Tindall v. United States

In the United States Court of Federal Claims

No. 21-2200T

Filed: May 31, 2026

* * * * * * * * * * * * * * *

*

JAMES W. TINDALL, *

*

Plaintiff, *

v. *

*

UNITED STATES, *

Defendant. *

*

* * * * * * * * * * * * * * *

James W. Tindall, pro se, Marietta, GA.

Patrick Angulo, Trial Attorney, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washington, DC, for defendant. With him were

Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Patricia M.

McCarthy, Director, Commercial Litigation Branch, and Brett A. Shumate, Assistant

Attorney General, Civil Division. Collin R. Snyder, Attorney, IRS Office of Chief Counsel,

Internal Revenue Service, Dallas, TX, of counsel.

OPINION

HORN, J.

The current case brought by plaintiff James W. Tindall, as discussed below, has a

history in multiple federal courts. In the case filed in the United States Court of Federal

Claims, plaintiff initially alleged that defendant unlawfully withheld a whistleblower award

due from the United States Internal Revenue Service (IRS) which he was due in return

for information that plaintiff had provided concerning violations of federal Internal

Revenue laws and regulations.1 After this court granted the defendant’s original motion to

dismiss pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal

Claims (RCFC) for lack of subject matter jurisdiction, see Tindall v. United States, No. 21-

2200T, 2022 WL 19730768 (Fed. Cl. Oct. 25, 2022), aff’d in part, vacated in part, No.

2023-1139, 2023 WL 2881312 (Fed Cir. Apr. 11, 2023), plaintiff appealed the decision to

the United States Court of Appeals for the Federal Circuit. As discussed further below, the

Federal Circuit affirmed in part and vacated in part this court’s decision and remanded

1 The court notes that although Mr. Tindall has filed his case in this court pro se, he, in

fact, is a licensed attorney in the State of Georgia. The State Bar of Georgia website

reflects that Mr. Tindall was admitted to the Georgia Bar in 1994 and his current status is

an “Inactive Member in Good Standing.” https://www.gabar.org/member-

directory/?id=9759298432A3CE5A67E4A44A0BDD5C21 (last visited May 31, 2026).

the case back to the United States Court of Federal Claims. Plaintiff subsequently

received payment from the IRS for the whistleblower award, although plaintiff now alleges

that he did not had receive the full compensation due to him. After the case was remanded

and plaintiff received payment from the IRS, defendant, again, filed a motion to dismiss

plaintiff’s original complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction

and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Thereafter,

Mr. Tindall filed an amended complaint alleging “two (2) breaches of contract and four (4)

constitutional violations” by defendant. The defendant responded by filing a motion to

dismiss plaintiff’s amended complaint, again pursuant to RCFC 12(b)(1) and RCFC

12(b)(6). Defendant’s current motion to dismiss plaintiff’s amended complaint has been

fully briefed.

FINDINGS OF FACT

Administrative Proceedings before the IRS

Initially, plaintiff James Tindall submitted five IRS Forms 211, “Application for Award

for Original Information,” to the IRS in 2004 and 2005 regarding the alleged improper tax

practices of several “unrelated federal consolidated return-filing taxpayers.” In 2004 and

2005, plaintiff filed the claims on Form 211 pursuant to 26 U.S.C. § 7623 (2000). The

relevant statute, 26 U.S.C. § 7623, read as follows:

The Secretary, under regulations prescribed by the Secretary, is authorized

to pay such sums as he deems necessary for—

(1) detecting underpayments of tax, and

(2) detecting and bringing to trial and punishment persons

guilty of violating the internal revenue laws or conniving at the

same,

in cases where such expenses are not otherwise provided for by law. Any

amount payable under the preceding sentence shall be paid from the

proceeds of amounts (other than interest) collected by reason of the

information provided, and any amount so collected shall be available for

such payments.

26 U.S.C. § 7623. The “Instructions for Form 211, Application for Award for Original

Information,” attached to Form 211, provide:

The Whistleblower Office has responsibility for the administration of the

whistleblower award program under section 7623 of the Internal Revenue

Code. Section 7623 authorizes the payment of awards from the proceeds

of amounts the Government collects as a result of the information provided

by the whistleblower. A claimant must file a formal claim for award by

completing and sending Form 211, Application for Award for Original

Information, to be considered for the Whistleblower Program.

2

Plaintiff alleged that after plaintiff submitted the IRS Forms 211, in a January 1,

2006 letter from the IRS to plaintiff, the IRS rejected one of the seven related claims.

Subsequently, in February 2006, when plaintiff reached out to inquire about the status

of his remaining 26 U.S.C. § 7623(a) related claims, plaintiff alleges the IRS told him

that the agency did not have records of these claims. In a letter dated January 5, 2007,

plaintiff resubmitted the claim forms, which he alleges also included additional

supplemental information.

In 2006, 26 U.S.C. § 7623 was amended through the Tax Relief and Health Care

Act of 2006, P.L. 109-432, 120 Stat. 2922 (TRHCA). This amendment labeled the

previous version as 26 U.S.C. § 7623(a), and, relevant to the above captioned case,

TRHCA added 26 U.S.C. § 7623(b) to the statute. The revised statute at 26 U.S.C. §

7623(a)-(b) provided:

(a) In general.--The Secretary, under regulations prescribed by the

Secretary, is authorized to pay such sums as he deems necessary for--

(1) detecting underpayments of tax, or

(2) detecting and bringing to trial and punishment persons guilty of violating

the internal revenue laws or conniving at the same,

in cases where such expenses are not otherwise provided for by law. Any

amount payable under the preceding sentence shall be paid from the

proceeds of amounts collected by reason of the information provided, and

any amount so collected shall be available for such payments.

(b) Awards to whistleblowers.--

(1) In general.--If the Secretary proceeds with any administrative or judicial

action described in subsection (a) based on information brought to the

Secretary's attention by an individual, such individual shall, subject to

paragraph (2), receive as an award at least 15 percent but not more than

30 percent of the proceeds collected as a result of the action (including any

related actions) or from any settlement in response to such action

(determined without regard to whether such proceeds are available to the

Secretary). The determination of the amount of such award by the

Whistleblower Office shall depend upon the extent to which the individual

substantially contributed to such action.

(2) Award in case of less substantial contribution.--

(A) In general.--In the event the action described in paragraph (1) is one

which the Whistleblower Office determines to be based principally on

disclosures of specific allegations (other than information provided by the

individual described in paragraph (1)) resulting from a judicial or

3

administrative hearing, from a governmental report, hearing, audit, or

investigation, or from the news media, the Whistleblower Office may award

such sums as it considers appropriate, but in no case more than 10 percent

of the proceeds collected as a result of the action (including any related

actions) or from any settlement in response to such action (determined

without regard to whether such proceeds are available to the Secretary),

taking into account the significance of the individual's information and the

role of such individual and any legal representative of such individual in

contributing to such action.

(B) Nonapplication of paragraph where individual is original source of

information.--Subparagraph (A) shall not apply if the information resulting in

the initiation of the action described in paragraph (1) was originally provided

by the individual described in paragraph (1).

(3) Reduction in or denial of award.--If the Whistleblower Office determines

that the claim for an award under paragraph (1) or (2) is brought by an

individual who planned and initiated the actions that led to the

underpayment of tax or actions described in subsection (a)(2), then the

Whistleblower Office may appropriately reduce such award. If such

individual is convicted of criminal conduct arising from the role described in

the preceding sentence, the Whistleblower Office shall deny any award.

(4) Appeal of award determination.--Any determination regarding an award

under paragraph (1), (2), or (3) may, within 30 days of such determination,

be appealed to the Tax Court (and the Tax Court shall have jurisdiction with

respect to such matter).

(5) Application of this subsection.--This subsection shall apply with respect

to any action--

(A) against any taxpayer, but in the case of any individual, only if such

individual's gross income exceeds $200,000 for any taxable year subject to

such action, and

(B) if the proceeds in dispute exceed $2,000,000.

(6) Additional rules.--

(A) No contract necessary.--No contract with the Internal Revenue Service

is necessary for any individual to receive an award under this subsection.

(B) Representation.--Any individual described in paragraph (1) or (2) may

be represented by counsel.

4

(C) Submission of information.--No award may be made under this

subsection based on information submitted to the Secretary unless such

information is submitted under penalty of perjury.

26 U.S.C. § 7623(a)-(b) (2006). As reflected in the amended language, for whistleblower

claims that result in judicial or administrative action, 26 U.S.C. § 7623(b) mandates an

award of at least 15% and up to 30% of the funds collected as a result of the

whistleblower’s information, but for whistleblower claims “of less substantial

contribution,” an award is limited to 10% of the collected funds. See 26 U.S.C. § 7623(b);

see also Confidential Informant 59-05071 v. United States, 121 Fed. Cl. 36, 40 n.3 (2015)

(“In the Tax Relief and Health Care Act of 2006, Congress added a new subsection (b)

to § 7623, which created a non-discretionary award reviewable in the U.S. Tax Court,

but only where the tax, penalties, interest additions, and additional amounts in dispute

exceed $2,000,000. The new non-discretionary award only applies to information

provided to the IRS after the date of enactment of the Act. Under the new statutory

scheme, rewards for amounts in dispute under $2,000,000 are governed by § 7623(a).”

(citations omitted)). In 2015, after 26 U.S.C. § 7623 was amended, plaintiff filed two

additional Forms 211, which plaintiff asserts are unrelated to his previous filings.

On August 8, 2013, plaintiff submitted a letter to the IRS in which he claims to

have “identified three (3) open claims that covered (3) discrete reporting positions

across at least two (2) unrelated federal consolidated return-filing taxpayers,” and on

July 23, 2015, plaintiff “filed an additional (2) discrete Forms 211, Application for Award,

that covered (2) discrete reporting positions for an additional unrelated federal

consolidated return-filing taxpayer.” As explained by the United States Tax Court:

Between June 13, 2004 and November 1, 2004, petitioner filed four

Forms 211 to which the WBO [Whistleblower Office] assigned master

claim number 2013-007993 and related claim numbers 2017-011232,

2017-011233, 2018-000744, 2018-000759, 2018-000760, 2018-

000763, and 2018-000765 (collectively, the “Pre-TRHCA Enactment

Claims” or “section 7623(a) claims”). Later, on or after July 23, 2015,

petitioner filed two additional Forms 211, for an unrelated federal

consolidated return-filing taxpayer, to which the WBO assigned claim

number 2015-016670 and which the WBO associated with master claim

number 2013-007993 (the “Post-TRHCA Enactment Claim” or “section

7623(b) claims”).

Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2 (T.C. Dec. 7, 2022), aff’d,

No. 23-1056 (D.C. Cir. Oct. 12, 2023) (alteration added).

On January 31, 2019, the IRS sent plaintiff a preliminary award decision letter

regarding his original Forms 211, informing him of his entitlement to an award of

$650,910.34. The January 31, 2019 Preliminary Award Decision Letter referenced

plaintiff’s “Claim Number(s): 2013-007993 (master) and 2015-016670, 2017-011232,

2017-011233, 2018-000744, 2018-000759, 2018-000760, 2018-000763, and 2018-

000765 (related).” In the January 31, 2019 Preliminary Award Decision Letter, the agency

stated:

5

The Whistleblower Office has reached a preliminary award

recommendation under Internal Revenue Code 7623(a) based on your

Form 211, Application for Award for Original Information dated 6/13/2004,

this includes any additional information you may have provided in relation

to the Form 211. Enclosed is a Summary Report that explains our

preliminary award recommendation in the amount of $650,910.34. If there

are any changes to the recommended award percentage or the amount of

collected proceeds as reflected in the Summary Report, then the

Whistleblower Office will send you a revised Preliminary Award

Recommendation Letter.

The January 31, 2019 Preliminary Award Decision Letter also explained that

whistleblower awards were subject to certain required deductions, according to statutory

requirements, including those in the Budget Control Act of 2011, Pub. L. No. 112-25, 125

Stat. 240, which provides that awards were automatically reduced by a certain percentage

determined annually by the Office of Management and Budget. A reduction of this kind is

often referred to as a sequestration reduction or a sequestration haircut. According to the

letter:

The Budget Control Act of 2011, as amended by the American Tax Relief

Act of 2012, requires that automatic reductions be made with respect to

certain government payments. These required reductions include a

reduction to awards paid under Internal Revenue Code section 7623. The

required reduction percentage is determined annually by the Office of

Management and Budget for the year in which payments are made. As a

result, your preliminary recommended award reflects a reduction in

accordance with the Office of Management and Budget guidance for the

2019 Fiscal Year reduction amount of 6.2%. The final award amount will use

the reduction required in the year of payment.

A “Summary Report” attached to the January 31, 2019 Preliminary Award Decision Letter

provided the methodology that the IRS had used to arrive at plaintiff’s preliminary award

amount based on the original tax amount collected and the applicable statutory

reductions:

1. Preliminary tax, penalties, interest and other amounts collected based

on information provided by Whistleblower: $ 6,939,342.59

2. Recommended Award Percent: 10%

3. Preliminary Award: Collected proceeds (Line 1) x recommended award

percent (Line 2): $ 693,934.26

4. Preliminary Budget Control Act reduction (Line 3 amount x 6.2 percent):

$ 43,023.92

6

The Budget Control Act of 2011, as amended by the American Tax Relief

Act of 2012, requires that automatic reductions be made with respect to

certain government payments. These required reductions include a

reduction to awards paid under Internal Revenue Code section 7623.

The required reduction percentage is determined annually by the Office

of Management and Budget for the year in which payments are made.

As a result, your preliminary recommended award reflects a reduction in

accordance with Office of Management and Budget guidance for the

2019 Fiscal Year reduction amount of 6.2%. The final award amount will

use the reduction required in the year of payment.

5. Preliminary recommended IRC section 7623(a) Award Amount

(Line 3 less Line 4): $ 650,910.34

Awards payable under section 7623 are includible in the gross income

of the recipient and subject to federal tax reporting and withholding

requirements [sic] Generally, whistleblower awards paid to U.S. citizens

or resident aliens in excess of $10,000 will be subject to a 24%

withholding for federal income tax. Payments to foreign persons will be

treated as fixed, determinable, annual, or periodical (FDAP) income and

withheld at 30%. In addition, the IRS may offset awards payable under

section 7623 against any outstanding Federal income tax liabilities or

Treasury Offset Program debts that may be owed by you if our records

reflect that you have an outstanding balance. Calculation of the amount

due, if applicable, will be made at the time of the award payment.

6. Factors that contributed to the recommended award percentage:

The intermediate award percentage of 10% is appropriate and

reasonable for this claim for award. This award percentage is prescribed

in the Internal Revenue Manual for pre-enactment claim for award cases

where the Whistleblower’s information, though it did not start the

examination or investigation of the taxpayers, “was of value in the

determination of tax liabilities although not specific”.

(capitalization and emphasis in original; alteration added).

The January 31, 2019 Preliminary Award Decision Letter further explained that

“[t]his preliminary award recommendation letter begins the whistleblower award

administrative proceeding,” and

[i]f you agree with this preliminary award recommendation:

1. Check the appropriate box, sign and date the enclosed Response

to Summary Report form indicating your agreement; and

7

2. Return the signed form to us.

By checking the box, you agree with the preliminary award recommendation

and accept it an an [sic] award decision.

If you do not agree with the Whistleblower Office preliminary award

recommendation and wish to submit comments:

1. Check the appropriate box, sign and date the enclosed Response

to Summary Report form; and

2. Return the signed Response to Summary Report along with any

comments to the preliminary award recommendation to the

Whistleblower Office within 30 days from the date of this letter.

3. The Whistleblower Office will consider any comments received

and send a Final Award Determination Letter.

(capitalization in original; alterations added). The boxes described in the January 31, 2019

Preliminary Award Decision Letter invite a recipient to select one of the following two

statements: “I agree with the preliminary award recommendation and accept it as an

award decision” or “I disagree with the preliminary award recommendation. I understand

that if I wish to provide comments regarding the Summary Award Report such comments

must be submitted within 30 days of the date of the letter transmitting the Summary

Award.”

On February 6, 2019, plaintiff sent the IRS a letter objecting to the January 31,

2019 Preliminary Award Decision Letter. Plaintiff’s February 6, 2019 letter stated:

I received the Preliminary Award Letter, dated January 31, 2019, which

proposes a preliminary net-net award of $650,910.34.

I appreciate your ability to quickly process the Preliminary Award Letter

following the chaos of the recent federal shutdown. With the issuance of the

Preliminary Award Letter, I am optimistic about where we are on the

remaining timeline and hope we can resolve our remaining differences

quickly to bring this project to a satisfactory conclusion.

As requested, I am returning a signed "Response to Summary Report”

(page 6 of your letter) declining that preliminary award amount (see

enclosed).

(capitalization and emphasis in original).

Plaintiff described three objections in his February 6, 2019 letter: (1) that it was

improper for the agency to apply a reduction to his award under the Budget Control Act

8

of 2011, (2) that the IRS has a continuing obligation to “pay once additional proceeds are

collected as the subsequent tax years close,” and (3) that the award percentage should

have been higher than 10%. Regarding the Budget Control Act of 2011, plaintiff explained:

As some of my previous correspondence has indicated, I am not in

agreement with the position of the IRS Whistleblower’s Office that the

Budget Control Act of 2011 creates a Sequestration Haircut that applies to

Whistleblower Awards.

Quite simply, the awards are paid from collected proceeds, which are not

rationally part of the US budget, because these collected proceeds are

something the US government would not have received but for the

involvement of the IRS whistleblower.

(capitalization in original). Plaintiff’s February 6, 2019 letter continues:

Moreover, and specific to my case, the calculation is determined by the

statutes in effect in 2004, which predate the Budget Control Act of 2011.

Thus, any attempt to change that calculation impacts my property interest

and violates the Taking Clause of the US Constitution (our 5th Amendment

provides that “nor shall private property be taken for public use, without just

compensation”).

(capitalization and emphasis in original).

Regarding the continuing obligation to pay, plaintiff stated:

[Y]our statement conflicts with [26 C.F.R.] Reg. §301.7623-2(d)(5)(ii),

which states

“Post-determination proceeds. If, based on all information

known with respect to the taxpayer's account as of the date of the

computation described in paragraph (d)(5)(i) of this section, there

is a possibility that the IRS may collect additional proceeds, then

the Whistleblower Office will continue to monitor the case. If the

Whistleblower Office identifies additional collected

proceeds, then the IRS will compute and pay accordingly”.

[26 C.F.R.] Reg. §301-7623-2(d)(5)(i) further states that

“the IRS will compute the amount of collected proceeds based on

all information known with respect to the taxpayer's account,

including with respect to all tax attributes, as of the date the

computation is made”.

Thus, there is an affirmative continuing obligation to pay once

additional proceeds are collected as the subsequent tax years

9

close. Moreover, there is an affirmative obligation to monitor all tax

attributes and pay awards from subsequently collected proceeds.

(alterations added; emphasis in original). Regarding the award percentage rate, plaintiff

wrote:

The Preliminary Award Letter, dated January 31, 2019, only provides an

award percent of 10% and vaguely refers to the provided information as

being “of value . . . although not specific”.

I am troubled by that brief statement, because it is inconsistent with the very

specific statements and information I provided in my original letter, dated

June 13, 2004 (see enclosed).

(emphasis and alteration in original). Plaintiff’s February 6, 2019 letter included a

section titled “FOR SETTLMENT PURPOSES ONLY,” which stated:

Over the last fifteen (15) years, I have had the occasion to complete my

own tentative award calculation. In all cases, my estimates have been

limited by the $2 million limitation contained in the 2004 statute.

Once that limit has been reached, then there is no need to continue to

monitor the taxpayers' accounts, because no more award monies can

be paid.

Given the discrepancies identified above (the inapplicability of 2011

Sequestration Haircut, the impact of reduced net operating loss

attributes on subsequent collected proceeds, your affirmative obligation

to continue to monitor those collections and pay subsequent awards,

and the increased proper award percentage), I propose that your Final

Determination Letter reflect the application of the $2 million

limitation and limit my award to $2 million, which will bring this

project to a mutually satisfactory resolution of all our outstanding

issues (see enclosed).

(emphasis and capitalization in original). Plaintiff’s February 6, 2019 letter

concluded: “Alternatively, our collective failure to reach a mutually satisfactory

resolution will require numerous definitional and process oversights to be publicly

displayed and judicially resolved (with certainty) – none of which will be resolved in

favor of the IRS.” As noted above, plaintiff included a signed copy of the “Response to

Summary Report,” checking the box: “I disagree with the preliminary award

recommendation” in the February 6, 2019 letter.

On March 5, 2019, the IRS sent plaintiff a final award decision letter advising that

he was entitled to $650,910.34, the same amount as included in the preliminary award

recommendation. The March 5, 2019 Final Award Decision Letter stated:

10

The Whistleblower Office has considered your Form 211, Application for

Award for Original Information, dated June 13, 2004, this includes any

additional information you may have provided in relation to the Form

211. On January 31, 2019, the Whistleblower Office sent you a

preliminary award recommendation. The Whistleblower Office reviewed

the comments you provided on the preliminary award recommendation.

The Whistleblower Office has made a final decision that you are entitled

to an award of $ 650,910.34.

(capitalization in original). In the March 5, 2019 Final Award Decision Letter, the IRS

attached a “Determination Report” showing the methodology the agency had used to

calculate the final award, which was identical to the methodology used in the preliminary

award decision letter. The March 5, 2019 final award decision Letter also notified plaintiff

that “[t]he Whistleblower Office will process the award for payment as promptly as the

circumstances permit” (alteration added). Unlike the preliminary award decision letter,

there was not an option for plaintiff to indicate that he agreed or disagreed with the final

award.

On March 21, 2019, plaintiff sent the IRS a letter objecting to the final award

decision. Plaintiff stated in this letter: “I received your ‘Final Award Letter’, dated March 5,

2019, which proposed an award of $650,910.34, which was unchanged from your

preliminary offer and failed to appropriately consider the supplemental information I

provided in mid-February 2019.” In his March 21, 2019 letter, plaintiff raised similar

concerns to those in his letter objecting to the preliminary award recommendation. In his

March 21, 2019 letter plaintiff also stated:

§7623(b) applies to my Claims for Reward. In my letter, dated February

14, 2019, I reminded you that I filed the Form 211 Claims for Reward for the

2nd party to the blown §1031[2] transaction on July 23, 2015 (I previously

forwarded you a copy of those Forms and a copy of your reply, dated July

30, 2015, confirming receipt and assigning claim number 2015-016670).

Strangely, your ‘Final Award Letter’ that includes that assigned claim

number (2015-016670) only considers the award under §7623(a), which

only applies to claims filed before December 19, 2006, which does not

apply to the Claims for Reward filed on July 30, 2015.

As you are aware, these post-12/19/2006 Claims for Reward fall under the

current award regime, which mandate a payout percentage of between 15-

30% and apply a maximum limitation of $10M - well above the limitations

under the prior regime.

2 In his March 21, 2019 letter, plaintiff does not explain or elaborate on his allegation of a

“blown §1031 transaction.” The statute at 26 U.S.C. § 1031 (2024) is titled: “Exchange of

real property held for productive use or investment.” There is no reference to 26 U.S.C.

§ 1031 in plaintiff’s original complaint or amended complaint and the parties do not

address 26 U.S.C. § 1031 in briefing on defendant’s motions to dismiss.

11

In my letter, dated February 14, 2019, I encouraged you to consider this as

part of your review for the Final Determination Letter - my request having

fallen on deaf ears.

Keep in mind, these are two discrete consolidated groups, two separate

taxpayers and two longer NOL [net operating loss] rollforward periods that

would need to be tracked and monitored.

Your ‘Final Award Letter’, dated March 5, 2019, ignores these facts and

incorrectly applies the wrong sub-section of §7623 (you apply §7623(a)

instead of §7623(b)).

Finally, §7623(b) grants me the statutory right to appeal your

determination to the US Tax Court.

(alteration and footnote added; emphasis and capitalization in original). Plaintiff’s

March 21, 2019 letter concluded by advising the agency:

These are some of the legal issues that will be resolved judicially if you fail

to reconsider them and update your ‘Final Award Letter’, dated March 5,

2019.

Do you really want a public court opinion on these issues that will bind you

for all whistleblower awards?

If I fail to receive a corrected ‘Final Award Letter’ that incorporates

these changes by Tuesday, April 2, 2019, then I will have no choice but

to allow the US Tax Court to resolve these issues.

(emphasis in original).

United States Tax Court Proceedings

Prior to plaintiff filing his lawsuit in the United States Court of Federal Claims, on

April 1, 2019, plaintiff filed a petition in the United States Tax Court, Case No. 5903-19W.

In his April 1, 2019 petition in the Tax Court, plaintiff identified the following points of

disagreement with the agency’s determination regarding the award to plaintiff:

1. In its Final Award Letter, dated March 5, 2019, Respondent abused

its discretion by mislabeling Petitioner’s §7623(b) claims as §7623(a) claims

when Petitioner filed at least two (2) additional claims after December 20,

2006, that are covered by Respondent's Final Award Letter.

2. In its Final Award Letter, dated March 5, 2019, Respondent abused

its discretion by mislabeling Petitioner’s §7623(b) claims as §7623(a) claims

when Petitioner provided supplemental information after December 20,

2006, that are covered by Respondent’s Final Award Letter.

12

3. In its Final Award Letter, dated March 5, 2019, Respondent abused

its discretion by applying the statutory scheme under §7623(a) to

Petitioner’s §7623(b) claims.

4. In its Final Award Letter, dated March 5, 2019, Respondent abused

its discretion by applying a 10% award rate, which is below the statutory

minimum rate required for §7623(b) claims (15% minimum) and well below

the maximum rate allowed for §7623(b) claims (30% maximum) that

Petitioner is eligible for.

5. In its Final Award Letter, dated March 5, 2019, Respondent abused

its discretion by providing only boilerplate language in its Final Award Letter

instead of meaningful explanations, as required by the Chenery doctrine

(see SEC v. Chenery Corp. and SEC v. Chenery Corp.).

6. Supporting its Final Award Letter, dated March 5, 2019,

Respondent abused its discretion by providing only boilerplate language in

its Preliminary Award Recommendation and related Summary Report,

dated January 31, 2019, instead of meaningful explanations, as required by

the Chenery doctrine (see SEC v. Chenery Corp. and SEC v. Chenery

Corp.).

7. In its Final Award Letter, dated March 5, 2019, Respondent abused

its discretion by providing no support, no documentation and no meaningful

analysis supporting its determination of the amount of the §7623(b) award

amount (as one of several exceptions to the “record rule” outlined in Kasper

v. Comm.), including Respondent’s failure to provide any support for its

determination of the amount of collected proceeds and Respondent’s failure

to provide any explanation for its decision to apply an award percentage of

less than the required statutory minimum.

8. In its Final Award Letter, dated March 5, 2019, Respondent abused

its discretion by stating that “there is no possibility the IRS will collect post-

decision proceeds” which directly contradicts Respondent’s own guiding

regulations, which state:

“the IRS will compute the amount of collected

proceeds based on all information known with

respect to the taxpayer's account, including

with respect to all tax attributes, as of the date

the computation is made”.

13

Those regulations also state:

“Post-determination proceeds. If, based on all

information known with respect to the taxpayer's

account as of the date of the computation

described in paragraph (d)(5)(i) of this section,

there is a possibility that the IRS may collect

additional proceeds, then the Whistleblower

Office will continue to monitor the case. If the

Whistleblower Office identifies additional

collected proceeds, then the IRS will

compute and pay accordingly”.

9. In its Final Award Letter, dated March 5, 2019, Respondent abused

its discretion by applying a 6.2% Budget Control Act reduction

(“sequestration haircut”) to Petitioner’s §7623(b) award when the controlling

statute (§7623) allows for no such reduction.

(emphasis in original; footnotes omitted).

On December 7, 2022, the United States Tax Court dismissed plaintiff’s case

for lack of jurisdiction. By way of background, the Tax Court explained:

Between June 13, 2004 and November 1, 2004, petitioner filed four

Forms 211 to which the WBO assigned master claim number 2013-

007993 and related claim numbers 2017-011232, 2017-011233, 2018-

000744, 2018-000759, 2018-000760, 2018-000763, and 2018-000765

(collectively, the “Pre-TRHCA Enactment Claims” or “section 7623(a)

claims”). Later, on or after July 23, 2015, petitioner filed two additional

Forms 211, for an unrelated federal consolidated return-filing taxpayer,

to which the WBO assigned claim number 2015-016670 and which the

WBO associated with master claim number 2013-007993 (the “Post-

TRHCA Enactment Claim” or “section 7623(b) claims”).

Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2. As explained by the United

States Tax Court:

After examination, respondent [the United States] found that of the

taxpayers related to petitioner’s various claims, the taxpayers underlying

claim numbers 2017-011232 and 2017-011232 [sic] were the only taxable

parties. Therefore, respondent recovered proceeds from only these two

claims, which are section 7623(a) claims.

The records further show that regarding claim number 2015-011670, the

only section 7623(b) claim in this case, respondent did not take

administrative or judicial action and did not collect any proceeds because

14

the statute of limitations to examine the taxpayer underlying the 2015-

011670 for the years in questions [sic] had expired.

Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2 (alterations added).

Accordingly, the United States Tax Court granted the government’s motion to dismiss

for lack of jurisdiction and explained:

The Secretary has long had the discretion to pay awards to persons who

provide information that aids in (1) detecting underpayments of tax or

(2) detecting and bringing to trial and punishment persons guilty of

violating the internal revenue laws. Sec. 7623(a). Congress enacted the

Tax Relief and Health Care Act of 2006 (TRHCA), Pub. L. No. 109-432,

div. A, sec. 406, 120 Stat. at 2958, to address perceived problems with

the discretionary award regime. TRHCA section 406 amended section

7623 to require the Secretary to pay whistleblower awards under certain

circumstances. Under section 7623(b)(1) a whistleblower is entitled to a

minimum award of 15% of the collected proceeds if the Commissioner

proceeds with administrative or judicial action using information

provided in a whistleblower claim. Whistle blower [sic] claims filed after

TRHCA are subject to this Court’s review. However, when a

whistleblower submits a post-TRHCA claim using the same information

the whistleblower provided to the WBO pre-THRCA [sic], this Court lacks

jurisdiction.

Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2 (alterations added).3 When

applying the Tax Relief and Health Care Act of 2006 to plaintiff’s claims, the Tax Court

continued: “We find that because petitioner’s post-THRCA, [sic] claim number 2015-

011670 provided the WBO the same information petitioner provided to the WBO pre-

THRCA [sic] and because the remaining eight claims are pre-THCA [sic], we lack

jurisdiction in this case.” Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2-3

(alterations added). The Tax Court further explained that “in Li v. Commissioner, 22 F.4th

1014 (D.C. Cir. Jan. 11, 2022), the Court of Appeals for the District of Columbia Circuit

held that the Tax Court lacks jurisdiction of whistleblower cases involving threshold

rejections of claims for whistleblower award where no judicial or administrative

proceeding was commenced based on the whistleblower’s information.” Whistleblower

5903-19W v. Comm’r, No. 5903-19W, at 2. Accordingly, the Tax Court concluded that it

lacked jurisdiction over Mr. Tindall’s claims “because respondent did not commence

judicial or administrative proceedings in response to the 2015-011670 [section 7623(b)]

claim.” Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 3 (alteration added).

3 The United States Tax Court repeatedly mislabeled the abbreviation for the Tax Relief

and Health Care Act of 2006 as “THRCA,” instead of “TRHCA.” This Opinion adds a

“[sic]” in the instances the Tax Court used the incorrect abbreviation “THRCA.”

15

Plaintiff appealed the December 7, 2022 United States Tax Court decision to the

United States Court of Appeals for the District of Columbia Circuit, which affirmed the Tax

Court’s dismissal on October 12, 2023, stating:

ORDERED AND ADJUDGED that the Tax Court’s December 7, 2022 order

dismissing for a lack of jurisdiction appellant’s petition for review of a March

5, 2019 whistleblower determination be affirmed. The Tax Court did not

clearly err by concluding that the information for which appellant sought a

whistleblower award was provided to the Internal Revenue Service before

December 20, 2006. See Feldman v. Fed. Deposit Ins. Co., 879 F.3d 347,

351 (D.C. Cir. 2018) (requiring district courts to resolve disputes over the

factual basis for the court’s subject-matter jurisdiction); U.S. Auto Sales, Inc.

v. Comm’r of Internal Revenue, 153 T.C. 94, 100 & n.7 (2019) (applying this

standard in Tax Court). Consequently, the Tax Court correctly concluded

that it lacked jurisdiction. See Tax Relief and Health Care Act of 2006, Pub.

L. No. 109-432, § 406(d), 120 Stat. 2922, 2960; see also Lissack v. Comm’r

of Internal Revenue, 68 F.4th 1312, 1315 (D.C. Cir. 2023).

Whistleblower 5903-19W v. Comm’r, No. 23-1056, at 1 (D.C. Cir. Oct. 12, 2023)

(capitalization and emphasis in original). The Court of Appeals for the District of Columbia

Circuit thereafter denied plaintiff’s petition for rehearing and petition for rehearing en banc

on December 21, 2023. Plaintiff then petitioned the United States Supreme Court for a

writ of certiorari, which was denied on October 7, 2024. The United States Supreme Court

denied plaintiff’s petition for rehearing on November 18, 2024.

Original Proceedings in the United States Court of Federal Claims

On November 16, 2021, more than two and a half years after filing his petition in

the United States Tax Court, and while plaintiff’s petition in the Tax Court was still pending,

plaintiff filed his original complaint in the United States Court of Federal Claims. Like his

claim in the United States Tax Court, plaintiff’s original complaint in this court also

concerned his § 7623 whistleblower award. Although plaintiff’s action in the Tax Court

argued that his whistleblower claims should have been analyzed by the IRS under §

7623(b), instead of § 7623(a), plaintiff’s original complaint in the United States Court of

Federal Claims originally also alleged that defendant improperly had not yet paid plaintiff

the money awarded to him. Plaintiff’s original complaint in the United States Court of

Federal Claims alleged two violations of the Takings Clause of the Fifth Amendment to

the United States Constitution and two violations of the Due Process Clause of the Fifth

Amendment to the United States Constitution regarding the payment of plaintiff’s

whistleblower award. Plaintiff alleged that he had contacted the IRS twelve times to

request payment since his notification of the final award decision, and had notified the

IRS “that interest on the outstanding balance continues to accrue.” Plaintiff also alleged

that he had “no avenue” to appeal the agency’s determination and that the IRS has not

“identified a legally-sufficient reason for failing to remit plaintiff’s IRC §7623(a) award.” As

recourse, plaintiff’s original complaint in the United States Court of Federal Claims sought

the following:

16

a) An order from the US Court of Federal Claims requiring the prompt and

immediate payment by defendant of plaintiff’s IRC §7623(a) award of

$693,934.26 (i.e., the first unconstitutional taking);

b) An order from the US Court of Federal Claims requiring defendant to pay

plaintiff for the value of the use of plaintiff’s IRC §7623(a) award monies that

defendant has been wrongfully using since March 5, 2019 (i.e., the second

unconstitutional taking)(currently estimated to be $554,741.23);

c) An order from the US Court of Federal Claims requiring defendant to pay

plaintiff $1,000,000 for each of the four violations of plaintiff’s constitutional

rights (two violations of the Takings Clause and two violations of the Due

Process Clause), totaling $4,000,000.

(emphasis in original).

As indicated above, in response to the original complaint filed in this court,

defendant had filed a motion to dismiss pursuant to RCFC 12(b)(1) for lack of subject

matter jurisdiction. In defendant’s original motion to dismiss plaintiff’s original complaint,

defendant had argued that “Mr. Tindall’s claims are barred by 28 U.S.C. § 1500” because

of his “Earlier-Filed, Still-Pending Litigation In The United States Tax Court” and, thus,

must be dismissed. Defendant argued:

This jurisdictional bar applies here. In the instant complaint, Mr. Tindall

seeks monetary relief related entirely to a Final Award Decision letter issued

by the WBO. But that Final Award Decision letter, and Mr. Tindall’s

entitlement to payment thereunder, is also the focus of Mr. Tindall’s petition

currently pending in the United States Tax Court. In that case, Mr. Tindall

attacks the WBO’s award determination and alleges that his award should

have fallen under § 7623(b). But the fact that Mr. Tindall takes a different

position or seeks different relief in each case is of no import. See Ministerio

Roca Solida v. United States, 778 F.3d 1351, 1353 (Fed. Cir. 2015) (“[I]t is

irrelevant whether the relief sought in the two co-pending suits is the same

or different.”). “All that matters is that the two suits be based on ‘substantially

the same operative facts.’” Id. (quoting Tohono, 563 U.S. at 317). Here, both

suits are based on the Final Award Decision letter, issued to Mr. Tindall

following his whistleblowing activity. The Court should therefore dismiss this

case for lack of subject matter jurisdiction under 28 U.S.C. § 1500.

(footnote omitted, internal citations omitted; alteration in original).

Defendant further argued in its original motion to dismiss plaintiff’s original

complaint that plaintiff’s claims should be dismissed because plaintiff’s claims were not

ripe because the defendant was not yet under an obligation to remit payment given

plaintiff’s rejection of the IRS award dollar determination and plaintiff’s decision to file a

17

petition in the United States Tax Court. Defendant further argued that, even if this court

were to conclude plaintiff’s claims were ripe, the Tucker Act, 28 U.S.C. § 1491, does not

confer jurisdiction for this court to consider the plaintiff’s claims “[b]ecause Mr. Tindall has

failed to identify any such contractual relationship, constitutional provision, or statute

necessary to invoke this Court’s jurisdiction.” (alteration added). Regarding plaintiff’s

claims for compensation under the Fifth Amendment Takings Clause, defendant argued

that plaintiff had not conceded the validity of the government’s action, and,

“fundamentally, Mr. Tindall has not actually alleged that the Government has taken

anything. Instead, he alleges that the Government has improperly withheld monies owed

to him pursuant to the Final Award Decision letter.” (footnote omitted). Regarding plaintiff’s

due process clause claims, defendant argued that “the Federal Circuit has repeatedly

held that the Due Process Clause is not a money-mandating provision” and, thus, this

court lacks jurisdiction.

In response to defendant’s original motion to dismiss plaintiff’s original complaint,

plaintiff argued:

Defendant's fundamental ignorance of the finality of a discretionary award

under IRC §7623(a) is appalling. No court in the world can entertain an

appeal of an award specific to a discretionary IRC §7623(a) claim,

regardless of how error-filled that determination might be. The amount in a

Defendant's discretionary §7623(a) Award Letter is final in every sense of

the word—there is no forum that has jurisdiction to entertain a review of that

determination. Thus, the claim before this Court, demanding that Defendant

pay Plaintiff his IRC §7623(a) award monies, cannot get any riper.

In addition to alleging that each of his claims were ripe for this court to review,

plaintiff argued that defendant’s conduct entitled him to just compensation under the

Takings Clause of the Fifth Amendment and the Due Process Clause of the Fifth

Amendment. Plaintiff argued that “[t]he United States Court of Claims has jurisdiction over

this dispute pursuant to 28 U.S.C. §1491(a)(1), because the basis for this dispute is

Defendant’s unconstitutional taking of Plaintiff’s property and Defendant’s willful violations

of Plaintiff’s due process rights under the Fifth Amendment to the US Constitution.”

(alteration added). To support plaintiff’s assertion that defendant’s actions constitute an

unconstitutional taking, plaintiff explained:

Defendant has no legal basis for its continuing possession of Plaintiff’s IRC

§7623(a) award monies and is merely refusing to comply with the underlying

statute and its own internal processes and procedures in order to gain an

impermissible advantage in the unrelated petition before the Tax Court

dealing with Defendant’s arbitrary and capricious determinations specific to

Plaintiff’s IRC §7623(b) claims. In other words, despite the IRC §7623(a)

claim and the IRC §7623(b) claims being mutually exclusive, Defendant is

choosing to withhold timely payment of Plaintiff’s IRC §7623(a) award

monies in an attempt to3 coerce Plaintiff to withdraw his petition in Tax Court

dealing with Plaintiff’s IRC §7623(b) claims. That is most improper.

18

Additionally, in plaintiff’s response to defendant’s original to dismiss plaintiff’s original

complaint, plaintiff attempted to assert a contract claim, stating:

[O]nce Defendant determined the specific amount of Plaintiffs [sic] §IRC

§7623(a) award, an actual contract was created. This actual contract is

documented by Defendant it [sic] its IRC §7623(a) Award Letter, wherein

Defendant identified Plaintiff’s promise to perform (provide information to

Defendant), Defendant confirmed that Plaintiff did, in fact, provide

information to Defendant, Defendant confirmed that it used the information

to collect proceeds and Defendant identified Defendant's promise to pay

Plaintiff a very specific amount (i.e., $693,934.26) as an award under IRC

§7623(a). Thus, an actual contract between the parties exists and

Defendant admitted that one exists by describing that actual contract in its

IRC §7623(a) Award Letter, dated March 5, 2019.

(footnote omitted; alterations added).

Additionally, on March 7, 2022, plaintiff filed a “Motion for Sanctions Pursuant to

RCFC Rule 11” and argued that “Defendant’s Motion to Dismiss is itself meritless on

its face.” (emphasis in original). In support of his motion for sanctions and his opposition

to defendant’s original motion to dismiss plaintiff’s original complaint, in a sur-reply plaintiff

alleged that “the allegations by Defendant in its Motion to Dismiss before the US

Court of Federal Claims contradict the allegations by Respondent in its Motion to

Dismiss before the Tax Court.” (all emphasis in original). In plaintiff’s sur-reply, he

further alleged:

Because of the collaboration between Defendant's counsel (i.e., the

Department of Justice) and Respondent's counsel (i.e., the IRS Office

of Chief Counsel), these two contradictory motions to dismiss can

only have been filed in bad faith, which is both appalling and

disturbing. Each of Defendant's and Respondent's counsel are aware

of the contradictory nature of their respective Motions to Dismiss, but

they went ahead and filed them anyway.

(all capitalization and emphasis in original). Defendant’s original motion to dismiss

plaintiff’s original complaint and plaintiff’s motion for sanctions were fully briefed.

On October 25, 2022, this court dismissed plaintiff’s original complaint in this court,

and concluded that plaintiff’s claims were not yet ripe for review because of his still-

pending appeal of the award determination in the United States Tax Court. See Tindall v.

United States, 2022 WL 19730768, at *13–14. Furthermore, this court dismissed plaintiff’s

takings claims because plaintiff had not demonstrated a valid property interest in the item

allegedly seized by the government, nor had he demonstrated that the items were taken

for public use. See id. at *15. This court also dismissed plaintiff’s Fifth Amendment Due

Process claims for lack of jurisdiction. See id. Finally, this court dismissed plaintiff’s motion

19

for sanctions against defendant because plaintiff’s allegations did “not come close to

constituting a sanctionable offense.” Id. at *19.

Proceedings in the United States Court of Appeals for the Federal Circuit

Plaintiff appealed the United States Court of Federal Claims decision to the United

States Court of Appeals for the Federal Circuit. On April 11, 2023, the United States Court

of Appeals for the Federal Circuit affirmed this court’s decision in part, vacated the

decision in part, and remanded the case back to this court. See generally Tindall v. United

States, No. 2023-1139, 2023 WL 2881312 (Fed Cir. Apr. 11, 2023). The court affirmed

this court’s ruling on sanctions, seeing “no merit to Mr. Tindall’s motion for sanctions.” See

id. at *4 The Federal Circuit vacated this court’s ruling on ripeness and stated

in the circumstances of this case the court erred in holding that the

purported lack of ripeness was a jurisdictional bar. The ripeness issue as to

the Tax Court case here is not concerned with whether there is an Article III

case or controversy, but whether it would conserve judicial resources to

postpone adjudication. See S.A. 16 (Claims Court explaining that the

ripeness doctrine “prevent[s] the courts, through avoidance of premature

adjudication, from entangling themselves in abstract disagreements over

administrative policies . . .” (quoting Abbott Laboratories v. Gardner, 387

U.S. 136, 148 (1967)); Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S.

803, 808 (2003) (distinguishing purely “prudential” ripeness analysis from

“Article III limitations on judicial power” (citation omitted)). But we do not

reach Mr. Tindall’s contract claim, or the Claims Court’s other merits

holdings, because the court failed to address a different, colorable argument

that it lacked jurisdiction over the suit. As the government suggests in its

response brief, that provision must be addressed before the Claims Court

or we can address the merits.

Tindall v. United States, 2023 WL 2881312, at *3 (omission and alteration in original;

footnote omitted).4 The Federal Circuit next addressed the jurisdictional issue presented

by 28 U.S.C. § 1500, and stated:

Section 1500 of Title 28 provides that the Claims Court “shall not have

jurisdiction of any claim for or in respect to which the plaintiff or his

assignee has pending in any other court any suit or process against the

4 Although the Federal Circuit stated in its April 11, 2023 decision, “we do not reach Mr.

Tindall’s contract claim,” the court notes that Mr. Tindall did not plead a contract claim in

his November 16, 2021 complaint, and, therefore, a contract claim was not before the

United States Court of Federal Claims or the United States Court of Appeals for the

Federal Circuit. As reflected above, plaintiff attempted to make a contract argument in his

response to defendant’s original motion to dismiss plaintiff’s original complaint. As

described below, plaintiff now alleges breach of contract in his amended complaint after

remand.

20

United States.” The court lacks jurisdiction “where an earlier-filed suit is

‘based on substantially the same operative facts’ as the Claims Court suit,

‘regardless of the relief sought in each suit.’” Acetris Health, LLC v. United

States, 949 F.3d 719, 728–29 (Fed. Cir. 2020) (quoting United States v.

Tohono O'Odham Nation, 563 U.S. 307, 317 (2011)). We determine

whether the earlier-filed suit is “based on substantially the same operative

facts” as the Claims Court case by assessing if the latter suit “would have

been barred by res judicata if it had been brought in district court” under

the res judicata principles in force when the predecessor to § 1500 was

enacted. Id. at 729 (citation omitted).

Under that standard, if the two suits arise “out of one and the same act or

contract,” or “the same evidence support[s] and establish[es] both the

present and the former cause of action,” the Claims Court suit cannot

proceed. Tohono, 563 U.S. at 316 (citations omitted). In addition, we have

held that the res judicata standard would not be satisfied where the earlier

suit was filed in a tribunal that “had no colorable authority” to address it.

Acetris, 949 F.3d at 729 & n.4.

Applying § 1500 here is complex, and we decline to address it in the first

instance. It is true that Mr. Tindall’s suit in Tax Court, based on § 7623(b),

was pending when he filed in Claims Court as to his § 7623(a) award. But

even assuming the suits were based on the same “act or contract”—the

IRS's final award letter—it is not clear that the Tax Court had colorable

jurisdiction to review Mr. Tindall’s filing. That court found that it lacked

jurisdiction on two independent grounds. See S.A. 70–74. And if the Tax

Court lacked colorable authority to consider Mr. Tindall’s appeal, his earlier

filing there would “not have preclusive effect under [§] 1500,” and so § 1500

would not be a bar. Acetris, 949 F.3d at 729. We leave this question for the

Claims Court to decide on remand.

Tindall v. United States, 2023 WL 2881312, at *3-*4 (alteration in original). The Federal

Circuit also explained:

If § 1500 applies, final resolution of the Tax Court case would not vest the

Claims Court with jurisdiction if the former suit were still pending when the

Claims Court case was filed. See Harbuck v. United States, 378 F.3d 1324,

1328 (Fed. Cir. 2004). If the Tax Court case is final and § 1500 applies, Mr.

Tindall may file a new suit in the Claims Court within the six-year statute of

limitations if he wishes to pursue his claims. See 28 U.S.C. § 2501.

Tindall v. United States, 2023 WL 2881312, at *4.

21

Administrative Proceedings Before the IRS Following the Tax Court Proceedings

On January 23, 2025, after the conclusion of the United States Tax Court

proceedings and exhaustion of all avenues of appeal from the Tax Court’s decision,

including at the United States Supreme Court, plaintiff received payment from the IRS in

the amount of $497,328.81 as a whistleblower award. In the case currently before this

court, defendant submitted an award breakdown to this court, stating: “The collected

proceeds of $6,939,342.59 times 10% equals $693,934.26; $693,934.26 minus the fiscal

year 2025 5.7% sequestration deduction of $39,554.25 equals $654,380.01; and

$654,380.01 minus withholding tax of $157,051.20 (i.e., 24% of $654,380.01) equals—

the amount paid to Mr. Tindall—$497,328.81.” The IRS’s explanation regarding the timing

of this award in the “Special Instructions/Notes” section of the Award Payment Request

Form, stated the “Claim was in Tax Court Litigation. Court dismissed the case for lack of

jurisdiction.”

Proceedings in the United States Court of Federal Claims Following the Remand

Plaintiff’s case is now before the trial court on remand.5 On May 1, 2025, after the

remand, defendant moved to dismiss plaintiff’s original complaint, in this court, arguing

that plaintiff’s original complaint was moot because plaintiff had received payment of the

award in dispute. Defendant claimed that the alleged violation at the heart of plaintiff’s

original complaint was the allegedly unlawful nonpayment of the whistleblower award,

and, with the payment now completed, there was no longer a case or controversy.

Defendant also argued that the IRS’s application of the statutorily-required sequestration

deduction was not within this court’s jurisdiction to review because “such claim lacks a

money-mandating source of law.” Defendant further asserted that plaintiff had failed to

state a claim within this court’s jurisdiction, arguing that this court had already determined

that it did not have jurisdiction over plaintiff’s Fifth Amendment claims and that plaintiff did

not assert a breach of contract. Moreover, even if the final award decision letter did

constitute a contract, defendant alleged that plaintiff has not established a breach of

contract. In support, defendant cited the regulation at 26 C.F.R. § 301.7623-4(d)(1), which

states:

Payment of an award will be made as promptly as the circumstances permit,

but not until there has been a final determination of tax with respect to the

action(s), as defined in paragraph (d)(2) of this section, the Whistleblower

Office has determined the award, and all appeals of the Whistleblower

Office’s determination are final or the whistleblower has executed an award

consent form agreeing to the amount of the award and waiving the

whistleblower’s right to appeal the determination.

5 The court notes that after the remand, plaintiff moved for partial summary judgment. The

court stayed plaintiff’s motion pending final resolution of Mr. Tindall’s United States Tax

Court case. Thereafter, on May 13, 2025, plaintiff filed an amended complaint, as

discussed further below. Therefore, plaintiff’s motion for partial summary judgment is now

moot.

22

26 C.F.R. § 301.7623-4(d)(1) (2025).

After defendant filed its motion to dismiss plaintiff’s original complaint after remand,

on May 13, 2025, plaintiff filed an amended complaint. Like his original complaint,

plaintiff’s amended complaint again alleges defendant violated the Takings Clause and

the Due Process Clause of the Fifth Amendment of the United States Constitution.

Plaintiff’s amended complaint alleges that defendant had committed an unconstitutional

taking when it refused to pay plaintiff any portion of the whistleblower award from the time

of the March 5, 2019 Final Award Decision Letter until when the government paid the

lump sum payment to plaintiff on January 23, 2025. Plaintiff argues that “in the 2,151-

days subsequent to that [March 5, 2019 Final Award Decision Letter] determinations [sic],

defendant still refused to pay any of the §7623(a) award amounts to plaintiff.” (alterations

added).

Plaintiff also argues in his amended complaint that the March 5, 2019 Final Award

Decision Letter constitutes two contracts between plaintiff and defendant, one for each of

plaintiff’s two 26 U.S.C. § 7623(a) claims that served as the basis of his single award.

Further, according to plaintiff: “On January 23, 2025, defendant made a partial payment

of plaintiff’s §7623(a) awards. Defendant’s partial payment is a party admission by

defendant that two (2) tax whistleblower contracts have existed between the parties since

March 5, 2019.” Plaintiff claims that because defendant allegedly entered into two

contracts by basing the final award on two 26 U.S.C. § 7623(a) claims, the failure to pay

plaintiff for 2,151 days constitutes a breach of contract.6 Plaintiff bases this claim on the

text of the March 5, 2019 Final Award Decision Letter, in which the Whistleblower Office

stated that the IRS would “process the award for payment as promptly as the

circumstances permit.” Plaintiff also asserts a second breach of contract claim based on

the argument that defendant’s payment was $39,554.25 lower than the full amount of the

preliminary award amount. According to plaintiff: “Defendant’s partial payment is a second

6 According to plaintiff, the referenced timeframe of 2,151 days reflects the amount of time

between the March 5, 2019 Final Award Decision Letter and when defendant paid plaintiff

on January 23, 2025. Plaintiff alleged in his amended complaint: “On January 23, 2025,

2,151 days after the issuance of its Award Letter, defendant made a partial payment of

plaintiff’s §7623(a) awards ($654,380.01), which was $39,554.25 less than the final

amount of the §7623(a) awards that defendant determined was due and payable in its

Award Letter, dated March 5, 2019.” The court notes that in addition to the 2,151 days,

plaintiff’s submissions refer to different calculations of time. For example, in plaintiff’s

response to the motion to dismiss plaintiff’s amended complaint currently before the court,

plaintiff identifies as an issue before the court: “Whether defendant’s taking and

possession of plaintiff’s §7623(a) award monies for 2,187 days without paying any

compensation for that continuing possession violates the ‘Takings’ clause of the 5th

Amendment to the U.S. Constitution, which requires payment of ‘just compensation’ when

defendant takes property?” Plaintiff separately argues: “In the 2,309-days since

defendant’s obligation came into being, defendant continues to refuse to pay the full

amount due, despite defendant being under an obligation to pay that amount promptly.”

23

breach of both of the two (2) tax whistleblower contracts that have existed between the

parties since March 5, 2019, because defendant is attempting to pay less than the full

and final §7623(a) award amounts determined by defendant to be paid to plaintiff.” Plaintiff

continues:

Defendant’s refusal to comply with its contractual obligations and pay

promptly, consistent with its related obligations under the implied covenant

of good faith and fair dealing, has no basis in fact or law.

Therefore, as a matter of law, defendant’s continuing refusal to

promptly pay over plaintiff’s §7623(a) award monies is a breach of the

two (2) whistleblower contracts between the parties.

(emphasis in original).

Additionally, just as in plaintiff’s original complaint in this court, and as reflected

above, in plaintiff’s amended complaint, plaintiff again alleges defendant committed two

violations of the Takings Clause of the Fifth Amendment to the United States Constitution

and two violations of the Due Process Clause of the Fifth Amendment to the United States

Constitution. According to plaintiff:

As a simple matter, defendant has failed to pay ‘just compensation’ related

to each of the two (2) discrete §7623(a) awards that defendant determined

was owed to plaintiff and that defendant continues to possess.

Additionally, defendant has failed to provide any due process surrounding

its exercise of its power of eminent domain when it took possession of

plaintiff’s two (2) discrete §7623(a) awards that defendant determined was

owed to plaintiff.

Because each §7623(a) determination creates a separate and discrete tax

whistleblower contract and a separate and discrete §7623(a) award,

defendant’s conduct is multiplied by two (2).

Thus, defendant has violated plaintiff’s constitutional rights four (4) times –

a Takings Clause violation and Due Process violation specific to each of the

two (2) §7623(a) tax whistleblower contracts.

(emphasis in original).

As for damages, plaintiff claims in his amended complaint that defendant’s

improper conduct warrants payment of interest for the period of time that defendant

possesses plaintiff’s award, stating:

Thus, the measure of plaintiff’s damages under the ‘breach of contract’

theory for recovery or the ‘just compensation’ requirement of the 5 th

24

Amendment is the accrual of interest for the period of time that defendant

breaches its tax whistleblower contracts with plaintiff and possesses

plaintiff’s property. That amount will continue to increase as the number

of days that defendant continues to possess, control and use

plaintiff’s property increases.

(emphasis in original). Plaintiff’s amended complaint continues:

Given defendant’s two (2) breaches of contract and four (4) constitutional

violations specific to plaintiff’s §7623(a) awards, plaintiff requests the

following:

a) An order from the U.S. Court of Federal Claims requiring the prompt and

immediate payment by defendant of the remaining outstanding amount of

plaintiff’s §7623(a) awards of $39,554.25;

b) An order from the U.S. Court of Federal Claims requiring defendant to

pay plaintiff for plaintiff’s damages that it has suffered since March 5, 2019,

stemming from defendant’s breaches of the two (2) tax whistleblower

contracts (measured by the amount of accrued interest over six (6) years –

currently estimated to be $4,459,904.17);

c) An order from the U.S. Court of Federal Claims requiring defendant to

pay plaintiff the ‘just compensation’ for defendant’s use of plaintiff’s

§7623(a) award monies that defendant has been using since March 5, 2019

(measured by the amount of accrued interest over six (6) years – currently

estimated to be $4,459,904.17);

d) An order from the U.S. Court of Federal Claims requiring defendant to

pay plaintiff $5,000,000 for each of the four violations of plaintiff’s

constitutional rights (two violations of the Takings Clause and two violations

of the Due Process Clause), totaling $20,000,000; and

e) An order from the U.S. Court of Federal Claims requiring defendant to

pay plaintiff for the accrued interest on the four (4) constitutional violations

for the period of those violations (currently estimated to be

$130,485,386.15).

(emphasis in original).

In response to plaintiff’s amended complaint, defendant filed another motion to

dismiss pursuant to RCFC 12(b)(1) for lack of subject matter jurisdiction and RCFC

12(b)(6) for failure to state a claim. Defendant first urges this court to dismiss plaintiff’s

amended complaint due to a lack of subject matter jurisdiction, claiming that plaintiff fails

to allege anything that would establish this court’s jurisdiction. Regarding plaintiff’s two

contract claims, that the failure to pay the full amount plaintiff believes he is entitled to

25

and the delay in making the payment in the first place, are breaches of contract by the

defendant, defendant argues that plaintiff has not sufficiently established the existence of

a contract implied in fact. Defendant argues:

This court can only exercise jurisdiction where there is at least a non-

frivolous allegation of a contract with the government. Here, however, Mr.

Tindall has not alleged any of the essential elements of a contract. He bases

his entire claim around the March 5, 2019 Final Award Decision letter. He

alleges that this letter created two contracts between the defendant and Mr.

Tindall. But he has made no allegations as to the parties’ intent to contract,

the existence of an offer and acceptance, or any government representative

with actual authority to bind the United States in contract.

(citations omitted). Defendant also argues that a contract does not exist because plaintiff

rejected defendant’s offer in the March 5, 2019 Final Award Decision letter. Furthermore,

defendant claims that, even if this court was to find subject matter jurisdiction through the

existence of a contract, plaintiff fails to properly allege breach. According to defendant,

plaintiff’s award was calculated and delivered according to the language in the March 5,

2019 Final Award Decision Letter and 26 C.F.R. § 301.7623-4(d)(1). Defendant states

that plaintiff was paid after the dismissal of his appeal of the award in the United States

Tax Court was finalized, and the application of the sequestration reduction was not a

breach because the terms of the reductions were explicitly included in the Final Award

Letter. Defendant also adds that plaintiff has failed to plausibly allege damages, as

follows:

For the reasons discussed above, Mr. Tindall has not suffered any damages

as he has already received the award payment he seeks. The other

damages he alleges (including $20 million in damages for constitutional

violations) cannot be shown with reasonable certainty. Nor does this Court

have jurisdiction to grant Mr. Tindall’s request for interest (including

$130,485,386.15 in interest allegedly accrued on his constitutional claims).

Finally, to the extent that Mr. Tindall’s asserted damages have no relation to

damages actually incurred but seek instead to penalize defendant for its

allegedly unlawful conduct, this Court lacks jurisdiction to award punitive

damages.

(citations omitted).

Additionally, defendant argues that this court lacks jurisdiction over plaintiff’s

constitutional claims. Defendant also notes that this court had previously dismissed

plaintiff’s takings and due process constitutional claims in the October 25, 2022 dismissal,

stating that the current Fifth Amendment claims should be dismissed because of the law-

of-the-case doctrine, stating:

Mr. Tindall’s two-year attempt to continuously reassert already-dismissed

claims is without merit and unduly strains the resources of this Court and

26

the Government. This Court’s holding regarding Mr. Tindall’s constitutional

claims was correct in 2022 and it remains correct today. Under the law-of-

the-case doctrine, that holding “should continue to govern the same issues

in subsequent stages in the same case.” Accordingly, these already-

dismissed constitutional claims cannot establish this Court’s jurisdiction.

(citations omitted). Defendant further states that plaintiff’s amended complaint does not

create a need for the court to reconsider its initial dismissal, arguing:

Mr. Tindall’s recently filed amended complaint does not change this

analysis. Claims arising from the Due Process Clause [of the Fifth

Amendment to the United States Constitution] remain outside of this Court’s

jurisdiction. And Mr. Tindall’s amended complaint fails, once more, to allege

that is property was taken for public use. Indeed, Mr. Tindall’s takings claim

stems from the same conduct challenged in his initial complaint and does

not include any additional allegations to suggest that the Court’s prior

holding was incorrect.

(alteration added; citations omitted).

In plaintiff’s response to defendant’s motion to dismiss plaintiff’s amended

complaint, plaintiff repeatedly alleges that defendant is attempting to mislead the court,

saying that “defendant consistently prefers to muddy the waters with irrelevant and

unsupported factual allegations that are generalized, inaccurate and contradicted by the

set of shared documents.” Plaintiff continues to allege that the claims in the United States

Tax Court and subsequent appeal were separate from the award promised in the March

5, 2019 Final Award Decision Letter, which makes defendant’s delayed payment

unjustified. According to Mr. Tindall:

[D]efendant attempts to confuse this court by conflating nonpayment of the

§7623(a) award before this court with plaintiff’s §7623(b) claims before the

Tax Court by referring in the singular to “his whistleblower award”. In

Plaintiff’s Motion for Partial Summary Judgement, dated June 21, 2023,

plaintiff clearly described the two types of claims [§7623(a) and §7623(b)]

and the fact that those claims are “mutually exclusive”.

(emphasis in original; alterations added; footnote omitted). Plaintiff also claims that this

court’s previous dismissal of his Constitutional claims does not invalidate his current

claims because of new information in the case, which allegedly was that the United States

Tax Court’s dismissed his claims on December 7, 2022, and that defendant paid plaintiff

on January 23, 2025.

In defendant’s reply brief, defendant argues that plaintiff’s suit in the United States

Tax Court was, in fact, an appeal of his final award, thereby making its delay of the award

justified, arguing:

27

There is no dispute that Mr. Tindall’s whistleblower award was issued under

§ 7623(a). Mr. Tindall rejected the award, and filed a petition in the United

States Tax Court, alleging that the IRS abused its discretion when it

mislabeled his § 7623(b) claims as § 7623(a) claims. The Tax Court denied

his petition, the [United States Court of Appeals for the District of Columbia

Circuit] affirmed, and the Supreme Court denied Mr. Tindall’s petition for writ

of certiorari.

(citations omitted; alteration added). Defendant’s motion to dismiss plaintiff’s amended

complaint has been fully briefed by the parties.

DISCUSSION

28 U.S.C. § 1500

As described above, this case includes a history across multiple courts with

overlapping timelines. Chronologically, Mr. Tindall first filed an administrative claim with

the IRS and then filed a case in the United States Tax Court in April 2019, based on the

March 5, 2019 Final Award Decision Letter plaintiff received. Two years later, while his

first court case was still pending in the United States Tax Court, plaintiff filed his original

complaint in the United States Court of Federal Claims on November 16, 2021. As

described above, plaintiff’s November 16, 2021 complaint alleged that the government

had wrongfully withheld the total amount he was awarded by the March 5, 2019 Final

Award Decision Letter under 26 U.S.C. § 7623(a) and that such conduct violated his rights

under the Due Process Clause of the Fifth Amendment to the United States Constitution

and also constituted a taking pursuant to the Fifth Amendment to the United States

Constitution. After defendant’s original motion to dismiss plaintiff’s original complaint was

fully briefed, on October 25, 2022, this court dismissed plaintiff’s original complaint for

lack of jurisdiction. This court held that plaintiff’s suit was not ripe due to the then-ongoing

United States Tax Court proceedings, that plaintiff’s taking claim must fail because he had

not conceded the validity of the government’s actions for purposes of a takings claim, and

that the United States Court of Federal Claims does not have jurisdiction over claims

based on the Due Process Clause of the Fifth Amendment. See generally Tindall v. United

States, 2022 WL 19730768. This court also dismissed plaintiff’s motion for sanctions

against defendant’s attorney of record. Plaintiff appealed this court’s decision to the

United States Court of Appeals for the Federal Circuit in November 2022. Subsequently,

in December 2022, the United States Tax Court dismissed plaintiff’s action for lack of

jurisdiction. Thereafter, the United States Court of Appeals for the Federal Circuit issued

a decision on April 11, 2023 that affirmed in part, vacated in part, and remanded the case

back to the United States Court of Federal Claims. See generally Tindall v. United States,

2023 WL 2881312. Five months after the Federal Circuit decision was issued, the

decision of the United States Tax Court to dismiss for lack of jurisdiction was affirmed by

the United States Court of Appeals for the District of Columbia Circuit on October 12,

2023. The Court of Appeals for the District of Columbia Circuit subsequently denied

plaintiff’s petition for rehearing and petition for rehearing en banc on December 21, 2023.

Thereafter, plaintiff appealed the District of Columbia Circuit decision to the United States

28

Supreme Court, which denied certiorari on October 7, 2024. On November 18, 2024, the

Supreme Court denied plaintiff’s petition for rehearing. Plaintiff then filed an amended

complaint in this court on May 13, 2025.

According to the United States Court of Appeals for the Federal Circuit, in its April

11, 2023 decision, the Federal Circuit did “not reach Mr. Tindall’s contract claim, or the

Claims Court’s other merits holdings,” because the Federal Circuit indicated that this court

should have first addressed “a different, colorable argument that it lacked jurisdiction over

the suit.” Tindall v. United States, 2023 WL 2881312, at *3. The Federal Circuit, therefore,

remanded this case back to the trial court to examine 28 U.S.C. § 1500 and the effect it

has, if any, on the trial court’s jurisdiction to consider Mr. Tindall’s case.

The statute at 28 U.S.C. § 1500 provides:

The United States Court of Federal Claims shall not have jurisdiction of any

claim for or in respect to which the plaintiff or his assignee has pending in

any other court any suit or process against the United States or any person

who, at the time when the cause of action alleged in such suit or process

arose, was, in respect thereto, acting or professing to act, directly or

indirectly under the authority of the United States.

28 U.S.C. § 1500 (2024).7

The application of 28 U.S.C. § 1500 analysis depends on whether a plaintiff, at the

time a suit was filed in the Court of Federal Claims, also had a suit pending in another

federal court “against the United States” or a person “acting or professing to act, directly

or indirectly under the authority of the United States,” based on substantially the same

operative facts as the suit filed in this court, regardless of the relief sought. See 28 U.S.C.

§ 1500; see also United States v. Tohono O’Odham Nation, 563 U.S. 307, 311 (2011).

The United States Court of Appeals for the Federal Circuit has stated that, “[t]o determine

whether § 1500 applies, a court must make two inquiries: ‘(1) whether there is an earlier-

filed ‘suit or process’ pending in another court, and, if so, (2) whether the claims asserted

in the earlier-filed case are ‘for or in respect to’ the same claim(s) asserted in the later-

filed Court of Federal Claims action.’” Petro-Hunt, L.L.C. v. United States, 862 F.3d 1370,

7 The court cites the current version of the statute at 28 U.S.C. § 1500, and notes that 28

U.S.C. § 1500 has not been revised since plaintiff filed his case in United States Tax

Court on April 1, 2019 or when his original suit in the United States Court of Federal

Claims was filed on November 16, 2021. Although plaintiff filed an amended complaint

on May 13, 2025, the operative date for the application of 28 U.S.C. § 1500 is the date of

the filing of the original complaint in the United States Court of Federal Claims. See Keene

Corp. v. United States, 508 U.S. 200, 207 (1993); see also Res. Invs., Inc. v. United

States, 785 F.3d 660, 666 (Fed. Cir. 2015); Loveladies Harbor, Inc. v. United States, 27

F.3d 1545, 1548 (Fed. Cir. 1994), overruled in part on other grounds by United States v.

Tohono O’Odham Nation, 563 U.S. 307, 315 (2011).

29

1381 (Fed. Cir. 2017) (alteration added) (quoting Res. Invs., Inc. v. United States, 785

F.3d at 664 (quoting Brandt v. United States, 710 F.3d 1369, 1374 (Fed. Cir. 2013))), cert.

denied, 584 U.S. 977 (2018).“The question of whether another claim is ‘pending’ for

purposes of § 1500 is determined at the time at which the suit in the Court of Federal

Claims is filed, not the time at which the Government moves to dismiss the action.”

Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1548 (Fed. Cir. 1994) (discussing

Keene Corp. v. United States, 508 U.S. 200), overruled in part on other grounds by United

States v. Tohono O’Odham Nation, 563 U.S. at 315; see also Zainulabeddin v. United

States, 138 Fed. Cl. 492, 511 (2018) (quoting Loveladies Harbor, Inc. v. United States, 27

F.3d at 1548). Indeed, “‘the jurisdiction of the Court depends upon the state of things at

the time of the action brought.’” Keene Corp. v. United States, 508 U.S. at 207 (quoting

Mollan v. Torrance, 22 U.S. 537, 539 (1824) (Marshall, C.J.)) (other citations omitted)

(noting that the Court of Federal Claims correctly applied section 1500 by “looking to the

facts existing when Keene filed each of its complaints”). Section 1500 “bars jurisdiction in

the CFC not only if the plaintiff sues on an identical claim elsewhere — a suit ‘for’ the

same claim — but also if the plaintiff’s other action is related although not identical — a

suit ‘in respect to’ the same claim.” United States v. Tohono O’Odham Nation, 563 U.S.

at 312. The Supreme Court in Tohono O’Odham Nation explained, “two suits are for or in

respect to the same claim when they are based on substantially the same operative facts.”

Id. at 315 (citing Keene Corp. v. United States, 508 U.S. at 206).

The Supreme Court has provided no set test to determine when, “two suits have

sufficient factual overlap to trigger the jurisdictional bar.” United States v. Tohono

O’Odham Nation, 563 U.S. at 317. When analyzing the application of 28 U.S.C. § 1500

on issues of jurisdiction, the facts alleged in “the two co-pending suits need not be

identical.” Ministerio Roca Solida v. United States, 778 F.3d 1351, 1353 (Fed. Cir.) (citing

United States v. Tohono O’Odham Nation, 563 U.S. at 312), cert. denied, 577 U.S. 974

(2015); see also Klamath Irrigation Dist. v. United States, 113 Fed. Cl. 688, 702 (2013)

(“It is equally established that the facts alleged in the two complaints need not be identical;

‘rather, the two complaints must stem from the same events.’” (quoting Cent. Pines Land

v. United States, 99 Fed. CL 394, 401 (2011))). The assessment of how to apply Section

1500 must be on a case-by-case factual basis, analyzing the facts of the two federal

lawsuits involved. The United States Supreme Court in Tohono O’Odham Nation,

however, provided a general framework for consideration when applying Section 1500. In

its decision, the Supreme Court stated in Tohono O’Odham Nation:

The remaining question is whether the Nation’s two suits have sufficient

factual overlap to trigger the jurisdictional bar. The CFC [United States Court

of Federal Claims] dismissed the action here in part because it concluded

that the facts in the Nation’s two suits were, “for all practical purposes,

identical.” 79 Fed. Cl. 645, 656 (2007). It was correct to do so. The two

actions both allege that the United States holds the same assets in trust for

the Nation's benefit. They describe almost identical breaches of fiduciary

duty — that the United States engaged in self-dealing and imprudent

investment, and failed to provide an accurate accounting of the assets held

in trust, for example. Indeed, it appears that the Nation could have filed two

30

identical complaints, save the caption and prayer for relief, without changing

either suit in any significant respect. Under § 1500, the substantial overlap

in operative facts between the Nation’s District Court and CFC suits

precludes jurisdiction in the CFC.

United States v. Tohono O’Odham Nation, 563 U.S. at 317 (alteration added).

As quoted above, the decision issued by the United States Court of Appeals for

the Federal Circuit on April 11, 2023 in Mr. Tindall’s case stated:

Section 1500 of Title 28 provides that the Claims Court “shall not have

jurisdiction of any claim for or in respect to which the plaintiff or his

assignee has pending in any other court any suit or process against the

United States.” The court lacks jurisdiction “where an earlier-filed suit is

‘based on substantially the same operative facts’ as the Claims Court suit,

‘regardless of the relief sought in each suit.’” Acetris Health, LLC v. United

States, 949 F.3d 719, 728–29 (Fed. Cir. 2020) (quoting United States v.

Tohono O'Odham Nation, 563 U.S. 307, 317 (2011)). We determine

whether the earlier-filed suit is “based on substantially the same operative

facts” as the Claims Court case by assessing if the latter suit “would have

been barred by res judicata if it had been brought in district court” under

the res judicata principles in force when the predecessor to § 1500 was

enacted. Id. at 729 (citation omitted).

Under that standard, if the two suits arise “out of one and the same act or

contract,” or “the same evidence support[s] and establish[es] both the

present and the former cause of action,” the Claims Court suit cannot

proceed. Tohono, 563 U.S. at 316 (citations omitted). In addition, we have

held that the res judicata standard would not be satisfied where the earlier

suit was filed in a tribunal that “had no colorable authority” to address it.

Acetris, 949 F.3d at 729 & n.4.

Applying § 1500 here is complex, and we decline to address it in the first

instance. It is true that Mr. Tindall’s suit in Tax Court, based on § 7623(b),

was pending when he filed in Claims Court as to his § 7623(a) award. But

even assuming the suits were based on the same “act or contract”—the

IRS's final award letter—it is not clear that the Tax Court had colorable

jurisdiction to review Mr. Tindall’s filing. That court found that it lacked

jurisdiction on two independent grounds. See S.A. 70–74. And if the Tax

Court lacked colorable authority to consider Mr. Tindall’s appeal, his earlier

filing there would “not have preclusive effect under [§] 1500,” and so § 1500

would not be a bar. Acetris, 949 F.3d at 729. We leave this question for the

Claims Court to decide on remand.

Tindall v. United States, 2023 WL 2881312, at *3-*4 (alteration in original). In the case

currently before this court, the Federal Circuit, therefore, instructed this court to determine

31

if 28 U.S.C. § 1500 should be applied barring jurisdiction over Mr. Tindall’s claims in the

United States Court of Federal Claims.

The defendant did not address the issue of 28 U.S.C. § 1500 in its briefs on the

current motion to dismiss plaintiff’s amended complaint.8 Plaintiff, however, in his earlier

filed motion for partial summary judgment argued that the “resolution of this remanded

issue is [28 U.S.C. § 1500] both simple and straightforward,” and references an earlier

submission by plaintiff in which plaintiff argued “as a matter of law, 28 U.S.C. §1500

does not apply to preclude this Court from having jurisdiction over Plaintiff’s

breach of contract action and constitutional violations claims against Defendant,”

“because all of Plaintiff’s eight (8) tax whistleblower claims were the subject of an award

letter, none of them can have can have ‘substantially the same set of operative facts’ as

any other tax whistleblower claim.” (all emphasis in original; footnote omitted; alteration

added). Based on the Federal Circuit’s remand directions, the court must, however,

determine if 28 U.S.C. § 1500 applies to Mr. Tindall’s case in the United States Tax Court

when Mr. Tindall subsequently filed his case in the Court of Federal Claims before

proceeding.

Initially, as quoted above, the statute at 28 U.S.C. § 1500 provides:

The United States Court of Federal Claims shall not have jurisdiction of any

claim for or in respect to which the plaintiff or his assignee has pending in

any other court any suit or process against the United States or any person

who, at the time when the cause of action alleged in such suit or process

arose, was, in respect thereto, acting or professing to act, directly or

indirectly under the authority of the United States.

28 U.S.C. § 1500. The plain text of the statute does not limit the application of 28 U.S.C.

§ 1500 to any specific court, and, instead, applies “to respect to which the plaintiff or his

assignee has pending in any other court.” Id. In a statutory interpretation analysis, “[t]he

first step ‘is to determine whether the language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the case.’” Barnhart v. Sigmon Coal Co.,

534 U.S. 438, 450 (2002) (alteration added) (quoting Robinson v. Shell Oil Co., 519 U.S.

337, 340 (1997)); see also Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“As with

any question of statutory interpretation, our analysis begins with the plain language of the

statute.”). “When tasked with interpreting a statute, we start by exhausting all traditional

tools of interpretation to determine its meaning. The starting point is the text itself.”

Obsidian Sols. Grp., LLC v. United States, 54 F.4th 1371, 1374 (Fed. Cir. 2022) (citing

United States v. Hohri, 482 U.S. 64, 69 (1987); see also LaBonte v. United States, 43

F.4th 1357, 1367–68 (Fed. Cir. 2022) (“We begin our analysis, as we must, with the

pertinent statutory language.”) (citing Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct.

2356, 2364 (2019) (“In statutory interpretation disputes, a court's proper starting point lies

8 In the parties’ earlier joint submission to the court, defendant represented that

“defendant does not intend to reargue that 28 U.S.C. § 1500 removes this matter from

this Court’s jurisdiction.”

32

in a careful examination of the ordinary meaning and structure of the law itself.”); Nicely

v. United States, 23 F.4th 1364, 1368 (Fed. Cir. 2022) (“When interpreting a statute, we

‘begin with the language employed by Congress.’” (quoting Engine Mfrs. Ass’n v. S. Coast

Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004)))).

The initial inquiry into the statutory text ceases “‘if the statutory language is

unambiguous and “the statutory scheme is coherent and consistent.”’” Barnhart v. Sigmon

Coal Co., 534 U.S. at 450 (quoting Robinson v. Shell Oil Co., 519 U.S. at 340 (quoting

United States v. Ron Pair Enters., Inc., 489 U.S. at 240); see also King v. Burwell, 576

U.S. at 486 (“If the statutory language is plain, we must enforce it according to its terms.”)

(citing Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010)); Sucic v. Wilkie,

921 F.3d 1095, 1098 (Fed. Cir. 2019) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. at

450); Bettcher Indus., Inc. v. Bunzl USA, Inc., 661 F.3d at 644; Arko Foods Int’l, Inc. v.

United States, 654 F.3d 1361, 1364 (Fed. Cir. 2011) (“‘[W]here Congress has clearly

stated its intent in the language of a statute, a court should not inquire further into the

meaning of the statute.’” (alteration in original) (quoting Millenium Lumber Distrib. Ltd. v.

United States, 558 F.3d 1326, 1328 (Fed. Cir.), reh’g denied (Fed. Cir. 2009)); Am.

Airlines, Inc. v. United States, 551 F.3d 1294, 1300 (Fed. Cir. 2008). Thus, when the

“‘statute’s language is plain, “the sole function of the courts is to enforce it according to

its terms[.]”’” Johnson v. United States, 529 U.S. 694, 723 (2000) (Scalia, J., dissenting)

(quoting United States v. Ron Pair Enters., Inc., 489 U.S. at 241 (quoting Caminetti v.

United States, 242 U.S. 470, 485 (1917))); see also Jimenez v. Quarterman, 555 U.S. at

118; Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000));

Bartels Tr. for the Benefit of Cornell Univ. ex rel. Bartels v. United States, 617 F.3d 1357,

1361 (Fed. Cir.) (citing Sharp v. United States, 580 F.3d 1234, 1237 (Fed. Cir. 2009)),

reh’g en banc denied (Fed. Cir. 2010); Candle Corp. of Am. v. United States Int’l Trade

Comm’n, 374 F.3d 1087, 1093 (Fed. Cir.), reh’g and reh’g denied (Fed. Cir. 2004).

There does not appear to be an indication from the statutory language of 28 U.S.C.

§ 1500 that the application of 28 U.S.C. § 1500 would not apply to cases in the United

States Court of Federal Claims when a plaintiff has a pending case previously filed in the

United States Tax Court. Although there is little precedent on this issue, Judges of the

United States Court of Federal Claims have found the application of 28 U.S.C. § 1500 to

be a jurisdictional bar when a plaintiff in the United States Court of Federal Claims had a

case previously pending in the United States Tax Court. See Jackson v. United States,

156 Fed. Cl. 738, 743 n.8 (2021); Western Mgmt., Inc. v. United States, 101 Fed. Cl. 105,

113-14 (2011), aff’d in part, remanded in part, 498 F. App’x 10 (Fed. Cir. 2012), reh’g

denied (Fed. Cir. 2013). In Jackson v. United States, a Judge of the Court of Federal

Claims held that this court lacked jurisdiction over claims that were currently pending in

the United States Tax Court because the facts in the United States Tax Court were based

on substantially the same operative facts as the suit filed by the same plaintiff in this court.

The Judge in Jackson v. United States explained:

Furthermore, to the extent that this claim challenging the $5,000 penalty is

currently before the Tax Court, this Court does not have jurisdiction over

that claim. Pursuant to 28 U.S.C. § 1500, this Court does not have

33

jurisdiction over “any claim for or in respect to which the plaintiff . . . has

pending in any other court any suit or process against the United States or

any person who, at the time when the cause of action alleged in such suit

or process arose, was, in respect thereto, acting or professing to act, directly

or indirectly under the authority of the United States.” Consequently, this

Court cannot exercise jurisdiction over Plaintiff's claim to the extent that it is

“based on the same operative facts and request[ ] the same relief,” as it

appears to be here. See Sanders v. United States, 34 Fed. Cl. 38, 44 (1995).

Jackson v. United States, 156 Fed. Cl. at 743 n.8 (internal citation omitted, omission and

alteration in original). In Western Management, Inc. v. United States, another Judge of

the United States Court of Federal Claims determined that a pending Tax Court filing at

the time the suit was filed in the Court of Federal Claims was preclusive under 28 U.S.C.

§ 1500. The court explained:

It is not disputed that WMI’s [Western Management, Inc.] suit in the Tax

Court regarding the tax periods at issue in this case was not final until the

Ninth Circuit affirmed the Tax Court for the second time in the case's history

in 2009. . . . It is also not disputed that WMI’s claim regarding 1994 and the

first quarter of 1995 in the Tax Court arose from the same operative facts

as does WMI's claim in this court, which was filed in 2008, before the Tax

Court action was final. Thus, WMI’s claim in this court was “for or in respect

to” a pending claim against the United States at the time it was filed, and

thus this court has no jurisdiction over WMI’s complaint.

Western Mgmt., Inc. v. United States, 101 Fed. Cl. at 113-14 (omission and alteration

added; citations omitted). On appeal, however, in an unpublished decision, the Federal

Circuit held that 28 U.S.C. § 1500 did not apply because “[i]n this case, the ‘operative

facts’ are not the same.” W. Mgmt., Inc. v. United States, 498 F. App’x 10, 14 n.3 (Fed.

Cir. 2012) (alteration added).

In the Federal Circuit’s April 11, 2023 decision in Mr. Tindall’s appeal, the court

noted that “[a]pplying § 1500 here is complex, and we decline to address it in the first

instance.” Tindall v. United States, 2023 WL 2881312, at *4 (alteration added). As noted

above, there has been little trial court, and apparently no definitive, preclusive Circuit

Court, decision on how 28 U.S.C. § 1500 is applicable to an overlap with cases in the

United States Tax Court. The Federal Circuit in its Tindall decision also did not definitely

suggest that 28 U.S.C. § 1500 could not bar a subsequent action filed in the United States

Court of Federal Claims. Therefore, 28 U.S.C. § 1500 may or may not be applicable, after

a fact intensive analysis, in situations in which a plaintiff first files suit in the United States

Tax Court, and then subsequently files suit in the United States Court of Federal Claims

at the time a Tax Court case is pending. According to the Federal Circuit, for the

jurisdictional bar to apply, the issue is whether the “earlier-filed suit is ‘based on

substantially the same operative facts’ as the Claims Court suit, ‘regardless of the relief

sought in each suit.’” Acetris Health, LLC v. United States, 949 F.3d at 728–29 (quoting

United States v. Tohono O'Odham Nation, 563 U.S. at 317).

34

The Federal Circuit’s April 11, 2023 decision in Tindall v. United States also

identified a further consideration regarding whether 28 U.S.C. § 1500 applies in Mr.

Tindall’s case by stating:

It is true that Mr. Tindall’s suit in Tax Court, based on § 7623(b), was

pending when he filed in Claims Court as to his § 7623(a) award. But even

assuming the suits were based on the same “act or contract”—the IRS’s

final award letter—it is not clear that the Tax Court had colorable jurisdiction

to review Mr. Tindall’s filing. That court found that it lacked jurisdiction on

two independent grounds. See S.A. 70–74. And if the Tax Court lacked

colorable authority to consider Mr. Tindall’s appeal, his earlier filing there

would “not have preclusive effect under [§] 1500,” and so § 1500 would not

be a bar. Acetris, 949 F.3d at 729. We leave this question for the Claims

Court to decide on remand.

Tindall v. United States, 2023 WL 2881312, at *3-*4 (alteration in original). The Federal

Circuit in its Tindall decision cited Acetris Health, LLC v. United States, to further explain

that “we have held that the res judicata standard would not be satisfied where the earlier

suit was filed in a tribunal that ‘had no colorable authority’ to address it. Acetris Health,

LLC v. United States, 949 F.3d at 729 & n.4,” and the subsequent actions would not then

be precluded. See Tindall v. United States, 2023 WL 2881312, at *4. In Acetris Health,

LLC v. United States, the United States Court of Appeals for the Federal Circuit stated:

Tohono held that, under section 1500, a claim filed at a first court can divest

the Claims Court of a second, later-filed claim even where the first court

would have lacked subject-matter jurisdiction over the second claim.

Tohono, 563 U.S. at 315–17, 131 S. Ct. 1723. This represents a departure

from the usual rule that res judicata cannot preclude a later-filed claim over

which the first court lacked jurisdiction. See Res. Invs., 785 F.3d at 666. But

in Tohono the earlier-filed claims were properly filed in the district court;

Tohono did not consider situations where, as here, the first court lacks

jurisdiction over the earlier-filed claim. And we do not read Tohono to

override the principle that a court cannot rule on the merits of—and thus res

judicata effect cannot arise from—a claim over which the court has no

colorable jurisdiction. Restatement (Second) of Judgments § 12 (1982) (no

preclusion where “[t]he subject matter of the action was so plainly beyond

the court's jurisdiction that its entertaining the action was a manifest abuse

of authority”); see also United States v. U. S. Fid. & Guar. Co., 309 U.S. 506,

512, 60 S. Ct. 653, 84 L. Ed. 894 (1940) (holding that res judicata did not

apply where district court had no statutory authority to adjudicate a claim

against the United States); Christopher Vill., L.P. v. United States, 360 F.3d

1319, 1326–33 (Fed. Cir. 2004).

Acetris Health, LLC v. United States, 949 F.3d 719, 729 n.4 (Fed. Cir. 2020) (alteration in

original). As referenced in the Acetris Health decision, in Resource Investments, Inc. v.

35

United States, the Federal Circuit explained: “Under Tohono, the question is whether the

second Claims Court takings suit would have been barred by res judicata if it had been

brought in the district court” going by “res judicata principles as of 1868, when the

predecessor to § 1500 was first enacted.” Res. Invs., Inc. v. United States, 785 F.3d at

666; see also Trusted Integration, Inc. v. United States, 659 F. 3d 1159, 1168 n.4 (Fed.

Cir. 2011) (noting that in United States v. Tohono O’Odham Nation, the United States

Supreme Court “made clear that it is the tests in place at the time the predecessor to §

1500 was enacted by which we must be guided”).

Plaintiff’s United States Tax Court case was pending at the time Mr. Tindall filed his

case in the United States Court of Federal Claims on November 16, 2021. The Tax Court

subsequently dismissed plaintiff’s claims in a December 7, 2022 decision for lack of

jurisdiction. See Whistleblower 5903-19W v. Comm’r, No. 5903-19W. In its decision,

the Tax Court explained:

The Secretary has long had the discretion to pay awards to persons who

provide information that aids in (1) detecting underpayments of tax or

(2) detecting and bringing to trial and punishment persons guilty of

violating the internal revenue laws. Sec. 7623(a). Congress enacted the

Tax Relief and Health Care Act of 2006 (TRHCA), Pub. L. No. 109-432,

div. A, sec. 406, 120 Stat. at 2958, to address perceived problems with

the discretionary award regime. See Whistleblower 11332-13W v.

Commissioner, 142 T.C. 396, 400 (2014). TRHCA section 406 amended

section 7623 to require the Secretary to pay whistleblower awards under

certain circumstances. TRHCA sec. 406(a)(1)(D), 120 Stat. at 2959

(adding to section 7623(b)). Under section 7623(b)(1) a whistleblower is

entitled to a minimum award of 15% of the collected proceeds if the

Commissioner proceeds with administrative or judicial action using

information provided in a whistleblower claim. Whistle blower [sic]

claims filed after TRHCA are subject to this Court’s review. However,

when a whistleblower submits a post-TRHCA claim using the same

information the whistleblower provided to the WBO pre-THRCA [sic],

this Court lacks jurisdiction. See Whistleblower 19860-15W v.

Commissioner, T.C. Memo 2017-112; see also, Wolf v. Commissioner,

T.C. Memo. 2007-133 (2007); Whistleblower I1332-13W v.

Commissioner, 142 T.C. 396 (2014).

Additionally, in Li v. Commissioner, 22 F.4th 1014 (D.C. Cir. Jan. 11,

2022), the Court of Appeals for the District of Columbia Circuit held that

the Tax Court lacks jurisdiction of whistleblower cases involving

threshold rejections of claims for whistleblower award where no judicial

or administrative proceeding was commenced based on the

whistleblower’s information. That ruling is now final.

Whistleblower 5903-19W v. Comm’r, No. 5903-19W, at 2 (alterations added).

Therefore, the Tax Court based its December 7, 2022 dismissal of plaintiff’s claims for

36

lack of jurisdiction in the United States Tax Court, as quoted directly above, on “when a

whistleblower submits a post-TRHCA claim using the same information the whistleblower

provided to the WBO pre-THRCA [sic], this Court lacks jurisdiction.” Whistleblower 5903-

19W v. Comm’r, No. 5903-19W, at 2 (alteration added). The Tax Court’s dismissal for

lack of jurisdiction was affirmed by the United States Court of Appeals for the District of

Columbia Circuit on October 12, 2023. See Whistleblower 5903-19W v. Comm’r, No. 23-

1056, at 1. The United States Court of Appeals for the District of Columbia Circuit,

thereafter, denied plaintiff’s petition for rehearing and petition for rehearing en banc on

December 21, 2023. Subsequently, the United States Supreme Court denied Mr. Tindall’s

writ for certiorari on October 7, 2024, and then denied plaintiff’s petition for rehearing on

November 18, 2024. The Tax Court’s affirmed dismissal of plaintiff’s claims for lack of

jurisdiction demonstrates that the original court, in this case the United States Tax Court,

lacked jurisdiction over plaintiff’s claims and, therefore, 28 U.S.C. § 1500 does not

preclude the subsequent complaint filed by Mr. Tindall the United States Court of Federal

Claims on November 16, 2021.9 See Acetris Health, LLC v. United States, 949 F.3d at

729 n.4; Res. Invs., Inc. v. United States, 785 F.3d at 666. This is consistent with the

decision issued by the United States Court of Appeals for the Federal Circuit in plaintiff’s

appeal, which stated, “if the Tax Court lacked colorable authority to consider Mr. Tindall’s

appeal, his earlier filing there would ‘not have preclusive effect under [§] 1500,’ and so §

1500 would not be a bar.” Tindall v. United States, 2023 WL 2881312, at *4 (quoting

Acetris Health, LLC v. United States, 949 F.3d at 729 (alteration in original)). This court,

therefore, concludes that Section 1500 does not act as a bar for plaintiff’s claims in the

United States Court of Federal Claims. Therefore, the court reviews Mr. Tindall’s claims

as set forth in his amended complaint now before this court.

Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint

When examining what must be pled in order to state a claim, a plaintiff need only

state in the complaint “a short and plain statement of the claim showing that the pleader

is entitled to relief.” RCFC 8(a)(2) (2025); see also Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). The United States Supreme Court has stated:

While a complaint attacked by Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, ibid. [Conley v. Gibson, 355 U.S. 41, 47

(1957)]; Sanjuan v. American Bd. Of Psychiatry and Neurology, Inc., 40 F.3d

247, 251 (C.A.7 1994), a plaintiff’s obligation to provide the “grounds” of his

“entitlement to relief” requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do, see

Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts

“are not bound to accept as true a legal conclusion couched as a factual

9 As explained above, although plaintiff filed an amended complaint on May 13, 2025, the

operative date for the application of 28 U.S.C. § 1500 is the date of the filing of the original

complaint in the United States Court of Federal Claims. See Keene Corp. v. United States,

508 U.S. at 207; see also Res. Invs., Inc. v. United States, 785 F.3d at 666; Loveladies

Harbor, Inc. v. United States, 27 F.3d at 1548.

37

allegation”). Factual allegations must be enough to raise a right to relief

above the speculative level, see 5 C. Wright & A. Miller, Federal Practice

and Procedure § 1216 pp. 235-236 (3d ed. 2004) (hereinafter Wright &

Miller) (“[T]he pleading must contain something more . . . than . . . a

statement of facts that merely creates a suspicion [of] a legally cognizable

right of action”), on the assumption that all the allegations in the complaint

are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 508 n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327 (1989)

(“Rule 12(b)(6) does not countenance . . . dismissals based on a judge’s

disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S.

232, 236 (1974) (a well-pleaded complaint may proceed even if it appears

“that a recovery is very remote and unlikely”) . . . . [W]e do not require

heightened fact pleading of specifics, but only enough facts to state a claim

that relief that is plausible on its face.

Bell Atl. Corp. v. Twombly, 550 U.S. at 555–56, 570 (footnote and other citations omitted;

omissions in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.

Corp. v. Twombly, 550 U.S. at 555–57, 570); Boyd v. United States, 134 F.4th 1348, 1352

(Fed. Cir. 2025); Cotter Corp., N.S.L. v. United States, 127 F.4th at 1366; First Mortg.

Corp. v. United States, 961 F.3d 1331, 1339 (Fed. Cir. 2020); Am. Bankers Ass’n v. United

States, 932 F.3d 1375, 1380 (Fed. Cir. 2019); Frankel v. United States, 842 F.3d 1246,

1249 (Fed. Cir. 2016); A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1157 (Fed.

Cir. 2014); Bell/Heery v. United States, 739 F.3d 1324, 1330 (Fed. Cir.), reh’g and reh’g

en banc denied, (Fed. Cir. 2014); Kam-Almaz v. United States, 682 F.3d 1364, 1367 (Fed.

Cir. 2012) (“The facts as alleged ‘must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true (even

if doubtful in fact).’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557)); Totes-lsotoner

Corp. v. United States, 594 F.3d 1346, 1354–55 (Fed. Cir.), cert. denied, 562 U.S. 830

(2010); Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir.) (“In order to avoid

dismissal for failure to state a claim, the complaint must allege facts ‘plausibly suggesting

(not merely consistent with)’ a showing of entitlement to relief.” (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. at 557)), reh’g and reh’g en banc denied (Fed. Cir. 2009), cert. denied,

561 U.S. 1006 (2010); Cambridge v. United States, 558 F.3d 1331, 1335 (Fed. Cir. 2009)

(“[A] plaintiff must plead factual allegations that support a facially ‘plausible’ claim to relief

in order to avoid dismissal for failure to state a claim.” (quoting Bell Atl. Corp. v. Twombly,

550 U.S. at 570)); Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir.) (“The factual

allegations must be enough to raise a right to relief above the speculative level. This does

not require the plaintiff to set out in detail the facts upon which the claim is based, but

enough facts to state a claim to relief that is plausible on its face.” (internal reference

omitted)), reh’g denied (Fed. Cir.), cert. denied, 557 U.S. 937 (2009); Day v. United States,

176 Fed. Cl. 634, 638 (2025); Villalobos v. United States, 174 Fed. Cl. 741, 745 (2025);

Avant Assessment, LLC v. United States, 159 Fed. Cl. 632, 636 (2022) (“As the Supreme

Court explained, ‘a complaint must contain sufficient factual matter, accepted as true, to

“state a claim to relief that is plausible on its face.”’” (quoting Ashcroft v. Iqbal, 556 U.S.

at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570))).

38

“‘[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case,

can never be forfeited or waived.’” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)

(quoting United States v. Cotton, 535 U.S. 625, 630 (2002) (alteration added)). “Subject-

matter jurisdiction may be challenged at any time by the parties or by the court sua

sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing Fanning,

Phillips, Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh’g and reh’g en banc

denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); see also St. Bernard Parish

Gov’t v. United States, 916 F.3d 987, 992–93 (Fed. Cir. 2019) (“[T]he court must address

jurisdictional issues, even sua sponte, whenever those issues come to the court’s

attention, whether raised by a party or not, and even if the parties affirmatively urge the

court to exercise jurisdiction over the case.” (citing Foster v. Chatman, 578 U.S. 488, 495

(2016)) (alterations added); Int’l Elec. Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329,

1330 (Fed. Cir. 2007); Santini v. United States, 173 Fed. Cl. 724, 726 (2024); Haddad v.

United States, 152 Fed. Cl. 1, 16 (2021); Fanelli v. United States, 146 Fed. Cl. 462, 466

(2020).

“[T]he determination of jurisdiction is based only on the allegations in the plaintiff’s

‘well-pleaded complaint[.]’” Royal Canin U. S. A., Inc. v. Wullschleger, 604 U.S. 22, 26

(2025) (alterations added) (quoting Franchise Tax Bd. of State of Cal. v. Constr. Laborers

Vacation Trust for S. Cal., 463 U.S. 1, 9–10 (1983)). “Determination of jurisdiction starts

with the complaint, which must be well-pleaded in that it must state the necessary

elements of the plaintiff's claim, independent of any defense that may be interposed.”

Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. of State

of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. at 9–10), reh’g denied

(Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed. Cl. 203,

208 (2011).

The Tucker Act, 28 U.S.C. § 1491 (2024), grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States,

or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker

Act waives sovereign immunity to allow jurisdiction over claims against the United States

(1) founded on an express or implied contract with the United States, (2) seeking a refund

from a prior payment made to the government, or (3) based on federal constitutional,

statutory, or regulatory law mandating compensation by the federal government for

damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289–90 (2009);

see also Me. Cmty. Health Options v. United States, 590 U.S. 296, 322 (2020); United

States v. Mitchell, 463 U.S. 206, 216 (1983); Sanford Health Plan v. United States, 969

F.3d 1370, 1378 (Fed. Cir. 2020); Alvarado Hosp., LLC v. Price, 868 F.3d 983, 991 (Fed.

Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh’g and

reh’g en banc denied (Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmer v.

39

United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999); McCrory v. United States, 174 Fed.

Cl. 311, 313 (2024); Gulley v. United States, 150 Fed. Cl. 405, 411 (2020); Kuntz v. United

States, 141 Fed. Cl. 713, 717 (2019). “Not every claim invoking the Constitution, a federal

statute, or a regulation is cognizable under the Tucker Act. The claim must be one for

money damages against the United States . . . .” United States v. Mitchell, 463 U.S. at

216–17 (omission added); see also United States v. White Mountain Apache Tribe, 537

U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United States, 881 F.3d 877, 881 (Fed.

Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied, 571 U.S.

945 (2013); RadioShack Corp. v. United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009);

Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008)

(“[P]laintiff must look beyond the Tucker Act to identify a substantive source of law that

creates the right to recovery of money damages against the United States.” (alteration

added)); Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d 1299, 1306 (Fed. Cir. 2008); Olson

v. United States, 152 Fed. Cl. 33, 40–41 (2021); Jackson v. United States, 143 Fed. Cl.

242, 245 (2019), appeal dismissed, No. 2019-2213, 2020 WL 8254415, at *1 (Fed. Cir.

Jan. 29, 2020). In Ontario Power Generation, Inc. v. United States, the United States

Court of Appeals for the Federal Circuit identified three types of monetary claims for which

jurisdiction is properly lodged in the United States Court of Federal Claims, stating:

The underlying monetary claims are of three types . . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver . . . . Second, the Tucker Act’s waiver

encompasses claims where “the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum.”

Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605–06,] 372 F.2d

[1002,] 1007–08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen's money in its pocket’ ” (quoting

Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .

Third, the Court of Federal Claims has jurisdiction over those claims where

“money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a payment from the treasury.” Eastport S.S. [Corp. v. United

States], 372 F.2d at 1007. Claims in this third category, where no payment

has been made to the government, either directly or in effect, require that

the “particular provision of law relied upon grants the claimant, expressly or

by implication, a right to be paid a certain sum.” Id.; see also [United States

v. ]Testan, 424 U.S. [392,] 401–02 [(1976)] (“Where the United States is the

defendant and the plaintiff is not suing for money improperly exacted or

retained, the basis of the federal claim—whether it be the Constitution, a

statute, or a regulation—does not create a cause of action for money

damages unless, as the Court of Claims has stated, that basis ‘in itself . . .

can fairly be interpreted as mandating compensation by the Federal

Government for the damage sustained.’” (quoting Eastport S.S. [Corp. v.

United States], 372 F.2d at 1009)). This category is commonly referred to

as claims brought under a “money-mandating” statute.

40

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004)

(alterations and first three omissions added; fourth omission in original); see also Samish

Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp. of Saddle

Brook v. United States, 104 Fed. Cl. 101, 106 (2012).To prove that a statute or regulation

is money-mandating, a plaintiff must demonstrate that an independent source of

substantive law relied upon “‘can fairly be interpreted as mandating compensation by the

Federal Government.’” United States v. Navajo Nation, 556 U.S. at 290 (quoting United

States v. Testan, 424 U.S. at 400); see also United States v. White Mountain Apache

Tribe, 537 U.S. at 472; United States v. Mitchell, 463 U.S. at 217; Cotter Corp., N.S.L. v.

United States, 127 F.4th 1353, 1366 (Fed. Cir. 2025); Blueport Co., LLC v. United States,

533 F.3d 1374, 1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of

law granting monetary relief must be distinct from the Tucker Act itself. See United States

v. Navajo Nation, 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it

is] simply [a] jurisdictional provision[ ] that operate[s] to waive sovereign immunity for

claims premised on other sources of law (e.g., statutes or contracts).” (alterations added;

citations omitted); see also Me. Cmty. Health Options v. United States, 590 U.S. at 322.

“‘If the statute is not money-mandating, the Court of Federal Claims lacks jurisdiction, and

the dismissal should be for lack of subject matter jurisdiction.’” Jan’s Helicopter Serv., Inc.

v. Fed. Aviation Admin., 525 F.3d at 1308 (quoting Greenlee Cnty., Ariz. v. United States,

487 F.3d at 876); see also N.Y. & Presbyterian Hosp. v. United States, 881 F.3d at 881;

Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (noting that the absence of

a money-mandating source is “fatal to the court’s jurisdiction under the Tucker Act”);

Olson v. United States, 152 Fed. Cl. at 41; Downey v. United States, 147 Fed. Cl. 171,

175 (2020) (“And so, to pursue a substantive right against the United States under the

Tucker Act, a plaintiff must identify and plead a money-mandating constitutional provision,

statute, or regulation; an express or implied contract with the United States; or an illegal

exaction of money by the United States.” (citations omitted)).

As described above, in plaintiff’s amended complaint, plaintiff alleges this court has

jurisdiction over his various claims, including his two alleged breach of contract claims.

He alleges that defendant breached his alleged contract arising from the March 5, 2019

Final Award Decision Letter by failing to pay him the full amount to which he is entitled

and by delaying the payment he was owed. Plaintiff claims:

[T]he U.S. Court of Federal Claims has subject matter jurisdiction over this

dispute pursuant to 28 U.S.C. §1491(a)(1), because the basis for this

dispute is defendant’s willful breaches of the two (2) tax whistleblower

contracts between the parties by defendant’s attempts to pay less than the

full amount of the two (2) §7623(a) awards that defendant determined to be

owing and defendant’s refusal to pay the two (2) §7623(a) awards for nearly

six (6) years after defendant determined that they were final and owing.

(alteration added; citations omitted; footnotes omitted). Alternatively, in his amended

complaint, plaintiff again alleges “four violations of plaintiff’s constitutional rights (two

violations of the Takings Clause and two violations of the Due Process Clause).” He

claims that defendant committed unconstitutional takings by failing to pay plaintiff his

41

award and further failing to pay him just compensation for the time defendant possessed

his award, and “defendant has failed to provide any due process surrounding its exercise

of its power of eminent domain when it took possession of plaintiff’s two (2) discrete

§7623(a) awards that defendant determined was owed to plaintiff.” Plaintiff argues that

the U.S. Court of Federal Claims has jurisdiction over this dispute pursuant

to 28 U.S.C. §1491(a)(1), because the basis for this dispute is defendant’s

taking of plaintiff’s property (to wit, plaintiff’s two (2) §7623(a) awards and

the related income streams) without paying plaintiff ‘just compensation’, as

required by the 5th Amendment to the U.S. Constitution, which states “No

person shall . . . be deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use, without just

compensation”.

(emphasis and omission in original; citations omitted). Plaintiff further states that he was

unable to appeal defendant’s decision to not pay plaintiff the full award he received from

the Whistleblowers Office, which plaintiff also argues constitutes a constitutional due

process violation.

As indicated above, in response to the amended complaint, defendant filed a

motion to dismiss plaintiff’s amended complaint for a lack of subject matter jurisdiction

under RCFC 12(b)(1) and for failure to state a claim under RCFC 12(b)(6). Defendant

argues:

First, the amended complaint fails to assert a claim within this Court’s

jurisdiction. The constitutional claims he asserts have already been

dismissed [in this court’s first opinion in Tindall v. United States, No. 21-

2200T (Fed. Cl. Oct. 25, 2022)] and his breach of contract claim is either

moot or fails to non-frivolously allege the existence of a contract. Second,

even if this Court has jurisdiction, this Court should nonetheless dismiss the

amended complaint under RCFC 12(b)(6). Whether framed as an

unconstitutional taking or a breach of contract, Mr. Tindall has failed to state

a claim upon which relief can be granted.

(alteration added).

Breach of Contract Claims

In his amended complaint, plaintiff claims that two contracts exist between him and

defendant as a result of his two successful 26 U.S.C. § 7623(a) claims that are the basis

of the award in the March 5, 2019 Final Award Decision Letter to plaintiff. Plaintiff alleges

that the contracts existed from the moment defendant issued the March 5, 2019 Final

Award Decision Letter dated March 5, 2019. Plaintiff argues defendant’s conduct amounts

to two breaches of contract, stating:

42

No Award Payment for 2,151 Days (Takings Violation and Breach of

Contract #1)

Despite there being no avenue to appeal defendant’s IRS WBO’s

determination specific to plaintiff’s §7623(a) claims, in the 2,151-days

subsequent to that determinations [sic], defendant still refused to pay any

of the §7623(a) award amounts to plaintiff.

Partial Payment of $654,380.01 on January 23, 2025 (Breach of Contract

#2)

On January 23, 2025, 2,151 days after the issuance of its Award Letter,

defendant made a partial payment of plaintiff’s §7623(a) awards

($654,380.01), which was $39,554.25 less than the final amount of the

§7623(a) awards that defendant determined was due and payable in its

Award Letter, dated March 5, 2019.

(alteration added). In response, defendant argues that Mr. Tindall has not alleged a

breach of contract claim within this court’s jurisdiction.

Regarding both breach of contract allegations in plaintiff’s amended complaint, to

have privity of contract with the United States government, and, therefore, to invoke

jurisdiction in the United States Court of Federal Claims for an alleged breach of contract

claim, plaintiff “must show that either an express or implied-in-fact contract underlies [the]

claim.” Trauma Serv. Grp. v. United States, 104 F.3d 1321, 1325 (Fed. Cir. 1997)

(alteration added); see also Park Props. Assocs., L.P. v. United States, 916 F.3d 998,

1002 (Fed. Cir. 2019), cert. denied, 589 U.S. 1133 (2020). “An express contract ‘“must be

manifested by words, either oral or written, which contains agreement and/or mutual

assent.”’” Frankel v. United States, 118 Fed. Cl. 332, 335 (2014) (quoting Essen Mall

Props. v. United States, 21 Cl. Ct. 430, 439 (1990) (quoting Webster Univ. v. United

States, 20 Cl. Ct. 429, 433 (1990))), aff’d, 842 F.3d 1246 (Fed. Cir. 2016).

As recently explained by the United States Court of Appeals for the Federal Circuit:

There are four requirements to form a contract with the Government: “(1)

mutuality of intent to contract; (2) lack of ambiguity in offer and acceptance;

(3) consideration; and (4) a government representative having actual

authority to bind the United States.” Anderson v. United States, 344 F.3d

1343, 1353 (Fed. Cir. 2003). These elements apply to both express and

implied-in-fact contracts.

Boyd v. United States, 134 F.4th 1348, 1352 (Fed. Cir. 2025); see also Fairholme Funds,

Inc. v. United States, 26 F.4th 1274, 1293-94 (Fed. Cir. 2022), cert. denied, 143 S. Ct. 563

(2023); Columbus Reg’l Hosp. v. United States, 990 F.3d 1330, 1339 (Fed. Cir. 2021).

43

Defendant argues:

Mr. Tindall has not alleged any of the essential elements of a contract. He

bases his entire claim around the March 5, 2019 Final Award Decision letter.

He alleges that this letter created two contracts between the defendant and

Mr. Tindall. But he has made no allegations as to the parties’ intent to

contract, the existence of an offer and acceptance, or any government

representative with actual authority to bind the United States in contract.

(internal references omitted).

Regarding 26 U.S.C. § 7623 claims, although the statute “at 26 U.S.C. § 7623 and

its implementing regulation, 26 C.F.R. § 301.7623–1(a), alone do not contractually bind

the Government,” upon filing a claim with the IRS, a binding contract for payment may be

created once a whistleblower submits information to the Whistleblower Office and the

government fixes a specific sum for the whistleblower award. See Krug v. United States,

168 F.3d 1307, 1309 (Fed. Cir. 1999) (citing Merrick v. United States, 846 F.2d 725, 726

(Fed. Cir. 1988)). The United States Court of Appeals for the Federal Circuit in Krug v.

United States explained, “pursuant to § 7623 and the regulation, the Government invites

offers for a reward; the informant makes an offer by his conduct; and the Government

accepts the offer by agreeing to pay a specific sum.” Krug v. United States, 168 F.3d at

1309 (emphasis in original); see also Cambridge v. United States, 558 F.3d 1331, 1336

(Fed. Cir. 2009); Merrick v. United States, 846 F.2d at 726 (“an enforceable contract exists

when the parties fix the award amount”). For 26 U.S.C. § 7623 claims, a government

official authorized to bind the government in contract must fix the award amount for the

government to be contractually bound to pay the award. See Merrick v. United States,

846 F.2d at 726 (finding a contract because the plaintiff negotiated his award amount with

Acting District Director of the IRS); Amsinger v. United States, 99 Fed. Cl. 263-64 (2011)

(“In essence, the plaintiff seeking a reward must allege that an IRS official with sufficient

authority negotiated and fixed a specific reward amount in exchange for the information

offered by the plaintiff” and “[o]nly a service director or a district director of the IRS may

enter into binding contract with a reward claimant.” (alteration added); Dacosta v. United

States, 82 Fed. Cl. 549, 557 (2008).

As reflected above, after plaintiff submitted his whistleblower information to the

Whistleblower Office, between 2004 and 2015, defendant sent a January 31, 2019

Preliminary Award Decision Letter to plaintiff, which stated, in part:

The Whistleblower Office has reached a preliminary award

recommendation under Internal Revenue Code 7623(a) based on your

Form 211, Application for Award for Original Information dated 6/13/2004,

this includes any additional information you may have provided in relation

to the Form 211. Enclosed is a Summary Report that explains our

preliminary award recommendation in the amount of $650,910.34. If there

are any changes to the recommended award percentage or the amount of

collected proceeds as reflected in the Summary Report, then the

44

Whistleblower Office will send you a revised Preliminary Award

Recommendation Letter.

The January 31, 2019 Preliminary Award Decision Letter continued:

The Budget Control Act of 2011, as amended by the American Tax Relief

Act of 2012, requires that automatic reductions be made with respect to

certain government payments. These required reductions include a

reduction to awards paid under Internal Revenue Code section 7623. The

required reduction percentage is determined annually by the Office of

Management and Budget for the year in which payments are made. As a

result, your preliminary recommended award reflects a reduction in

accordance with the Office of Management and Budget guidance for the

2019 Fiscal Year reduction amount of 6.2%. The final award amount will use

the reduction required in the year of payment.

In response, plaintiff sent the IRS a letter objecting to the January 31, 2019

Preliminary Award Decision Letter, and checked the box: “I disagree with the preliminary

award recommendation.” Plaintiff’s February 6, 2019 letter stated:

I received the Preliminary Award Letter, dated January 31, 2019, which

proposes a preliminary net-net award of $650,910.34.

I appreciate your ability to quickly process the Preliminary Award Letter

following the chaos of the recent federal shutdown. With the issuance of the

Preliminary Award Letter, I am optimistic about where we are on the

remaining timeline and hope we can resolve our remaining differences

quickly to bring this project to a satisfactory conclusion.

As requested, I am returning a signed "Response to Summary Report”

(page 6 of your letter) declining that preliminary award amount (see

enclosed).

(capitalization and emphasis in original). In its letter, plaintiff argued that it was improper

for the agency to apply a reduction to his award under the Budget Control Act of 2011 and

wrote:

As some of my previous correspondence has indicated, I am not in

agreement with the position of the IRS Whistleblower’s Office that the

Budget Control Act of 2011 creates a Sequestration Haircut that applies to

Whistleblower Awards.

Quite simply, the awards are paid from collected proceeds, which are not

rationally part of the US budget, because these collected proceeds are

45

something the US government would not have received but for the

involvement of the IRS whistleblower.

(capitalization in original). Plaintiff’s February 6, 2019 letter continued:

Moreover, and specific to my case, the calculation is determined by the

statutes in effect in 2004, which predate the Budget Control Act of 2011.

Thus, any attempt to change that calculation impacts my property interest

and violates the Taking Clause of the US Constitution (our 5th Amendment

provides that "nor shall private property be taken for public use, without just

compensation”).

(capitalization and emphasis in original). At the end of the February 6, 2019 letter, plaintiff

included a section titled “FOR SETTLMENT PURPOSES ONLY,” which stated:

Over the last fifteen (15) years, I have had the occasion to complete my

own tentative award calculation. In all cases, my estimates have been

limited by the $2 million limitation contained in the 2004 statute.[10]

Once that limit has been reached, then there is no need to continue to

monitor the taxpayers' accounts, because no more award monies can

be paid.

Given the discrepancies identified above (the inapplicability of 2011

Sequestration Haircut, the impact of reduced net operating loss

attributes on subsequent collected proceeds, your affirmative obligation

to continue to monitor those collections and pay subsequent awards,

and the increased proper award percentage), I propose that your Final

Determination Letter reflect the application of the $2 million

limitation and limit my award to $2 million, which will bring this

project to a mutually satisfactory resolution of all our outstanding

issues (see enclosed).

(emphasis and capitalization in original). Plaintiff’s February 6, 2019 letter continued:

“Alternatively, our collective failure to reach a mutually satisfactory resolution will

require numerous definitional and process oversights to be publicly displayed and

judicially resolved (with certainty) – none of which will be resolved in favor of the

IRS.”

On March 5, 2019, the IRS sent plaintiff a final award decision letter advising

plaintiff that he was entitled to $650,910.34, the same amount as included in the

preliminary award recommendation. The March 5, 2019 Final Award Decision Letter

stated:

10 The $2,000,000.00 amount is not reflected in plaintiff’s original complaint or in his

amended complaint.

46

The Whistleblower Office has considered your Form 211, Application for

Award for Original Information, dated June 13, 2004, this includes any

additional information you may have provided in relation to the Form

211. On January 31, 2019, the Whistleblower Office sent you a

preliminary award recommendation. The Whistleblower Office reviewed

the comments you provided on the preliminary award recommendation.

The Whistleblower Office has made a final decision that you are entitled

to an award of $ 650,910.34.

(capitalization in original). As with the January 31, 2019 Preliminary Award Decision

Letter, the March 5, 2019 Final Award Decision Letter explained:

The Budget Control Act of 2011, as amended by the American Tax Relief

Act of 2012, requires that automatic reductions be made with respect to

certain government payments. These required reductions include a

reduction to awards paid under Internal Revenue Code section 7623. The

required reduction percentage is determined annually by the Office of

Management and Budget for the year in which payments are made. As a

result, your award reflects a reduction in accordance with the Office of

Management and Budget guidance for the 2019 Fiscal Year reduction

amount of 6.2%.

In the March 5, 2019 Final Award Decision Letter, the IRS attached a “Determination

Report” showing the methodology the agency had used to calculate the final dollar award,

which was identical to the methodology in the preliminary award decision letter. The

March 5, 2019 Final Award Decision Letter also notified plaintiff that “[t]he Whistleblower

Office will process the award for payment as promptly as the circumstances permit.”

(alteration added). As explained above, unlike the preliminary award decision letter, there

was not an option for plaintiff to indicate that he agreed or disagreed with the final award.

On March 21, 2019, plaintiff sent the IRS a letter again objecting to the final award

decision. Plaintiff stated in this letter: “I received your ‘Final Award Letter’, dated March 5,

2019, which proposed an award of $650,910.34, which was unchanged from your

preliminary offer and failed to appropriately consider the supplemental information I

provided in mid-February 2019.” In his March 21, 2019 letter, plaintiff raised similar

concerns to those in his letter objecting to the preliminary award recommendation. Plaintiff

concluded his March 21, 2019 letter by advising the agency:

These are some of the legal issues that will be resolved judicially if you fail

to reconsider them and update your ‘Final Award Letter’, dated March 5,

2019.

Do you really want a public court opinion on these issues that will bind you

for all whistleblower awards?

47

If I fail to receive a corrected ‘Final Award Letter’ that incorporates

these changes by Tuesday, April 2, 2019, then I will have no choice but

to allow the US Tax Court to resolve these issues.

(emphasis in original).

As reflected above, Mr. Tindall’s asserted basis for the two contracts he alleged he

had entered into with the government is the March 5, 2019 Final Award Decision Letter.

Mr. Tindall does not attempt to show that the four requirements to form a contract with the

United States were met: “‘(1) mutuality of intent to contract; (2) lack of ambiguity in offer

and acceptance; (3) consideration; and (4) a government representative having actual

authority to bind the United States.’” Boyd v. United States, 134 F.4th at 1352 (quoting

Anderson v. United States, 344 F.3d at 1353). Significantly, neither the March 5, 2019

Final Award Decision Letter, nor Mr. Tindall’s March 21, 2019 letter reflect an agreement

that there was a final amount agreed to and accepted by both parties. Mr. Tindall’s actions

demonstrate that he did not agree with the proposed amount. Plaintiff’s February 6, 2019

letter plainly stated: “I am not in agreement with the position of the IRS Whistleblower’s

Office that the Budget Control Act of 2011 creates a Sequestration Haircut that applies to

Whistleblower Awards,” and continued: “Alternatively, our collective failure to reach a

mutually satisfactory resolution will require numerous definitional and process

oversights to be publicly displayed and judicially resolved (with certainty) – none of

which will be resolved in favor of the IRS.” Plaintiff’s March 21, 2019 letter also

responded to the March 5, 2019 Final Award Decision Letter by advising the agency:

“These are some of the legal issues that will be resolved judicially if you fail to reconsider

them and update your ‘Final Award Letter’, dated March 5, 2019.” In addition, plaintiff’s

conduct after the March 5, 2019 Final Award Decision Letter further reflects the lack of an

agreement between the parties, as plaintiff subsequently filed his case in the United

States Tax Court contesting the amount in the March 5, 2019 Final Award Decision Letter.

Even after the dismissal of Mr. Tindall’s United States Tax Court petition was finally

resolved on November 18, 2024, following Mr. Tindall’s appeal to the United States Court

of Appeals for the District of Columbia Circuit, which had denied plaintiff’s petition for

rehearing and petition for rehearing en banc, and then Mr. Tindall’s appeal to the United

States Supreme Court, which denied Mr. Tindall’s writ for certiorari, and then denied Mr.

Tindall’s petition for rehearing, plaintiff continued to assert that the defendant had not

sufficiently met his requirements for payment. As argued by the defendant, “Mr. Tindall

has not accepted the Government’s offer and, on the contrary, has rejected the specific

terms of the March 5, 2019 Final Award Decision letter.” Moreover, Mr. Tindall continued

to contest IRS determinations in the case currently before the court, even after he was

paid for certain claims he asserted. The foregoing demonstrates that in the case currently

before the court, no contract came into existence between Mr. Tindall and the United

States as a result of the March 5, 2019 Final Award Decision Letter. See Amsinger v.

United States, 99 Fed. Cl. at 263-64.

Even if the court were to assume that the March 5, 2019 Final Award Decision

Letter could represent a contract entered into between Mr. Tindall and the United States,

because an IRS official with sufficient authority fixed a specific reward amount to Mr.

Tindall, see Merrick v. United States, 846 F.2d at 726; Amsinger v. United States, 99 Fed.

48

Cl. at 263, plaintiff still has not demonstrated a breach of contract by the government. As

indicated above, plaintiff’s first claim for breach of contract in plaintiff’s amended

complaint is based on an alleged delay of payment by the defendant to the plaintiff.

Plaintiff alleges that defendant breached the contract established in the March 5, 2019

Final Award Decision Letter by delaying payment for 2,151 days, stating:

No Award Payment for 2,151 Days (Takings Violation and Breach of

Contract #1)

Despite there being no avenue to appeal defendant’s IRS WBO’s

determination specific to plaintiff’s §7623(a) claims, in the 2,151-days

subsequent to that determinations [sic], defendant still refused to pay any

of the §7623(a) award amounts to plaintiff.

(emphasis in original; alteration added). Plaintiff argues that defendant admitted that

defendant had “been in the possession, control and use of plaintiff’s property (i.e.,

plaintiff’s §7623(a) award monies) since March 5, 2019” through its “partial payment” of

the award on January 23, 2025. As described in defendant’s motion to dismiss plaintiff’s

amended complaint:

On October 12, 2023, the D.C. Circuit issued a decision affirming the Tax

Court’s order of dismissal. Following subsequent appeals, the litigation

involving the dismissal of Mr. Tindall’s Tax Court petition finally resolved on

November 18, 2024, following the Supreme Court’s denial of Mr. Tindall’s

petition for rehearing. After the Supreme Court’s denial of Mr. Tindall’s

petition for rehearing, all appeals of the WO’s [Whistleblower’s Office]

determination were now “final” for purposes of the applicable regulations,

see 26 C.F.R. § 301.7623-4(d)(1), and the IRS WO began immediately

processing Mr. Tindall’s final award.

(internal references omitted; alteration added). In the parties’ joint submission to the court,

the parties explained:

On January 23, 2025, Mr. Tindall informed counsel for defendant that the

IRS had deposited a payment of $497,328.81 into his bank account.

The amount paid to Mr. Tindall reflects a 10% award on $6,939,342.59, the

total amount collected based on information provided by Mr. Tindall, minus

a 5.7% sequestration reduction for fiscal year 2025 ($39,554.25) applied by

defendant and disputed by Mr. Tindall, and minus a 24% Federal income

tax withholding applied to the remainder ($157,051.20), reconciling to the

net payment of $497,328.81 received by Mr. Tindall.

(internal references omitted). Plaintiff bases his claim for breach on the text of the March

5, 2019 Final Award Decision Letter, specifically emphasizing that “‘[t]he Whistleblower

Office will process the award for payment as promptly as the circumstances permit.’”

(alteration and emphasis in original). Plaintiff argues that the payment taking place in

49

January of 2025 after the issuance of the March 5, 2019 Final Award Decision Letter “is

not ‘promptly’ paying plaintiff what plaintiff is owed.”

In response, defendant points out that any delay in payment was caused by

plaintiff’s own actions, as the applicable regulations barred defendant from paying plaintiff

until his United States Tax Court petition was fully resolved on November 18, 2024.

Specifically, defendant cites 26 C.F.R. § 301.7623-4(d)(1) to state that payment cannot

be made until “all appeals of the Whistleblower Office’s determination are final.” In

reference to 26 C.F.R. § 301.7623-4(d)(1), defendant further stated that “[a]ccordingly,

defendant had no obligation to pay Mr. Tindall the award before resolution of that appeal,

and, in fact, was unable to do so under the applicable regulations.” (alteration added).

Defendant stated that “[f]ollowing the Supreme Court’s dismissal of Mr. Tindall’s petition

for rehearing, the IRS WO immediately began processing Mr. Tindall’s award for

payment.” (alteration added).

Plaintiff subsequently argues in plaintiff’s response to the motion to dismiss

plaintiff’s amended complaint that “there is no avenue for plaintiff to appeal defendant’s

determinations specific to plaintiff’s §7623(a) claims. Thus, on March 5, 2019,

defendant’s determinations specific to plaintiff’s §7623(a) claims were utterly final,

non-appealable, and were never appealed to any court.” (footnote omitted, emphasis

in original).11 According to plaintiff, the defendant did not need to wait for the final decision

of the United States Tax Court because “no appeals are possible from a §7623(a)

award determination.” (emphasis in original). In response, defendant argues:

IRS was unable to pay the award to Mr. Tindall until his appeal of the

Whistleblower Office determination (which arose from the same March 2019

Final Award decision letter) was final. See 26 C.F.R. § 301.7623-4(d)(1).

Because IRS paid Mr. Tindall in accordance with the applicable regulations,

and in accordance with the terms of the March 2019 Final Award decision

letter (which in any event did not establish a contract), Mr. Tindall has not

plausibly alleged a claim based on this passage of time.

The court also notes that the March 5, 2019 Final Award Decision Letter

emphasized that “[t]he Whistleblower Office will process the award for payment as

11 The defendant correctly points out in its reply brief to the motion to dismiss plaintiff’s

amended complaint that plaintiff’s argument

ignores the fact that both the alleged contract and his Tax Court petition

arise from the March 2019 Final Award decision letter. And although Mr.

Tindall is correct to observe that this letter issued an award under § 7623(a)

and that such awards are generally not appealable, he ignores the fact that

in the Tax Court, he explicitly alleged that the award letter mislabels certain

§ 7623(b) claims as § 7623(a) claims.

(emphasis in original; internal reference omitted).

50

promptly as the circumstances permit,” with no specific resolution date promised.

Moreover, the regulation at 26 C.F.R. § 301.7623-4, describes the specific steps for

determining and paying 26 U.S.C. § 7623 awards, and, in fact, bars defendant from

paying the whistleblower award until surrounding appeals are finalized. Pursuant to 26

C.F.R. § 301.7623-4(d)(1):

Payment of an award will be made as promptly as the circumstances permit,

but not until there has been a final determination of tax with respect to the

action(s), as defined in paragraph (d)(2) of this section, the Whistleblower

Office has determined the award, and all appeals of the Whistleblower

Office’s determination are final or the whistleblower has executed an award

consent form agreeing to the amount of the award and waiving the

whistleblower’s right to appeal the determination.

26 C.F.R. § 301.7623-4(d)(1) (2025) (emphasis added).12 According to the quoted

regulation, the government cannot complete payment of an award until (1) there is a final

determination of the award and (2) either all appeals of the award determination are

resolved or the whistleblower has waived the right to appeal the award. The court notes

that these regulations are designed to ensure that the award amount is calculated and

finalized before payment is made to the whistleblower. The governing regulatory

framework explicitly requires that “all appeals of the Whistleblower Office’s determination

are final” before an award is paid. 26 C.F.R. § 301.7623-4(d)(1). Plaintiff’s decision to file

suit in the United States Tax Court resulted in the award determination not being final.

See id. Only after the United States Supreme Court denied plaintiff’s petition for rehearing

of the Supreme Court’s October 7, 2024 decision on November 18, 2024 was the

determination of the award final. See id. Plaintiff’s argument mischaracterizes the first

time defendant could issue a payment to plaintiff and plaintiff’s argument fails. Only 65

days, not 2,151 days, had passed since the Tax Court action was finalized and the award

became payable when the government paid plaintiff the lump-sum award to which plaintiff

was entitled on January 22, 2025. Such a two-month timeframe is consistent with the

regulatory requirement of 26 C.F.R. § 301.7623-4(d)(1) to “process the award for payment

as promptly as the circumstances permit,” 26 C.F.R. § 301.7623-4(d)(1), and did not

cause a breach of contract, even if a contract had come into existence.

Additionally, plaintiff’s second breach of contract claim alleges that even when

defendant did pay plaintiff on January 23, 2025, a breach still occurred because the

amount paid was reduced, albeit, as discussed above, by the statutorily mandated

deductions. Plaintiff argues:

Partial Payment of $654,380.01 on January 23, 2025 (Breach of Contract

#2)

On January 23, 2025, 2,151 days after the issuance of its Award Letter,

defendant made a partial payment of plaintiff’s §7623(a) awards

($654,380.01), which was $39,554.25 less than the final amount of the

12 As reflected above, plaintiff did not agree with the proposed amount of the award.

51

§7623(a) awards that defendant determined was due and payable in its

Award Letter, dated March 5, 2019.

(emphasis in original).13

The $39,554.25 plaintiff claims was missing from his award payment amount is

attributable to a Budget Control Act reduction, which plaintiff should have been aware of,

as it was specifically referenced in both in the January 31, 2019 Preliminary Award

Decision Letter and in the March 5, 2019 Final Award Decision Letter. The Budget Control

Act of 2011 requires automatic reductions to certain government spending through what

is referred to as “sequestration,” which “refer[s] to or mean[s] the cancellation of

budgetary resources provided by discretionary appropriations or direct spending law.” 2

U.S.C. §§ 900(c)(2), 901a (alterations added). The Office of Management and Budget

calculates the applicable percentage for sequestration each fiscal year as outlined in the

Budget Control Act of 2011, as amended by the American Taxpayer Relief Act of 2012. 2

U.S.C.A. section 901a (2025). The applicable rate for the mandatory reduction is 5.7%

for the 2025 fiscal year. Applying this reduction to the overall award amount of

$693,934.26 reduced the total amount that plaintiff was paid by $39,554.25. Defendant

also points out that the requirements of the Budget Control Act, as amended by the

American Taxpayer Relief Act, which is often referred to as a “sequestration haircut,” was

explicitly described in both the January 31, 2019 Preliminary Award Decision Letter and

the March 5, 2019 Final Award Decision Letter. Defendant asserts:

Assuming that the March 5, 2019, Final Award Decision l

This text is long and has been trimmed here. Open the source document for the complete record.