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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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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
C-1 of 2
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 of
Florida
Melissa Briggs, Attorney, Appellate Section, Tax Division, DOJ
Hon. Sheri Polster Chappell, United States District Judge, Middle
District 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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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
C-2 of 2
David Katinsky, Assistant Chief, Civil Trial SectionSouthern, Tax
Division, DOJ
Michael J. Kearns, Chief, Civil Trial SectionSouthern, Tax Division,
DOJ
John Koskinen, Commissioner of Internal Revenue
Roy J. Meidinger, Appellant
Marissa Rose Miller, Trial Attorney, Civil Trial SectionSouthern, Tax
Division, DOJ
Joan Oppenheimer, Reviewer, Appellate Section, Tax Division, DOJ
Hon. John E. Steele, Senior United States District Judge, Middle
District of Florida
Sherra Wong, Attorney, 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 this
Court that they believe that oral argument is not necessary in this case
because the appellant has not requested oral argument and the
Commissioners position is fully set forth in this brief.

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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.

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


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

B.

1.

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

2.

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

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.

Meidingers IRS Form 211 claims for whistleblower


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

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B.

C.

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Page
Proceedings in the District Court ............................................ 3
1.

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

2.

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

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 Meidingers 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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Page
3.

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 Courts


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 Commissioners discretion and
the Commissioner owes no duty to
Meidinger to investigate...................................... 27

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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.

The District Court had no jurisdiction to


review the IRSs 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.
E.

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

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.

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.
G.

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

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)

Adams v. California Dept 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. Natl 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, 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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Cases (continued):

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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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Cases (continued):

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Page(s)

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 Natl 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 Intl., 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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Cases (continued):

Page(s)

Kirkland Masonry Inc. v. Commr,


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. Dept of Children and Families,
259 Fed. Appx. 201 (11th Cir. 2007) ........................................ passim
* Cases or authorities chiefly relied upon are marked with asterisks.

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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):

Page(s)

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

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Cases (continued):

Page(s)

Shell v. U.S. Dept 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. Commr,
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. Commr,
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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Cases (continued):

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Page(s)

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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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)

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

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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)

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) ........................................................................................... 22
Rule 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):

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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.

Appellants brief filed for appeal no. 15-15465

16-10071 Br.

Appellants brief filed for appeal no. 16-10071

MC-8, Doc. X

Document X (as numbered by the district court


clerk) from district court case no. 2:15-mc00008 (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-mc00013 (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. Commr, No. 2:15-mc-00008 (M.D.


Fla.), on appeal as No. 16-10071

IRM

Internal Revenue Manual

Judge Chappell

Judge Sheri Polster Chappell, who presided


over the First Case in the District Court

Judge Steele

Judge John E. Steele, who presided over the


Second Case in the District Court

Second Case

Meidinger v. Commr, 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 First


Case, 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
Citations to the record are to the District Court case number, the
document 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 Meidingers appendix are all from case no. 2:15-mc00008 (First Case). The Commissioners supplemental appendix
includes two documents from the First Case as well as documents from
the Second Case.
1

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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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 Offices determinations of Meidingers three
Form 211 claims for a whistleblower award. (See id. at 9-11, 23-25, 3537.)
As we will explain at pp. 27-37, infra, the District Court had no
subject matter jurisdiction over Meidingers 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 Offices determinations of his
Form 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 Meidingers 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
The Commissioner entered a limited appearance in the District
Court only to contest service of process and personal jurisdiction. (MC8, Doc. 13 at 1, n. 1.)
2

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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 Meidingers
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 Second


Case, 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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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 file
timely 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
Meidingers motions for reconsideration in the First Case and the
Second Case.
STATEMENT OF THE CASE
A.

Meidingers IRS Form 211 claims for


whistleblower awards and prior litigation over
denial of his first claim

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


Application for Award for Original Information, to the IRSs
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 Offices 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. (MC8, Doc. 3 at 2.) On August 30, 2013, the Tax Court granted the
Commissioners 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 Meidingers 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. Commr, 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 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.

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 attorney3 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 Meidingers 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 regards
to the first Form 211 claim, and instructed Meidinger to petition the
Tax Court for review of the IRSs rejection of the second and third

According to Meidingers petition, he was represented by an


attorney at certain times while he was communicating with the
Whistleblower Office. (MC-8, Doc. 1 at 5.) No attorney has entered an
appearance for Meidinger in this appeal or the District Court cases
leading to this appeal.
3

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claims, citing the Tax Courts jurisdiction under 26 U.S.C. 7623(b)(4)


to review the IRSs 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 Courts 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 IRSs
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 Courts 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 Meidingers 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. Circuits 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
Chappells 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 Courts


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. (MC13, 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 Meidingers 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 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.

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. Dept of Children and Families, 259 Fed.
Appx. 201, 204 (11th Cir. 2007).
Review of the orders denying Meidingers motions for
reconsideration is for abuse of discretion. Am. Bankers Ins. Co. of Fla. v.
Nw. Natl 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
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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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
1.

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. Meidingers 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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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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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 postjudgment motion).
In this case, the District Court granted Meidingers motion to
withdraw 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 5
motion 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 to


the 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
This Court also has no jurisdiction over an appeal of the July 1
judgment (or the September 21 order, either, for that matter) for a
second reason: in his notice of appeal, Meidinger stated he was
appealing the final judgment entered 12/18/2015 dismissing the case
per Doc. 15. (MC-8, Doc. 16.) In his opening brief in appeal no. 1515465, he again identifies the December 18 order as the subject of the
appeal. (15-15465 Br. 4.) Fed. R. App. P. 3(c)(1)(B) requires the notice of
appeal to designate the judgment, order or part thereof appealed from.
Ordinarily, failure to abide by this requirement will preclude the
appellate court from reviewing any judgment or order not so specified.
McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986); see
Osterneck v. E.T. Barwick Industries, Inc., 825 F.2d 1521, 1529 (11th
Cir. 1987) (an express designation of the order appealed from implies a
lack of intent to appeal undesignated orders). But see Foman v. Davis,
371 U.S. 178, 181 (1962) (courts of appeal should not dismiss notices of
appeal on grounds amounting to mere technicalities); Kicklighter v.
Nails by Jannee, Inc., 616 F.2d 734, 738 n. 1 (5th Cir. 1980) (appeals of
orders not specifically designated in the notice of appeal allowed where
it is clear the overriding intent was effectively to appeal).
4

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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 20405 (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 the


September 29, 2015 judgment in the Second
Case

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.) Meidingers 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.
Meidingers September 30 reply tolled the original deadline for
appealing the September 29 judgment. (See MC-13, Doc. 4.) The District
Courts 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.)
Meidingers 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 judgment
in the Second Case on the merits.5

As in the First Case, Meidingers notice of appeal in the Second


Case states that he is only appealing the December 2, 2015 order. (MC13, Doc. 10.) This Court lacks jurisdiction to review the judgment on the
merits (as well as the October 2 and October 28 orders) from the Second
Case for this reason as well. See McDougald, 786 F.2d at 1474.
5

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The notice of appeal was untimely as to the


October 2, 2015 order in the Second Case

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


December 1, 2015. Meidingers 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 District


Courts orders on his motions for reconsideration

This Court has jurisdiction to review the December 18 order


denying Meidingers motions for reconsideration in the First Case (MC8, 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, Dept of Corrections, 434 U.S. 257, 263
n. 7 (1978)).
On appeal, however, Meidinger has not challenged the correctness
of the District Courts 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 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.

The District Court in the First Case correctly


dismissed 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 Courts
initial decision that it lacked jurisdiction to grant the mandamus relief
requested or to evaluate Meidingers eligibility for a whistleblower
award under 26 U.S.C. 7623(b).
1.

Introduction to whistleblower awards


under 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. Commr, 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 Secretarys 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 against
the allegedly noncompliant taxpayer and the collection of proceeds.
Simmons v. Commr, 523 Fed. Appx. 728, 730 (D.C. Cir. 2013); Cooper v.
Commr, 136 T.C. 597, 600 (2011) (Cooper II); see also Meidinger, 559
Fed. Appx. at 6; ODonnell v. Commr, 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. At
this 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

A rejection and a denial have different meanings under


Treas. Reg. 301.7623-3(c)(7) and (8). The difference is immaterial for
this appeal. For the sake of consistency, we will use the words deny
(continued)
6

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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 an
award 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 IRSs
denials 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.

a.

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 Commissioners discretion and
the Commissioner owes no duty to
Meidinger to investigate

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. Commr, 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).
Meidingers 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 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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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, and
assessments 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 Meidingers out-of-context quote (MC-8, Doc. 1 at 31;
MC-13, Doc. 1 at 34) from Cooper II diminish the Commissioners

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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
whistleblowers 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
Commissioners and not the whistleblowers responsibility to decide
these matters, not to mean that the Commissioner must investigate
every 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 Commissioners discretion is baked into the
statute, and the Tax Courts characterization of every possible
situation (136 T.C. at 601, emphasis added) does not change that.

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Meidingers 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 Meidingers 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 be


sued, and the terms of its consent define the courts 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
In deciding that the plaintiff had no standing to bring suit, the
Supreme Court commented that the generalized interest of all citizens
in constitutional governance or an asserted right to have the
Government act in accordance with law is not sufficient, standing alone,
to confer jurisdiction on a federal court. Whitmore v. Arkansas, 495
U.S. 149, 160 (1990) (citations omitted).
7

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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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or entity. See Shah v. United States, 2013 WL 1869095 *1 n. 2 (W.D.


Pa., May 3, 2013), affd, 540 Fed. Appx. 91 (3d. Cir. 2013). Finally, 28
U.S.C. 1331 and 1340 both require Meidinger to identify some other
Constitutional or federal law (in the case of 1331) or internal revenue
law (for 1340) as the cause of the action; neither confers independent
blanket jurisdiction. Watson v. Chessman, 362 F. Supp. 2d 1190, 1199
(S.D. Cal. 2005); see also Bell v. Hood, 327 U.S. 678, 681 (1946); Mays v.
Kirk, 414 F.2d 131, 133 (5th Cir. 1969).
3.

The District Court had no jurisdiction


under the Administrative Procedures Act to
review the Commissioners decision on
whether to open an investigation

Meidinger also asserts that the Administrative Procedures Act


(APA) provides a basis for the District Courts jurisdiction. (15-15465
Br. 10, 14, 17, 25, 30-33; 16-10071 Br. 2, 9-10, 14, 21, 25, 27, 43-44, 5054.) He wants the District Court to review the Commissioners alleged
violations of the APA and, presumably, order the Commissioner to
investigate the taxpayers he identified on the Forms 211 and process
his whistleblower award claims accordingly. (15-15465 Br. 30-34; 1610071 Br. 33-38.) He also argues that the Whistleblower Office did not
send him preliminary denial letters with respect to the second and third

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claims or give him the opportunity to submit comments to the denials,


in accordance with Treas. Reg. 301.7623-3(c)(7)-(8). (16-10071 Br. 3435.)
Mandamus and judicial review are two different concepts. Davis
Assocs., 498 F.2d at 388. In addition, the APA is not a grant of subject
matter jurisdiction, but a limited waiver of sovereign immunity.
Califano v. Sanders, 430 U.S. 99, 105-07 (1977); High County Citizens
Alliance v. Clarke, 454 F.3d 1177, 1181 (10th Cir. 2006). And 5 U.S.C.
701(a) expressly excepts review under its provisions where statutes
preclude judicial review, or agency action is committed to agency
discretion by law. Perez v. U.S. Bureau of Citizenship and Immigration
Servs., 774 F.3d 960, 965 (11th Cir. 2014).
As we explained above at pp. 28-32, the decision to open an
investigation of a taxpayer is one committed to the IRSs discretion. In
the APA context, the Supreme Court has recognized that agency
decisions not to enforce, in particular, are generally unsuited to judicial
review. Heckler v. Chaney, 470 U.S. 821, 831 (1985). This is because an
agency decision not to enforce often involves a complicated balancing of
a number of factors which are peculiarly within its expertise. Id.

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Accordingly, the APA judicial review provisions (5 U.S.C. 701-706) do


not apply here.
Even if the Commissioners alleged actions with respect to the
denials of the second and third claims were reviewable, Meidingers
assertion that these actions violated IRS procedures under 7623(b)
(16-10071 Br. 34-38) lacks merit. According to the February 20, 2014
and February 11, 2015 denial letters attached to Meidingers petition,
the Whistleblower Office denied his second and third Form 211 claims
because it determined that they consisted of the same information that
Meidinger had submitted in the first claim. (MC-8, Docs. 1-3 and 1-4.)
The Internal Revenue Manual (IRM) provides that a new Form 211 that
is related to a previously submitted Form 211 can be associated with
the prior claim. IRM 25.2.2.4. Thus, the IRM contemplates that
duplicative claims can be denied.8

We cite to the IRM only to suggest why the Whistleblower Office


might deny duplicative claims. Procedures in the Internal Revenue
Manual are designed to aid in the internal administration of the IRS;
they do not confer rights on taxpayers. Carlson v. United States, 126
F.3d 915, 922 (7th Cir. 1997) (citing United States v. Horne, 714 F.2d
206, 207 (1st. Cir. 1983)); see Kirkland Masonry, 614 F.2d at 534 (the
IRM is a handbook for IRS employees and creates no duty to the public).
8

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The District Court had no jurisdiction to


review the IRSs denial of a whistleblower
award

26 U.S.C. 7623(b)(4) confers jurisdiction for reviews of


determinations under 7623(b)(1)-(3) on the Tax Court. The terms of
this consent to be sued are to be strictly construed in the United States
favor. United States v. Nordic Village, 503 U.S. 30, 34 (1992); see Dalm,
494 U.S. at 608. The Tax Court has exclusive jurisdiction over these
claims. Amsinger, 99 Fed. Cl. at 258; Dacosta, 82 Fed. Cl. at 555.
In this case, the District Court noted that Meidinger had already
sought review in the Tax Court of the determination of his first Form
211 claim and that the Tax Courts decision against him was affirmed.9
(MC-8, Doc. 3 at 2-3.) Speaking with respect to the second and third
Form 211 claims, the District Court correctly dismissed Meidingers
request for review for lack of jurisdiction. (Id. at 3; see Meidinger, 559
Fed. Appx. 5.) As with the first claim, Meidinger should have appealed
the IRSs determinations of the second and third claims to the Tax
The District Court incorrectly stated that this Court affirmed the
Tax Courts decision. (MC-8, Doc. 3 at 3.) Meidinger had initially
appealed the Tax Courts decision to this Court (11th Cir. No. 1314122), but this Court transferred the appeal to the D.C. Circuit.
9

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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.

Meidinger is not eligible for a whistleblower


award because the Commissioner has not
proceeded with any administrative or
judicial action based on his information

26 U.S.C. 7623(b)(1) is clear that a whistleblower award depends


on the Commissioners proceeding with an administrative or judicial
action and the collection of proceeds based on the whistleblowers
information. See Meidinger, 559 Fed. Appx. at 6; Simmons, 523 Fed.
Appx. at 729-30; ODonnell, 489 Fed. Appx. 469. Meidinger
acknowledges that the Commissioner never proceeded with an

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administrative or judicial action based on his information. (16-10071


Br. 38.) Thus, he is not eligible for an award.
Contrary to Meidingers assertions (16-10071 Br. 8, 23, 36, 49-50;
MC-8, Doc. 1 at 23, 33, 35), 26 U.S.C. 7623 is not an offer of award
that a whistleblower may simply accept to create a contract. Krug v.
United States, 168 F.3d 1307, 1308 (Fed. Cir. 1999); Merrick v. United
States, 846 F.2d 725, 726 (Fed. Cir. 1988). Rather, an enforceable
contract arises under 7623 only after the informant and the
government negotiate and fix a specific amount as to the award.
Cambridge v. United States, 558 F.3d 1331, 1333 (Fed. Cir. 2009);
Merrick, 846 F.2d at 726. Meidinger did not even come close to fixing an
amount (given that no investigation was done and no proceeds were
collected from which to pay any amount). (See MC-8, Doc. 1 at 25 the
IRS did not commence an investigation.) Rather, he attached three
denials to his petition. (MC-8, Docs. 1-2, 1-3, and 1-4.)
Meidinger erroneously equates the IRSs assignment of a claim
number with an agreement to open an investigation and/or give him an
award. (16-10071 Br. at 26, 37-38.) But the Whistleblower Office
assigns a claim number to a Form 211 upon receipt only for

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identification purposes. See IRM 2.2.4. If the assignment of a claim


number created a contract for an award, it would eviscerate the
Commissioners discretion on whether to investigate as well as the
other statutory requirements for a whistleblowers eligibility for an
award. See, e.g., 26 U.S.C. 7623(b)(3) (reduction of award if
whistleblower planned and initiated the actions that led to the
underpayment of tax, and denial of award if the whistleblower is
convicted of criminal conduct related to the information); (b)(5)(A) and
(B) (monetary thresholds with regards to the income of taxpayer
investigated and the amount of tax in dispute).
6.

a.

The Commissioner has not denied equal


protection or due process by not opening an
investigation

Meidingers argument that the Commissioner has denied

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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reasonable justification for the distinction. Estate of Kunze v. Commr,


233 F.3d 948, 954 (7th Cir. 2000); see United States v. Kras, 409 U.S.
434, 446 (1973); McDonald v. Board of Election Commrs of Chicago,
394 U.S. 802, 809 (1969). See also Regan v. Taxation With
Representation of Washington, 461 U.S. 540, 547 (1983) (Legislatures
have especially broad latitude in creating classifications and
distinctions in the tax statutes.).
The discretion given to the Commissioner over whether to act on a
whistleblowers information is both rational and practical. While
anyone who can attest to the truth of the information on a Form 211
may file the form, requiring the Commissioner to examine each
taxpayer identified on the form regardless of the propriety or the
resources to be expended in doing so would amount to a hijacking of
the Commissioners discretion and upending of Congressional intent.
b.

Contrary to Meidingers assertion (15-15465 Br. 19, 34; 16-

10071 Br. 28, 57-59), by declining to open an investigation that might


lead to an award, the Commissioner did not violate Meidingers due
process rights. To establish a due process violation, Meidinger must
identify a deprivation of life, liberty, or property. Wilkinson v. Austin,

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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.

Meidinger has no standing to bring suit

Standing is a prerequisite to jurisdiction. Whitmore v. Arkansas,


495 U.S. 149, 154 (1990). To establish Article III standing, the plaintiff
must first have suffered an injury in fact, or an invasion of a legally
protected interest which is both (a) concrete and particularized and (b)
actual or imminent, as opposed to conjectural or hypothetical. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted).

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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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the alleged discriminatory practices. Whitmore, 495 U.S. at 158. The


Court went on to discuss cases where standing was lacking because the
injury alleged was too speculative: for example, if the plaintiff
encountered police and if the police administered an illegal chokehold;
if the plaintiff was fleeing from police and if the police used deadly
force. Id. Here, similarly, Meidinger would only suffer injury if the
Commissioner undertook an investigation and collected tax due, if
Meidinger did not plan and initiate the actions that led to the alleged
underpayment of tax, and if the monetary thresholds for an award were
met. See 26 U.S.C. 7623(b)(1), (3), and (5).
The same reasons underlie the inability of the District Court to
redress the injury. Even if the District Court had jurisdiction and found
it appropriate to order the Commissioner to investigate, the court could
not have guaranteed that the Commissioner would collect tax as a
result of that investigation or that the other requirements for an award
would be met. See 26 U.S.C. 7623(b)(1), (3), and (5). Besides, the
District Court did not have jurisdiction to review the IRSs denial of an
award to begin with; only the Tax Court (and a Court of Appeals, upon

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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.

The District Court in the First Case did not


abuse its discretion in denying Meidingers
motions for reconsideration

As discussed at pp. 15-20, supra, this Court only has jurisdiction


to review the December 18, 2015 order in the First Case. The December
18 order (MC-8, Doc. 15) instructed the clerk to terminate Meidingers
September 25 reply and October 5 motion for reconsideration, and
thus had the effect of denying the relief Meidinger sought through these
motions. The December 18 order can be viewed as a denial of motions
for reconsideration, or as an order issued under the courts inherent
power to control its docket. See Weaver v. Indymac Fed. Bank, 488 F.
Appx. 522, 523 (2d Cir. 2012) (reviewing an order to terminate a motion
as a denial of the motion). Under either view, the District Court did not
abuse its discretion.
a.

A motion for reconsideration cannot be used to relitigate

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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to reconsider its lack of jurisdiction to review the Commissioners denial


of Meidingers second and third Form 211 claims; 26 U.S.C. 7623(b)(4)
leaves little ambiguity on that score.
b.

Federal courts have a responsibility to prevent single

litigants from unnecessarily encroaching on the judicial machinery


needed by others. Procup v. Strickland, 792 F.2d 1069, 1074 (11th Cir.
1986). In doing so, a court cannot foreclose any access to the court, but
this Court has approved restrictions on filings from litigants who
repeatedly filed unsubstantiated, duplicative pleadings that were
long and repetitive after the case had been closed (Maid of The Mist
Corp. v. Alcatraz Media, LLC, 388 Fed. Appx. 940, 942 (11th Cir. 2010)),
or relitigated claims arising from the same set of circumstances (Shell v.
U.S. Dept of Housing and Urban Dev., 355 Fed. Appx. 300, 308-09 (11th
Cir. 2009)).
Here, the District Court had already denied the petition and the
August 7 motion for reconsideration; the September 25 and October 5
filings repeated arguments that had already been rejected. The October
5 motion for reconsideration included 8 exhibits totaling 136 pages.
(MC-8, Doc. 12-1 through Doc. 12-8.) Some of these exhibits had

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appeared previously in whole or in part as exhibits to or within previous


filings, or were duplicates of exhibits attached to the September 25
filing. (Compare, e.g., MC-8, Doc. 12-1 with Doc. 1 at 25, 36-37 (n. 5);
Doc. 12-7, Doc. 12-8 with Doc. 7 at 5-6 and Doc. 11, Doc. 11-1 through
11-4.) In the September 21 order, the District Court ordered Meidinger
to stop sending correspondence directly to the Chambers inbox and to
communicate with the court via the clerks office, except during court
proceedings. (MC-8, Doc. 10 at 3, n. 2.) In the December 18 order, the
District Court found it necessary to repeat this instruction, presumably
because Meidinger did not obey it the first time. (MC-8, Doc. 15 at 2.)
The District Court was not obligated to entertain one motion for
reconsideration after another when they threatened to sap judicial
resources by advancing the same arguments over and over.
c.

This Court lacks jurisdiction to review the September 21,

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

In his opening brief in No. 16-10071, Meidinger does not raise


the denial of the motion for addendum. Issues not raised in an initial
brief on appeal are deemed waived. United States v. Curtis, 380 F.3d
1308, 1310 (11th Cir. 2004). Although Meidinger mentioned the denial
of this motion on page 18 of the brief, passing references to issues are
insufficient to raise a claim for appeal. Lapaix v. U.S. Atty. Gen., 605
F.3d 1138, 1145 (11th Cir. 2010) (citation omitted). Still, we include a
brief discussion here in case the Court finds the issue relevant.
10

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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.

The District Court did not abuse its discretion in


dismissing the Second Case

As we explained at pp. 20-21, supra, this Court does not have


jurisdiction to review Judge Steeles September 29 order dismissing the
Second Case. But in any event, the District Court did not abuse its
discretion in dismissing the Second Case as duplicative.

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The First Case and the Second Case are


duplicative

As between federal District Courts, the common rule is to avoid


duplicative litigation. Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976). [T]he general rule is that a
suit is duplicative of another suit if the parties, issues and available
relief do not significantly differ between the two actions. I.A. Durbin,
793 F.2d 1541, 1551 (citations and internal citations omitted). See
Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993). Trial
courts are afforded broad discretion in determining whether to stay or
dismiss litigation in order to avoid duplicating a proceeding already
pending in another federal court. I.A. Durbin, 793 F.2d at 1551-52
(citations omitted).
It is difficult to imagine two suits more similar than the First
Case and the Second Case. The parties are identical (Meidinger and the
Commissioner); the issues are identical (whether the District Court has
jurisdiction to order the Commissioner to investigate the taxpayers
Meidinger named on Forms 211 and process the Forms 211, and
whether it should do so); and the remedies are identical (mandamus
and a review of the IRSs determination of the Forms 211). A decision in

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the First Case, whether on jurisdictional or substantive grounds or a


mix of both, would leave nothing to be determined in the Second Case.
2.

The Second Case is barred by res judicata

The doctrine of res judicata compelled the dismissal of the Second


Case. The dismissal of a complaint for lack of jurisdiction adjudicates
the courts jurisdiction, and a second complaint cannot command a
second consideration of the same jurisdictional claims.11 Boone v.
Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (collecting cases); see also
North Georgia Elec. Membership Corp. v. City of Calhoun, 989 F.2d 429,
433 (11th Cir. 1993) (citing Boone).
Here, the First Case was dismissed for lack of subject matter
jurisdiction. (See MC-8, Doc. 3 at 2-3.) This determination had a
preclusive effect on the identical Second Case on the issue of
jurisdiction. Therefore, the District Court in the Second Case had no
jurisdiction over the case and properly dismissed it.
Meidinger argued and continues to argue that he was allowed to
file the Second Case because the First Case had been dismissed without
Ordinarily, the application of res judicata requires an
adjudication on the merits. See Parklane Hosiery Co. v. Shore, 439 U.S.
322, 327 (1979).
11

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prejudice. (MC-13, Doc. 4 at 2; 15-15465 Br. 41-42.) He offers no support


for this proposition. In fact, although the dismissal in the First Case
was silent as to prejudice, it had the effect of a dismissal with prejudice
and barred him from filing the Second Case.
Generally, a dismissal for lack of subject matter jurisdiction is
without prejudice. Stalley v. Orlando Regional Healthcare Sys., Inc.,
524 F.3d 1229, 1232 (11th Cir. 2008) (citation omitted); see Fed. R. Civ.
P. 41(b). But the dismissals listed as without prejudice in Rule 41(b) are
limited to those based on the plaintiffs failure to comply with a
precondition requisite to the courts determination of the merits of the
substantive claim. See Costello v. United States, 365 U.S. 265, 285
(1961). In examining cases that followed Costello, the D.C. Circuit
concluded that a dismissal was without prejudice (i.e., the complaint
had a curable defect) where a jurisdictional deficiency could be
remedied by occurrences subsequent to the original dismissal, and the
deficiency pertained to a fact . . . separate and apart from the past and
completed transactions that constituted the cause of action. Dozier v.
Ford Motor Co., 702 F.2d 1189, 1192 (D.C. Cir. 1983).

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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 District Court in the Second Case did not


abuse its discretion in denying Meidingers
motions for reconsideration

As discussed at pp. 20-22, supra, this Court only has jurisdiction


to review the December 2, 2015 order in the Second Case. But even if
this Court had jurisdiction to review the October 2 and October 28
orders as well, all three of these orders should be affirmed as sound
exercises of discretion. The motions that prompted these orders
contained arguments the District Court had already rejected,
arguments that were wrong, and pleas to the District Court to disturb
the conclusions of the identical First Case.
The October 2 order denied Meidingers September 30 reply as a
motion for reconsideration of the September 29 initial order. (MC-13,
Doc. 5 at 1.) In the reply, Meidinger asked Judge Steele to overturn
Judge Chappells existing September 21 order. Judge Steele correctly
declined to do so and instead recited Judge Chappells reasoning and
conclusion. (Id. at 2.) To have done otherwise would not only be a waste
of judicial resources, but might also have resulted in potentially
inconsistent opinions from the same court. Moreover, contrary to
Meidingers assertions (16-10071 Br. 12), Judge Chappells dismissal of

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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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Case in the September 30 reply. (Compare MC-13, Doc. 8 at 2 with Doc.


4 at 2.)
Finally, Meidinger advanced arguments that were simply wrong;
Judge Steele had correctly dismissed the Second Case as duplicative of
the First Case. (MC-13, Doc. 3.) Meidingers quarrel with the District
Courts alleged adoption of the First Case as substantive law
presumably referred to Judge Steeles apparent agreement with Judge
Chappell in prior orders. (See MC-13, Doc. 3 at 2, Doc. 5 at 2-4, and Doc.
7 at 2.) But as a judge in the same federal district court, Judge Steele
properly left Judge Chappells conclusions undisturbed.

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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

Acting Assistant Attorney General

/s/ Sherra Wong


BRUCE R. ELLISEN
(202) 514-2929
SHERRA WONG
(202) 616-1882
Attorneys
Tax Division
Department of Justice
Post Office Box 502
Washington, D.C. 20044
Appellate.TaxCivil@usdoj.gov
Sherra.T.Wong@usdoj.gov
Of Counsel:
A. LEE BENTLEY, III
United States Attorney
MARCH 2016

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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
[]

this brief uses a monospaced typeface and contains [state the


number of] lines of text, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R.


App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because:
[X] this brief has been prepared in a proportionally spaced
typeface using Microsoft Word 2010 in 14-point Century
Schoolbook, or
[]

(s)

this brief has been prepared in a monospaced typeface using


[state name and version of word processing program] with
[state number of characters per inch and name of type style].

/s/ Sherra Wong

Attorney for Commissioner of Internal Revenue


Dated:

March 18, 2016

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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

/s/ Sherra Wong


SHERRA WONG
Attorney

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