2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-2008

Umland v. Planco Fin Ser Inc

Precedential or Non-Precedential: Precedential

Docket No. 06-4688

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-4688

 

CARRIE UMLAND, on behalf of herself

and all others similarly situated,

Appellant

v.

PLANCO FINANCIAL SERVICES, INC.

 

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 05-cv-06806)

District Judge: Honorable J. William Ditter, Jr.

 

Argued November 6, 2007

Before: SCIRICA, Chief Judge, AMBRO, 

and JORDAN, Circuit Judges

(Opinion filed: September 9, 2008)
2

Robert L. King, Esquire (Argued)

505 North Seventh Street

Suite 3600

St. Louis, MO 63101

Counsel for Appellant

James N. Boudreau, Esquire (Argued)

Littler Mendelson

1601 Cherry Street, Suite 1400

Three Parkway

Philadelphia, PA 19102

Counsel for Appellee

 

OPINION OF THE COURT

 

AMBRO, Circuit Judge

Carrie Umland worked for PLANCO Financial Services,

Inc. from 2000 to 2005. She argues that PLANCO misclassified

her as an independent contractor for several years. She also

alleges that, after finally reclassifying her as an employee,

PLANCO deducted its share of the Federal Insurance

Contributions Act (FICA) taxes—owed as a result of Umland’s

status as an employee—from her paychecks. The United States
 We describe these tasks and requirements in a cursory 1

fashion because our decision will not turn on those particular

facts.

3

District Court for the Eastern District of Pennsylvania dismissed

Umland’s putative class action, consisting of state-law claims

for breach of contract and unjust enrichment, as preempted by

federal income tax law. We affirm, albeit for reasons different

from those of the District Court.

I. Facts and Procedural History

In November 2000, Umland began working for

PLANCO, a wholly owned subsidiary of The Hartford Financial

Services Group, Inc. PLANCO sells annuities, mutual funds,

and other financial products at wholesale. Umland served as a

Regional Marketing Director for PLANCO. Her job involved

marketing financial products, such as mutual funds and

insurance, of The Hartford. She was not allowed to affiliate

with or sell the products of other financial services companies.

As a Regional Marketing Director, Umland had to

perform numerous tasks for PLANCO and comply with

company requirements. For example, she underwent training, 1

lived within the boundary of her sales territory, made a required

minimum number of sales calls per day, participated in

conference calls, and adopted company talking points in her

sales calls. Although Umland alleges that PLANCO exerted a
 Section 1401(a) “impose[s] for each taxable year, on the 2

self-employment income of every individual, a[n old-age,

survivors, and disability insurance] tax equal to” 12.4 percent

during taxable years beginning after December 31, 1989. 26

U.S.C. § 1401(a). Section 1401(b) “impose[s] for each taxable

year, on the self-employment income of every individual, a

[hospital insurance] tax equal to” 2.9 percent during taxable

years beginning after December 31, 1985. Id. § 1401(b). The

sum of these two taxes yields a total self-employment tax of

15.3 percent. Self-employed individuals may deduct half the

SECA tax. See 26 U.S.C. § 1402(a)(12).

4

high degree of control over her work, PLANCO classified

Umland and her fellow Regional Marketing Directors as

independent contractors rather than employees.

When PLANCO hired Umland, she signed an

“Independent Contractor Agreement.” As a result of this

classification, Umland and her fellow Regional Marketing

Directors were required to remit 15.3 percent of their selfemployment income in taxes under the Self-Employment

Contributions Act (SECA), 26 U.S.C. §§ 1401–03. (SECA 2

imposes the equivalent of the sum of the employee and

employer FICA taxes for employees.) Thus, PLANCO did not

withhold taxes from Umland's paychecks, nor did it pay

employer FICA taxes on Umland's wages. This arrangement

continued for over three years.
Umland’s brief does not state explicitly whether she 3

accepted the offer of employment or signed the agreement. Her

brief blurs this factual issue by arguing that “PLANCO

unilaterally re-classified its [Regional Marketing Directors] as

employees.” Umland’s Br. 12. But she continued working for

PLANCO after January 1, 2004, an undisputed fact that suggests

that she did accept and sign the contract, contradicting the

adverb “unilaterally” in the above quote from her brief. In

addition, Umland asserted to the District Court that the

choice-of-law provisions of the employment agreement govern

this case, which further suggests that she signed the agreement.

Section 3101(a) “impose[s] on the income of every 4

individual a[n old-age, survivors, and disability insurance] tax

equal to” 6.2 percent “of the wages . . . received by him with

5

In a letter dated December 9, 2003, PLANCO “offered to

make [Umland] a [PLANCO] employee as a Regional

Marketing Director” with an effective date of January 1, 2004.

PLANCO enclosed an “Employee Confidentiality,

Non-Solicitation, and Work Product Ownership Agreement”

with its offer. Umland alleges that her title and her job 3

characteristics remained the same, notwithstanding the

reclassification from independent contractor to employee. What

did change was PLANCO’s withholding scheme for Umland’s

paychecks. As of January 1, 2004, PLANCO allegedly withheld

15.3 percent, which equals the sum of two distinct amounts of

7.65 percent each: (1) Umland’s employee tax under FICA, 26

U.S.C. § 3101; and (2) PLANCO’s employer tax under FICA,

4
respect to employment” during the taxable year 1990 and

thereafter. 26 U.S.C. § 3101(a). Section 3101(b) “impose[s] on

the income of every individual a [hospital insurance] tax equal

to” 1.45 percent “of the wages . . . received by him with respect

to employment” for wages received after December 31, 1985.

Id. § 3101(b). The sum of these two taxes yields a total

employee FICA tax of 7.65 percent. Wages and employment for

purposes of § 3101 are defined in 26 U.S.C. § 3121.

 Section 3111(a) “impose[s] on every employer an excise tax 5

[for old-age, survivors, and disability insurance], with respect to

having individuals in his employ, equal to” 6.2 percent “of the

wages . . . paid by him with respect to employment” during the

taxable year 1990 and thereafter. 26 U.S.C. § 3111(a). Section

3111(b) “impose[s] on every employer an excise tax [for

hospital insurance], with respect to having individuals in his

employ, equal to” 1.45 percent “of the wages . . . paid by him

with respect to employment” after December 31, 1985. Id.

§ 3111(b). The sum of these two taxes yields a total employer

FICA tax of 7.65 percent. Wages and employment for purposes

of § 3111—as for § 3101—are defined in 26 U.S.C. § 3121.

6

26 U.S.C. § 3111. Umland stopped working for PLANCO on 5

July 1, 2005. Approximately one month later, PLANCO

allegedly ceased withholding amount (2), the employer FICA

tax, and deducted only amount (1), the employee FICA tax, from

the paychecks of its remaining Regional Marketing Directors.

On December 30, 2005, Umland filed a class-action

lawsuit, on behalf of all PLANCO’s Regional Marketing
 Section 9.1(13) provides that deductions other than those 6

listed in the previous subsections of § 9.1 must be “authorized

in writing by employe[e]s as in the discretion of the Department

is proper and in conformity with the intent and purpose of the

Wage Payment and Collection Law (43 [Pa. C.S.A.]

7

Directors, seeking recovery of two distinct sums. First, for the

period from November 20, 2000 through December 31, 2003,

Umland claims that PLANCO owes her and those similarly

situated half of the SECA taxes they paid during this time

because they should have been classified as employees (in which

case the total FICA tax would have been split between an

employee FICA tax and an employer FICA tax). Second, for the

period from January 1, 2004 through July 1, 2005, Umland

claims that PLANCO owes her and those similarly situated the

sums withheld from their paychecks corresponding to the

employer’s share of FICA taxes under 26 U.S.C. § 3111.

Umland, on behalf of the class, seeks to recover these

two sums on the basis of three state-law claims outlined in the

complaint: (1) breach of contract, because all employment

contracts incorporate the requirements of federal law, including

FICA, 26 U.S.C. §§ 3101-28; (2) breach of contract, because all

employment contracts incorporate the requirements of state law,

including Pennsylvania's requirement that “other deductions”

not enumerated as authorized by law in the Pennsylvania

Administrative Code receive written authorization from

employees, 34 Pa. Code § 9.1(13); and (3) unjust enrichment. 6
§§ 260.1—260.12).” 34 Pa. Code § 9.1(13).

8

The complaint applies only legal theories (1) and (3) to the time

period from November 20, 2000 to December 31, 2003

[hereinafter “2000–03”], when Umland alleges that she was

misclassified as an independent contractor. It applies all three

legal theories to the time period from January 1, 2004 to July 1,

2005 [hereinafter “2004–05”], when Umland alleges that

PLANCO engaged in wrongful withholding.

In response to Umland’s complaint, PLANCO moved to

dismiss under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim. On October 2, 2006, the District Court

dismissed the case for lack of subject matter jurisdiction under

Rule 12(b)(1). Umland now appeals to our Court.

II. Jurisdiction and Standard of Review

In granting PLANCO’s motion to dismiss, the District

Court referred to the motion as having been made under Rule

12(b)(1) for lack of subject matter jurisdiction. Yet PLANCO

had moved for dismissal under Rule 12(b)(6) rather than Rule

12(b)(1). We must decide whether the District Court correctly

assessed that it lacked jurisdiction and applied the appropriate

procedural rule. We have plenary review over district courts’

jurisdictional determinations. In re Phar-Mor, Inc. Sec. Litig.,

172 F.3d 270, 273 (3d Cir. 1999).
9

In her complaint, Umland alleged that PLANCO is a

citizen of Pennsylvania and that she is a citizen of Washington

State. She also alleged that the matter in controversy exceeds

$5,000,000, exclusive of interest and costs. Thus, she properly

invoked federal subject matter jurisdiction. See 28 U.S.C.

§ 1332(d)(2) (giving district courts jurisdiction over “any civil

action in which the matter in controversy exceeds the sum or

value of $5,000,000, exclusive of interest and costs, and is a

class action in which . . . (A) any member of a class of plaintiffs

is a citizen of a State different from any defendant”). 

The District Court, as noted, granted the motion to

dismiss under Rule 12(b)(1). Yet the only two cases cited in

support of its decision dismissed complaints under Rule 12(b)(6)

for failure to state a claim. See McDonald v. S. Farm Bureau

Life Ins. Co., 291 F.3d 718, 726 (11th Cir. 2002) (affirming

District Court’s dismissal for failure to state a claim because

FICA does not imply a private right of action); Berger v. AXA

Network, LLC, No. 03-C-125, 2003 WL 21530370, at *4 (N.D.

Ill. July 7, 2003) (dismissing federal claim under FICA because

the latter does not imply a private right of action and dismissing

state-law claims as preempted by the federal regulatory scheme

Congress created to implement FICA). Because the issue

presented is whether Umland has stated a claim on which relief

can be granted, we will construe the District Court’s dismissal

as though it was granted under Rule 12(b)(6). See Petruska v.

Gannon Univ., 462 F.3d 294, 302–03 (3d Cir. 2006) (construing

a Rule 12(b)(1) dismissal as a Rule 12(b)(6) dismissal because
10

jurisdiction was not at issue while the legal sufficiency of the

plaintiff’s claims was).

We have appellate jurisdiction over district courts’ final

decisions under 28 U.S.C. § 1291. Our standard of review over

(what we are construing as) the District Court’s dimissal for

failure to state a claim is plenary. Frederico v. Home Depot,

507 F.3d 188, 199 (3d Cir. 2007).

When considering a district court’s grant of a motion to

dismiss under Rule 12(b)(6), “we accept all factual allegations

in the complaint as true and view them in the light most

favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist.,

452 F.3d 256, 260 (3d Cir. 2006). We “determine whether,

under any reasonable reading of the complaint, the plaintiff may

be entitled to relief.” Pinker v. Roche Holdings Ltd., 292 F.3d

361, 374 n.7 (3d Cir. 2002).

In light of the Supreme Court’s decision in Bell Atlantic

Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955 (2007), we

have cautioned that the factual allegations in the complaint must

not be “so undeveloped that it does not provide a defendant the

type of notice of claim which is contemplated by Rule 8.”

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.

2008). In addition, “it is no longer sufficient to allege mere

elements of a cause of action; instead ‘a complaint must allege

facts suggestive of [the proscribed] conduct.’ ” Id. (alteration in

original) (quoting Twombly, 127 S. Ct. at 1969 n.8). Moreover,
 If Umland had been classified as an employee, PLANCO, 7

as noted above, would have owed a separate 7.65 percent of her

salary under the employer FICA tax. 26 U.S.C. § 3111. 

11

we have interpreted Twombly’s emphasis on “plausibility” to

mean that the complaint’s “ ‘[f]actual allegations must be

enough to raise a right to relief above the speculative level.’ ”

Id. at 234 (quoting Twombly, 127 S. Ct. at 1965).

Despite these new contours, after Twombly we adhere to

the familiar statements of our standard of review, quoted above

from Buck, 452 F.3d at 260, and Pinker, 292 F.3d at 374 n.7.

We accept the complaint’s allegations as true, read those

allegations in the light most favorable to the plaintiff, and

determine whether a reasonable reading indicates that relief may

be warranted. See Phillips, 515 F.3d at 233 (stating that the

above-quoted language from Pinker describing the standard of

review remains “acceptable” after Twombly).

III. Classification as an Independent Contractor: 2000–03

Umland alleges that PLANCO wrongly classified her and

other Regional Marketing Directors as independent contractors

during the 2000–03 period. As a result of this classification, she

owed 15.3 percent of her income from PLANCO in SECA tax.

See 26 U.S.C. § 1401. If she had been classified as an

employee, by contrast, she would have paid only 7.65 percent of

her salary in employee FICA tax. See id. § 3101. PLANCO 7
12

contends, among other defenses, that federal law preempts

Umland’s state-law claims for breach of contract and unjust

enrichment.

“ ‘[S]tate law is pre-empted to the extent that it actually

conflicts with federal law. Thus, the Court has found

pre-emption . . . where state law stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.’ ” Fasano v. Fed. Reserve Bank of N.Y.,

457 F.3d 274, 280 (3d Cir. 2006) (quoting English v. Gen. Elec.

Co., 496 U.S. 72, 79 (1990)). Interference with a

comprehensive administrative scheme is one way that state law

might impede Congress’s goals. See, e.g., C.E.R. 1988, Inc. v.

Aetna Cas. & Sur. Co., 386 F.3d 263, 265 (3d Cir. 2004)

(deciding “whether the National Flood Insurance Program . . .

is sufficiently comprehensive to preempt a state tort suit arising

from conduct related to the Program's administration”). In our

case, PLANCO points to the Internal Revenue Service’s

administrative process that allows an employee, by filing an IRS

Form SS-8, to request that the IRS determine whether she is an

employee or an independent contractor. See IRS, Form SS-8:

Determination of Worker Status for Purposes of Federal

Employment Taxes and Income Tax Withholding, OMB No.

1 5 4 5 - 0 0 0 4 (2 0 0 6 ), avai l abl e at

http://www.irs.gov/pub/irs-pdf/fss8.pdf (last visited Aug. 8,

2008) [hereinafter “IRS Form SS-8”]. For reasons not in the

record (and not known to counsel at oral argument), Umland did

not file a form SS-8. She could also have filed an administrative
13

claim for a refund of self-employment taxes pursuant to 26

U.S.C. § 6511(a), or a tax refund suit against the Government

under 28 U.S.C. § 1346.

The Court of Appeals for the Eleventh Circuit has noted

that “Congress has established a comprehensive regulatory

scheme” for resolving disputes over proper classification of

employees and independent contractors. McDonald, 291 F.3d

at 725. The Court stated this as support for its holding that

Congress did not intend for FICA to create a private right of

action. But the existence of federal administrative remedies for

the alleged misclassification as independent contractor,

established by Congress, also suggests that Congress intended

the administrative remedies to preempt state-law claims.

Several district courts have found preemption in this context.

See, e.g. McElwee v. Wharton, 19 F. Supp. 2d 766, 771 (W.D.

Mich. 1998) (“In light of the available legal remedies, there is

no need to recognize an equitable right for restitution as to

federal employment taxes.”).

We agree with PLANCO that permitting Umland’s suit

to proceed with respect to the 2000–03 damages she allegedly

experienced would interfere with the IRS’s administrative

scheme for handling such disputes. See IRS Form SS-8; see

also Treas. Reg. § 31.3121(d)-1 (defining employees for

purposes of FICA); IRS, Internal Revenue Manual, pt. 4, ch. 23,

§ 6 (2 0 0 3 ), a vai l abl e at

http://www.irs.gov/irm/part4/ch21s07.html(last visited Aug. 20,
14

2008) (describing the “Classification Settlement Program”).

Individuals would have less incentive to follow IRS procedures

if they could simply bring common-law claims for

misclassification as an independent contractor in state court (or

in federal court sitting in diversity). We therefore hold

preempted by IRS regulations state-law claims for damages

based on classification as an independent contractor rather than

an employee. See Fidelity Fed. Savs. & Loan Ass’n v. de la

Cuesta, 458 U.S. 141, 153 (1982) (“Federal regulations have no

less pre-emptive effect than federal statutes.”). To the extent

that dismissal of Umland’s claims applied to the 2000–03

damages, we affirm the District Court’s judgment dismissing

those claims.

IV. Withholding of Employer Share of FICA Taxes:

2004–05

Umland also alleges that she experienced damages after

being reclassified as an employee. Specifically, she

alleges—and we must assume it to be true under our standard of

review—that PLANCO withheld from her 2004–05 paychecks

both the 7.65 percent employee FICA tax of 26 U.S.C. § 3101

and the 7.65 percent employer FICA tax of 26 U.S.C. § 3111.

A. Breach of Contract Claims

Umland brought two breach-of-contract claims based on

“implied terms” of her employment contract. The first is based
15

on FICA, 26 U.S.C. § 3111. The second is based on 34 Pa.

Code § 9.1(13), which prohibits unauthorized deductions, but

relates back to the alleged violation of FICA to allege that no

law authorized the withholding of an additional 7.65 percent of

Umland’s salary. To bring these statutes into play for her

contract claims, Umland appears to rely on the following

principle of contract interpretation:

Laws which subsist at the time and

place of the making of a contract,

and where it is to be performed,

enter into and form a part of it, as

fully as if they had been expressly

referred to or incorporated in its

terms. This principle embraces

alike those laws which affect its

construction and those which affect

its enforcement or discharge.

Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S.

117, 130 (1991) (quoting Farmers & Merchs. Bank of Monroe

v. Fed. Reserve Bank of Richmond, 262 U.S. 649, 660 (1923)).

Umland contends that because she has alleged that PLANCO

violated both § 3111 and § 9.1(13), she has sufficiently alleged

that PLANCO breached her employment contract.

An initial problem is that Umland does not cite any

authority applying this broad canon of construction to allow a
16

state-law claim based on a violation of federal tax law. We

decline to apply such a broad principle to this tax-withholding

context, as doing so here would trump the standard inquiry

whether a federal statute creates a private right of action.

PLANCO contends, and we agree with respect to Umland’s

breach-of-contract claims, that Umland’s complaint attempts to

use state common law to circumvent the absence of a private

right of action under FICA.

The Supreme Court has specified four factors used to

determine whether a federal statute creates a private right of

action: (1) whether the statute was enacted for the benefit of the

plaintiff; (2) indication of legislative intent to create a private

remedy; (3) consistency with the purposes of the legislative

scheme; and (4) whether the cause of action would traditionally

come under state law. Cort v. Ash, 422 U.S. 66, 78 (1975). In

subsequent private-right-of-action cases, the Supreme Court has

clarified that the “ ‘central inquiry’ ” is “ ‘whether Congress

intended to create, either expressly or by implication, a private

cause of action.’ ” McDonald, 291 F.3d. at 723 (quoting Touche

Ross & Co. v. Redington, 422 U.S. 560, 575 (1979)); see also

Gonzaga Univ. v. Doe, 536 U.S. 273, 286 (2002) (focusing on

congressional intent as evidenced by statutory text); Alexander

v. Sandoval, 532 U.S. 275, 286–87 (2001) (same); cf. Thompson

v. Thompson, 484 U.S. 174, 179–80 (1988) (focusing on

congressional intent but looking more broadly to legislative

history and allowing that private rights of action could be

implied rather than explicit).
17

Our Court has not previously decided whether FICA

creates a private right of action. But our sister Court of Appeals

for the Eleventh Circuit has analyzed the question in detail.

That Court stated in McDonald that FICA is a tax-raising statute

rather than a benefit-conferring statute, resolving factor (1)

against the plaintiff. 291 F.3d at 723. Under factor (2), the

Court stated that “the legislative history is completely devoid”

of any intention to create a private right of action under FICA.

Id. at 724. Finally, in reasoning that echoes preemption

analysis, it wrote in its analysis of factor (3) that a private right

of action would undermine the IRS’s administrative procedures.

Id. at 725. In addition, many district courts have held that FICA

did not create a private right of action. See Powell v. Carey

Int’l, Inc., 514 F. Supp. 2d. 1302, 1323–24 (S.D. Fla. 2007)

(following McDonald in response to plaintiff’s claim apparently

based solely on FICA); Paukstis v. Kenwood Golf & Country

Club, Inc., 241 F. Supp. 2d 551, 560–61 (D. Md. 2003)

(rejecting claim for employer’s failure to pay retirement and

medicare taxes brought under FICA itself); White v. White Rose

Food, 62 F. Supp. 2d. 878, 887–88 (E.D.N.Y. 1999) (rejecting

claims brought under FICA and other federal statutes); Salazar

v. Brown, 940 F. Supp. 160, 164–65 (W.D. Mich. 1996)

(rejecting FICA claim); DiGiovanni v. City of Rochester, 680 F.

Supp. 80, 82–83 (W.D.N.Y. 1988) (holding that no federal cause

of action exists under withholding statutes and declining to

exercise pendent jurisdiction over the plaintiff’s state-law

claims).
18

We agree with the analysis of these courts that FICA does

not create a private right of action. Moreover, if we were to

read FICA’s provisions into every employment contract, we

would contradict Congress’s decision not to include expressly

a private right of action and our belief that Congress did not

intend to imply a private right of action either. Because both

breach-of-contract claims at root allege FICA violations, we

affirm the District Court’s dismissal of Umland’s breach-ofcontract claims with respect to 2004–05 as well.

B. Unjust Enrichment Claim

Umland claims that PLANCO unjustly enriched itself in

2004–05 by withholding an extra 7.65 percent of Umland’s

salary, and the salaries of other class members, beyond the 7.65

percent they owed in employee FICA tax. According to the

allegations in her complaint, Umland paid a total of 15.3 percent

of her salary in FICA taxes—the same percentage she had been

paying under SECA during 2000–03 when she was classified as

an independent contractor. She alleges that PLANCO used the

excess 7.65 percent to pay its employer FICA tax, reaping a

benefit by avoiding the burden of that tax.

PLANCO describes the alleged withholding of an extra

7.65 percent of Umland’s salary (above and beyond the 7.65

percent rightfully withheld for the employee FICA tax) as an

overpayment of the employee FICA tax. We take this to mean

that PLANCO views its actions as akin to a clerical mistake.
19

PLANCO’s characterization would place Umland’s claim

squarely within the scope of 26 U.S.C. § 7422(a), which places

restrictions on tax-refund lawsuits and preempts state-law

claims:

No 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 credit has been duly

filed with the Secretary [of the

Treasury], according to the

provisions of law in that regard,

and the regulations of the Secretary

established in pursuance thereof.

Id. For example, the United States Court of Appeals for the

Fifth Circuit has held that § 7422 preempts state-law claims

against airlines that collected excise taxes on transportation

under an expired statute that Congress unexpectedly declined to
 Applying similar reasoning, the Court of Appeals for the 8

Ninth Circuit has held that state-law claims like those at issue in

Sigmon arose under § 7422 and were properly removed to

federal court. See Brennan v. Southwest Airlines Co., 134 F.3d

1405, 1410 (9th Cir. 1998) (“The statute makes clear . . . that a

suit to recover either a ‘tax’ or a ‘sum’ constitutes a suit for a tax

refund.”). In that case, the Court did not analyze the issue as

one of preemption. But, reaching what amounts to the same

result as Sigmon, the Court dismissed the claims because the

plaintiffs had not exhausted their administrative remedies, which

§ 7422 requires, and had sued the wrong party (i.e., the airlines

rather than the Government, as § 7422 requires). Id. at 1412. 

20

renew. Sigmon v. Southwest Airlines Co., 110 F.3d 1200, 1204

(5th Cir. 1997).8

For her part, Umland calls the alleged withholding of an

additional 7.65 percent an illegal assessment of the employer

FICA tax on the wrong people. She cites Kaucky v. Southwest

Airlines Co., 109 F.3d 349, 350–51 (7th Cir. 1991), which

involved the same excise tax on transportation at issue in

Sigmon and Brennan. In a dictum, the Court of Appeals for the

Seventh Circuit assumed that a taxpayer suit could proceed

under state law if the defendant who collected the allegedly

invalid tax was either (1) a “con man” or (2) an authorized agent

of the IRS who “turns dishonest” and acts in bad faith. Id. at

352–53. In other words, Umland argues that—unlike the

defendant airlines in Sigmon, Brennan, and Kaucky—PLANCO

lacked “colorable authority” to withhold an additional 7.65
 Although our case contrasts with Clintwood because the 9

taxpayers there sought a refund from the Government, see id.,

PLANCO isstill a “collector” of employment taxes, see Kaucky,

109 F.3d at 351(stating that “the firm corresponds to an

employee of the [IRS]”).

21

percent from her paycheck, id. at 352, because the employer

FICA tax is an excise tax levied on employers, see 26 U.S.C.

§ 3111.

But even under Umland’s characterization, we think her

unjust enrichment claim amounts to an allegation that the

amount of PLANCO’s employer FICA tax was “wrongfully

collected” from her. As the Court in Brennan pointed out,

“§ 7422 applies to any suit for any sum wrongfully collected in

any manner.” 134 F.3d at 1410 n.7 (emphasis in original). As

the Supreme Court has recently remarked with regard to § 7422:

“Five ‘any’s’ in one sentence [there were two more than the

three noted above] and it begins to seem that Congress meant

the statute to have expansive reach.” See U.S. v. Clintwood

Elkhorn Mining Co., ___ U.S. ___, 128 S. Ct. 1511, 1516 (2008)

(holding that claims for a refund of invalid export tax brought

under a statute other than § 7422 were barred). Instead of 9

directing courts to characterize the nature of the tax

collector—locating it on a spectrum from authorized agent

acting in good faith, to once-authorized agent acting in bad faith,

to “con man,” Kaucky, 109 F.3d at 352—we think § 7422

requires taxpayers to file claims with the IRS for tax refunds.
 Umland points out Mikulski v. Centerior Energy Corp.,

10

501 F.3d 555, 574 (6th Cir. 2007) (en banc) (holding that the

District Court lacked jurisdiction over shareholders’ claims for

overreporting of dividends), for the propositions that she was

not required to exhaust her administrative remedies before filing

suit and that § 7422 does not preempt her claim. We distinguish

Mikulski from our case because, unlike PLANCO, the employer

“did not collect or withhold any taxes” and “was not acting as a

collection agent for or on behalf of the IRS.” Id. at 565.

22

We thus hold that § 7422 expressly preempts Umland’s unjust

enrichment claim. This result protects the integrity of the

administrative scheme for tax refunds that Congress has

approved and that the IRS has implemented. See Brennan, 134

F.3d at 1411 (describing the policy rationales for this result).10

Umland argues that PLANCO received the benefit from

the 7.65 percent wrongfully collected for her, and thus any

repayment must come from PLANCO, not the Government. But

the sum of money at issue is a tax, i.e., the employer FICA tax

that PLANCO owed to the Government. Umland alleges that

the amount withheld from her paycheck was excessive, and that

the 7.65 percent at issue was wrongfully collected from her.

These allegations track the language of § 7422. That statute

required Umland to seek a refund from the IRS, which would in

turn seek to collect the employer FICA tax due from PLANCO.

Moreover, even if we did not hold that the language of § 7422

expressly preempted Umland’s claim, the broad sweep of
 During 2000–03, Umland was entitled to deduct one-half 11

the SECA tax. See 26 U.S.C. § 1402(a)(12). For simplicitly,

our discussion in this paragraph does not adjust for this

complication.

23

§ 7422—especially as described by the Supreme Court, see

Clintwood, 128 S. Ct. at 1516—suggests that Congress intended

the IRS to occupy the field of tax refunds, preempting claims

such as Umland’s.

Finally, dismissal for failure to state a claim is

appropriate in this case because Umland’s complaint has not

satisfied our pleading requirements in the wake of Twombly.

Because she paid 15.3 percent of her salary before and after

reclassification, becoming an employee left her with the same

after-tax income as before (assuming her salary did not change

on January 1, 2004, which she does not allege it did). For 11

Umland’s claim to amount to unjust enrichment, she relies

implicitly on the allegation that her reclassification as an

employee should have resulted in an increase of her salary, after

taxes, of 7.65 percent. Yet she does not allege any facts that

reflect the contours of the new agreement between her and

PLANCO that began in January 2004 when she was reclassified

as an employee. Specifically, she does not explain whether the

new agreement was meant to increase her after-tax income.

In addition, Umland’s complaint does not explicitly

allege that her paychecks reflected two separate amounts
24

withheld—one corresponding to the employee FICA tax, and

another to the employer FICA tax. The complaint states only

that PLANCO required Umland “to pay PLANCO’s employer’s

share of the FICA tax.” Complaint ¶ 92. Yet the success of her

unjust enrichment claim depends in part on her avoiding

PLANCO’s characterization of the FICA taxes withheld from

her paychecks as akin to an overpayment, i.e., a single sum paid

in excess of what she owed. Her complaint leaves a reader to

guess as to how PLANCO effected the additional 7.65 percent

of withholding and how that action was reflected on her

paychecks. In this context, her complaint needs to allege more

facts “to raise a right to relief above the speculative level.”

Phillips, 515 F.3d at 234 (quoting Twombly, 127 S. Ct. at 1965).

Umland filed her complaint before the Supreme Court decided

Twombly. Ordinarily, we would grant her leave to amend on

this issue. Because we hold that § 7422 preempts Umland’s

unjust enrichment claim, remand here is unnecessary.

* * * * *

For these reasons, the judgment of the District Court is

affirmed.