United States Court of Appeals 

for the Federal Circuit ______________________

BANK OF AMERICA CORPORATION,

Plaintiff-Appellee

v.

UNITED STATES OF AMERICA,

Defendant-Appellant

______________________

2019-2357

______________________

Appeal from the United States District Court for the 

Western District of North Carolina in Nos. 3:17-cv-00546-

RJC-DSC, Chief Judge Robert James Conrad, Jr.

______________________

Decided: July 2, 2020

______________________

TIMOTHY S. BISHOP, Mayer Brown, LLP, Chicago, IL, 

argued for plaintiff-appellee. Also represented by 

MARJORIE MARGOLIES; GEOFFREY M. COLLINS, Croton-onHudson, NY; BRIAN WRIGHT KITTLE, New York, NY.

 NORAH BRINGER, Tax Division, United States Department of Justice, Washington, DC, argued for defendant-appellant. Also represented by ELLEN PAGE DELSOLE, 

RICHARD E. ZUCKERMAN. 

 ______________________

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Before LOURIE, LINN, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge. 

Appellee Bank of America Corporation (“Bank of America”) filed a complaint against Appellant the United States 

(“Government”) in the U.S. District Court for the Western 

District of North Carolina (“District Court”), seeking, inter 

alia, interest on Federal tax overpayments arising under

26 U.S.C. § 6611. The Government moved to sever Bank of 

America’s overpayment interest claims exceeding $10,000

and to transfer them to the U.S. Court of Federal Claims 

or, alternatively, to dismiss them for lack of subject matter 

jurisdiction. The District Court denied the Government’s 

motion. See Bank of Am. Corp. v. United States (“Order”), 

No. 3:17-cv-546-RJC-DSC, 2019 WL 2745856, at *4 

(W.D.N.C. July 1, 2019) (Order); see also Bank of Am. 

Corp. v. United States (“Recommendation”), No. 3:17-cv546-RJC-DSC, 2019 WL 1349687 (W.D.N.C. Jan. 10, 2019). 

The Government appeals. We have jurisdiction pursuant to 28 U.S.C. § 1292(d)(4)(A). We vacate and remand. 

BACKGROUND 

In January 2009, Bank of America acquired Merrill 

Lynch & Co., Inc. (“Merrill Lynch”). J.A. 13. In October 2013, Merrill Lynch “merged with and into” Bank of 

America. J.A. 13. In September 2017, Bank of America 

filed a complaint against the Government in the District 

Court, J.A. 1217, which, as amended, sought to recover 

overpaid interest on Federal tax underpayments as well as 

additional interest on Federal tax overpayments arising 

under 26 U.S.C. §§ 6601 and 6611, respectively, J.A. 10–22

(Third Amended Complaint); see 26 U.S.C. §§ 6601(a) (“If 

any amount of tax . . . is not paid . . . , interest on such 

amount . . . shall be paid for the period from such last date 

to the date paid.”), 6611(a) (“Interest shall be allowed and 

paid upon any overpayment in respect of any internal revenue tax[.]”). Relevant here, Bank of America sought to 

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recover additional overpayment interest arising from Federal tax overpayments made by Merrill Lynch (“the Merrill 

Lynch overpayment interest claims”). J.A. 10–11. 

In September 2018, the Government moved to sever 

the Merrill Lynch overpayment interest claims exceeding

$10,000, and requested that the District Court transfer 

them to the Court of Federal Claims or, alternatively, dismiss them for lack of subject matter jurisdiction. 

J.A. 1093–94; see J.A. 1088–114 (Brief in Support of Motion 

to Transfer or, in the Alternative, to Dismiss for Lack of 

Subject Matter Jurisdiction), 1117 (“Table Summarizing 

Relief Requested”).1, 2 

1 The parties distinguish overpayment interest 

claims “that accompany tax refund claims,” from those “for 

interest only,” the latter of which the parties refer to as 

“stand-alone” overpayment interest claims. Appellant’s 

Br. 1–2 n.1; see, e.g., id. at 1; Appellee’s Br. 3. While it is 

unclear from the record whether all of the Merrill Lynch 

overpayment interest claims are “stand-alone” claims, see

J.A. 18 (Bank of America explaining only that “[t]he 

amounts sought in [its] Third Amended Complaint do not 

include” “certain refunds for Merrill Lynch” (emphasis 

added)), the parties agree that each of the overpayment interest claims sought to be severed by the Government, is a 

“stand-alone” claim, see Appellant’s Br. 1; Appellee’s Br. 3. 

2 Presumably, the Government did not move to 

transfer or dismiss the Merrill Lynch overpayment interest 

claims not exceeding $10,000, based on the Government’s 

understanding that district courts have jurisdiction concurrent with the Court of Federal Claims over overpayment interest claims not exceeding $10,000. See

Appellant’s Br. 1–2 n.1 (asserting that “[u]nder 28 U.S.C. 

§ 1346(a)(2), overpayment interest claims not exceeding 

$10,000 may be brought in district court”); id. at 8 (similar); 

see also 28 U.S.C. § 1346(a)(2) (providing, in relevant part, 

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In January 2019, the Magistrate Judge assigned to the 

case found that “[t]he weight of authority . . . has upheld” 

the conclusion that district courts have “subject matter jurisdiction over overpayment interest claims pursuant to 

28 U.S.C. § 1346(a)(1)[,]” Recommendation, 2019 WL

1349687, at *2 (citing E.W. Scripps Co. v. United States, 

420 F.3d 589, 596–97, 598 (6th Cir. 2005)), and recommended that the Government’s Motion be denied, id. at *3. 

In July 2019, the District Court affirmed and adopted the 

Magistrate Judge’s recommendation, and denied the Government’s Motion. Order, 2019 WL 2745856, at *4. 

DISCUSSION 

The sole issue on appeal is whether 28 U.S.C. 

§ 1346(a)(1) provides district courts with jurisdiction over 

“stand-alone” overpayment interest claims exceeding

$10,000. See Appellant’s Br. 1; Appellee’s Br. 3; see also

Apple Inc. v. Samsung Elecs. Co., 839 F.3d 1034, 1039 (Fed. 

Cir. 2016) (en banc) (explaining that our “function [i]s limited to deciding” only those “issues raised on appeal by the 

parties”). Because the plain language of § 1346(a)(1) excludes overpayment interest claims, we hold that it does

not. 

I. Standard of Review and Legal Standard 

“Under 28 U.S.C. § 1292(d)(4)(A), our jurisdiction is restricted to a review of [a] district court’s denial of [a] motion 

to transfer . . . to the Court of Federal Claims. We conduct 

this review de novo.” Souders v. S.C. Pub. Serv. Auth., 497 

F.3d 1303, 1307 (Fed. Cir. 2007) (footnote omitted); see

28 U.S.C. § 1292(d)(4)(A) (providing, in relevant part, that 

that “district courts shall have original jurisdiction, concurrent with the . . . Court of Federal Claims, of . . . [a]ny other 

civil action or claim against the United States, not exceeding $10,000 in amount, founded . . . upon any Act of Congress”). 

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we “have exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States . . . 

granting or denying, in whole or in part, a motion to transfer an action to the . . . Court of Federal Claims”). 

“Statutory interpretation is an issue of law that we review de novo.” Power Integrations, Inc. v. Semiconductor 

Components Indus., LLC, 926 F.3d 1306, 1313 (Fed. 

Cir. 2019) (citation omitted). “When [construing] any statute, we look first to the statutory language.” Strategic 

Hous. Fin. Corp. of Travis Cty. v. United States, 608 F.3d 

1317, 1323 (Fed. Cir. 2010) (citing Jimenez v. Quarterman, 

555 U.S. 113, 118 (2009); Lamie v. U.S. Tr., 540 U.S. 526, 

534 (2004)); see Star Athletica, L.L.C. v. Varsity Brands, 

Inc., 137 S. Ct. 1002, 1010 (2017) (“We . . . begin and end 

our inquiry with the text, giving each word its ‘ordinary, 

contemporary, common meaning.’” (quoting Walters v. 

Metro. Ed. Enters., Inc., 519 U.S. 202, 207 (1997))). If the 

statutory language is clear, “and the legislative history 

does not show that congressional intent was clearly contrary to the section’s apparent meaning, th[e] meaning of 

the statute controls, and there is nothing else for us to review.” DeCosta v. United States, 987 F.2d 1556, 1558 (Fed. 

Cir. 1993) (footnote and citation omitted). Our construction “must,” however, “to the extent possible, ensure that 

the statutory scheme is coherent and consistent.” Ali v. 

Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008). 

“If a taxpayer overpays its taxes, the [Internal Revenue 

Service (‘IRS’)] owes the taxpayer interest on that 

amount[.]” Energy E. Corp. v. United States, 645 F.3d 

1358, 1359 (Fed. Cir. 2011); see 26 U.S.C. § 6611(a). District courts

have original jurisdiction, concurrent with the . . . 

Court of Federal Claims, of . . . [a]ny civil action 

against the United States for the recovery of any 

internal-revenue tax alleged to have been erroneously or illegally assessed or collected, or any 

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penalty claimed to have been collected without authority or any sum alleged to have been excessive 

or in any manner wrongfully collected under the 

internal-revenue laws[.] 

28 U.S.C. § 1346(a)(1). 

II. The District Court Improperly Concluded that 

28 U.S.C. § 1346(a)(1) Provides Districts Courts with 

Jurisdiction over Overpayment Interest Claims

The District Court concluded that 28 U.S.C. 

§ 1346(a)(1) provides district courts with jurisdiction over 

overpayment interest claims. See Order, 2019 WL 

2745856, at *1. The District Court found the U.S. Court of 

Appeals for the Sixth Circuit’s “rationale in Scripps [to be]

persuasive[,]” id. at *2 (citing Scripps, 420 F.3d at 597), 

and like “most courts that have considered the issue[,]” determined that “the broad language of § 1346(a)(1)—specifically the phrase ‘any sum’—includes overpayment 

interest[,]” id. Thus, the District Court concluded, with 

minimal additional analysis, that it had jurisdiction over 

the Merrill Lynch overpayment interest claims, including 

those exceeding $10,000. See id. at *4.3 The Government 

contends that the District Court erred, however, as 

“Scripps rests on flawed reasoning[,]”and instead argues 

that we should adopt the U.S. Court of Appeals for the Second Circuit’s rationale in Pfizer Inc. v. United States, 939 

F.3d 173 (2d Cir. 2019), to reach the opposite conclusion,

Appellant’s Br. 26–27. For all the reasons discussed below, 

we agree with the Government. 

3 Although asked repeatedly to explain the lack of 

analysis in the District Court’s Order, counsel for Bank of 

America failed to provide any explanation. See Oral Arg. 

at 18:43–21:05, http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2019-2357.mp3. 

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A. The Plain Language of 28 U.S.C. § 1346(a)(1) Excludes 

Overpayment Interest Claims 

When interpreting a statute, we begin with the statutory language. See Strategic Hous., 608 F.3d at 1323. To 

fall within the scope of § 1346(a)(1), Bank of America’s 

overpayment interest claims must be an “action . . . for the 

recovery” of one of three things: (1) an “internal-revenue 

tax alleged to have been erroneously or illegally assessed 

or collected”; (2) a “penalty claimed to have been collected 

without authority”; or (3) “any sum alleged to have been 

excessive or in any manner wrongfully collected under the 

internal-revenue laws[.]” 28 U.S.C. § 1346(a)(1). We agree 

with the Second Circuit’s analysis in Pfizer—and neither 

party disputes—that “[t]he first two categories listed in 

§ 1346(a)(1) plainly do not apply in this case[,]” as overpayment interest claims are neither an “internal-revenue tax”

nor a “penalty.” Pfizer, 939 F.3d at 176; see id. at 176–77. 

See generally Appellant’s Br.; Appellee’s Br. 

Turning to the third category of § 1346(a)(1), again, we

agree with the Second Circuit, and conclude that the plain 

language of the statute dictates that this category—and 

particularly the term “any sum”—refers to amounts that 

have been previously paid to, or collected by, the IRS, 

which excludes overpayment interest. See Pfizer, 939 F.3d 

at 178 (“Th[e] statute contemplates an amount of money—

a ‘sum’—previously assessed or retained by the [G]overnment[.]”); id. at 179 (“Overpayment interest is not such an 

amount, and so it does not fall with the meaning of ‘any 

sum[.]’”). The text of § 1346(a)(1) requires that the “sum”

sought to be recovered must “have been excessive or . . .

wrongfully collected[.]” 28 U.S.C. § 1346(a)(1) (emphasis 

added). Congress’s use of the present-perfect tense “have 

been,” “indicates that the ‘sum’ must have been ‘excessive’ 

or ‘wrongfully collected’ at some point in the past[.]” Pfizer, 

939 F.3d at 179; see THE CHICAGO MANUAL OF STYLE § 5.132

(17th ed. 2017) (“The present-perfect tense . . . denotes an 

act, state, or condition that is now completed or continues 

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up to the present[.]”). Additionally, while the term “any 

sum” “in isolation” may be “susceptible of multiple and 

wide-ranging meanings[,]” in the context of § 1346(a)(1), 

the term is properly “narrowed by the commonsense canon 

of noscitur a sociis—which counsels that a word is given 

more precise content by the neighboring words with which 

it is associated.” United States v. Williams, 553 U.S. 285, 

294 (2008). Specifically, “any sum” is recited within 

§ 1346(a)(1) as the last in a list of “terms that plainly refer 

to amounts [a] taxpayer has previously paid[,]” namely, 

taxes and penalties as recited in the first two categories of

§ 1346(a)(1). Pfizer, 939 F.3d at 178–79. Construing “any 

sum” “in harmony with these more specific terms” thus reinforces the conclusion that “any sum” refers to an amount 

that has been “excessive” or “wrongfully collected” at some 

point in the past. Id. at 178. Accordingly, the plain language of § 1346(a)(1) dictates that the term “any sum” refers to amounts that have been previously paid to, or 

collected by, the IRS, which, overpayment interest “[b]y its 

nature, . . . is not[.]” Id. at 179; see Int’l Bus. Machines 

Corp. v. United States, 201 F.3d 1367, 1372 (Fed. Cir. 2000) 

(“If th[e] language [of the statute] is clear and unambiguous, then it controls[.]”). 

B. The Plain Meaning of 28 U.S.C. § 1346(a)(1) Is 

Consistent with the Tax Code’s Broader Statutory Scheme 

The conclusion that § 1346(a)(1) does not cover overpayment interest claims is consistent with the tax code’s 

broader statutory scheme, see Ali, 552 U.S. at 222, particularly the tax code’s disparate treatment of overpayment 

interest, see Alexander Proudfoot Co. v. United States, 454 

F.2d 1379, 1384 (Ct. Cl. 1972) (explaining that the “[tax] 

[c]ode deals quite differently with . . . interest payable by 

the Government on overpayments”). For example, while 

the tax code explicitly provides that underpayment interest 

is to be treated as a tax, see 26 U.S.C. § 6601(e)(1) (entitled, 

“Interest treated as tax[,]” and providing, in relevant part, 

that underpayment interest “shall be assessed, collected, 

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and paid in the same manner as taxes”), the code grants no 

similar consideration to overpayment interest, see, e.g., id.

§ 6611(a) (providing that “[i]nterest shall be allowed and 

paid upon any overpayment in respect of any internal revenue tax” without requiring that such interest be treated 

as a tax). Additionally, while the tax code prescribes a limitations period within which a claim for credit or refund, 

including claims for underpayment interest, must be filed, 

see id. § 6511(a) (providing a limitations period for filing a 

“[c]laim for credit or refund of an overpayment of any tax 

imposed”); see also United States v. Dalm, 494 U.S. 596, 

601 (1990) (explaining that “§ 1346(a)(1) must be read in 

conformity with” § 6511(a)), no such limitations period is 

provided for the recovery of overpayment interest. Instead, 

overpayment interest claims are governed by “the general 

six-year [limitations period] that applies to suits against 

the [G]overnment[.]” Gen. Elec. Co. & Subsidiaries v. 

United States, 384 F.3d 1307, 1312 (Fed. Cir. 2004); see 

28 U.S.C. § 2401(a) (providing that “every civil action commenced against the United States shall be barred unless 

the complaint is filed within six years after the right of action first accrues”). 

Finally, the Supreme Court has instructed that 

§ 1346(a)(1) “must [also] be read in conformity with” 

26 U.S.C. § 7422(a). Dalm, 494 U.S. at 601. Section 7422(a) recites language identical to that at issue in 

§ 1346(a)(1).4 As the District Court noted, “a plain reading 

4 Section 7422(a) provides that 

[n]o suit or proceeding 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 penalty claimed to 

have been collected without authority, or of any 

sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or 

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of the qualifying header in § 7422(a)—‘No suit prior to filing claim for refund’—explicitly limits [the statute] to refund suits.” Order, 2019 WL 2745856, at *3. While the 

District Court found it significant “that § 1346(a)(1) includes no such heading[,]” id., we find Congress’s use of 

identical language more telling, see Sorenson v. Sec’y of the 

Treasury., 475 U.S. 851, 860 (1986) (“The normal rule of 

statutory construction assumes that identical words used 

in different parts of the same act are intended to have the 

same meaning.” (internal quotation marks and citation 

omitted)); see also Caminetti v. United States, 242 U.S. 470, 

489 (1917) (explaining that “the title of an act cannot overcome the meaning of plain and unambiguous words used in 

its body”). Accordingly, the conclusion that § 1346(a)(1) 

does not cover overpayment interest claims is consistent 

with the tax code’s broader statutory scheme.5 

credit has been duly filed with the Secretary, according to the provisions of law in that regard, and 

the regulations of the Secretary established in pursuance thereof. 

26 U.S.C. § 7422(a) (emphasis added). 

5 Apart from the tax code, Congress requires district 

courts to allow overpayment interest “[i]n any judgment” 

awarding a refund for tax overpayment. 28 U.S.C. § 2411. 

Thus, if § 1346(a)(1) were construed to cover overpayment 

interest claims, which, by definition, include overpayment

interest claims that accompany tax refund claims, § 2411 

would be rendered essentially superfluous. See Ishida v. 

United States, 59 F.3d 1224, 1230 (Fed. Cir. 1995) (“The 

rules of statutory construction require a reading that 

avoids rendering superfluous any provision of a statute.”). 

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C. The Legislative History of 28 U.S.C. § 1346(a)(1) Does 

Not Clearly Contradict the Plain Meaning of the Statute6 

Turning to the legislative history of § 1346(a)(1), we 

discern “no ‘clearly expressed legislative intent . . . ’ that 

would warrant a different construction” than that dictated 

by the statute’s plain language. Nat’l Org. for Women, 

Inc. v. Scheidler, 510 U.S. 249, 261 (1994) (quoting Reves v. 

Ernst & Young, 507 U.S. 170, 177 (1993)); see DeCosta, 987 

F.2d at 1558. Rather, the legislative history is, at best, ambiguous, lacking any “clear expression” of congressional intent to include overpayment interest claims within the 

scope § 1346(a)(1). Aaron v. Sec. & Exch. Comm’n, 446 U.S. 

680, 697 (1980); see Milner v. Dep’t of Navy, 562 U.S. 562, 

572 (2011) (“We will not . . . allow[] ambiguous legislative 

history to muddy clear statutory language.”).

During a hearing before a subcommittee (“the Subcommittee”) of the U.S. Senate Committee on the Judiciary, a 

witness raised the question of whether Congress should 

further amend § 1346(a)(1) to include overpayment interest claims. See Civil Actions in District Courts to Recover 

Taxes: Hearing Before a Subcommittee of the S. Comm. on 

the Judiciary on S. 252 (“Senate Hearing”), 83rd Cong. 12

(1953) (statement of J. G. Sourwine, counsel to the Subcommittee) (“[T]here is a question involved of whether there 

should be an amendment of [the] statute . . . , in order to 

cover . . . th[e] . . . authority to sue for interest withheld[.]”). 

6 “Although we do not believe the statutory language 

[of § 1346(a)(1)] is ambiguous, we nonetheless consider the 

legislative history” addressed by the parties on appeal. 

California v. Am. Stores Co., 495 U.S. 271, 285 (1990). 

Compare Appellant’s Br. 54–58 (arguing that “[t]he legislative history supports limiting § 1346(a)(1) to refund 

claims”), with Appellee’s Br. 35–43 (arguing that “[t]he legislative history of [§] 1346(a)(1) confirms that it grants jurisdiction for overpayment interest claims”). 

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The Subcommittee, however, left this question unanswered. Indeed, despite recommendations to “redraft[]” 

§ 1346(a)(1) to make the statute’s scope—and thus, Congress’s intent—“clear” concerning the inclusion of claims 

for interest, Senate Hearing at 11 (statement of W. A. Sutherland, on behalf of the Tax Section, American Bar Association); see, e.g., id. (statement of W. A. Sutherland) 

(expressing his desire to “see [§ 1346(a)(1)] broadened . . . 

to cover” interest claims by the use of “some other” language), 14 (statement of George H. Foster) (proposing that 

“a suit for . . . interest . . . might be . . . covered” under 

§ 1346(a)(1) “with [the] language . . . used to confer jurisdiction on the Court of Claims”), the statute was not further amended. Whether the Subcommittee “thought 

the[se] [recommendations] unwise . . . or unnecessary, we 

cannot tell; accordingly, no inference can properly be 

drawn from [its] failure . . . to act.” United States v. Price, 

361 U.S. 304, 312 (1960). 

On appeal, much of Bank of America’s arguments concern the import of witness testimony before the Subcommittee. See, e.g., Appellee’s Br. 21–23, 40–41. “Such 

testimony[,]” however, “should not be accorded undue 

weight as an indication of legislative intent, . . . since the 

views expressed by witnesses at congressional hearings are 

not necessarily the same as those of the legislators ultimately voting on the bill.” Austasia Intermodal Lines, 

Ltd. v. Fed. Mar. Comm’n, 580 F.2d 642, 645 (D.C. 

Cir. 1978) (citing McCaughn v. Hershey Chocolate Co., 283 

U.S. 488, 493–94 (1931) (explaining that “statements . . . 

made to committees of Congress . . . are without weight in 

the interpretation of a statute”)).7 Moreover, the witness 

7 To the extent Bank of America relies on statements 

of a legislator, those statements are irrelevant to the issue 

raised on appeal. See Appellee’s Br. 8–10 (quoting 61 

CONG. REC. 7444, 7506 (1921) (statement of Sen. Jones) 

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testimony on which Bank of America relies is inconclusive, 

with the witnesses disagreeing as to the relevant scope of 

§ 1346(a)(1). Compare, e.g., Senate Hearing at 14 (statement of W. A. Sutherland) (explaining that he could 

“hardly see how” a taxpayer could bring a claim for recovery of interest in a district court “under the language of the 

statute”), with id. (statement of Maso B. Leming, Assistant 

Chief Counsel, Bureau of Internal Revenue) (agreeing that 

under the language of § 1346(a)(1) “a taxpayer could bring 

his action for the recovery of interest”). Bank of America 

also overstates the significance of a letter sent to the Subcommittee, see Appellee’s Br. 15, 22, purporting to show

that district courts had previously exercised jurisdiction 

over “a number of suits . . . for interest[,]” Senate Hearing

at 12 (statement of Maso B. Leming). In fact, the letter 

(not addressing stand-alone overpayment interest claims, 

but explaining, in relevant part, that he proposed to amend 

the jurisdictional provision that is now § 1346(a)(1), to 

“remedy th[e] situation” caused by the Supreme Court’s decision in Smietanka v. Indiana Steel Co., 257 U.S. 1 (1921), 

holding that a suit against a deceased tax collector could 

not be maintained, “by providing that . . . claimant[s] may 

sue the United States” in district courts)); see also Flora v. 

United States, 357 U.S. 63, 71–72 (1960) (explaining that 

the “narrow-stated purpose” of Senator Jones’s proposed 

amendment “refutes any suggestion that Congress intended . . . to expand or even to restate the jurisdiction 

of . . . [d]istrict [c]ourt[s] in refund suits”). Additionally, 

the statements cited by Bank of America concern “the 

views of [only] a single legislator,” which “are not controlling.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 385 

(2012); see Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980) (“[O]rdinarily even the 

contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history.”). 

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identified only six cases concerning claims “for the recovery 

of interest[.]” Senate Hearing at 13. Of these six cases, the 

“district court declined jurisdiction” in two them, and of the 

remaining four cases, the letter acknowledged that in “only 

[two] cases . . . was the [c]ourt’s jurisdiction questioned.” 

Id. In a first of these two cases, the letter explained that 

the district court “assumed jurisdiction” under a since-superseded statute, and that in the second, the district court 

“entertained jurisdiction” under a different subsection entirely, namely, 28 U.S.C. § 1346(a)(2). Id. The letter is, at 

best, unhelpful. 

In sum, on this record, we discern “no . . . ‘clearly expressed legislative intent . . . contrary’” to the plain language of § 1346(a)(1). Scheidler, 510 U.S. at 261 (quoting 

Reves, 507 U.S. at 177); see DeCosta, 987 F.2d at 1558; see

also Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 634 

n.9 (2018) (“Although the parties paint dueling portraits of 

the legislative history, the murky waters of the Congressional Record do not provide helpful guidance in illuminating Congress’s intent in this case.”). Accordingly, the plain 

meaning of § 1346(a)(1) controls. See Aaron, 446 U.S. 

at 697; Milner, 562 U.S. at 572. 

D. The District Court’s Reliance on Scripps Was 

Misplaced 

The District Court’s reliance on Scripps was misplaced. 

In Scripps, the Sixth Circuit did not engage in the “wordby-word analysis” we endorsed when construing the identical language of § 7422(a). Strategic Hous., 608 F.3d 

at 1326; see id. (explaining that “[a] word-by-word analysis” of § 7422(a) “demonstrates that a claim to recover an 

arbitrage rebate would be a claim to recover ‘any sum alleged to have been excessive or in any manner wrongfully 

collected’”). Instead, the Sixth Circuit considered the 

phrase “excessive sum,” which is not used in the entirety of

§ 1346. See Scripps, 420 F.3d at 597 (“Moreover, the ‘excessive sum’ phrase does encompass suits seeking recovery of 

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statutory interest on overpayments . . . . If the Government 

does not compensate the taxpayer for the time-value of the 

tax overpayment, the Government has retained more 

money than it is due, i.e., an ‘excessive sum.’” (emphases 

added)); see also 28 U.S.C. § 1346(a)(1) (providing district 

courts with jurisdiction over “any sum alleged to have been

excessive[,]”not over any “excessive sum” (emphasis 

added)). 

Moreover, as the Second Circuit recognized in Pfizer, 

the Sixth Circuit’s conclusion in Scripps—as with Bank of 

America’s arguments on appeal—is based, in large part, on 

an incorrect reading of Flora v. United States (“Flora II”), 

362 U.S. 145 (1960). In Flora II, the Supreme Court explained that “‘any sum,’ instead of being related to ‘any internal-revenue tax’ and ‘any penalty,’ may refer to amounts 

which are neither taxes nor penalties[,]” and that “[o]ne obvious example of such a ‘sum’ is interest.” Id. at 149 (emphasis added); see Scripps, 420 F.3d at 597 (stating that, in 

Flora II, the “the Supreme Court [held] that the term ‘any 

sum’ includes interest”). We agree with the Second Circuit, 

however, that “[r]ead properly,” the Supreme Court in 

Flora II “plainly had additional tax assessments in view 

when it mention[ed] ‘interest’ as a ‘sum’ under 

§ 1346(a)(1).” Pfizer, 939 F.3d at 178. Indeed, the Supreme 

Court found “it . . . significant that many old tax statutes 

described the amount which was to be assessed under certain circumstances as a ‘sum’ to be added to the tax, simply 

as a ‘sum,’ as a ‘percentum,’ or as ‘costs.’” Flora II, 362 U.S. 

at 149–50 (emphasis added). Thus, “Flora [II] is inapplicable to the question we face.” Pfizer, 939 F.3d at 177. 

Accordingly, the District Court improperly concluded 

that § 1346(a)(1) provided it with jurisdiction over the Merrill Lynch overpayment interest claims. Rather, the Court 

of Federal Claims has exclusive jurisdiction over those

claims, see 28 U.S.C. § 1491(a)(1) (providing, in relevant 

part, that “[t]he . . . Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the 

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United States founded . . . upon . . . any Act of Congress”); 

cf. Gen. Elec., 384 F.3d at 1312 (explaining that overpayment interest is “a general debt of the [G]overnment, which 

is not subject to the special rules associated with the adjustment and collection of obligations under the tax laws”), 

and therefore, those claims must be severed and transferred. 

CONCLUSION 

We have considered Bank of America’s remaining arguments and find them unpersuasive. Accordingly, the Order of the U.S. District Court for the Western District of 

North Carolina is 

VACATED AND THE CASE IS REMANDED 

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