Professional Documents
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15-15465-DD, 16-10071-EE
IN 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 THE
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF FLORIDA
BRIEF FOR THE APPELLEE
CAROLINE D. CIRAOLO
Acting Assistant Attorney General
BRUCE R. ELLISEN
SHERRA WONG
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
(202) 514-2929
(202) 616-1882
Of Counsel:
A. LEE BENTLEY, III
United States Attorney
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TABLE OF CONTENTS
Page
Certificate 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.
B.
1.
2.
2.
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Page
Proceedings in the District Court ............................................ 3
1.
2.
2.
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Page
3.
4.
B.
C.
2.
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Page
The District Court had no jurisdiction under
the Administrative Procedures Act to
review the Commissioners decision on
whether to open an investigation ....................... 35
4.
5.
6.
7.
E.
The District Court in the First Case did not abuse its
discretion in denying Meidingers motions for
reconsideration ....................................................................... 46
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Page
F.
2.
G.
The District Court in the Second Case did not abuse its
discretion in denying Meidingers 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)
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Cases (continued):
Page(s)
Brinkman v. IRS,
2013 WL 5462390 (D. Ore., Sept. 30, 2013) .................................... 29
Browder v. Director, Dept 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
* Cases or authorities chiefly relied upon are marked with asterisks.
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Cases (continued):
Page(s)
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. Commr,
135 T.C. 70 (2010)........................................................... 24, 26, 32, 33
Cooper v. Commr,
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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Page(s)
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. Commr,
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
* Cases or authorities chiefly relied upon are marked with asterisks.
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Page(s)
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Cases (continued):
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Cases (continued):
Page(s)
Mays v. Kirk,
414 F.2d 131 (5th Cir. 1969) ............................................................ 35
McDonald v. Board of Election Commrs of Chicago,
394 U.S. 802 (1969) .......................................................................... 42
McDougald v. Jenson,
786 F.2d 1465 (11th Cir. 1986) ........................................................ 19
Meidinger v. Commr,
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
ODonnell v. Commr,
489 Fed. Appx. 469 ..................................................................... 24, 39
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Cases (continued):
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Cases (continued):
Page(s)
Warren v. Commr,
883 F.2d 1025, 1989 WL 96425 (9th Cir. 1989) ........................ 29, 32
Washington Legal Found. v. U.S. Sentencing Commn,
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:
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Page(s)
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Statutes (continued):
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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) .................................................................................... 19
Rule 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
* Cases or authorities chiefly relied upon are marked with asterisks.
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Rules (continued):
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Page(s)
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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.
16-10071 Br.
MC-8, Doc. X
MC-13, Doc. X
APA
Commissioner
First Case
IRM
Judge Chappell
Judge Steele
Second Case
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STATEMENT OF JURISDICTION
A.
Attachments 4 and 5 in Meidingers appendix for appeal no. 1515465 and Tab 15 in Meidingers appendix for appeal No. 16-10071
consist of material that is not part of the record of either case and
should be stricken. Attachments 1 and 2 in Meidingers appendix for
appeal no. 15-15465 are not part of the record in either case, but all or
parts of them have appeared in filings in both cases.
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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.
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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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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 Courts 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.
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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.
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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 Meidingers 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 a
new 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 Steeles 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 Meidingers 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 Meidingers whistleblower claims. (MC-13, Doc. 9 at 2-3.)
C.
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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
Dept 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. Meidingers 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 Commissioners 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 First
Case 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. Meidingers 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 Meidingers 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. Meidingers motions
for reconsideration simply rehashed arguments that had already been
rejected.
ARGUMENT
The District Court did not abuse its discretion in
denying Meidingers motions for reconsideration
in 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
Meidingers 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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motions tolled the August 31, 2015 deadline for appeal. See Fed. R. App.
R. 4(a)(4)(A)(vi).
On August 7, 2015, Meidinger moved to withdraw both July 21
motions and simultaneously filed another motion for reconsideration for
appealing the July 1 judgment. (MC-8, Docs. 6 and 7.) On September
21, 2015, the District Court granted Meidingers motion to withdraw
the July 21 motions. (MC-8, Doc. 9.)
The effect of a withdrawal of a motion is to leave the record as it
stood prior to filing as though the motion had never been made.
Vanderwerf v. SmithKline Beecham Corp., 603 F.3d 842, 846 (10th Cir.
2010) (quoting 56 Am.Jur.2d Motions, Rules and Orders 32 (2009)).
When Meidinger withdrew his July 21 motions for reconsideration, it
was as if he had never made those motions. He filed the subsequent
August 7 motion for reconsideration more than 28 days after the July 1
judgment, too late to trigger the tolling provision of Fed. R. App. P.
4(a)(4)(A)(vi). As a result, the time for filing a notice of appeal with
respect to the July 1 judgment expired on August 31, 2015. See Shotkin
v. Weksler, 254 F.2d 596, 596-97 (5th Cir. 1958) (untimely postjudgment motion did not toll time for appeal).
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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 Courts orders. In
any event, Meidingers motions failed to show the existence of any
grounds for relief under Fed. R. Civ. P. 60 and, as discussed below, the
District Courts dismissals of both petitions were correct.
C.
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(continued)
and denial in this brief, but take no position on whether the IRSs
denials in this case were rejections or denials under Treas. Reg.
301.7623-3(c)(7) or (8).
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a.
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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 taxpayers]
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. Commr, 788 F.2d 564, 565-66 (9th Cir. 1986);
Warren v. Commr, 883 F.2d 1025, 1989 WL 96425 *1 (9th Cir. 1989)
(unpublished opinion).
Here, the whistleblower statute expressly recognizes the
Commissioners discretion over whether to open an investigation: If the
Secretary proceeds with any administrative or judicial action . . . based
on information brought to the Secretarys attention by an individual
. . . 26 U.S.C. 7623(b)(1) (emphasis added). By the statutes 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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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 expend itself on the public treasury or domain,
or interfere with public administration, or if the effect of the judgment
would be to restrain the Government from acting, or to compel it to
act. Dugan v. Rank, 372 U.S. 609, 620 (1963) (citation omitted). The
two exceptions are (1) actions by officers beyond their statutory powers
and (2) even though within the scope of their authority, the powers
themselves or the manner in which they are exercised are
constitutionally void. Id. at 621-22; see also Larson v. Domestic &
Foreign Commerce Corp., 337 U.S. 682, 689 (1949).
The mandamus relief Meidinger seeks here would interfere with
public administration and compel the government to act. Dugan, 372
U.S. at 620. Therefore, this is a suit against the United States. The D.C.
Circuit has recognized that whether the Larson-Dugan exception
applies depends on whether the government has a duty to the plaintiff
and that, as with the analysis under the mandamus statute, the
question of jurisdiction merges with the question on the merits.
Washington Legal Found. v. U.S. Sentencing Commn, 89 F.3d 897, 901-
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02. (D.C. Cir. 1996). Although the former Fifth Circuit has determined
that the Larson-Dugan exception applied and, by extension, sovereign
immunity was not a jurisdictional bar by accepting non-frivolous, noninsubstantial allegations as true for jurisdictional purposes, the case is
distinguishable because the plaintiff in that case sought to compel a
U.S. employee to perform a clear legal duty. Carter, 411 F.2d at 77071. In the appeal at bar, 7623(b) on its face does not create a legal
duty on the Commissioner to open an investigation on every Form 211
filed by a whistleblower.
None of the various other jurisdictional rules and statutes
Meidinger cites (16-10071 Br. 1-3) confers jurisdiction on the District
Court to grant mandamus relief. First, with respect to Meidingers
citation to Fed. R. Civ. P. 65 (Injunctions and Restraining Orders), the
Federal Rules of Civil Procedure do not create an independent basis for
federal subject matter jurisdiction. Diaz v. Sheppard, 85 F.3d 1502,
1505 (11th Cir. 1996). 28 U.S.C. 1345 applies only to cases commenced
by the United States or its agencies or officers authorized by Congress
to sue. 26 U.S.C. 7402(a) grants jurisdiction to District Courts to issue
injunctions at the instance of the United States, not any other individual
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Court. And regardless of whether the second and third claims were
duplicative of the first claim, the District Court would still be without
jurisdiction to review them.
And given the Tax Court and the D.C. Circuits rejection of the
first claim, Meidingers appeal of the second and third claims would
likely be futile and possibly barred by res judicata and/or collateral
estoppel. This result does not mean that the District Court was
incorrect. Rather, it underscores the reality fatal to Meidingers claims
for award: the Commissioner has not proceeded with an administrative
or judicial action on his information and is under no obligation to him to
do so.
5.
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a.
equal protection is inapposite. In his view, the IRS has void[ed] the tax
code for the healthcare industry and is applying the tax code
differently to different taxpayers. (15-15465 Br. 12; 16-10071 Br. 28; see
id. at 59-60.) But the application of economic statutes, such as the
Internal Revenue Code, needs to pass only a rational basis test; i.e., the
application of a statute will be upheld if a court can conceive of a
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545 U.S. 209, 221 (2005). A protected property interest only exists
where a person has more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it. Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972).
Meidingers alleged right to receive an award is, in fact, no more
than an abstract need or desire and a creature of his unilateral
expectation. Given that neither he nor the courts may interfere with the
Commissioners discretion on whether to open an investigation, his
property interest in an award is no more than speculative. Further, if
his alleged entitlement is to an IRS investigation, an investigation
involves neither life, nor liberty, nor property.
7.
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There must also be a causal connection between the injury and the
conduct complained of. Id. Finally, it must be likely, as opposed to
merely speculative, that the injury will be redressed by a favorable
decision. Id.
The injury Meidinger complains of is, presumably, the
impossibility of his receiving an award due to the Commissioners
current decision not to investigate the taxpayers he named on the
Forms 211. First, it is questionable whether an award under 26 U.S.C.
7623(b) is a legally-protected interest, given how the statute
predicates the possibility of an award on the Commissioners
discretionary action, clean hands on the part of the whistleblower, and
monetary thresholds on the investigated taxpayers income and amount
of tax, interest, and penalties in dispute. See 26 U.S.C. 7623(b)(1), (3),
and (5).
But even if an award were a legally-protected interest, the alleged
injury was little more than hypothetical. In Whitmore, the Supreme
Court decided that an injury was in an area of speculation and
conjecture when the claim essentially amounted to if the respondents
violated a law, and if they are charged and tried, they will be subject to
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a denial of relief from the Tax Court) has the power to redress this
injury, if any. 26 U.S.C. 7623(b)(4); Amsinger, 99 Fed. Cl. at 258.
E.
old matters, raise argument or present evidence that could have been
raised prior to the entry of judgment. Richardson v. Johnson, 598 F.3d
734, 740 (11th Cir. 2010) (quoting Michael Linet, Inc. v. v. Village of
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Wellington, 408 F.3d 757, 763 (11th Cir. 2005)). The September 25
reply (MC-8, Doc. 11) and the October 5 motion (MC-8, Doc. 11)
rehashed arguments that Meidinger had made in the petition or in a
prior motion. The September 25 reply attached copies of the Tax Courts
and D.C. Circuits opinions regarding his first Form 211 claim (MC-8,
Doc. 11-2 at 5, Doc. 11-3 at 2), but the fact of these adjudications dated
from August 2013 and March 2014, respectively; these adjudications
were not newly discovered. The same applies to the allegations in the
October 5 motion for reconsideration and the accompanying exhibits
about the health-care industry, the IRS Whistleblower Offices alleged
actions and, again, the Tax Courts and D.C. Circuits decisions on his
first Form 211 claim. (See MC-8, Doc. 12.)
In addition, district courts have wide latitude in deciding whether
to grant mandamus relief (and thus whether they even have jurisdiction
to entertain the petition for mandamus, since the jurisdictional and
substantive elements are intertwined). See Cash, 327 F.3d at 1258;
Carter, 411 F.2d at 773. It is unlikely that an exercise of discretion,
even an allegedly poor one, can be called an obvious error that
requires reconsideration. The District Court was also correct in refusing
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2015 order (MC-8, Doc. 10), which denied Meidingers August 7 motion
for reconsideration and September 9 motion for addendum. (See pp. 1920, supra.) In any event, the District Court did not abuse its discretion
in this regard.
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The August 7 motion for reconsideration (MC-8, Doc. 7), like the
motions discussed above, rehashed arguments made in the petition.
The September 9 motion for addendum (MC-8, Doc. 8), however, was
not a motion for reconsideration.10 Rather, it was in effect a motion to
amend the complaint under Fed. R. Civ. P. 15(a). Rule 15 has no
application once a district court has dismissed the complaint and
entered final judgment for the defendant. Lee v. Alachua County, 461
Fed. Appx. 859, 860 (11th Cir. 2012); Jacobs v. Tempur-Pedic Intl., Inc.,
626 F.3d 1327, 1344-45 (11th Cir. 2010). Post-judgment, the plaintiff
may seek leave to amend if he is granted relief under [Federal Civil
Procedure] Rule 59(e) or Rule 60(b)(6). Jacobs, 626 F.3d at 1344-45.
While a pro se litigant must generally be given an opportunity to
amend his complaint, a district court need not allow any amendment
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where amendment would be futile. Lee, 461 Fed. Appx. at 860 (citing
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007)).
Here, a more carefully-crafted petition would not have stated a
claim that gave the District Court jurisdiction to grant the relief
Meidinger sought. As long as Meidinger was asking the District Court
to order the Commissioner to investigate certain taxpayers and review
his three Form 211 claims, the District Court remained without power
to do so. The proposed addendum consisted entirely of Meidingers
allegations about the health-care industry. (MC-8, Doc. 8-1.) Even if
allowed, the amendment would not have changed the nature of the
relief Meidinger sought, and the District Court still would not have
been able to grant the relief. Therefore, the District Court did not abuse
its discretion in refusing to allow the addition of the addendum.
F.
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Here, the jurisdictional defect in the First Case was not curable
and was never going to be curable under current law, no matter how
many times Meidinger rewrote his petition. As long as he wanted the
District Court to order the Commissioner to investigate the taxpayers
he named on the Form 211 claims and to review the IRSs
determinations of the claims, the District Court would never have
jurisdiction, at least until the courts and Congress decided to rewrite
the law on mandamus and 26 U.S.C. 7623(b)(4). In Costello, for
example, the government cured the jurisdictional defect by submitting a
proper affidavit of good cause for filing the lawsuit. Costello, 365 U.S. at
284-88. In Mann v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 488
F.2d 75, 76 (5th Cir. 1973), the plaintiff on his second try alleged
diversity that had existed at the time of his first lawsuit.
Therefore, the dismissal of the First Case was effectively with
prejudice, and the District Courts determination of a lack of jurisdiction
in the First Case prevented Meidinger from filing the Second Case. See
Stewart Securities Corp. v. Guaranty Trust Co., 597 F.2d 240, 242-43
(10th Cir. 1979) (giving res judicata effect to the first dismissal where
the defect was not curable).
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the First Case was in effect a dismissal with prejudice because the
petition suffered from non-curable defects. (See pp. 54-55, supra.) The
statutes that Meidinger cited in his September 30 reply would not have
provided jurisdiction for the Second Case, just as they failed to do so for
the First Case. (See pp. 34-35, supra.)
The October 28 order (MC-13, Doc. 7) denied Meidingers October
5 motion for reconsideration. That motion rehashed arguments about
jurisdiction (compare MC-13, Doc. 6 at 13-14 with Doc. 1 at 4 and Doc. 4
at 3), his entitlement to mandamus relief (compare MC-13, Doc. 6 at 4-6
with Doc. 1 at 32-43), his exhaustion of remedies (compare MC-13, Doc.
6 at 11-13 with Doc. 1 at 50-51), and the IRSs alleged failure to follow
administrative procedures (compare MC-13, Doc. 6 at 4-6 and 10 with
Doc. 1 at 28).
The December 2 order (MC-13, Doc. 9) denied the November 20
motion for reconsideration. That motion again raised the exhaustion-ofremedies and jurisdictional arguments he had made in the petition and
prior motions for reconsideration in the Second Case. (Compare MC-13,
Doc. 8 at 2-3 with Doc. 1 at 4-5, Doc. 4 at 3, Doc. 6 at 11-14.) He had
already argued that the Second Case was not duplicative of the First
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CONCLUSION
The orders of the District Court in both the First Case and the
Second Case should be affirmed.
Respectfully submitted,
CAROLINE D. CIRAOLO
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CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION, TYPEFACE
REQUIREMENTS, AND TYPE STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because:
[X] this brief contains 12,030 words, excluding the parts of
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or
[]
(s)
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CERTIFICATE OF SERVICE
I hereby certify that on March 18, 2016, this brief was filed with
the Clerk of the United States Court of Appeals for the Eleventh Circuit
by using the appellate CM/ECF system, and seven paper copies were
sent to the Clerk by First Class Mail.
I also certify that on March 18, 2016, I caused two copies of this
brief to be served on the following by First Class Mail:
Roy J. Meidinger
14893 American Eagle Ct.
Fort Myers, FL 33912
Pro se
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