestion doctrine has three parts: (1) the state-law claim must necessarily raise a disputed federal

issue; (2) the federal interest in the issue must be substantial; and (3) the exercise of jurisdiction

must not disturb any congressionally approved balance of federal and state judicial responsibilities.

Id. at 314; accord Eastman v. Marine Mech. Corp., 438 F.3d 544, 552 (6th Cir. 2006).

1.

The plaintiffs’ theory certainly appears to raise a disputed federal issue: whether 26 U.S.C.

§ 312(n)(1) requires capitalization of only those interest expenses actually incurred after the

effective date (as the plaintiffs argue), or if it instead requires capitalization of all accumulated

interest expenses associated with construction projects that were ongoing as of the effective date (as

Centerior had assumed). The plaintiffs’ theory is actually a bit complicated, and this shorthand

rendition is convenient but incomplete. The plaintiffs produced an expert report that offered a more

precise explanation of the theory, although even this is still decidedly murky:

By ‘capitalize’, I mean that for purposes of calculating E&P [i.e., earnings

and profits], the interest expense attributable to a certain construction project would

not be deducted [from the tabulation of E&P], but [instead would be] added to the

cost of the asset being constructed until completion of the project. . . .

Prior to 1983, corporations were not required to capitalize interest on

property under construction[;] the interest was deducted [from E&P] as a current
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 12

expense[]. Under Section 207 of the Tax Equity and Responsibility Act of 1982,

corporations were required to capitalize [(i.e., not deduct from E&P) the] interest on

nonresidential real estate construction that began after 1982.

In 1984, Congress amended the IRC and added Section 312(n)(1) to prohibit

corporations from deducting [this interest] (and other carrying costs) [from E&P].

The provision was effective for ‘amounts paid or incurred in taxable years beginning

after September 30, 1984’ (Section 61(e)(1)(A) of P.L. 98-369).

. . .

According to the effective date provisions of Section 312(n)(1), interest

capitalization was required on [Centerior’s] post-1984 construction expenditures.

However, [Centerior] capitalized interest on at least $1.5 billion in construction

expenditures made before 1985 [which was not required by § 312(n)(1)]. As a result,

[Centerior] capitalized significantly more [interest] than required by law and

overstated E&P for 1985 and 1986 by corresponding amounts.

Since E&P is the source of payment for taxable dividends to shareholders, a

significant[ly] overstated E&P would very likely cause a corporation to report

distributions to shareholders as their taxable incomes [i.e., dividends], when in fact

the shareholders were returned capital investment. As a consequence, shareholders

overstated their taxable income and tax liabilities.

Pls.’ Supp. Resp. to Interrog. No. 1 of Defs.’ Second Set of Interrogs. - Exhibit B (Expert Report).

For our purposes, we can abbreviate the plaintiffs’ claim anew: Centerior is alleged to have

improperly capitalized (i.e., included in its statements of taxable earnings) some $1.5 billion in pre1985 construction expenses (interest) on the belief that it was required to do so by § 312(n)(1), while

the plaintiffs argue that § 312(n)(1)’s effective date provision excludes any pre-1985 expenses from

its capitalization requirement (i.e., the tax code prohibited Centerior from including these expenses

in its statements of taxable earnings). Whether due to the parties’ confusing descriptions of the

issue, the inconsistencies in the language used (i.e., “required” and “prohibited”), or the fact that tax

accounting sometimes appears to be a form of modern-day alchemy, it is difficult to frame this

dispute with particularity. The plaintiffs have certainly staked their claim on this federal issue,

however, and the parties have “crossed swords over it.” Cf. Arbaugh v. Y&H Corp., 546 U.S. 500,

126 S. Ct. 1235, 1243 (2006). Moreover, the plaintiffs concede that their claim will fail under

Centerior’s interpretation of the statute. We therefore have little difficulty in concluding that there

is a federal issue and it is actually disputed.

2.

The second component is the substantiality of the federal interest. See Grable, 545 U.S. at

314. The Supreme Court has identified four aspects of a case or an issue that affect the substantiality

of the federal interest in that case or issue: (1) whether the case includes a federal agency, and

particularly, whether that agency’s compliance with the federal statute is in dispute; (2) whether the

federal question is important (i.e., not trivial); (3) whether a decision on the federal question will

resolve the case (i.e., the federal question is not merely incidental to the outcome); and (4) whether

a decision as to the federal question will control numerous other cases (i.e., the issue is not

anomalous or isolated). See Empire, 126 S. Ct. at 2137 (analyzing Grable, 545 U.S. at 313). While

certain of these factors may be more applicable than others in any given set of circumstances, no

single factor is dispositive and these factors must be considered collectively, along with any other

factors that may be applicable in a given case. In this analysis, we address each factor in turn, and
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 13

6

 Furthermore, even if the plaintiffs prevail, and § 312(n)(1) is held to exclude pre-1985 expenses from its

capitalization requirement, might Centerior nonetheless legitimately reply that § 312(n)(1) does not forbid that

capitalization either — it merely fails to require it? Or, might Centerior rely on the reasonableness of its interpretation

to disprove a culpable mental state, and thereby still avoid liability?

consider them in aggregate. Based on our considered judgment of these factors, we ultimately

conclude that the federal interest in the present issue is not substantial.

The first factor is both objective and apparent, and in this case it weighs against

characterizing the federal interest as substantial because there is no federal agency in this dispute.

See Empire, 126 S. Ct. at 2137 (“The dispute [in Grable] centered on the action of a federal agency

(IRS) and its compatibility with a federal statute[.]”). Section 312(n)(1) imposes a duty on citizens

(e.g., corporations), not the federal government (or a government agency), and this case involves

no question of whether a government agency has complied with a statute or regulation. See id. While the federal government may have an interest in the uniform application of regulations that

relate to the collection of taxes, it has only a limited interest in private tort or contract litigation over

the private duties involved in that collection. See Grable, 545 U.S. at 319. The government’s ability

to collect taxes from an individual shareholder or a corporation is not affected by the resolution of

the dispute between these two parties. The government is free to interpret and apply the tax code

as it sees fit, without the slightest regard for this lawsuit. Unlike Grable, in which the IRS’s

prevailing practice was alleged to violate due process, this case will have no res judicata effect that

would apply to the IRS, no matter which court, federal or state, decides the case. In fact, the IRS

even has the authority to vindicate its interest by issuing a formal interpretation of this statute via

administrative rule making, if it chooses to do so. See, e.g., Staff of the J. Comm. on Taxation, 98th

Cong., General Explanation of the Revenue Provisions of the Tax Reform Act of 1984 177 (Comm.

Print 1984) (“It is anticipated that regulations will be issued providing for the allocation of

expenditures to the construction period and among different properties.”).

The second factor is far more subjective and requires that we decide whether the question

to be resolved is important. See Empire,126 S. Ct. at 2137. To be sure, resolution of this issue will

require the analysis and interpretation of federal law, specifically the Deficit Reduction Act of 1984,

Pub. L. No. 98-369, § 61(e), 98 Stat. 494 (1984), and 26 U.S.C. § 312. But the specific question at

issue concerns only the interpretation of the effective date of an accounting provision that instructs

companies on how to adjust their earnings and profits calculations to account for certain construction

project interest expenses. This question does not implicate any broader or more substantial issue.

The question does not necessarily even resolve all aspects of the present case, and it will provide

little if any precedent for future cases. In the 22 years since its enactment, the IRS has never issued

a rule to interpret the provision, nor — so far as we are aware — has the IRS ever litigated an action

involving this provision. Based on our subjective view of this issue, we find it more likely than not

that this particular question is not particularly important to the federal government.

The third factor is objective though the answer is not immediately apparent: whether

resolution of this question is dispositive of this case. It is not. See Empire, 126 S. Ct. at 2137.

Resolution of this question is dispositive if decided in favor of Centerior, but only because the

plaintiffs have conceded as much. If the plaintiffs prevail on their construction of § 312(n)(1), and

show that Centerior miscalculated earnings and profits due to its violation of § 312(n)(1), then the

plaintiffs must still prove the remaining elements of fraudulent misrepresentation (such as intent)

or breach of contract (such as the existence of a contract).6

 See fns. 3 & 4, supra. If, on the other

hand, Centerior prevails on its construction and shows that it complied with § 312(n)(1) in

calculating its earnings and profits accurately, then the plaintiffs cannot prevail (unless they

demonstrate some other misrepresentation or breach of contract). Therefore, conformity with

§ 312(n)(1) may, but will not necessarily, conclude the action.
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 14

7

 This factor, which concerns whether a decision on the particular federal question at issue in the litigation will

set precedent that will control numerous other cases, is not to be confused with the analysis in Section V.3, infra, which

concerns whether our holding on the availability of federal subject-matter jurisdiction will set precedent that will affect

the jurisdiction of numerous other similarly situated cases.

Finally, the fourth factor is again subjective and, as touched upon in the discussion of the

second factor, we find that a decision on this particular and very narrow question will not be

controlling over numerous other cases.7 See Empire, 126 S. Ct. at 2137. The disputed provision

applies only to “construction period carrying charges,” a special category of construction costs that

includes “interest paid or accrued[,] on indebtedness [that is] incurred or continued [in order] to

acquire, construct, or carry property.” 26 U.S.C. § 312(n)(1)(B)(i). Furthermore, the particular issue

concerns the effective date of September 30, 1984 — some 22 years ago. Finally, “[i]f costs must

be capitalized under other provisions of the Internal Revenue Code, then section 312(n)(1) is not

applicable.” Von-Lusk v. CIR, 104 T.C. 207, 220 (1995). Since 1986, corporations such as

Centerior have been required to capitalize interest expenses in order to calculate taxable income.

26 U.S.C. § 263A. Thus, the adjustment prescribed by § 312(n)(1) has been at least partially

superseded.

Whether the interpretation of § 312(n)(1) is resolved in state court or federal court, the

outcome will be the same: companies will report taxable dividends in the manner prescribed by law

(i.e., as legislated by Congress and interpreted by the courts). The IRS undoubtedly has an interest

in collecting taxes, and it is of no consequence to the IRS whether this case, or any like it, is

resolved in federal court rather than the state court. The IRS’s ability to collect taxes in accordance

with the law is unaffected by the judicial forum. This leads us to our final point on federal interest:

§ 312(n)(1) does not control the IRS’s collection of the plaintiffs’ income taxes. While § 312(n)(1)

may affect a shareholder’s tax obligations, it will only do so under particular circumstances.

Throughout this case, this appeal, and this opinion to this point, one aspect of the plaintiff’s

position has generally been accepted: that each shareholder suffered the same damages, which can

be measured by the alleged overpayment of state and federal income taxes. Although the district

court certified the shareholders as a plaintiff class and the presumption of identical damages has not

been challenged, this presumption is highly suspect, and to the extent that this suspect presumption

is relied upon or overlooked in this analysis, the true situation is worth acknowledging. Each of the

individual shareholders presumably, at least theoretically, falls within a particular (differing) income

tax bracket, holds a unique investment portfolio (with different gains, losses, deductions, offsets,

writeoffs, tax shields, etc., in any given year), and consequently, pays a different amount of taxes.

While the receipt of non-taxable money (i.e., return of capital) is almost always better than taxable

money (i.e., dividends), this simple distinction does not automatically lead to an identical effect on

each individual shareholder’s overall tax obligation, given the complexity of the tax code (and the

creativity of tax accountants). For instance, corporate investors pay a lower effective tax rate on

dividends than do individual investors. Pension funds and non-profits do not pay taxes on dividends,

so for them, the difference is irrelevant for tax purposes. This simple distinction is merely intended

to demonstrate that the classification of distributions as taxable dividends, rather than non-taxable

returns on capital, does not directly control the payment or collection of personal income taxes.

In concluding this section, we find that each of the four factors identified by the Supreme

Court draws us towards a determination that the federal interest in the present issue is not

substantial. Taking all four factors into consideration, and acknowledging two unassailable truths

— (1) that state courts are fully competent to decide this question, and (2) that § 312(n)(1) does not

control the collection of the plaintiffs’ personal income taxes directly — we conclude that the

federal interest in this case is not so substantial that it compels a finding that these traditional state

law claims actually “arise under” federal law; not without some statement to that effect by Congress.
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 15

This is not to say that there is no federal interest or even some significant federal interest;

there may very well be, and it might not be difficult to find. But such a finding would be immaterial.

The pertinent finding, which leads to our present conclusion, is that the federal interest in this case

is not “substantial” as that term has been defined under the prevailing Supreme Court precedent.

See Empire, 126 S. Ct. at 2137; Grable, 545 U.S. at 315; Moore, 291 U.S. at 216-17; Smith, 255

U.S. at 201-02. If a case could be deemed to “arise under” federal law — and thereby invoke federal

jurisdiction — any time the litigation involves the interpretation of a provision in the federal tax

code, then these precedents — particularly Grable — would be meaningless insofar as they attempt

to define a federal interest (or to guide the inquiry into Congressional delegation of responsibility).

Indeed, the portions of the tax code that expressly provide for a federal remedy would be little more

than surplusage. We therefore think it would be imprudent to assume that either Congress or the

Supreme Court intended such an expansive or limitless view of federal jurisdiction.

3.

Even if there were a significant federal interest, we find that the exercise of jurisdiction over

this type of lawsuit would impermissibly disrupt the congressionally approved balance of federal

and state judicial responsibilities. See Grable, 545 U.S. at 315. Congress has made no provision

for a federal cause of action under § 312(n)(1). As the Supreme Court explained in Grable, “Merrell

Dow thought it improbable that the Congress, having made no provision for a federal cause of

action, would have meant to welcome any state-law tort case implicating federal law solely because

the violation of the federal statute is said to create a rebuttable presumption of negligence under state

law. In this situation, no welcome mat meant keep out.” Grable, 545 U.S. 318-19. While Grable

went on to explain that the absence of a cause-of-action provision is not determinative, this certainly

provides a starting point for this part of the analysis.

Under the prescribed standard, we must pursue this question further and inquire into the risk

of upsetting the intended balance by opening the federal courts to an undesirable quantity of

litigation. See id. at 315. This is, to be sure, a speculative inquiry, requiring us to speculate about

the consequences for the federal caseload that will flow from this decision, and, although this is

intended to be a reasoned speculation, we concede that reasonable people can — and no doubt will

— disagree over the likelihood or severity of the possible consequences.

While we ultimately conclude that the possibility of encumbering the federal courts with

these tax-code-related cases appears both real and significant, or at least not insignificant, we are

at pains to avoid overstating our position. We eschew predictions of any extreme outcome that may

lurk in such phrases as “flood of litigation” or “overwhelm the federal courts,” and we have not

succumbed to some eschatological trembling. Rather, we posit an objective and reasoned — albeit

necessarily speculative — view that, by allowing the present dispute over a relatively obscure

provision of the tax code to be pursued in federal court, we would extend federal jurisdiction not

only to the question raised in this case, but to any dispute over the meaning or effect of virtually any

provision in the entire federal tax code.

The question is not whether such a holding will open the federal courts to analogous cases

— under the most rudimentary concept of legal precedent it certainly will. The pressing questions

are what cases would be analogous and how many would there be. This case involves (1) the

interpretation of (2) the effective date provision of (3) a construction-expense accounting guideline

(4) in the federal tax code. The universe of analogous cases would conservatively include any case

that involves (1) the interpretation of (2) any provision that is at least as significant as the effective

date provision of (3) any accounting guideline that is at least as significant as construction-industry

interest-payment expenses that is (4) in the federal tax code. It is no overstatement to say that this

description covers numerous tax code provisions; it may not be an overstatement to say that it covers

them all. Examples of such cases abound, including common malpractice actions against tax
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 16

preparation professionals or company accountants involving disputed interpretations of tax code

provisions; actions by shareholders for misstatement of earnings and profits; actions by employees

for overstatement of earnings on W-2 forms or by independent contractors for overstated 1099

forms. Limitation of this universe of analogous cases would — we think — be unlikely.

Even recognizing that there are some limits, such as IRS preemption and statutes of

limitation, we are left with the conclusion that finding a substantial federal question in the case we

decide today would open the door of the federal courts to significantly more than the solitary case

asserting a constitutional challenge, as in Smith, 255 U.S. at 214, or the “microscopic effect”

portended by the quiet title action in Grable, 545 U.S. at 315. And even if the actual number of

cases proved not to be overwhelming, or even uncomfortably burdensome, it appears unlikely that

Congress — through its silence — intended to open the federal court door quite so wide.

VI.

The balance here weighs against the propriety of federal jurisdiction, and this case “cannot

be squeezed into the slim category [of cases that] Grable exemplifies.” See Empire, 126 S. Ct. at

2137. “The state court in which the [] suit was lodged is competent to apply federal law, to the

extent it is relevant, and would seem [suitably] positioned to determine” the application of

§ 312(n)(1) in the present case. Id. We therefore REVERSE and REMAND to the district court

for dismissal for lack of federal subject-matter jurisdiction.
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 17

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

MARTHA CRAIG DAUGHTREY, Circuit Judge, concurring in part and dissenting in part.

A majority of the court relies upon two bases for its decision today that federal courts may not

exercise jurisdiction over the claims asserted by the plaintiffs in this case. First, the majority

concludes “that 26 U.S.C. § 7422 does not preempt the present case.” With that determination, I am

in full agreement. Second, the majority states that there is no substantial federal interest in obtaining

a federal court decision regarding the effective date of a provision of the federal Internal Revenue

Code that will enhance the ability of a federal agency to collect the monies necessary to carry on the

workings of the federal government. Even if the federal interest were held to be substantial, the

majority nevertheless contends that we should remand this matter to the state court lest provision

of a federal forum would portend an extension of federal jurisdiction that would embroil us in “any

dispute over the meaning or effect of virtually any provision in the entire federal tax code,” as well

as in state malpractice actions, shareholder suits, and other decidedly non-federal disputes. See Maj.

Op. at 15-16. From these portions of the majority’s ruling, I respectfully dissent.

Congress has seen fit to entrust federal district courts with original jurisdiction over “civil

actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331

(emphasis added). Because the non-diverse plaintiffs in this litigation allege that their suit raises

claims based only upon the Ohio state law concepts of breach of contract and fraudulent

misrepresentation, they argue that any exercise of federal jurisdiction in this matter would be

unjustified. As recognized almost 25 years ago by the United States Supreme Court, however,

“[e]ven though state law creates [a litigant’s] causes of action, its case might still ‘arise under’ the

laws of the United States if a well-pleaded complaint established that its right to relief under state

law requires resolution of a substantial question of federal law in dispute between the parties.”

Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13 (1983).

Significantly, the Supreme Court has ruled just two years ago in Grable & Sons Metal

Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308 (2005), another case from

this circuit, that even a state-law action to quiet title can implicate “a substantial federal interest (in

construing federal tax law).” Id. at 311. In that case, although Grable & Sons filed its complaint

in state court against only Darue Engineering and Manufacturing, the entity then in possession of

an Internal Revenue Service-issued quitclaim deed to the plaintiff’s former property, the Court

recognized that the determinative issue involved an analysis of the validity of the notice provided

to Grable & Sons by a government agency. Consequently, not only does “[t]he Government . . .

[have] a direct interest in the availability of a federal forum to vindicate its own administrative

action . . .,” id. at 315, but “the national interest in providing a federal forum for federal tax

litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the

disputed issue on removal, which would not distort any division of labor between the state and

federal courts, provided or assumed by Congress.” Id. at 310 (emphasis added).

As the majority concedes, even the Supreme Court’s subsequent ruling in Empire

Healthchoice Assurance, Inc. v. McVeigh, 126 S.Ct. 2121 (2006), has “not shut the jurisdictional

door propped open in Grable.” See Maj. Op. at 11. Empire involved a dispute concerning a federal

employee’s insurance carrier’s attempt to obtain reimbursement from the insured after the estate of

the federal employee recovered damages “(unaided by the carrier-administrator) in a state-court tort

action against a third party alleged to have caused the accident.” Id. at 2127. Concluding that such

a quintessential state-law contribution claim does not raise a substantial federal question, even

though a federal employee’s recovery pursuant to a federal employees’ insurance policy was at

issue, the Court emphasized numerous differences in the Grable and the Empire scenarios.
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 18

Foremost among those differences was the simple fact that Grable “centered on the action of a

federal agency (IRS) and its compatibility with a federal statute.” Empire, 126 S.Ct. at 2137. The

Court further explained that the federal question in Grable was substantial, that judicial resolution

of the question would be dispositive of the case before it, as well as of future cases, and that the

dispute involved a pure issue of law. See id.

Despite the Court’s successful effort in Empire to distinguish the situation presented in that

case from the scenario in Grable, the justices have also recognized that there is no “single, precise,

all-embracing test for jurisdiction over federal issues embedded in state-law claims between

nondiverse parties.” Grable, 545 U.S. at 314 (internal quotation marks and citation omitted).

“Instead, the question is, does a state-law claim necessarily raise a stated federal issue, actually

disputed and substantial, which a federal forum may entertain without disturbing any

congressionally approved balance of federal and state judicial responsibilities.” Id.

In addressing that question in this action, the majority opinion first correctly concedes that

a federal issue is indeed raised in the plaintiffs’ complaint and that the federal issue “is actually

disputed.” See Maj. Op. at 11. Despite that concession, the majority asserts that the substance of

the dispute is somehow minimized by the absence of participation by a federal agency, citing

Empire’s recognition that Grable “centered on the action of a federal agency.” See Maj. Op. at 13,

citing Empire, 126 S.Ct. at 2137. Nowhere in Grable nor in Empire, however, did the Supreme

Court indicate that agency participation in litigation constituted a sine qua non to the exercise of

federal jurisdiction. Rather, such participation was merely one factor in reaching the ultimate

conclusion that “the national interest in providing a federal forum for federal tax litigation is

sufficiently substantial.” Grable, 545 U.S. at 310. In this case, however, even in the absence of

participation by a federal agency, the federal interest in the interpretation of federal tax laws still

remains not only substantial, but paramount.

Indeed, as recognized by the majority, “resolution of this issue will require the analysis and

interpretation of federal law, specifically the Deficit Reduction Act of 1984, Pub. L. No. 98-369,

§ 61(e), 98 Stat. 494 (1984), and 26 U.S.C. § 312.” See Maj. Op. at 13. Furthermore, although

“the specific question at issue [might] concern[ ] only the interpretation of the effective date of an

accounting provision,” that interpretation “governs certain earnings-and-profits calculations.” See

Maj. Op. at 13. Thus, the pure issue of law in this case – the effective date of a statutory provision

– affects directly “how much tax security-holders must pay,” Mikulski v. Centerior Energy Corp., 435 F.3d 666, 678 (6th Cir. 2006) (Daughtrey, J., concurring in part and dissenting in part), and it

is the amount of that tax collected from citizens, corporate and individual, that determines the levels

of funding available for health, safety, and public welfare concerns; for programs and institutions

designed to safeguard private rights, civil rights, and the general public interest; and for the daily

operation of government activities including warfare, homeland security, and other aspects of

national defense.

Perhaps the most disconcerting aspect of the majority’s analysis of the “importance” of the

question to be resolved in this case is its “subjective view . . . that this particular question is not

particularly important to the federal government” because the IRS has not litigated a case involving

the provision in the 22 years since its enactment. See Maj. Op. at 13. Clearly, such a lack of

litigation bears no necessary correlation to the importance of the subject matter. As recognized by

our sister circuit, for example, in the 216 years since the adoption of the Third Amendment to the

United States Constitution, “[j]udicial interpretation of [that provision] is nearly nonexistent.”

Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1043 (10th Cir. 2001). The Third

Amendment’s prohibition on the quartering of soldiers in private residences without consent is,

however, one of the constitutional bulwarks protecting privacy rights inherent in American

citizenship. Especially in this time of seemingly unfettered governmental efforts to intrude into

private realms, I would hope that the majority would not equate the “nearly nonexistent” litigation
No. 03-4486 Mikulski, et al. v. Centerior Energy Corp., et al. Page 19

involving the Third Amendment with a lack of importance of the principles protected by that

provision.

 In its next effort to bolster its declaration that the issue presented in this litigation is not

substantial, the majority claims that resolution of the inquiry into the propriety of Centerior’s

earnings and profits calculation is not necessarily dispositive of this case. See Maj. Op. at 13. As

I noted in my partial dissent in the original panel treatment of this case, however:

[T]he question of Centerior’s compliance with Section 312(n)(1) of the Code . . . is

central to the plaintiffs’ state law claim . . . [and] also supports the district court’s

exercise of federal jurisdiction. In their complaint, the plaintiffs charged that the

defendants “failed to follow and apply the structure and conceptual framework of the

tax laws, as set forth in the Internal Revenue Code and the regulations promulgated

thereunder.” They also answered an interrogatory intended to clarify their claims

with the statement that “Centerior violated the Internal Revenue Code by doing

what . . . the Code specifically forbids . . . .” Furthermore, at oral argument on the

issue of federal jurisdiction before the district court, the attorney for the plaintiffs

acknowledged that an analysis of the tax code is “critical” to the case and that a

violation of the Code is not only the measure of damages but also the “underlying

rationale for the fraud.” The majority asserts that in analyzing the plaintiffs’ claims,

a federal court would “engage in only insubstantial analysis or interpretation of

federal law,” but this conclusion fails to recognize that determining whether the

defendants complied with the Code is essential to a resolution of the plaintiffs’

claims.

Id. at 677-78 (Daughtrey, J., concurring in part and dissenting in part).

Finally, the majority submits that a recognition of federal jurisdiction in this limited instance

raises “the possibility of encumbering the federal courts with these tax-code related cases.” See Maj.

Op. at 15. I continue to believe, however, that it is instead more likely than not “that the refund

procedures in the Internal Revenue Code, in conjunction with state statute of limitations, would act

as a reasonable limit on the number of cases that were actually heard in federal court.” Id. at 678

(Daughtrey, J., concurring in part and dissenting in part). To the extent that they do not, we and our

federal colleagues around the country will, I am convinced, continue to perform our sworn duties

to judge those matters raising substantial federal questions, whatever they may turn out to be.

For these reasons, I concur in the majority’s preemption analysis, but I respectfully dissent

from the remainder of the majority opinion and would thus affirm the district court’s denial of the

plaintiffs’ motion to remand this matter to state court. I am authorized to say that Judges Martin,

Moore, Cole, and Clay join in this separate opinion.