Meidinger Case 16-10071 Reply Brief by Appellee

8/18/2019 Meidinger Case 16-10071 Reply Brief by Appellee

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15-15465-DD, 16-10071-EEIN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ROY J. MEIDINGER,

Plaintiff-Appellant

v.

COMMISSIONER OF INTERNAL REVENUE,

Defendant-Appellee

ON APPEAL FROM THE ORDERS OF THEUNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF FLORIDA

BRIEF FOR THE APPELLEE

C AROLINE D. C IRAOLO Acting Assistant Attorney General

B RUCE R. E LLISEN (202) 514-2929S HERRA W ONG (202) 616-1882 AttorneysTax Division

Department of Justice Post Office Box 502Washington, D.C. 20044

Of Counsel: A. L EE B ENTLEY , III

United States Attorney

Case: 15-15465 Date Filed: 03/18/2016 Page: 1 of 93


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Meidinger v. Commissioner of Internal Revenue

(11th Cir. – No. 15-15465-DD, No. 16-10071-EE)

SECOND AMENDED CERTIFICATE

OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

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Pursuant to Federal Rule of Appellate Procedure 26.1 and

Eleventh Circuit Rule 26.1-1, counsel for the Commissioner of Internal

Revenue hereby certify that, to the best of their knowledge, information,

and belief, the following persons and entities have an interest in the

outcome of this appeal. The name in bold is an addition to this Second

Amended Certificate:

Arthur Lee Bentley, III, United States Attorney, Middle District ofFlorida

Melissa Briggs, Attorney, Appellate Section, Tax Division, DOJ

Hon. Sheri Polster Chappell, United States District Judge, MiddleDistrict of Florida

Caroline D. Ciraolo, Acting Assistant Attorney General, Tax Division,DOJ

Bruce R. Ellisen, Reviewer, Appellate Section, Tax Division,DOJ



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STATEMENT REGARDING ORAL ARGUMENT

Pursuant to 11th Cir. R. 28-1(c) and Fed. R. App. P. 34(a), counsel

for the Commissioner of Internal Revenue respectfully inform thisCourt that they believe that oral argument is not necessary in this case

because the appellant has not requested oral argument and the

Commissioner’s position is fully set forth in this brief.



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TABLE OF CONTENTS

PageCertificate of interested parties ............................................................. C-1

Statement regarding oral argument .......................................................... i

Table of contents ........................................................................................ ii

Table of citations ...................................................................................... vii

Glossary .................................................................................................... vii

Statement of jurisdiction ....................................................................... xxiii

A. Appeal No. 16-10071-EE (appeal from the First Case,

No. 2:15-mc-00008) .............................................................. xxiii

1. Jurisdiction in the District Court .................... xxiii

2. Jurisdiction in the Court of Appeals ................. xxv

B. Appeal No. 15-15465-DD (appeal from the Second

Case, No. 2:15-mc-00013)................................................... xxvii

1. Jurisdiction in the District Court ................... xxvii

2. Jurisdiction in the Court of Appeals .............. xxviii

Statement of the issues .............................................................................. 1

Statement of the case ................................................................................. 1

A. Meidinger’s IRS Form 211 claims for whistleblower

awards and prior litigation over denial of his first claim ...... 1



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PageB. Proceedings in the District Court ............................................ 3

1. The First Case ........................................................ 3

2. The Second Case .................................................... 7

C. Statement of the standard or scope of review ....................... 11

Summary of argument ............................................................................. 12

Argument .................................................................................................. 14

The District Court did not abuse its discretion in

denying Meidinger’s motions for reconsideration in the

First Case or the Second Case ............................................... 14

A. This Court lacks jurisdiction to review the judgments

and earlier orders on motions for reconsideration in the

First Case and the Second Case because Meidinger did

not file timely notices of appeal ............................................. 15

1. The notice of appeal was untimely as to the

July 1, 2015 judgment in the First Case ............ 15

2. The notice of appeal was also untimely as to

the September 21 order in the First Case .......... 19



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Page3. The notice of appeal was untimely as to the

September 29, 2015 judgment in the Second

Case ...................................................................... 20

4. The notice of appeal was untimely as to the

October 2, 2015 order in the Second Case .......... 22

B. Meidinger has failed to address the District Court’s

orders on his motions for reconsideration ............................. 22

C. The District Court in the First Case correctly

dismissed the complaint ........................................................ 23

1. Introduction to whistleblower awards

Under 26 U.S.C. § 7623 ....................................... 23

2. The District Court correctly decided it

lacked subject matter jurisdiction to grant

mandamus relief because the decision of

whether to open an investigation is a matter

left to the Commissioner’s discretion and

the Commissioner owes no duty to

Meidinger to investigate ...................................... 27



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Page3. The District Court had no jurisdiction under

the Administrative Procedures Act to

review the Commissioner’s decision on

whether to open an investigation ....................... 35

4. The District Court had no jurisdiction to

review the IRS’s denial of a whistleblower

award .................................................................... 38

5. Meidinger is not eligible for a whistleblower

award because the Commissioner has not

proceeded with any administrative or

judicial action based on his information ............. 39

6. The Commissioner has not denied equal

protection or due process by not opening an

investigation ........................................................ 41

7. Meidinger has no standing to bring suit ............ 43

E. The District Court in the First Case did not abuse its

discretion in denying Meidinger’s motions for

reconsideration ....................................................................... 46



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PageF. The District Court did not abuse its discretion in

dismissing the Second Case ................................................... 51

1. The First Case and the Second Case are

duplicative ............................................................ 52

2. The Second Case is barred by res judicata ......... 53

G. The District Court in the Second Case did not abuse its

discretion in denying Meidinger’s post-judgment

motions for reconsideration ................................................... 56

Conclusion ................................................................................................. 59

Certificate of compliance .......................................................................... 60

Certificate of service ................................................................................. 61



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TABLE OF CITATIONS

Cases: Page(s)

Adams v. California Dep’t of Health Servs.,

487 F.3d 684 (9th Cir. 2007) ............................................................ 12

Allied Chemical Corp. v. Daiflon, Inc.,

449 U.S. 33 (1980) ............................................................................ 27

*Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co. ,

198 F.3d 1332 (11th Cir. 1999) .................................................. 11, 22

Amsinger v. United States,

99 Fed. Cl. 258 (2011) ........................................................... 27, 38, 46

Bd. of Regents of State Colleges v. Roth,

408 U.S. 564 (1972) .......................................................................... 43 Bell v. Hood ,

327 U.S. 678 (1946) .......................................................................... 35

Boone v. Kurtz,

617 F.2d 435 (5th Cir. 1980) ............................................................ 53

Brae Transportation, Inc. v. Coopers & Lybrand,

790 F.2d 1439 (9th Cir. 1986) .......................................................... 17

* Cases or authorities chiefly relied upon are marked with asterisks.



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Cases (continued): Page(s)

Brinkman v. IRS,

2013 WL 5462390 (D. Ore., Sept. 30, 2013) .................................... 29

Browder v. Director, Dep’t of Corrections,

434 U.S. 257 (1978) .......................................................................... 22

Califano v. Sanders,

430 U.S. 99 (1977) ............................................................................ 36

Cambridge v. United States,

558 F.3d 1331 (Fed. Cir. 2009) ......................................................... 40

Carlson v. United States,

126 F.3d 915 (7th Cir. 1997) ............................................................ 37

Carter v. Seamans,411 F.2d 767 (5th Cir. 1969) .................................................... passim

*Cash v. Barnhart,

327 F.3d 1252 (11th Cir. 2003) ................................................ passim

Cheney v. U.S. Dist. Court for Dist. Of Columbia,

542 U.S. 367 (2004) .......................................................................... 28




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Cockrell v. Sparks,

510 F.3d 1307 (11th Cir. 2007) ........................................................ 50

Colorado River Water Conservation Dist. v. United States,

424 U.S 800 (1976). .......................................................................... 57

Cooper v. Comm’r,

135 T.C. 70 (2010) ........................................................... 24, 26, 32, 33

Cooper v. Comm’r,

136 T.C. 597 (2010) ............................................................... 24, 30, 31

Costello v. United States,

365 U.S. 265 (1961) .......................................................................... 55

Curtis v. Citibank, N.A.,226 F.3d 133 (2d. Cir. 2000) ............................................................. 12

Dacosta v. United States,

82 Fed. Cl. 549 (2008) ................................................................. 27, 38

Davis Assocs. v. HUD,

498 F.2d 385 (1st Cir. 1974) ....................................................... 27, 36

De Leon v. Marcos,

659 F.3d 1276 (10th Cir. 2011) ........................................................ 17



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Diaz v. Sheppard ,

85 F.3d 1502 (11th Cir. 1996) .......................................................... 34

Dozier v. Ford Motor Co.,

702 F.2d 1189 (D.C. Cir. 1983) ........................................................ 54

Dugan v. Rank,

372 U.S. 609 (1963) .................................................................... 33, 34

Einhorn v. DeWitt,

618 F.2d 347 (5th Cir. 1980) ...................................................... 27, 28

Estate of Kunze v. Comm’r,

233 F.3d 948, 954 (7th Cir. 2000) .................................................... 42

Foman v. Davis,371 U.S. 178 (1962) .......................................................................... 19

Griggs v. Provident Consumer Discount Co. ,

459 U.S. 56 (1982) ............................................................................ 19

*Heckler v. Chaney,

470 U.S. 821 (1985) .......................................................................... 36




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Herriman v. United States ,

416 Fed. Appx. 823 (11th Cir. 2011) ................................................. 18

High County Citizens Alliance v. Clarke,

454 F.3d 1177 (10th Cir. 2006) ........................................................ 36

I.A. Durbin Inc. v. Jefferson Nat’l Bank,

793 F.2d 1541 (11th Cir. 1986) ........................................................ 52

In re Soares,

107 F.3d 969 (1st Cir. 1997) ............................................................. 28

In re Wingreen Co.,

412 F.2d 1048 (5th Cir. 1969) .................................................... 29, 32

Jacobs v. Tempur-Pedic Int’l., Inc. ,626 F.3d 1327 (11th Cir. 2010) ........................................................ 50

Jones v. Alexander,

609 F.2d 778 (5th Cir. 1980) ............................................................ 27

Kelly v. Florida,

233 Fed. Appx. 883 (11th Cir. 2007) .............................................. xxv

Kicklighter v. Nails by Jannee, Inc.,

616 F.2d 734 (5th Cir. 1980) ............................................................ 19



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Kirkland Masonry Inc. v. Comm’r,

614 F.2d 532 (5th Cir. 1980) ...................................................... 28, 37

Krug v. United States,

168 F.3d 1307 (Fed. Cir. 1999) ......................................................... 40

Lapaix v. U.S. Atty. Gen.,

605 F.3d 1138 (11th Cir. 2010) ........................................................ 50

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949) .................................................................... 33, 34

Lee v. Alachua County,

461 Fed. Appx. 859 (11th Cir. 2012) ................................................ 50

Lujan v. Defenders of Wildlife,504 U.S. 555 (1992) .......................................................................... 43

Maid of the Mist Corp. v. Alcatraz Media, LLC,

388 Fed. Appx 940 (11th Cir. 2010) ................................................. 48

*Marsh v. Dep’t of Children and Families ,

259 Fed. Appx. 201 (11th Cir. 2007) ........................................ passim




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Mays v. Kirk ,

414 F.2d 131 (5th Cir. 1969) ............................................................ 35

McDonald v. Board of Election Comm’rs of Chicago,

394 U.S. 802 (1969) .......................................................................... 42

McDougald v. Jenson,

786 F.2d 1465 (11th Cir. 1986) ........................................................ 19

Meidinger v. Comm’r,

559 Fed. Appx. 5 (D.C. Cir. 2014) ............................................ passim

Merrick v. United States,

846 F.2d 725 (Fed. Cir. 1988) ........................................................... 40

Michael Linet, Inc. v. v. Village of Wellington,408 F.3d 757 (11th Cir. 2005) ..................................................... 46-47

North Georgia Elec. Membership Corp. v. City of Calhoun,

989 F.2d 429 (11th Cir. 1993) .......................................................... 53

Osterneck v. E.T. Barwick Industries, Inc.,

825 F.2d 1521 (11th Cir. 1987) ........................................................ 19

O’Donnell v. Comm’r,

489 Fed. Appx. 469 ..................................................................... 24, 39



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Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) .......................................................................... 53

Perez v. U.S. Bureau of Citizenship and Immigration Servs.,

774 F.3d 960 (11th Cir. 2014) .......................................................... 36

Procup v. Strickland,

792 F.2d 1069 (11th Cir. 1986) ........................................................ 48

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

132 S. Ct. 2065 (2012) ...................................................................... 30

Regan v. Taxation With Representation of Washington,

461 U.S. 540 (1983) .......................................................................... 42

*Richardson v. Johnson,598 F.3d 734 (11th Cir. 2010) .......................................................... 46

Serlin v. Arthur Andersen & Co.,

3 F.3d 221 (7th Cir. 1993) ................................................................ 52

Shah v. United States,

2013 WL 1869095 n. 2 (W.D. Pa., May 3, 2013) ............................. 35




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Shell v. U.S. Dep’t of Housing and Urban Dev.,

355 F. Appx. 300 (11th Cir. 2009) .................................................... 48

Sherrod v. Chater ,

74 F.3d 243 (11th Cir. 1996) ............................................................ 12

Shotkin v. Weksler,

254 F.2d 596 (5th Cir. 1958) ............................................................ 16

Simmons v. Comm’r,

523 Fed. Appx, 730 (D.C. 2013). ................................................ 24, 39

Simons v. Vinson,

394 F.2d 732 (5th Cir. 1968) ............................................................ 33

Stalley v. Orlando Regional Healthcare Sys., Inc.,524 F.3d 1229 (11th Cir. 2008) ........................................................ 54

Stang v. Comm’r,

788 F.2d 564 (9th Cir. 1986) ....................................................... 29, 32

Stewart Securities Corp. v. Guaranty Trust Co.,

597 F.2d 240 (10th Cir. 1979) .......................................................... 55

Turner v. United States,

203 Fed. Appx. 952 (11th Cir. 2006) .............................................. xxv



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United States v. Cortese ,

614 F.2d 914 (3d Cir. 1980) .............................................................. 29

United States v. Dalm,

494 U.S. 596 (1990) .................................................................... 32, 28

United States v. Hart,

701 F.2d 749 (8th Cir. 1983) .............................................................. 5

United States v. Horne,

714 F.2d 207 (1st Cir. 1983) ............................................................. 37

United States v. Kras,

409 U.S. 434 (1973) .......................................................................... 42

United States v. Nordic Village,503 U.S. 30 (1992) ............................................................................ 38

United States v. Rodriguez,

892 F.2d 233 (2d. Cir. 1989) ............................................................. 17

Valentine v. BAC Home Loans Servicing ,

2015 WL 9461726 (11th Cir. 2015) ...................................... 19, 21, 22

Vanderwerf v. SmithKline Beecham Corp. ,

603 F.3d 842 (10th Cir. 2010) .................................................... 16, 17



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Warren v. Comm’r,

883 F.2d 1025, 1989 WL 96425 (9th Cir. 1989) ........................ 29, 32

Washington Legal Found. v. U.S. Sentencing Comm’n,

89 F.3d 897. (D.C. Cir. 1996) ........................................................... 33

Watson v. Chessman ,

362 F. Supp. 2d 1190 (S.D. Cal. 2005) ............................................. 35

Weaver v. Indymac Fed. Bank,

488 F. Appx. 522 (2d. Cir. 2012) ...................................................... 46

Whitmore v. Arkansas,

495 U.S. 149 (1990) ........................................................ 32, 43, 44, 45

Wilkinson v. Austin,545 U.S. 209 (2005) .......................................................................... 42

Wright v. Preferred Research, Inc.,

891 F.2d 886 (11th Cir. 1990) .......................................................... 18

Your Home Visiting Nurse Servs., Inc. v. Shalala,

525 U.S. 449 (1999) .......................................................................... 28



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Statutes: Page(s)

Administrative Procedures Act (5 U.S.C.):

*§ 701-706 .................................................................................... 36, 37

Internal Revenue Code (26 U.S.C.):

§ 6201 ................................................................................................... 9

§ 6201(a) ............................................................................................. 30

§ 7402(a) ..................................................................................... 5, 9, 34

§ 7601 ................................................................................................. 31

§ 7601(a) ............................................................................................. 31

§ 7602 ................................................................................................. 31

*§ 7623 ....................................................................................... passim

§ 7623(a) ............................................................................................. 23§ 7623(b) ..................................................................................... passim

§ 7623(b)(1) ................................................................................ passim

§ 7623(b)(3) ...................................................................... 38, 41, 44, 45

§ 7623(b)(4) ................................................................................ passim

§ 7623(b)(5)(A) and (B) ...................................................................... 41




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Statutes (continued): Page(s)

28 U.S.C.:

§ 1291 ............................................................................................. xxvii

§ 1331 ............................................................................................. 5, 35

§ 1340 ............................................................................................. 5, 35

§ 1345 ............................................................................................. 5, 34

§ 1357 ................................................................................................... 5

*§ 1361 ..................................................................................... 5, 27, 28

§ 2107(b) .............................................................................. xxvii, xxviii

Rules:

Federal Rule of Appellate Procedure:

Rule 3(c)(1)(B) .................................................................................... 19Rule 4(a)(4)(A) ................................................................................... 17

Rule 4(a)(4)(A)(vi) ........................................................................ 15, 16

Rule 4(a)(1) ........................................................................................ 15

Rule 26.1 .......................................................................................... C-1

Rule 32(a)(5) ...................................................................................... 60

Rule 32(a)(6) ...................................................................................... 60




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Rules (continued): Page(s)

Rule 32(a)(7)(B) ................................................................................. 60

Rule 34(a) .............................................................................................. i

Federal Rule of Civil Procedure:

Rule 4(c)(1) ....................................................................................... xxv

Rule 4(i) ............................................................................................ xxv

Rule 4(m) .......................................................................................... xxv

Rule 15(a) ........................................................................................... 50

Rule 41(b) ........................................................................................... 54

Rule 59(e) ........................................................................................... 50

Rule 60 ......................................................................................... 15, 23

Rule 60(b) ........................................................................................... 22Rule 60(b)(6) ...................................................................................... 55

Rule 65 ............................................................................................... 34

Regulations:

Treasury Regulations (26 C.F.R.):

§ 301.7623-1 through 4 ........................................................................ 9

§ 301.7623-2(a) and (d) ...................................................................... 25

§ 301.7623-3(c)(1)-(2) ......................................................................... 26



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Regulations (continued): Page(s)

§ 301.7623-3(c)(1)-(6) ......................................................................... 26

§ 301.7623-3(c)(7)-(8) ............................................................. 25, 26, 36



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GLOSSARY

Name / Acronym Definition

15-15465 Br. Appellant’s brief filed for appeal no. 15-15465

16-10071 Br. Appellant’s brief filed for appeal no. 16-10071

MC-8, Doc. X Document X (as numbered by the district courtclerk) from district court case no. 2:15-mc-00008 (First Case, on appeal as no. 16-10071)

MC-13, Doc. X Document X (as numbered by the district court

clerk) from district court case no. 2:15-mc-00013 (Second Case, on appeal as no. 15-15465)

APA Administrative Procedures Act, 5 U.S.C.§§ 551-559, 701-706

Commissioner Commissioner of Internal Revenue

First Case Meidinger v. Comm’r, No. 2:15-mc-00008 (M.D.

Fla.), on appeal as No. 16-10071IRM Internal Revenue Manual

Judge Chappell Judge Sheri Polster Chappell, who presidedover the First Case in the District Court

Judge Steele Judge John E. Steele, who presided over theSecond Case in the District Court

Second Case Meidinger v. Comm’r, No. 2:15-mc-00013 (M.D.Fla.), on appeal as no. 15-15465



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STATEMENT OF JURISDICTION

A. Appeal No. 16-10071-EE (appeal from the FirstCase, No. 2:15-mc-00008)

1. Jurisdiction in the District Court

On June 17, 2015, Meidinger filed a petition for mandamus relief

with the District Court. (MC-8, Doc. 1.) 1 He asked the District Court to

order the Commissioner to open an expedited investigation on

taxpayers he had identified on IRS Forms 211 (Application for Award

for Original Information), calculate tax due resulting from the

investigation using specific accounting methods, reopen his Form 211

claims and combine them into one claim, and follow the administrative

1 Citations to the record are to the District Court case number, thedocument number, and then the page number. For example, “MC-8,Doc. 1 at 1” means page 1 on document no. 1 in case no. 2:15-mc-00008.The documents in Meidinger’s appendix are all from case no. 2:15-mc-00008 (First Case). The Commissioner’s supplemental appendixincludes two documents from the First Case as well as documents fromthe Second Case.

Attachments 4 and 5 in Meidinger’s appendix for appeal no. 15-15465 and Tab 15 in Meidinger’s appendix for appeal No. 16-10071

consist of material that is not part of the record of either case andshould be stricken. Attachments 1 and 2 in Meidinger’s appendix forappeal no. 15-15465 are not part of the record in either case, but all orparts of them have appeared in filings in both cases.



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procedures related to whistleblower awards, including Internal Revenue

Manual 25.2.2. ( Id. at 48-50.) The petition also requested a review of

the IRS Whistleblower Office’s determinations of Meidinger’s three

Form 211 claims for a whistleblower award. ( See id. at 9-11, 23-25, 35-

37.)

As we will explain at pp. 27-37, infra, the District Court had no

subject matter jurisdiction over Meidinger’s petition for mandamus

because the substantive requirements for mandamus were not met and

none of the other statutes he cited for jurisdiction conferred

independent jurisdiction on the District Court. See Cash v. Barnhart,

327 F.3d 1252, 1258 (11th Cir. 2003). The District Court also lacked

jurisdiction to review the Whistleblower Office’s determinations of hisForm 211 claims because the Tax Court has exclusive jurisdiction to

review these determinations. See 26 U.S.C. § 7623(b)(4).

Further, the District Court lacked personal jurisdiction over the

Commissioner of Internal Revenue because Meidinger failed to effect

proper service within 120 days of filing in accordance with Fed. R. Civ.



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P. 4(i) and 4(m). 2 Under Fed. R. Civ. P. 4(c)(1), both the complaint and

the summons must be served on a defendant. But while Meidinger

appears to have sent copies of the petition to the IRS, the U.S. Attorney,

and the U.S. Attorney General, he does not appear to have served

summonses on any of these offices. (MC-8, Doc. 13 at 2.) Meidinger did

not dispute that he had not served any summonses. (MC-8, Doc. 14 at

2.) The record also shows that Meidinger never filed proofs of service.

Generally, where service of process is insufficient, a court lacks

personal jurisdiction over a defendant. Kelly v. Florida, 233 Fed. Appx.

883, 884 (11th Cir. 2007). And the failure to serve a summons is

defective service. Turner v. United States, 203 Fed. Appx. 952, 954 (11th

Cir. 2006). 2. Jurisdiction in the Court of Appeals

On July 1, 2015, the District Court denied Meidinger’s petition

sua sponte . (MC-8, Doc. 3.) On July 21, 2015, Meidinger filed a motion

for reconsideration and then an amended motion for reconsideration.

(MC-8, Docs. 4 and 5.) On August 7, 2015, Meidinger moved to

2 The Commissioner entered a limited appearance in the DistrictCourt only to contest service of process and personal jurisdiction. (MC-8, Doc. 13 at 1, n. 1.)



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withdraw both July 21 motions and simultaneously filed another

motion for reconsideration. (MC-8, Docs. 6 and 7.) On September 9,

2015, Meidinger filed a “Motion for Adding Addendum to Petition for

Injunctive Relief” together with a proposed addendum. (MC-8, Docs. 8

and 8-1.)

On September 21, 2015, the District Court granted Meidinger’s

motion to withdraw the July 21 motions. (MC-8, Doc. 9.) In a separate

order on September 21, 2015, the court denied his August 7 motion for

reconsideration and September 9 motion for adding addendum. (MC-8,

Doc. 10.)

On September 25, 2015, Meidinger filed a “Reply to Courts [sic]

Order with Evidence of Compliance.” (MC-8, Doc. 11.) On October 5,2015, he filed another motion for reconsideration. (MC-8, Doc. 12.) On

December 18, 2015, the District Court terminated all pending motions.

(MC-8, Doc. 15.) On December 30, 2015, Meidinger filed a notice of

appeal. (MC-8, Doc. 16.)

In sum, the District Court issued three orders dated, respectively,

July 1, September 21, and December 18, 2015. (MC-8, Docs. 3, 10, and

15.) All three are final, appealable orders.



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Meidinger filed a notice of appeal on December 30, 2015 (MC-8,

Doc. 16), within 60 days of the December 18 order. Therefore, the

appeal with respect to the December 18 order is timely. See 28 U.S.C.

§ 2107(b). This Court has jurisdiction under 28 U.S.C. § 1291 to review

the December 18 order. As we explain at pp. 15-20, infra, the notice of

appeal was untimely with respect to the July 1 and September 21

orders. In addition, on his notice of appeal, Meidinger indicated that he

was only appealing the December 18, 2015 order. (MC-8, Doc. 16.)

Therefore, as we explain at p. 19 n. 4, infra, this Court lacks jurisdiction

to review the July 1 and September 21 orders.

B. Appeal No. 15-15465-DD (appeal from the SecondCase, No. 2:15-mc-00013)

1. Jurisdiction in the District Court

On September 17, 2015, Meidinger filed another petition with the

District Court that was substantially identical to the one he filed on

June 17, 2015. (MC-13, Doc. 1.) Again, because (1) mandamus was an

inappropriate remedy and subject matter jurisdiction depended on

whether mandamus could issue, and (2) the Tax Court had exclusive

jurisdiction to review denials of whistleblower awards under 26 U.S.C.

§ 7623(b), the District Court had no jurisdiction over the petition.



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2. Jurisdiction in the Court of Appeals

On September 29, 2015, the District Court denied the petition sua

sponte. (MC-13, Doc. 3.) On September 30, 2015, Meidinger filed a“Reply to Courts [sic] Order,” which the District Court construed as a

motion for reconsideration. (MC-13, Doc. 4 and Doc. 5 at 1.) The District

Court denied this motion on October 2, 2015. (MC-13, Doc. 5.) On

October 5, 2015, Meidinger filed another motion for reconsideration of

the September 29 order, which the court denied on October 28, 2015.

(MC-13, Docs. 6 and 7.) On November 20, 2015, Meidinger filed a third

motion for reconsideration. (MC-13, Doc. 8.) The District Court denied

the third motion on December 2, 2015. (MC-13, Doc. 9.) All four orders –

dated September 29, October 2, October 28, and December 2, 2015 – are

final, appealable orders.

Meidinger filed his notice of appeal on December 8, 2015. (MC-13,

Doc. 10.) The notice of appeal was timely with respect to the October 28

and December 2, 2015 orders ( see 28 U.S.C. § 2107(b)). However, as we

explain at p. 21 n. 5, infra, this Court only has jurisdiction to review the

December 2 order because Meidinger indicated on his notice of appeal

that he was only appealing the December 2 order. And as we explain in



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pp. 20-22, infra, the notice of appeal was untimely with respect to the

September 29 and October 2 orders and, therefore, this Court also lacks

jurisdiction to review those orders.



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STATEMENT OF THE ISSUES

1. Whether this Court lacks jurisdiction to review the judgments

in the First Case and the Second Case because Meidinger did not filetimely notices of appeal from those judgments.

2. Whether, in any event, the District Court correctly dismissed

the First Case for lack of jurisdiction.

3. Whether, in any event, the District Court correctly dismissed

the Second Case as duplicative of the First Case.

4. Whether the District Court abused its discretion in denying

Meidinger’s motions for reconsideration in the First Case and the

Second Case.

STATEMENT OF THE CASE

A. Meidinger’s IRS Form 211 claims forwhistleblower awards and prior litigation overdenial of his first claim

On September 3, 2009, Meidinger submitted an IRS Form 211,

Application for Award for Original Information, to the IRS’s

Whistleblower Office, providing information about allegedly improper

tax practices of certain taxpayers. (MC-8, Doc. 1-2 at 2, Doc. 3 at 1-2.)

On June 11, 2012, the Whistleblower Office notified Meidinger by letter

that, because the information he provided did not result in the



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collection of any proceeds, he was ineligible for an award under 26

U.S.C. § 7623. ( Id. )

On June 29, 2012, Meidinger petitioned the Tax Court for review

of the Whistleblower Office’s denial of the award. The case was

captioned No. 016513-12W. (MC-8, Doc. 1 at 7, Doc. 3 at 2.) Meidinger

alleged that the Commissioner had abused his discretion in denying the

award and that he failed to adequately explain why he did not conduct

investigations based on the information Meidinger had submitted. (MC-

8, Doc. 3 at 2.) On August 30, 2013, the Tax Court granted the

Commissioner’s motion for summary judgment, stating that Meidinger

was not entitled to an award because the Commissioner did not

undertake an administrative or judicial action, or collect any proceeds,based on Meidinger’s information. ( Id. ; MC-8, Doc. 11-2.) The Tax Court

also decided it could not order the Commissioner to commence an

investigation. (MC-8, Doc. 3 at 2, Doc. 11-2.) Meidinger appealed the

decision. (MC-8, Doc. 11-1 at 5.) On March 7, 2014, the D.C. Circuit

affirmed. (MC-8, Doc. 7 at 5-6.) Meidinger v. Comm’r, 559 Fed. Appx. 5

(D.C. Cir. 2014).



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While the appeal was pending, Meidinger filed a second Form 211

with the Whistleblower Office in October 2013. (MC-8, Doc. 1-3, Doc. 3

at 3.) After the D.C. Circuit affirmed, Meidinger filed a third Form 211

in June 2014. (MC-8, Doc. 1-4, Doc. 3 at 3.) On February 20, 2014 and

February 11, 2015 respectively, the Whistleblower Office notified

Meidinger by letter that these claims were duplicative of the first claim.

Citing the Tax Court’s decision in favor of the Commissioner, the

Whistleblower Office informed Meidinger that it was closing these

second and third claims. (MC-8, Docs. 1-3 and 1-4; Doc. 3 at 3-4.)

B. Proceedings in the District Court

1. The First Case

On June 17, 2015, Meidinger filed a petition in the District Court,

seeking a writ of mandamus to compel the Commissioner to investigate

the taxpayers he had identified on the Forms 211, determine the tax

due using specific methods of accounting, reopen his Form 211 claims,

and follow Internal Revenue Manual 25.2.2. (MC-8, Doc. 1 at 48-50.)



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Meidinger alleged he and/or his attorney 3 discussed the

information he provided on the Forms 211 with the IRS on various

occasions, but the IRS ultimately did not open an investigation based on

the information. (MC-8, Doc. 1 at 4-8.) Meidinger also made allegations

about the rejection of the second and third Forms 211, as well as the

reasons for which he contended the IRS should be compelled to

investigate the health-care industry and use the accrual method of

accounting to collect the resulting tax due. (MC-8, Doc. 1 at 9-23, 40-46.)

On July 1, 2015, Judge Chappell denied Meidinger’s petition sua

sponte , holding that the District Court had no jurisdiction to issue an

injunction to the Commissioner. (MC-8, Doc. 3 at 5.) The order noted

that the Tax Court had ruled in favor of the Commissioner with regardsto the first Form 211 claim, and instructed Meidinger to petition the

Tax Court for review of the IRS’s rejection of the second and third

3 According to Meidinger’s petition, he was represented by anattorney at certain times while he was communicating with theWhistleblower Office. (MC-8, Doc. 1 at 5.) No attorney has entered anappearance for Meidinger in this appeal or the District Court casesleading to this appeal.



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claims, citing the Tax Court’s jurisdiction under 26 U.S.C. § 7623(b)(4)

to review the IRS’s final determinations of Form 211 claims. ( Id. )

On July 21, 2015, Meidinger moved for reconsideration of the

order with a motion and an amended motion, though he withdrew the

July 21 motions and substituted them with another motion to

reconsider on August 7, 2015. (MC-8, Docs. 4-7.) In his August 7 motion,

Meidinger cited various statutes to argue that the District Court had

jurisdiction to grant the relief he sought: 28 U.S.C. §§ 1331 and 1361; 26

U.S.C. § 7623(b); and United States v. Hart, 701 F.2d 749 (8th Cir.

1983), apparently for its comments on 26 U.S.C. § 7402(a) and 28 U.S.C.

§§ 1340, 1345, and 1357. (MC-8, Doc. 7 at 2-3.) Meidinger also

contended that the District Court was the only forum available to him,as the D.C. Circuit had affirmed the Tax Court’s refusal to order the

Commissioner to commence an administrative or judicial action or give

Meidinger a whistleblower award. ( Id. ) On September 9, 2015,

Meidinger filed a Motion for Adding Addendum to Petition for

Injunctive Relief. (MC-8, Doc. 8.) According to Meidinger, the proposed

addendum would clarify the tax issues involved and show why the IRS’s

decision not to investigate was “wrong.” (MC-8, Doc. 8 at 2.) The



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proposed addendum included allegations and graphs purporting to show

why the IRS ought to open an investigation. (MC-8, Doc. 8-1.)

On September 21, 2015, the District Court denied both the August

7 motion for reconsideration and the September 9 motion for addendum.

(MC-8, Doc. 10 at 4.) The order stated that there was no intervening

change in controlling law, nor new evidence, nor the need to correct a

clear error or manifest injustice that justified granting the motion for

reconsideration and that Meidinger was attempting to relitigate issues

that the court had already decided. ( Id. at 3.)

Four days afterward, on September 25, 2015, Meidinger filed a

“reply” to the District Court’s order, reiterating he had already

exhausted any remedy he might have in the Tax Court. (MC-8, Doc. 11.)On October 5, 2015, Meidinger filed another motion for reconsideration,

presenting a combination of the arguments he had already made in the

initial petition, the August 7 motion for reconsideration, and the

September 25 reply. (MC-8, Doc. 12.)

Meanwhile, the Commissioner moved to dismiss the petition for

insufficient process and lack of personal jurisdiction on November 3,

2015. (MC-8, Doc. 13.) According to the Commissioner, Meidinger had



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not sent summonses with the copies of the petitions he had apparently

sent to the IRS, the U.S. Attorney, or the U.S. Attorney General. ( Id. at

2.) In his November 5, 2015 reply, Meidinger explained why he had not

sent the summonses and repeated his prior requests to the District

Court for mandamus relief. (MC-8, Doc. 14.)

On December 18, 2015, the District Court issued an order

directing the clerk to terminate any remaining pending motions because

it had already ruled on the merits of the case. (MC-8, Doc. 15 at 1.)

2. The Second Case

On September 17, 2015 – while Meidinger’s August 7 motion to

reconsider and September 9 motion for addendum were still pending in

the First Case – Meidinger filed a substantially identical petition with

the District Court. (MC-13, Doc. 1.) Like the petition in the First Case,

this petition asked the District Court to issue a mandamus order to the

Commissioner to investigate taxpayers he had identified on the Forms

211, determine the tax due using methods he specified, combine the

Forms 211, and process the forms for a whistleblower award to him. ( Id.

at 52-54.) In addition to slight revisions made to the petition in the

First Case, this second petition also included what appeared to be



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correspondence between him and the IRS, internal IRS correspondence,

and a copy of the D.C. Circuit’s affirmance of the Tax Court decision

against him in Meidinger, 559 Fed. Appx. 5. (MC-13, Docs. 1-2 through

1-5, 1-8.)

On September 29, 2015, Judge Steele dismissed the petition sua

sponte . (MC-13, Doc. 3.) The order noted that “the parties, issues, and

available relief [were] identical” and that, “[a]s set forth in Judge

Chappell’s July 1, 2015 Order dismissing the First Case, the Court

lack[ed] authority to grant Petitioner his requested relief.” ( Id. at 2.) It

then advised Meidinger that, if he disagreed with the decision in the

First Case, he should appeal to the Eleventh Circuit and not attempt to

obtain a different outcome by proceeding in front of a different district judge. ( Id. at 2-3.)

The next day, September 30, 2015, Meidinger filed a “Reply to

Courts [sic] Order.” (MC-13, Doc. 4.) He argued he should be allowed to

file a new suit because the court in the First Case had dismissed that

case without prejudice. ( Id. at 2.) (In fact, the July 1 order in the First

Case was silent on the issue of prejudice. (MC-8, Doc. 3.)) Meidinger

also said he had corrected a “technical problem” in the first petition by



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adding to the second petition a paragraph regarding the District Court’s

jurisdiction. (MC-13, Doc. 4 at 2-3.) Construing the reply as a motion for

reconsideration, the District Court denied it on October 2, 2015. (MC-

13, Doc. 5.) The court recited the reasoning in the July 1 order in the

First Case, concluding that only the Tax Court could entertain appeals

of whistleblower award determinations under 26 U.S.C. § 7623. ( Id. at

2.) Noting that Meidinger had already appealed the determinations to

the Tax Court and the D.C. Circuit, the District Court stated that the

next forum of appeal would have been the U.S. Supreme Court. ( Id .)

The court also rejected Meidinger’s argument that 26 U.S.C. § 7402(a)

granted jurisdiction to district courts over suits initiated by citizens,

rather than the government. ( Id. at 3.)Undeterred, Meidinger responded with another motion for

reconsideration on October 5, 2015. (MC-13, Doc. 6.) In the motion, he

urged the court to grant mandamus relief because he had exhausted

other remedies and the IRS had a clear duty “to perform [the] Act in

Question,” presumably an act encompassed by the citations that

followed – 26 U.S.C. §§ 6201, 7623; Treas. Reg. § 301.7623-1 through 4;

and IRM 25.2.2. ( Id. at 5-6.) He also alleged that the IRS Whistleblower



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Office had violated the Administrative Procedures Act because it did not

send him preliminary denial letters with respect to his second and third

Form 211 claims or hold meetings to explain why it denied these claims,

allegations that had not appeared in the petition itself. ( Id. at 10-15.)

Finally, he reiterated that the District Court had the power to issue a

mandamus order to the Commissioner. ( Id. at 13-14.)

On October 28, 2015, the District Court denied the October 5

motion for reconsideration. (MC-13, Doc. 7.) The court explained that,

as it had already stated in the October 2 order, it lacked the authority

to compel the IRS to reopen Meidinger’s whistleblower claims. ( Id. at 2.)

It again advised Meidinger that, even if he was dissatisfied with the

outcome of prior litigation, he could not “restart the process by filing anew action seeking injunctive relief.” ( Id. at 2-3.)

On November 20, 2015, Meidinger returned with yet another

motion for reconsideration, repeating that the District Court had

jurisdiction to grant him the relief he sought and also that he had

exhausted other remedies. (MC-13, Doc. 8.) He added that, because

Judge Chappell in the First Case had “accepted and posted a motion for

reconsideration” after Judge Steele had issued the September 29 order



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in the Second Case, Judge Steele could not “use that case as substantive

law.” ( Id. at 2.) According to Meidinger, Exhibit A to his motion was a

draft of the appeal of Judge Steele’s decision. ( Id. at 3; MC-13, Doc. 8-1.)

Exhibit A repeated the allegations Meidinger made in this and prior

motions for reconsideration. (MC-13, Doc. 8-1 at 20-22, 25-32.)

On December 2, 2015, the District Court denied Meidinger’s third

motion for reconsideration, concluding that the motion failed to raise

any new issues and was merely presenting arguments that the court

had already rejected, i.e., that the court had the authority to compel the

IRS to reopen Meidinger’s whistleblower claims. (MC-13, Doc. 9 at 2-3.)

C. Statement of the standard or scope of review

The question of whether this Court lacks jurisdiction to review the

judgments in the First Case and the Second Case because Meidinger

did not file timely notices of appeal from those judgments is determined

by this Court. See Marsh v. Dep’t of Children and Families , 259 Fed.

Appx. 201, 204 (11th Cir. 2007).

Review of the orders denying Meidinger’s motions for

reconsideration is for abuse of discretion. Am. Bankers Ins. Co. of Fla. v.

Nw. Nat’l Ins. Co. , 198 F.3d 1332, 1338 (11th Cir. 1999).



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To the extent the Court has jurisdiction to review the July 1, 2015

dismissal of the First Case for lack of subject matter jurisdiction, the

standard of review is de novo . Sherrod v. Chater , 74 F.3d 243, 245 (11th

Cir. 1996).

To the extent the Court has jurisdiction to review the September

29, 2015 order in the Second Case dismissing the case as duplicative of

the First Case, the review is for abuse of discretion. Adams v. California

Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007); Curtis v.

Citibank, N.A., 226 F.3d 133, 138 (2d. Cir. 2000).

SUMMARY OF ARGUMENT

This Court only has jurisdiction to review the December 18, 2015

order in the First Case and the December 2, 2015 order in the Second

Case. Meidinger’s notice of appeal in the First Case was untimely as to

the July 1, 2015 judgment, and the notice of appeal in the Second Case

was untimely as to the September 29, 2015 judgment.

In any event, the District Court correctly dismissed the First Case

for lack of jurisdiction. In his initial petition, Meidinger asked the

District Court to order the Commissioner to, among other things,

investigate the taxpayers he had named on three IRS Forms 211 for



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alleged improper tax practices and process the Forms 211 for a

whistleblower award to him. Because the Commissioner owed no duty

to Meidinger to investigate the named taxpayers and had discretion in

selecting investigation targets, both generally and under 26 U.S.C.

§ 7623(b), the District Court could not grant the mandamus relief

Meidinger sought and thus lacked subject matter jurisdiction. Also

because of the Commissioner’s discretion in selecting investigation

targets, the Administrative Procedures Act precludes review of his

decision not to investigate the named taxpayers. The District Court was

also correct in concluding that the Tax Court had exclusive jurisdiction

over reviews of IRS determinations on Form 211 claims.

The District Court acted within its sound discretion in the FirstCase when it terminated all pending motions with its December 18,

2015 order. There was no need for the District Court to reconsider its

initial decision because the judgment dismissing the petition was

correct. Meidinger’s motions for reconsideration repeated arguments

that the court had already rejected.

The District Court correctly dismissed the Second Case as

duplicative of the First Case. The petition in this case was identical to



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the petition in the First Case in parties, issues, and the relief sought,

not to mention much of the language. Contrary to Meidinger’s assertion,

the First Case was in fact dismissed with prejudice. As a result, he

could not refile the lawsuit. The court did not abuse its discretion in

denying reconsideration in its December 2 order. Meidinger’s motions

for reconsideration simply rehashed arguments that had already been

rejected.

ARGUMENT

The District Court did not abuse its discretion indenying Meidinger’s motions for reconsiderationin the First Case or the Second Case

Meidinger appeals from the orders of the District Court denying

his motions for reconsideration in the First Case and the Second Case.

The motions sought reconsideration of judgments dismissing

Meidinger’s petitions for mandamus. The issue presented is whether

the denial of the motions for reconsideration was an abuse of discretion,

not whether the judgments themselves were proper. Meidinger cannot

challenge the judgments, because he did not file timely notices of appeal

from those judgments.



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A. This Court lacks jurisdiction to review the judgments and earlier orders on motions forreconsideration in the First Case and the SecondCase because Meidinger did not file timely

notices of appeal1. The notice of appeal was untimely as to the

July 1, 2015 judgment in the First Case

Judgment was entered dismissing the First Case on July 1, 2015.

(MC-8, Doc. 3.) Meidinger did not file his notice of appeal until

December 30, 2015, almost six months after the entry of judgment and

well beyond the 60-day period provided by Fed. R. App. P. 4(a)(1) for

filing a notice of appeal where a United States officer or employee is a

party in an official capacity. Meidinger’s multiple motions for

reconsideration did not toll the time for filing a notice of appeal.

Accordingly, this Court lacks jurisdiction to review the July 1 judgment.

If a party files a motion for reconsideration under Fed. R. Civ. P.

60 within 28 days after the entry of judgment, the time to file an appeal

runs from the entry of the order disposing of the last such remaining

motion. Fed. R. App. P. 4(a)(4)(A)(vi). On July 21, 2015, Meidinger filed

a motion for reconsideration and an amended motion for

reconsideration. (MC-8, Docs. 4 and 5.) At that point, these July 21



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But even if the August 7 motion for reconsideration is considered

to have been filed in time for Rule 4(a)(4)(A) to apply, the December 18

notice of appeal was still untimely with respect to the July 1 judgment.

Where there is an order granting a motion to withdraw a post-judgment

motion, the time for appeal runs from the order granting the motion to

withdraw. De Leon v. Marcos, 659 F.3d 1276, 1280-83 (10th Cir. 2011);

Vanderwerf, 603 F.3d 842; see also United States v. Rodriguez, 892 F.2d

233, 235 (2d. Cir. 1989); Brae Transportation, Inc. v. Coopers &

Lybrand, 790 F.2d 1439, 1442 (9th Cir. 1986) (starting clock for notice

of appeal when the district court acknowledged withdrawal of post-

judgment motion).

In this case, the District Court granted Meidinger’s motion towithdraw the July 21 motions on September 21, 2015. (MC-8, Doc. 9.)

On the same day, the District Court denied the August 7 motion. (MC-8,

Doc. 10.) Again assuming that the August 7 motion was timely for

triggering the tolling provision, both actions had the effect of making

November 20, 2015 the last day on which Meidinger might appeal the

July 1 judgment.



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The subsequent September 25 reply and October 5 motion for

reconsideration did not toll the time for appealing the July 1 judgment.

When there are multiple motions for reconsideration that attack the

judgment on substantially the same grounds, only the first motion for

reconsideration tolls the time to file a notice of appeal. Wright v.

Preferred Research, Inc., 891 F.2d 886, 889 (11th Cir. 1990); see also

Herriman v. United States , 418 Fed. Appx. 823, 824 (11th Cir. 2011);

Marsh, 259 Fed. Appx. at 204.

In his August 7 motion, Meidinger argued that the District Court

had jurisdiction over his petition and that he had exhausted all other

remedies. (MC-8, Doc. 7.) The September 25 reply reiterated the

exhaustion-of-remedies argument (MC-8, Doc. 11), and the October 5motion was a combination of the jurisdictional argument, the

exhaustion-of-remedies argument, and allegations from the initial

petition that the District Court had already rejected. (MC-8, Doc. 12.)

Thus, the September 25 and October 5 filings did not stop the clock

from ticking toward the November 20 deadline for appealing the July 1

judgment. And the time limit for filing a notice of appeal is mandatory



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and jurisdictional. 4 Griggs v. Provident Consumer Discount Co. , 459

U.S. 56, 61 (1982).

2. The notice of appeal was also untimely as tothe September 21 order in the First Case

When the District Court issued its September 21 order, Meidinger

had until November 20, 2015 to appeal that order. Neither his

September 25 reply nor October 5 motion tolled the time for appealing

the September 21 order. See Valentine v. BAC Home Loans Servicing ,

2015 WL 9461726 *1-2 (11th Cir. 2015) (confining appeal to order

4 This Court also has no jurisdiction over an appeal of the July 1 judgment (or the September 21 order, either, for that matter) for asecond reason: in his notice of appeal, Meidinger stated he wasappealing the “final judgment entered 12/18/2015 dismissing the caseper Doc. 15.” (MC-8, Doc. 16.) In his opening brief in appeal no. 15-15465, he again identifies the December 18 order as the subject of theappeal. (15-15465 Br. 4.) Fed. R. App. P. 3(c)(1)(B) requires the notice ofappeal to “designate the judgment, order or part thereof appealed from.”“Ordinarily, failure to abide by this requirement will preclude theappellate court from reviewing any judgment or order not so specified.”McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986); seeOsterneck v. E.T. Barwick Industries, Inc., 825 F.2d 1521, 1529 (11thCir. 1987) (an express designation of the order appealed from implies alack of intent to appeal undesignated orders). But see Foman v. Davis, 371 U.S. 178, 181 (1962) (courts of appeal should not dismiss notices ofappeal on grounds amounting to “mere technicalities”); Kicklighter v.Nails by Jannee, Inc. , 616 F.2d 734, 738 n. 1 (5th Cir. 1980) (appeals oforders not specifically designated in the notice of appeal allowed whereit is clear the overriding intent was effectively to appeal).



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denying second motion for reconsideration, even though it was filed

within 28 days of the denial for the first motion for reconsideration; i.e. ,

the second motion for reconsideration did not toll the time for appealing

the first order denying reconsideration); Marsh , 259 Fed. Appx. at 204-

05 (same). By the deadline of November 20, 2015, Meidinger had not

filed a notice of appeal. Therefore, his December 30 notice of appeal is

untimely with respect to the September 21 order.

3. The notice of appeal was untimely as to theSeptember 29, 2015 judgment in the SecondCase

Judgment was entered dismissing the Second Case on September

29, 2015. (MC-13, Doc. 3.) Meidinger did not file his notice of appeal in

this case until December 8, 2015, or 70 days after the entry of

judgment. (MC-13, Doc. 15.) Meidinger’s multiple motions for

reconsideration did not toll the time to file a notice of appeal. As with

the First Case, this Court lacks jurisdiction to review the September 29

judgment.

As discussed above at p. 18, successive post-judgment motions

raising substantially the same grounds for relief do not continue to toll

the time to appeal. Were the rule otherwise, “litigants could forestall



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appeal by filing an endless parade of post-judgment motions, which

would frustrate not only opposing parties’ legitimate interests in

prompt appellate review but also society's important interest in the

finality of judgments.” Valentine, 2015 WL 9461726 at *2.

Meidinger’s September 30 reply tolled the original deadline for

appealing the September 29 judgment. ( See MC-13, Doc. 4.) The District

Court’s denial of the reply on October 2 restarted the clock, with

December 1, 2015 as the last day for appeal. ( See MC-13, Doc. 5.)

Meidinger’s October 5 and November 20 motions for reconsideration did

not further toll the time for appeal because they repeated substantially

the same arguments he had already raised. (MC-13, Docs. 1, 4, 6, and

8.) Therefore, this Court is without jurisdiction to review the judgmentin the Second Case on the merits. 5

5 As in the First Case, Meidinger’s notice of appeal in the SecondCase states that he is only appealing the December 2, 2015 order. (MC-13, Doc. 10.) This Court lacks jurisdiction to review the judgment on themerits (as well as the October 2 and October 28 orders) from the SecondCase for this reason as well. See McDougald, 786 F.2d at 1474.



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4. The notice of appeal was untimely as to theOctober 2, 2015 order in the Second Case

The 60-day window for appealing the October 2 order closed on

December 1, 2015. Meidinger’s October 5 and November 20 motions for

reconsideration did not toll the time for appealing the October 2 order.

See Valentine , 2015 WL 9461726 *1-2; Marsh, 259 Fed. Appx. at 204-05.

B. Meidinger has failed to address the DistrictCourt’s orders on his motions for reconsideration

This Court has jurisdiction to review the December 18 order

denying Meidinger’s motions for reconsideration in the First Case (MC-

8, Doc. 15) and the December 2 order denying his motion for

reconsideration in the Second Case (MC-13, Doc. 9). The motions for

reconsideration were, in effect, motions for relief under Fed. R. Civ. P.

60(b). An appeal of a ruling on a Rule 60(b) motion addresses “only the

propriety of the denial or grant for relief and does not raise issues in the

underlying judgment for review.” Am. Bankers Ins. Co ., 198 F.3d at

1338 (citing Browder v. Director, Dep’t of Corrections , 434 U.S. 257, 263

n. 7 (1978)).

On appeal, however, Meidinger has not challenged the correctness

of the District Court’s denials of his motions for reconsideration in the



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First Case or the Second Case. His failure to address them on appeal is

itself sufficient reason for affirmance of the District Court’s orders. In

any event, Meidinger’s motions failed to show the existence of any

grounds for relief under Fed. R. Civ. P. 60 and, as discussed below, the

District Court’s dismissals of both petitions were correct.

C. The District Court in the First Case correctlydismissed the complaint

If this Court concludes it has jurisdiction to review the July 1

order in the First Case, the Court should affirm the District Court’s

initial decision that it lacked jurisdiction to grant the mandamus relief

requested or to evaluate Meidinger’s eligibility for a whistleblower

award under 26 U.S.C. § 7623(b).

1. Introduction to whistleblower awardsunder 26 U.S.C. § 7623

The IRS is authorized to pay sums for the detection of

underpayments of tax and for the detection “and bringing to trial and

punishment persons guilty of violating the internal revenue laws.” 26

U.S.C. § 7623(a). These sums are payable “from the proceeds of

amounts collected by reason of the information provided.” Id.



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Before 2006, IRS decisions to grant whistleblower awards were

discretionary. See Cooper v. Comm’r, 135 T.C. 70, 73 (2010) ( Cooper I ).

In 2006, Congress made whistleblower awards mandatory in certain

situations by adding paragraph (b) to § 7623. See Tax Relief and Health

Care Act of 2006, Pub. L. No. 109-432, div. A, tit. IV, 120 Stat. 2958,

2958-2960 (the 2006 Act). Under § 7623(b), “[i]f the Secretary proceeds

with any administrative or judicial action . . . based on information

brought to the Secretary’s attention by an individual,” the individual

shall be awarded part of the collected proceeds resulting from the

action, subject to certain limitations.

But a whistleblower is entitled to an award only if the information

provided leads to both an IRS administrative or judicial action againstthe allegedly noncompliant taxpayer and the collection of proceeds.

Simmons v. Comm’r, 523 Fed. Appx. 728, 730 (D.C. Cir. 2013); Cooper v.

Comm’r, 136 T.C. 597, 600 (2011) ( Cooper II ); see also Meidinger, 559

Fed. Appx. at 6; O’Donnell v. Comm’r, 489 Fed. Appx. 469 (D.C. Cir.

2012) (affirming Tax Court decision upholding IRS denial of awards

under § 7623(b) because information provided by whistleblowers did not

result in initiation of administrative or judicial action or collection of



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tax proceeds). Generally speaking, an administrative action means all

or part of an IRS civil or criminal proceeding that may result in

collected proceeds, and a judicial action means all or part of a

proceeding in any court that may result in collected proceeds. See

generally Treas. Reg. § 301.7623-2(a) and (d). “Awards will not be paid .

. . until there is a final determination of the tax liability and the

amounts owed are collected.” Cooper I, 135 T.C. at 74 (citing Notice

2008-1 C.B. 253 ¶ 3.08).

To request an award under § 7623(b), a whistleblower files with

the IRS Whistleblower Office a Form 211, Application for Award for

Original Information. Notice 2008-1 C.B. 253 ¶ 3.02. The Whistleblower

Office will acknowledge receipt of a claim in writing. Id. at ¶ 3.05. Atthis stage, the Whistleblower Office may also – in its sole discretion –

confer with the claimant regarding the information submitted in the

claim. Id . In circumstances other than a rejection or denial of an

award, 6 the Whistleblower Office will prepare a preliminary award

6 A “rejection” and a “denial” have different meanings underTreas. Reg. § 301.7623-3(c)(7) and (8). The difference is immaterial forthis appeal. For the sake of consistency, we will use the words “deny”

(continued…)



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recommendation that includes a preliminary computation of collected

proceeds, the recommended award percentage, and a list of the factors

that contributed to the award percentage, among other items. Treas.

Reg. § 301.7623-3(c)(1)-(2). The whistleblower will then have an

opportunity to respond to the Whistleblower Office. Treas. Reg.

§ 301.7623-3(c)(3)-(6). If the Whistleblower Office sends a preliminary

denial, the claimant may also respond. Then the Whistleblower Office

has the option to either provide written notice to the whistleblower of

the denial of the claim, including the basis for the denial, or proceed

under Treas. Reg. § 301.7623-3(c)(1)-(6) ( i.e., follow the procedures for

granting an award).

The 2006 Act also added a provision for judicial review of anaward determination under 26 U.S.C. § 7623(b). Section 7623(b)(4)

confers jurisdiction for these reviews on the Tax Court. The Tax Court

has exclusive jurisdiction over claims brought under § 7623(b).

(…continued)and “denial” in this brief, but take no position on whether the IRS’sdenials in this case were “rejections” or “denials” under Treas. Reg.§ 301.7623-3(c)(7) or (8).



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Amsinger v. United States, 99 Fed. Cl. 254, 258 (2011); Dacosta v.

United States, 82 Fed. Cl. 549, 555 (2008).

2. The District Court correctly decided itlacked subject matter jurisdiction to grantmandamus relief because the decision ofwhether to open an investigation is a matterleft to the Commissioner’s discretion andthe Commissioner owes no duty toMeidinger to investigate

a. A court has subject matter jurisdiction over a petition for a

writ of mandamus under 28 U.S.C. § 1361 only if the petitioner shows

that the substantive requirements for mandamus are met. In other

words, “[t]he test for jurisdiction is whether mandamus would be an

appropriate means of relief.” Cash, 327 F.3d at 1258 (quoting Jones v.

Alexander, 609 F.2d 778, 781 (5th Cir. 1980)). For example, if a

government agency has discretion to decide whether to take an action or

if it owes no duty to the petitioner, then a court has no jurisdiction over

the mandamus suit. Einhorn v. DeWitt, 618 F.2d 347, 349 (5th Cir.

1980); Davis Assocs. v. HUD, 498 F.2d 385, 388 (1st Cir. 1974).

Mandamus is a drastic remedy that is only appropriate in

extraordinary circumstances. Allied Chemical Corp. v. Daiflon, Inc., 449

U.S. 33, 34 (1980). The party seeking mandamus has the burden of



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showing a clear and indisputable entitlement to the relief and that

there is no other adequate means to obtain relief. Id. at 35; Cheney v.

U.S. Dist. Court for Dist. Of Columbia, 542 U.S. 367, 380-81 (2004). If

the act requested to be performed is permissive and discretionary, as

opposed to ministerial, a writ of mandamus cannot issue. Kirkland

Masonry Inc. v. Comm’r, 614 F.2d 532, 534 (5th Cir. 1980); Einhorn,

618 F.2d at 349; see also Your Home Visiting Nurse Servs., Inc. v.

Shalala, 525 U.S. 449 (1999) (petitioner not entitled to mandamus

under 28 U.S.C. § 1361 when the government manual at issue suggests

permissive, rather than mandatory, action). The grant of mandamus

relief is largely a matter of judicial discretion. Carter v. Seamans, 411

F.2d 767, 773 (5th Cir. 1969). Meidinger’s request for mandamus fails because the

Commissioner has discretion over whether to open an investigation of a

taxpayer and assess tax, and because the Commissioner owes no clear,

indisputable, specific duty to Meidinger to investigate. A ministerial act

is one in which “the law prescribes and defines . . . with such precision

as to leave nothing to the exercise of discretion or judgment.” In re

Soares, 107 F.3d 969, 974 (1st Cir. 1997) (citation omitted). In the



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federal tax context, the former Fifth Circuit has refused the request of a

bankruptcy trustee to order the IRS Commissioner to audit the debtor.

In re Wingreen Co., 412 F.2d 1048, 1051 (5th Cir. 1969) (IRS owed no

specific duty to the trustee). The Ninth Circuit has also held that the

Commissioner has “no nondiscretionary duty to assess [a taxpayer’s]

taxes upon demand,” where taxpayers who had not filed tax returns

asked the courts to order the Commissioner to assess their own tax

liabilities. See Stang v. Comm’r, 788 F.2d 564, 565-66 (9th Cir. 1986);

Warren v. Comm’r, 883 F.2d 1025, 1989 WL 96425 *1 (9th Cir. 1989)

(unpublished opinion).

Here, the whistleblower statute expressly recognizes the

Commissioner’s discretion over whether to open an investigation: “ If theSecretary proceeds with any administrative or judicial action . . . based

on information brought to the Secretary’s attention by an individual

. . .” 26 U.S.C. § 7623(b)(1) (emphasis added). By the statute’s plain

language, Congress left the decision up to the Commissioner. Brinkman

v. IRS, 2013 WL 5462390 *3 (D. Ore., Sept. 30, 2013); see United States

v. Cortese , 614 F.2d 914, 921 (3d Cir. 1980) (IRS has broad discretion in

selecting investigative targets).



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The discretion that § 7623(b) grants the Commissioner should not

be read, as Meidinger suggests ( see 15-15465 Br. 22, 27; 16-10071 Br.

47), in a way that allows a general statute to usurp the specific. See

RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,

2071 (2012) (“it is a commonplace of statutory construction that the

specific governs the general”). This is particularly true when “Congress

has enacted a comprehensive scheme and has deliberately targeted

specific problems with specific solutions.” Id. (citations omitted). If the

general and specific provisions create a contradiction, the specific

provision is construed as an exception to the general one. Id.

Here, 26 U.S.C. § 6201(a) “authorizes and requires” the Secretary

of the Treasury to make “the inquiries, determinations, andassessments of all taxes . . . imposed by [the Internal Revenue Code].”

(See 16-10071 Br. 47.) But § 7623(b), a specific statute designed to

address whistleblower awards, unequivocally reserves the decision on

whether to investigate to the Commissioner. Therefore, § 7623(b), the

specific provision, governs here.

Nor does Meidinger’s out-of-context quote (MC-8, Doc. 1 at 31;

MC-13, Doc. 1 at 34) from Cooper II diminish the Commissioner’s



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discretion in whether and whom to investigate for unpaid tax. In Cooper

II, the Tax Court observed that the Secretary has “the responsibility of

seeking tax revenue in every possible situation.” 136 T.C. at 601 ( citing

26 U.S.C. §§ 7601 and 7602). But in Cooper II , the Tax Court

determined that the whistleblower was not eligible for an award under

§ 7623(b) because the Commissioner had decided to not act on the

whistleblower’s information. Id . The Tax Court recognized that

“Congress did not authorize the Court to direct the Secretary to proceed

with an administrative or judicial action.” Id. at 600. In this context,

the Tax Court made the quoted statement to emphasize that it was the

Commissioner’s and not the whistleblower’s responsibility to decide

these matters, not to mean that the Commissioner must investigateevery single taxpayer who might owe tax. Id. at 600-01. Further,

§ 7601(a), which the Tax Court cited in Cooper II , states at the outset:

“The Secretary shall, to the extent he deems it practicable , cause officers

or employees of the Treasury Department” to investigate taxpayers.

(Emphasis added.) The Commissioner’s discretion is baked into the

statute, and the Tax Court’s characterization of “every possible

situation” (136 T.C. at 601, emphasis added) does not change that.



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Meidinger’s claim for mandamus relief also fails because the

Commissioner owes him no colorable – let alone “clear,” “indisputable,”

or “specific” – duty to investigate the taxpayers he named on the Forms

211. Meidinger has identified no interest in or relationship between him

and these taxpayers or these taxpayers’ potential tax liabilities. 7 While

such an interest or relationship is not a prerequisite for filing a Form

211 claim or being eligible for a whistleblower award, the absence of

such an interest or relationship makes Meidinger’s claim for mandamus

even more untenable than those of the plaintiffs in Wingreen, Warren,

and Stang .

b. Sovereign immunity also bars jurisdiction in the District

Court. The United States is immune from suit unless it consents to besued, and the terms of its consent define the court’s jurisdiction. United

States v. Dalm, 494 U.S. 596, 608 (1990). A suit against officers or

employees of the United States in their official capacities is a suit

7 In deciding that the plaintiff had no standing to bring suit, theSupreme Court commented that “the generalized interest of all citizensin constitutional governance” or “an asserted right to have theGovernment act in accordance with law is not sufficient, standing alone,to confer jurisdiction on a federal court.” Whitmore v. Arkansas, 495U.S. 149, 160 (1990) (citations omitted).



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against the United States. Simons v. Vinson, 394 F.2d 732, 736 (5th Cir.

1968). “The general rule is that a suit is against the sovereign if ‘the

judgment sought would expen

Meidinger Case 16-10071 Reply Brief by Appellee

Documents

Transcript of Meidinger Case 16-10071 Reply Brief by Appellee