IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

UNITED STATES OF AMERICA, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) 

 ) 

THE STATE OF OHIO, ) 

 ) 

 Defendant. ) 

_______________________________________) 

Case No. 

COMPLAINT FOR DECLARATORY RELIEF 

AND REFUND OF STATE TAXES

 The United States of America complains and alleges as follows: 

JURISDICTION AND VENUE 

1. This is a civil action instituted for the purpose of obtaining a declaratory judgment 

that the United States is not liable for motor vehicle fuel taxes imposed by the State of Ohio, and 

to seek a refund of motor vehicle taxes wrongfully collected by and paid to the State of Ohio. 

2. This action is brought by the United States under the direction of the Attorney 

General of the United States to vindicate the sovereign rights and pecuniary interests of the 

United States. 

3. Jurisdiction over this action is conferred upon this Court by 28 U.S.C. §§ 1331 

and 1345, because this is an action arising under the United States Constitution and is brought by 

the United States of America to obtain a declaratory and a monetary judgment regarding the 

liability of the United States for the motor vehicle taxes that the defendant collected from it from 

February 22, 2010 through November 30, 2015.\ 

4. Venue is Proper in this Court pursuant to 28 U.S.C. § 1391(b). 

Case: 2:18-cv-00225-GCS-EPD Doc #: 1 Filed: 03/16/18 Page: 1 of 5 PAGEID #: 1
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PARTIES

5. Plaintiff is the United States of America. 

6. Defendant State of Ohio is a governmental entity within the jurisdiction of this 

Court. It is named as a defendant because it imposes and collects taxes on motor vehicle fuel 

purchased by the United States of America by the Defense Logistics Agency, an agency of the 

United States Department of Defense. 

COUNT I 

The United States is Immune from Paying the 

State of Ohio Motor Vehicle Fuel Tax 

(Declaratory Relief) 

7. Plaintiff incorporates the allegations set forth in paragraphs 1 through 5 as if set 

forth fully herein.

8. Defendant imposes a tax on motor fuel excise tax on motor fuel dealers for receipt 

of motor fuel within the State of Ohio. Ohio Rev. Code § 5735.05(A). 

9. Because the tax is imposed on motor fuel dealers, motor fuel dealers include the 

Ohio motor fuel tax in the per-gallon price that they charge to consumers at the point of sale. 

10. Defendant exempts certain transactions from the imposition of the motor fuel tax 

including “the sale of motor fuel to the United States government or any of its agencies.” Ohio 

Rev. Code § 5735.05(A). 

11. Both motor fuel dealers and ultimate purchasers may, under Ohio law, request a 

refund of motor fuel taxes paid on transactions that are excepted from the imposition of the tax.

12. The United States Department of Defense Fleet Card Program uses a fuel charge 

card to provide the Department of Defense and the U.S. Coast Guard a means to procure ground 

fuel, parts, maintenance and roadside assistance worldwide at commercial service stations while 

conducting official government business. 

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13. When the holder of a Fleet Card uses it at a service station in the State of Ohio to 

purchase motor fuel, the price paid “at the pump” includes the Ohio motor fuel tax that has 

already been remitted to the state on a per-gallon basis by the dealer when it receives the fuel. 

14. From February 22, 2010 through November 30, 2015, the United States 

Department of Defense purchased 596,628.06 gallons of motor fuel within Ohio. 

15. Defendant collected $167,026.87 of motor fuel tax on the United States’ fuel 

purchases set forth in paragraph 14, which amounts were passed on to the United States and paid 

at the point of sale using the Fleet Card.

16. The United States is constitutionally immune under the Supremacy Clause of the 

United States Constitution (Article VI, Clause 2) from the motor fuel tax imposed by the State of 

Ohio because it is a tax, and the United States has not waived its immunity.

17. The United States is suffering actual harm by virtue of the continued imposition 

of the motor fuel tax upon it by the State of Ohio, that harm is ongoing because the United States 

continues to purchase motor fuel within the state for use in vehicles while conducting official 

government business.

COUNT II 

The United States is Entitled to a Refund of Motor Fuel Taxes it 

Paid On Purchases of Motor Fuel in Ohio 

(Implied Contract/Money Had and Received) 

18. Plaintiff incorporates the allegations set forth in paragraphs 1 through 17 of the 

complaint as if fully stated herein.

19. From February 22, 2010 through November 30, 2015, the United States of 

America, on behalf of the United States Department of Defense, wrongfully paid $167,026.87, 

which is equal to the amount of motor fuel tax calculated on a per-gallon basis imposed upon its 

fuel purchases by the defendant.

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20. On or about July 26, 2016, Ohio refunded to the United States $13,079.23 in 

motor fuel taxes for a portion of the period of February 22, 2010 through November 30, 2015.

21. Because the United States is constitutionally immune from the Ohio motor fuel 

tax, and because the motor fuel tax is included in the price of motor fuel that the United States 

pays at the point of sale, the State of Ohio is obligated to return to the United States an amount 

equal to the motor fuel taxes imposed on all sales of motor fuel to the United States by dealers 

within the state, calculated on a per-gallon basis.

22. Accordingly, the United States is entitled to a refund of $153,947.64 plus 

prejudgment interest because the State of Ohio is wrongfully refusing to return motor fuel taxes 

on transactions that are immune from the tax.

WHEREFORE, the United States prays as follows:

A. That this Court enter a judgment declaring that the motor fuel tax imposed by the 

State of Ohio under Ohio Rev. Code. § 5735.01, et seq., are an unconstitutional tax upon the 

United States, and therefore the United States is not liable to the defendant for the taxes imposed 

on the purchases of motor fuel by the United States within the;

B. That this Court enter a judgment directing defendant to return to the United States 

$153,947.64, reflecting the amount of motor fuel taxes imposed upon all sales of motor fuel to 

the United States by dealers within the state for the period of February 22, 2010 through 

November 30, 2015, along with prejudgment interest.

C. That this Court award the United States such other and further relief as this Court 

deems just and proper.

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Dated: March 16, 2018 

RICHARD E. ZUCKERMAN 

Principal Deputy Assistant Attorney General 

/s/ Thomas P. Cole 

THOMAS P. COLE 

Trial Attorney, Tax Division 

U.S Department of Justice 

P.O. Box 55 

Washington, DC 20044 

202-514-9611 (v) 

RYAN O. MCMONAGLE (applying pro 

hac vice) 

Trial Attorney, Tax Division 

U.S. Department of Justice 

P.O. Box 227 

Washington, D.C. 20044 

202-307-1355 (v) 

202-514-6866 (f) 

Ryan.McMonagle@usdoj.gov

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AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

__________ District of __________ 

)

)

)

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)

)

)

)

)

)

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Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you

are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.

P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of

the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,

whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. 

You also must file your answer or motion with the court.

CLERK OF COURT

Date:

Signature of Clerk or Deputy Clerk

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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

’ I personally served the summons on the individual at (place)

on (date) ; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) , who is

 designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:

Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

Case: 2:18-cv-00225-GCS-EPD Doc #: 1-1 Filed: 03/16/18 Page: 2 of 2 PAGEID #: 7
JS 44 (Rev. 06/17) CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as

provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the

purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF 

THE TRACT OF LAND INVOLVED.

 

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION(Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only) and One Box for Defendant) 

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF

Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

 of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5

Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.

CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act

’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC 

’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))

’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment

’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust

 & Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking

’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce

’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation

 Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and

 (Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit

 of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/

’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange

’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions

’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts

’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters

 Medical Malpractice Leave Act ’ 895 Freedom of Information

 REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act

’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration

’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure

’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of

’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision

’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of

’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes

 Employment Other: ’ 462 Naturalization Application

’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

 Other ’ 550 Civil Rights Actions

’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee -

 Conditions of 

 Confinement

V. ORIGIN (Place an “X” in One Box Only)

’ 1 Original

Proceeding

’ 2 Removed from

State Court

’ 3 Remanded from

Appellate Court

’ 4 Reinstated or

Reopened

’ 5 Transferred from

Another District

(specify)

’ 6 Multidistrict

Litigation -

Transfer

’ 8 Multidistrict

 Litigation - 

 Direct File

VI. CAUSE OF ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Brief description of cause:

VII. REQUESTED IN

 COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTION

UNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:

JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S)

 IF ANY (See instructions):

JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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JS 44 Reverse (Rev. 06/17)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as

required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is

required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of

Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use 

only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and 

then the official, giving both name and title.

 (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the 

time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land 

condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

 (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting

in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" 

in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment 

to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes 

precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the 

citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity 

cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this

section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code 

that is most applicable. Click here for: Nature of Suit Code Descriptions. 

V. Origin. Place an "X" in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. 

When the petition for removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing 

date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or 

multidistrict litigation transfers.

Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. 

Section 1407. 

Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket. 

PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to 

changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional 

statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket 

numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

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