# Tindall v. United States

> United States Court of Federal Claims · May 31, 2026

URL: https://www.frixlaw.com/law-library/cases/11335876

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** May 31, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Marian Blank Horn
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11335876

## How later opinions describe it (automated extraction)

- discussing Keene Corp. v. United States, 508 U.S. 200

## Opinion text

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

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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.

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(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.
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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”.

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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 “defe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11335876. Public record. Not legal advice.