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### .J. MEIDINGER, Plaintiff, V, UNITED STATES, Defendant. No. 19-1521C (Filed: January 28, 2020) ) ) Claim for whistleblower award under Internal ) Revenue Code§ 7623; unavailability ofa ) remedy in contract because ofstatutorily ) mandated appeal to the Tax Court under ) I.R.C. § 7623(b)(4) ) ) ) ) --------------) Roy 

### J. Meidinger,pro 

### se, Fort Myers, FL. Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depa1tment ofJustice, Washington, D.C. for defendant. With her onthe briefwere JosephH. Hunt, Assistant Attorney General, Civil Division, Robeit E. Kirschman, Jr., Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Depaitment ofJustice, Washington, D.C.
OPINION AND ORDER LETTOW, Senior Judge. PlaintiffRoy Meidinger has brought suit in this couitallegingthat he is entitledto a whistleblower award from the Internal Revenue Service ("IRS") for information he provided concerning allegedly improper taxpractices in the healthcare industry. He claimsthat his submission ofthat information created a contract with the IRS which he seeks to enforce in this court. He seeks damages, enforcementofhis whistleblower claims, and an audit ofthe healthcare industry. Comp!. at4. The United States as defendant has responded with a motion to dismiss for lack ofsubject-matterjurisdiction and for failure to state a claim ("Def.'s Mot."), ECFNo. 5, and Mr. Meidinger filed a response to thatmotion, 

### see Pl.'sResp. to Def.'s Mot. ("Pl.'s Resp."), ECF No. 8. 1

1 AftertheUnited States timely filed its motion to dismiss on December 2, 2019, Mr. Meidingerfiled a motion for defaultjudgment, asse1iing thatthe government had failed to file a timely answer to his complaint byDecember2, 2019. See PL's Mot. for Default Judgment ("PL'sMot."), ECF No. 6. Because filings in

### prose matters are manually filed, they may not appear onthe couit's electronic docketuntil a following business day, and this time lag may explain the basis for Mr. Meidinger's motion. The government's motionto dismiss, however,Because this court lacks subject-matterjurisdiction, Mr. Meidinger's claim is DISMISSED. BACKGROUND2
In the fall of2009, plaintiffRoy Meidinger submitted a Form 211 application to the IRS in which he provided information about allegedly improper tax practices at an exempt organization. See Def.'s Mot. App. at Al. A Form 211 application is the means by which an individual may seek a monetary award from the IRS pursuant to the whistleblower provision of the Internal Revenue Code ("I.R.C."), 26 U.S.C. § 7623. That statute requires the IRS to award whistleblowers between 15 and 30 percent ofany proceeds generated by administrative or judicial actions based on whistleblower-provided information. I.R.C. § 7623(b)(I). Mr. Meidinger provided purportedly "detailed information and expert support documentation," which, he alleged, identified "one milliontaxpayers in the [h]ealthcare [i]ndustrythat are involved in a kickback scheme." Comp!. at 4. According to Mr. Meidinger, this "kickback scheme" involved a "conspiracy" whereby healthcareproviders paid insurance companies kickbacks for referring patients to them and cancelled debts the insurance companies owed the providers. Comp!. at 4. That arrangement, Mr. Meidinger claimed, had resulted in estimatedtax revenue losses ofnine trillion dollars. Comp!. at 4. The IRS chose not to proceed with an administrative orjudicial action against the taxpayers in question and notified Mr. Meidinger ofthat determination by letter on June 11, 2012. Def.'sMot. App. at A2. Undeterred by rejection, Mr. Meidinger commenced an action in the Tax Cou1t, alleging abuse ofdiscretion in denial ofthe award and failure to adequately explain whythe information he providedhad generated no investigations or audits. Id In a motion for summaryjudgment, the IRS maintained that an award was not merited because the agency had not initiated administrative orjudicial action or collected taxes based onthe information. Id. Mr. Meidinger countered, however, that Section 7623(b) mandated payment of an award because the IRS created a contractwith him when it confirmed receipt ofhis Form 211, thus obligating the IRS to investigate the taxpayers he had identified. See id. Because he had fulfilled his contractual obligations, Mr. Meidinger asserted he was entitled to an award, 

### id, but the Tax Court granted summaryjudgmentto the IRS on August 30, 2013, 

### id at A4. The United States Court ofAppeals for the D.C. Circuit affirmed the Tax Court, holding that Mr. Meidinger was not eligible for a whistleblower award "because the information [he] provided did not result in initiation ofan administrative orjudicial action or collection oftax proceeds." Meidinger v. Commissioner, 559 Fed. Appx. 5, 6 (D.C. Cir. 2014) (internal quotations and citation omitted). Mr. Meidinger filed a second Form 211 application in May 2018, putting forward basically the same information, and the IRS rejected this renewed whistleblower claim both as "speculative" and because it "did not provide specific or credible infmmation regarding tax underpayments or violations ofinternal revenue laws." Def.'s Mot. App. at A7. As before, Mr.

was timely received--even ifit did not immediately appear on the docket-andtherefore the motion for defaultjudgment is DENIED.

2The recitations that follow do not constitute findings offact bythe court. Instead, the recited factual elements are taken from the complaint, the motionto dismiss, appended exhibits, andjudicial notice ofprior relevant decisions in other courts. No factual disputes are involved. 2Meidinger commenced another action inthe Tax Comt challenging the denial, and in due course that Court granted the agency's motion to dismiss because the petition failed to allege the collection ofany proceeds or the initiation ofany administrative orjudicial proceedings as a result ofthe information he had provided. See id at A7-A8. Indefatigably, Mr. Meidinger again appealed the decision, and, correspondingly, the D.C. Circuit affirmed the Tax Court and reiterated its conclusion thathe was not entitled to a whistleblower award because no proceedings were initiated and no tax revenue was collected based on the information. See Meidinger v. Commissioner, 771 Fed. Appx. 11, 12 (D.C. Cir. 2019). In its decision, the D.C. Circuit made an observation relevant to the case nowpresented to this comt, stating that "[i]nsofar as [Mr. Meidinger] seeks to pursue a breach ofcontract claim againstthe Internal Revenue Service, such a claim is properly filed in the U.S. Court ofFederal Claims." 

### Id. (citations omitted). Apparently acting on this suggestion, Mr. Meidinger filed his complaint inthis comt on September 23, 2019, claiming that "the submission ofthe whistleblower claim is the formation ofa contract between the [w]histleblower and the Internal Revenue Service." Comp!. at 4. He seeks both damages and an orderthat the IRS "strictly enforce [his] latest 211 [c]laim and audit the entire [h]ealthcare [i]ndustry." Comp!. at 3. STANDARDS FORDECISION Rule I2(b)(i)

- Lackof Subject-Matter Jurisdiction The Tucker Act provides this court withjurisdiction over "any claim againstthe United States founded either uponthe Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any express or implied contract withthe United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 149!(a)(l). To invoke this comt's Tucker Actjurisdiction, "aplaintiffmust identify a separate source of substantive law that creates the right to money damages." Fisher v. UnitedStates, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevantpait) (citing UnitedStates v. Mitchell, 463 U.S. 206,216 (1983); UnitedStates v. Testan, 424 U.S. 392,398 (1976)). Ifa plaintifffails to do so, this court "should [dismiss] for lack ofsubject matterjurisdiction." Jan's Helicopter Serv., inc. v. FederalAviationAdmin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cty. v. UnitedStates, 487 F.3d 871,876 (Fed. Cir. 2007)). Furthermore, this comt lacksjurisdiction over actions seeking equitable relief, such as a declaratory or injunctive remedy, that are not brought pursuant to the specific grants ofauthority to this courtto issue suchrelief. See Alvarado Hospital, LLCv. Price, 868 F.3d 983, 999 (Fed. Cir. 2017) (citing Richardson v. Morris, 409 U.S. 464,465 (1973)). Mr. Meidinger, as plaintiff, must establishjurisdiction by a preponderance ofthe evidence. TrustedIntegration, inc. v. UnitedStates, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing Reynolds v. Army &AirForce Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).3

3 A comt may "grantthepro se litigant leeway on procedural matters, suchas pleading requirements." McZeal v. SprintNextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980) ("Anunrepresented litigant should notbe punished for his failure to recognize subtle factual or legal deficiencies inhis claims.")). Butthis leniency cannot extend to lesseningjurisdictional requirements. See Kelley v. Secretary, UnitedStates Dep 't of 3"Subject matterjurisdiction is an inquiry that this court mustraise sua sponte." Metabolite Labs., Inc. v. Laboratory Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir. 2004) (emphasis added). "Ifa court lacksjurisdictionto decide the merits ofa case, dismissal is required as a matter oflaw." Gray v. UnitedStates, 69 Fed. Cl. 95, 98 (2005) (citing Exparte Mccardle, 74 U.S. (7 Wall.) 506,514 (1868); Thoenv. UnitedStates, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also Rule 12(h)(3) ofthe Rules ofthe Court ofFederal Claims ("RCFC") ("Ifthe court determines at any time that it lacks subject-matterjurisdiction, the court must dismiss the action."). ANALYSIS The plain text ofthe whistleblower statute under which Mr. Meidinger brings his claim governs the decision in this case. As amended by the Tax Reliefand Health Care Act of2006, Pub. L. No. 109-432, the statute provides that "[a]ny determination regarding an award under [Section 7623(b)(l)] may, within 30 days ofsuch determination, be appealed to the Tax Court (andthe Tax Court shall havejurisdiction with respect to such matter)." I.R.C. § 7623(b)(4). This statutory text expresses a determination by Congress to commit subject-matterjurisdiction over review ofdecisions by the IRS under the whistleblower award provision to the Tax Court. That grant of jurisdiction is exclusive and precludes this court from also exercisingjurisdiction over such claims. See Cape/auto v. UnitedStates, 99 Fed. Cl. 682,691 (2011) ("Because Congress has vested the United States Tax Court with subjectmatterjurisdiction over suits to recover an award under [S]ection 7623(b), such suits are beyond thejurisdiction ofthis court."); DaCosta v. United States, 82 Fed. Cl. 549, 555 (2008) ("[C]laims based upon [S]ubsection 7623(b)(l) are within the exclusivejurisdiction ofthe Tax Court.") (citation omitted). Mr. Meidinger contends, however, that the basis for this court'sjurisdictionis not Section 7623 but rather the existence ofan implied contract, which implicates this court's Tucker Actjurisdiction. See Pl.'s Resp. at 2. In thatrespect, he draws upon the commentary by the D.C. Circuit inMeidinger, 771 Fed. Appx. at 2. He maintains that an award proffered in return for information, like that in Section 7623, constitutes an offer that may be acceptedby performance, thereby forming an enforceable unilateral contract. See 

### id. at 9-10. He seeks support from decisions holding that "[t]he offer ofa prize or reward for doing a specific act, like catching a criminal, is an offer for a unilateral contract

. . . . So long as the outstanding offer was known to him [or her], a person may accept an offer for a unilateral contract by rendering performance." Pl.'s Resp. at 10 (quoting Simmons v. UnitedStates, 308 F.2d 160, 164-65 (4th Cir. 1962)). Indeed, priorto the 2006 amendments to the whistleblower provision, Section 7623 was construed to allowpotential recovery inthis comiunder a contract theory. See Thomas v. United States, 22 Cl. Ct. 749, 750 (1991). The 2006 amendments, however, added the provision that vests exclusivejurisdiction inthe Tax Court to review action by the IRS to grant or deny awards. That change nowrenders the contract theory unavailing to conferjurisdiction on this court over applications submitted-as Mr. Meidinger's were-afterthe 2006 amendments became effective. Binding precedent precludes the formation ofany contract under the facts presented. In Merrick v. UnitedStates, the Federal Circuitheld that an enforceable contract arises under Section 7623 "only after the informant and the government negotiate and fix a specific amount Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) ("[A] court may not

...take a liberal view of

... jurisdictional requirement[s] and set a different rule forprose litigants only."). 4as the reward." 846 F.2d 725, 726 (Fed. Cir. 1988); see alsoAmsinger v. UnitedStates, 99 Fed. Cl. 254,263 (2011) (concluding thatplaintiff's claim failed "because the IRS [was] not alleged to have promised him a specific reward amount"). Mr. Meidinger does not allege that he negotiated a specific amount with the IRS. Indeed, the IRS denied his second application without significant discussion, and there is no suggestion that specific award percentages were ever mentioned. And because the IRS never initiated any proceedings or collected any tax revenue based onthe information Mr. Meidinger provided, there would have been no basis for setting award percentages. Thus, inthe absence ofany negotiations or settlement on a fixed award amount, Mr. Meidinger cannot establish the existence ofa contract that could possibly conferjurisdiction onthis court.4 As the Tax Court recently stated: "There's only one door whistleblowers can enter-the one unlockedby a determination from the IRS and opened by a timely petitionwiththis Court." Kasper v. Commissioner, 150 T.C. 8, 18 (2018) (citations omitted). CONCLUSION
Forthe reasons stated, the government's motionto dismiss is GRANTED. Mr. Meidinger's complaint shall be DISMISSED without prejudice for lack ofsubject-matter jurisdiction.5 The clerk shall enterjudgment accordingly.
No costs. It is so ORDERED.

Charles F. Letlow Senior Judge

4To the extent that Mr. Meidinger seeks declaratory or injunctive reliefin the form ofan orderrequiring an audit ofthe healthcare industry, this court also lacksjurisdictionbecause no statute confers suchpower on this court. See FirstHartford Corp. Pension Plan & Tr. v. United States, 194 F.3d 1279, 1294 (Fed. Cir. 1999) ("The Court ofFederal Claims, except for certain narrowly defined circumstances, is prohibited from granting equitable relief.") (citation omitted). Although several such grants to this court ofpowerto enter equitable reliefare contained in the Internal Revenue Code, see, e.g., 26 U.S.C. §§ 633l(i)(l), (i)(4)(A); see also Beardv. United States, 99 Fed. Cl. 147 (2011), no similar grant of juridical authority applies to Mr. Meidinger's claims.

5 As noted earlier, Mr. Meidinger's motion for defaultjudgment, ECFNo. 6, is DENIED. 

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