RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0089p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

KENNETH HOOGERHEIDE,

 Plaintiff-Appellant,

v.

INTERNAL REVENUE SERVICE; UNITED

STATES OF AMERICA,

 Defendants-Appellees.

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No. 10-1126

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 08-00765—Janet T. Neff, District Judge.

Argued: March 8, 2011

Decided and Filed: April 12, 2011 

Before: BATCHELDER, Chief Judge; CLAY and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Matthew S. DePerno, DePERNO LAW OFFICE, PLLC, Mattawan,

Michigan, for Appellant. Jennifer M. Rubin, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Matthew S. DePerno,

DePERNO LAW OFFICE, PLLC, Mattawan, Michigan, for Appellant. Jennifer M.

Rubin, Deborah K. Snyder, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellees.

_________________

OPINION

_________________

SUTTON, Circuit Judge. After the Internal Revenue Service sold Kenneth

Hoogerheide’s property to offset unpaid taxes, Hoogerheide sued the IRS and several

of its employees. Many of the claims fell by the wayside for one reason or another,

leaving a money-damages claim against the United States, which the district court

1
No. 10-1126 Hoogerheide v. IRS et al. Page 2

dismissed for lack of jurisdiction. We affirm the dismissal, though not the explanation,

as Hoogerheide’s failure to exhaust the IRS’s administrative remedies did not deprive

the court of jurisdiction over the damages claim.

I.

Hoogerheide, like most everyone, owed the IRS taxes. Yet, unlike most

everyone, he neglected to pay them.

In May 2006, the IRS tried to collect some of his unpaid taxes by auctioning a

piece of real estate he owned. Hoogerheide responded by offering a compromise and,

later that month, by requesting a hearing. Over the next few months, Hoogerheide’s

counsel sent fifteen more letters to various IRS officials and the Taxpayer Advocate

Office about his situation. Some letters requested information under the Freedom of

Information Act, 5 U.S.C. § 552, while others focused on resolving or delaying the tax

collection action. The IRS sold Hoogerheide’s property on August 15, 2006.

Two years later, Hoogerheide filed this action against the IRS (later replaced by

the United States as the defendant) and several of its employees. The district court

dismissed all of the claims against the individual defendants for failure to prosecute

them. Hoogerheide withdrew most of the remaining claims, leaving a claim for damages

and a request for a temporary restraining order designed to stop the collection action and

return the auctioned property. See 26 U.S.C. § 7433. Because Hoogerheide failed to

exhaust his administrative remedies, the court dismissed the damages claim for lack of

subject matter jurisdiction and dismissed the request for a temporary restraining order

as moot. Hoogerheide appealed.

II.

The district court had good reason to assume that a plaintiff’s failure to exhaust

the IRS’s administrative remedies deprives the federal courts of subject matter

jurisdiction over a § 7433 damages action. We have said as much before. See, e.g.,

Fishburn v. Brown, 125 F.3d 979, 982 (6th Cir. 1997); Romp v. United States, 96 F.

App’x 978, 980 (6th Cir. 2004).
No. 10-1126 Hoogerheide v. IRS et al. Page 3

Since these decisions, however, the Supreme Court has changed course.

Concerned about the vanishing distinction between the mandatory requirements of a

cause of action and jurisdiction over that cause of action, the Court in 2006 drew an

“administrable bright line” between the two. Arbaugh v. Y & H Corp., 546 U.S. 500,

516 (2006). Here is the line:

If the Legislature clearly states that a threshold limitation on a statute’s

scope shall count as jurisdictional, then courts and litigants will be duly

instructed and will not be left to wrestle with the issue. . . . But when

Congress does not rank a statutory limitation on coverage as

jurisdictional, courts should treat the restriction as nonjurisdictional in

character. 

Id. at 515–16. Since Arbaugh, we have re-assessed the line between jurisdictional and

claims-processing requirements in several settings. See, e.g., Winnett v. Caterpillar,

Inc., 553 F.3d 1000, 1005–06 (6th Cir. 2009) (existence of union contract goes to the

merits, not to jurisdiction over a claim under the Labor Management Relations Act);

Allen v. Highlands Hosp. Corp., 545 F.3d 387, 401–02 (6th Cir. 2008) (administrative

exhaustion goes to a plaintiff’s right to relief, not to jurisdiction over a claim under the

Age Discrimination in Employment Act); Thomas v. Miller, 489 F.3d 293, 296 n.3 (6th

Cir. 2007) (numerosity requirement goes to the scope of liability, not to jurisdiction over

a claim under the Family Medical Leave Act).

In the aftermath of Arbaugh, it no longer is appropriate to treat the exhaustion

requirements for bringing a § 7433 claim as jurisdictional. Mandatory though the

exhaustion requirement in § 7433(d) may be, it is not jurisdictional.

Three interlocking statutes and regulations define the terms and conditions for

bringing this type of lawsuit. One, § 7433(a) permits a taxpayer to bring “a civil action

for damages against the United States” if “any officer or employee of the Internal

Revenue Service recklessly or intentionally, or by reason of negligence” violates a

provision of the Internal Revenue Code. 26 U.S.C. § 7433(a). Two, § 7433(d) provides

that “[a] judgment for damages shall not be awarded . . . unless the court determines that

the plaintiff has exhausted the administrative remedies available to such plaintiff.” Id.
No. 10-1126 Hoogerheide v. IRS et al. Page 4

§ 7433(d). Three, a Treasury Regulation provides one of the administrative remedies

that must be exhausted: “An administrative claim . . . shall be sent in writing to the Area

Director, Attn: Compliance Technical Support Manager of the area in which the taxpayer

currently resides.” 26 C.F.R. § 301.7433-1(e)(1). The regulation adds that this

administrative claim must include “[t]he dollar amount of the claim,” id. § 301.7433-

1(e)(2)(iv), “[a] description of the injuries incurred by the taxpayer filing the claim,” id.

§ 301.7433-1(e)(2)(iii), and “[t]he name, current address, current home and work

telephone numbers and any convenient times to be contacted . . . of the taxpayer making

the claim,” id. § 301.7433-1(e)(2)(i). 

Arbaugh’s “readily administrable bright[-]line” rule places this exhaustion

requirement on the nonjurisdictional side of the line. The requirement “does not speak

in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” Zipes

v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). It provides a limitation on an

“award” of a “judgment for damages,” 26 U.S.C. § 7433(d), not on the federal courts’

jurisdiction. “Under Arbaugh, we look to see if there is any ‘clear’ indication that

Congress wanted the rule to be ‘jurisdictional,’” and “[t]he terms of [§ 7433(d)] do not

suggest, much less provide clear evidence, that the provision was meant to carry

jurisdictional consequences.” Henderson v. Shinseki, __ U.S. __, 131 S. Ct. 1197, 1204

(2011).

Section 7433(d) “establishes a condition”—exhaustion—“that plaintiffs

ordinarily must satisfy before filing a[] . . . claim and invoking the [statute’s] remedial

provisions.” Reed Elsevier, Inc. v. Muchnick, __ U.S. __, 130 S. Ct. 1237, 1242 (2010).

Construing a similar provision, Reed Elsevier held that the Copyright Act’s registration

requirement was nonjurisdictional. Under the Copyright Act, “[t]he legal . . . owner of

an exclusive right under a copyright is entitled, subject to the requirements of section

411, to institute an action for . . . infringement.” 17 U.S.C. § 501(b). Section 411 of that

Act says that “no civil action for infringement . . . shall be instituted until preregistration

or registration . . . has been made.” The Court reasoned that it had “treated as
No. 10-1126 Hoogerheide v. IRS et al. Page 5

nonjurisdictional other types of threshold requirements that claimants must complete,

or exhaust, before filing a lawsuit.” 130 S. Ct. at 1246–47.

The Court has not wavered from this rule. Each time it has construed a statutory

requirement that a plaintiff proceed in another forum or seek redress in other ways

before coming to federal court, it has construed the requirement as nonjurisdictional.

See Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs, __ U.S. __, 130 S. Ct. 584 (2009)

(requirement to conference before seeking arbitration); Reed Elsevier, Inc., 130 S. Ct.

at 1248 (requirement to register copyright); Zipes, 455 U.S. at 393 (requirement to file

charge with EEOC before filing in court). 

It makes no difference that § 7433(d) requires a court to “determine[] that the

plaintiff has exhausted” available administrative remedies. What is mandatory is not

necessarily jurisdictional. The requirement simply imposes a precondition on an award

of damages, akin to other nonjurisdictional preconditions on a plaintiff’s right to relief.

Consider Jones v. Bock, 549 U.S. 199 (2007), which dealt with a similar

exhaustion requirement under the PLRA. “No action,” the law said, “shall be brought

with respect to prison conditions . . . until such administrative remedies as are available

are exhausted.” 42 U.S.C. § 1997e(a). “There is no question,” the Court acknowledged,

“that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be

brought in court.” Jones, 549 U.S. at 211. Yet the parties in Jones agreed that

exhaustion is “typically regard[ed] . . . as an affirmative defense,” and the Court

acknowledged that “[w]e have referred to exhaustion in these terms.” Id. at 212. The

PLRA’s “silen[ce] on the issue whether exhaustion” was an affirmative defense or an

element of a plaintiff’s claim, the Court reasoned, was “strong evidence that the usual

practice should be followed,” id., that the exhaustion requirement should be—and indeed

was—treated as an affirmative defense. The same is true here in two respects. An

exhaustion requirement generally will be treated as an affirmative defense, see Kim v.

United States, 632 F.3d 713 (D.C. Cir. 2011) (treating § 7433(d) as an affirmative

defense), and accordingly as a nonjurisdictional one, see Reed Elsevier, Inc., 130 S. Ct.

at 1246–47 & n.6; Allen v. Siebert, 552 U.S. 3, 6–7 (2007) (per curiam). And just as
No. 10-1126 Hoogerheide v. IRS et al. Page 6

silence in the PLRA about whether exhaustion is an element of a plaintiff’s claim

required courts to construe it as an affirmative defense, silence on whether § 7433(d) is

a jurisdictional requirement requires us to treat it as nonjurisdictional.

Context also shows that this “limitation” goes to a plaintiff’s right to relief, not

to his right to enter the federal courts. Another provision of the Internal Revenue Code,

indeed one in the same subsection of the statute, shows how an exhaustion requirement

might establish a jurisdictional requirement. Section 7422(a) provides that “No suit or

proceeding shall be maintained in any court for the recovery of any internal revenue tax

. . . until a claim . . . has been duly filed with the Secretary.” Id. (emphasis added).

Congress enacted § 7433(d), Pub. L. No. 100-647, Title VI, § 6240(a), 102 Stat. 3342,

3747 (1988), and recodified § 7433(d)’s exhaustion requirement, Pub. L. No. 105-206,

Title III, § 3102(a)(2), 112 Stat. 685, 730 (1998), against this backdrop, and nonetheless

it opted not to cast this requirement in jurisdictional terms. Different words have

different meanings. Prohibiting a “judgment for damages” is not the same as forbidding

any “suit or proceeding” from being “maintained in any court.” The latter is

jurisdictional; the former is not. See United States v. Dalm, 494 U.S. 596, 606 (1990);

cf. 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if the alien

has exhausted all administrative remedies.”). Congress even used the word

“jurisdiction” elsewhere in the same subtitle and conditioned district courts’ authority

on certain events. 26 U.S.C. §§ 7422(e) (“If the taxpayer files a petition with the Tax

Court, the district court or the United States Court of Federal Claims, as the case may

be, shall lose jurisdiction.”), 7426(b) (“The district court shall have jurisdiction to grant

only such of the following forms of relief as may be appropriate in the circumstances.”).

It conspicuously omitted from § 7433(d), however, similarly clear language that would

have tied a district court’s authority over a claim to a plaintiff’s exhaustion of

administrative remedies. See Henderson, 131 S. Ct. at 1205.

The United States responds that § 7433(d) is a term and condition of the United

States’ consent to suit and that the government’s consent “define[s] th[e] court’s

jurisdiction to entertain the suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). The
No. 10-1126 Hoogerheide v. IRS et al. Page 7

United States consented to be sued, however, in § 7433(a), and § 7433(d)’s exhaustion

requirement is not an express term or condition of that consent. Not every statutory

limitation on a plaintiff’s right to relief becomes jurisdictional in a suit against the

United States. See Henderson, 131 S. Ct. at 1206.

That the district court should not have dismissed this case for lack of jurisdiction

does not end the matter. It is quite possible that “nothing in the analysis . . . below

turned on the mistake [and] a remand would only require a new . . . label for the same

. . . conclusion.” Morrison v. Nat’l Austl. Bank Ltd., __ U.S. __, 130 S. Ct. 2869, 2877

(2010). This is just such a case. 

Hoogerheide did not exhaust his administrative remedies, and the United States

timely raised failure to exhaust as a defense in a motion to dismiss. For that reason his

claim must be dismissed. The relevant letters, all attached to his complaint and

incorporated by it, show that he failed to comply with the relevant exhaustion

requirements. None of the letters from Hoogerheide or Hoogerheide’s counsel are

addressed to “the Area Director, Attn: Compliance Technical Support Manager of the

area in which” Hoogerheide “resides.” 26 C.F.R. § 301.7433-1(e)(1). None of the

letters “include[s] . . . [t]he dollar amount of the claim.” Id. § 301.7433-1(e)(2)(iv). And

none of the letters mentions a claim for damages against the IRS. 

Hoogerheide claims that he substantially complied with the exhaustion

requirement. But the existence of such an exception seems doubtful in view of the

specificity of the Treasury regulations and the failure of Hoogerheide to identify any

authority for one in this setting. Even if such an exception exists, however, it is hard to

see how it would benefit Hoogerheide, given his failure to reference a claim for damages

or otherwise come close to complying with the applicable regulations in his letters.

Nor may we excuse this exhaustion requirement on futility grounds.

Section 7433(d) is mandatory. It is a congressionally established exhaustion imperative,

not a judicially created one, and accordingly the courts lack discretion to waive it. See

Booth v. Churner, 532 U.S. 731, 741 (2001).
No. 10-1126 Hoogerheide v. IRS et al. Page 8

Hoogerheide faults the district court for considering the United States’ motion,

which did not perfectly comply with the court’s scheduling order or local guidelines.

The court, however, had discretion to overlook errors in “its own local rules.” Valassis

Commc’ns, Inc. v. Aetna Cas. & Sur. Co., 97 F.3d 870, 873 (6th Cir. 1996). There is

also no evidence that any of these errors prejudiced Hoogerheide—he filed responses to

the purportedly defective motions—leaving us no reason to reverse the court’s order on

the ground that it declined to enforce a local rule or courtroom guideline. United States

v. Kingston, 922 F.2d 1234, 1240 (6th Cir. 1990). 

In his reply brief, Hoogerheide for the first time raises a concern about an ex

parte communication in the district court, namely that the government’s attorney spoke

to the court’s law clerk about a motion to dismiss. The argument comes too late, and

accordingly it is forfeited. As Hoogerheide conceded, at any rate, the United States

previously indicated that this conversation was a short, nonsubstantive exchange with

the clerk confirming that the court struck the United States’ first motion to dismiss

because it filed the motion before all of the filings were served. Nothing suggests the

conversation went beyond this, and nothing thus suggests the court should be reversed

on this ground. 

III.

For these reasons, we affirm the dismissal of this complaint on failure-to-exhaust

grounds.