Petition for Writ of Certiorari — Bruce A. Norvell, Petitioner v. Janet L. Yellen, Secretary of the Treasury, et al.

Supreme Court briefDec 11, 2020

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Supreme Court of tfie ®niteb States!

DEC 1 1 2020

OFFICE Cr Ti !H CLERK

BRUCE A. NORVELL,

Petitioner,

SECRETARY OF THE TREASURY;

UNITED STATES INTERNAL REVENUE SERVICE,

Respondents.

•-V

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

i '■

PETITION FOR A WRIT OF CERTIORARI

Bruce Norvell

Petitioner Pro Se

P.O. Box 4037

Hadley, ID 83333-4037

(208) 721-0002

December 11,2020

SUPREME COURT PRESS

♦

(888) 958-5705

♦

Boston, Massachusetts

QUESTIONS PRESENTED

Airbnb—a prominent tech company—did not

report to the defendant IRS its 2017 payments of $4

billion to its USA hosts, and I informed the IRS

Whistleblower Office of that fact on an “Application

for Award for Original Information” (“Claim 2017”).

The IRS advised me that my information would not

be considered for an award.

Congress amended 26 U.S.C. § 7623 with Public

Law 109-432, which mandates that the IRS Whistle

blower Office “analyze information” of a certain criteria

and (a) “investigate the matter,” or (b) assign the

matter to an IRS field office. It mandates an IRS

award to the information provider if the IRS takes

action that results in “collected proceeds” from such

information.

The question presented is whether the United

States has waived sovereign immunity under the

Administrative Procedures Act, 5 U.S.C. §§ 701 et

seq., to exercise subject matter jurisdiction over my

Claim 2017 regarding IRS inaction under 26 U.S.C.

§ 7623(b)(4).

The question presented involves the following

issues:

Whether the Whistleblower Office “analyzed”

—within the meaning of Pub. L. 109-432—

the information that I provided in Claim

2017

and

Whether the Whistleblower Office made an

award “determination”—within the meaning

of Pub. L. 109-432.

PARTIES TO THE PROCEEDINGS

Petitioner

I (Petitioner Bruce Norvell) was the plaintiff in the

district court and the appellant in the Ninth Circuit.

I am an individual, thus there are no disclosures to

be made regarding Supreme Court Rule 29.6.

Respondents

•

Stephen Mnuchin, Secretary of the Treasury;

and

•

The United States Internal Revenue Service.

Ill

LIST OF PROCEEDINGS

Court of Appeals for the Ninth Circuit

Case No. 19-35156

Bruce A. Norvell, Plaintiff-Appellant s.

Secretary of the Treasury; United States Internal

Revenue Service, Defendants-Appellees.

Date of Final Opinion: September 15, 2020

United States District Court for the District of Idaho

Case No. 18-cv-251

Bruce A. Norvell, Plaintiff v. Secretary of the

Treasury; Internal Revenue Service, Defendants.

Date of Final Order: April 23, 2019

GLOSSARY

App.

Appendix

IRC

Internal Revenue Code

IRM

Internal Revenue Manual

IRS

Internal Revenue Service

P.L. § 406

Public Law 109-432, Division A,

Title IV, § 406

WB 2018 Report IRS Whistleblower Program Fiscal

Year 2018 Annual Report to the

Congress

Whistleblower Office

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........................

PARTIES TO THE PROCEEDINGS...........

LIST OF PROCEEDINGS...................... .

GLOSSARY..................................................

TABLE OF AUTHORITIES.........................

Vll

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW................................ .

JURISDICTION...........................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS........................................

STATEMENT OF THE CASE.....................

Introduction...................................

II. Law....................................................

III. Facts

A. The Two Claims.....................................

B. Whistleblower Office Claims Processing

Procedures.............................................. 10

C. The Whistleblower Office Failed to

Analyze Claim 2017 Before Rejecting It.. 12

D. The Lower Courts’ Decisions

IV. How the Lower Courts Erred ............

REASONS FOR GRANTING THE PETITION......21

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Memorandum Opinion of the United States

Court of Appeals for the Ninth Circuit

(September 15, 2020).......................................... la

Memorandum Decision and Order of the United

States District Court for the District of Idaho

(April 23, 2019).................................................... 4a

Memorandum Decision and Order of the United

States District Court for the District of Idaho

(January 3, 2019)................................................ 8a

Regulatory Provisions

Regulatory Provisions Involved............

16a

Vll

TABLE OF AUTHORITIES

Page

CASES

Adams v. Richardson,

480 F.2d 1159 (DC Cir. 1973)...

Alexander v. Sandoval,

532 U.S. 275 (Sp. Ct. 2001)......

American Electric Power Co., Inc. v.

Connecticut,

131 S. Ct. 2527 (Sp. Ct. 2011)....

Amsinger v. United States,

99 Fed. Cl. 254 (Fed. Cl. 2011)...

17, 18

Bostock v. Clayton County,

140 Sp. Ct. 1731 (Sp. Ct. 2020).

Conley v. Gibson,

355 U.S. 41 (1957).....................

Dacosta v. United States,

82 Fed. Cl. 549 (2008)...............

17, 18

Haines v. Kerner,

404 U.S. 519 (Sp. Ct. 1972)......

Heckler v. Chaney,

470 U.S. 821 (Sp. Ct. 1985)......

25, 26

Leite v. Crane Co.,

749 F.3d 1117 (9th Cir. 2014)...

Massachusetts v. EPA,

127 Sp. Ct. 1438 (2007).............

26, 27, 28

Medinger v. Commissioner ofInternal Revenue,

662 F. App’x 774 (llth Cir. 2016)................ 17, 18

Montclair v. Ramsdell,

107 U.S. 147 (Sp. Ct. 1883).......................

Vlll

TABLE OF AUTHORITIES - Continued

Page

Norton v. Southern Utah Wilderness Alliance,

542 U.S. 55 (Sp. Ct. 2004).......................... 29, 30

O’Donnell, George E. and James G. v.

Commissioner ofInternal Revenue

Service, Docket No. 9752-11W (2012)......

6,7

Scheuer v. Rhodes,

416 U.S. 232 (Sp. Ct. 1974)........................

United States v. Windsor,

133 S. Ct. 2675 (2013)...................................

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. I, § 1.......................

U.S. Const. Art. I, § 3.......................

U.S. Const. Art. II, § 1.....................

STATUTES

5 U.S.C. § 551(13)......

5 U.S.C. § 704.............

2, 3, 4, 29

5 U.S.C. § 706(1)........

....... 2, 29

5 U.S.C. §§ 701 etseq.

passim

26 U.S.C. § 7623.........

passim

28 U.S.C. § 1254(1)....

28 U.S.C. § 1331........

42 U.S.C. § 7521(a)(1)

....26, 28

IRC § 6041(a).............

4, 12, 21

IRC § 6050W..............

TABLE OF AUTHORITIES - Continued

Page

IRC § 6212(a).....................................................

IRC § 6212(c)(1)............................................... ,

IRC § 6694(b)..... ...............................................

IRC § 6721(a)......................................................

IRC § 6722(a).................................... ................

Pub. L. 109-432.................................................

Pub. L., Division A, Title IV, § 406..............

passim

Title VI of the Civil Rights Act of 1964, § 601...

Title VI of the Civil Rights Act of 1964, § 602

REGULATIONS

26 C.F.R. § 1.6041-3(a)-(q).....

26 C.F.R. § 301.7623-(3)(c)(7)

18, 19, 20, 21

OTHER AUTHORITIES

Arpit K. Garg and Jeffrey A. Love,

“Presidential Inaction and the Separation

of Powers,” MICHIGAN LAW REVIEW

Volume 112, Issue 7 (2014)........................ 29, 30

Black’s Law Dictionary...................... ..............

Federal Government Press Release,

https://www.sec.gov/news/press-release/

2020-266......................................................

IRS Whistleblower Program Fiscal Year

2018 Annual Report to the Congress

(WB 2018 Report)......................................... 11, 13

TABLE OF AUTHORITIES - Continued

Page

Jentry Lanza,

“Agency Underenforcement as Reviewable

Abdication,” NORTHWESTERN UNIVERSITY

Law Review (2018).......................................

John Myrick,

“Million-Dollar Dirt: A Look at the IRS

Whistleblower Program,”

Tax Notes (April 4, 2016)........................... 23, 24

Merriam-Webster Dictionary.........................

PETITION FOR A WRIT OF CERTIORARI

Bruce Norvell respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this matter.

OPINIONS BELOW

The unreported decision of the court of appeals

is reprinted in the Appendix (“App.”) at App.la-3a.

The unreported district court’s opinion dated April 23,

2019 is reprinted at App.4a-7a. The unreported district

court’s opinion dated January 3, 2019 is reprinted at

App.8a-15a.

JURISDICTION

The court of appeals entered its judgment on

September 15, 2020. App.la. This Court has jurisdic

tion under 28 U.S.C. § 1254(l).

•

'“r."

'■**** - •

CONSTITUTIONAL AND

STATUTORY PROVISIONS

Article I, § 1 of the United States Constitution

provides “All Legislative Powers herein granted shall

be vested in a Congress of the United States ....

Article II, § 1 of the United States Constitution

provides “The executive Power shall be vested in a

President of the United States of America.”

Title 5 U.S.C. § 704 provides in pertinent part:

“Agency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in a court are subject to judicial review.”

Title 5 U.S.C. § 706(l) provides in pertinent part:

“The reviewing court shall—compel agency action

unlawfully withheld or unreasonably delayed.”

Title 28 U.S.C. § 1331 provides “The district courts

shall have original jurisdiction of all civil actions

arising under the Constitution, laws, or treaties of the

United States.”

Public Law 109-432, Division A, Title IV, § 406

is reproduced in the Appendix at App.l6a-21a.

STATEMENT OF THE CASE

Introduction

1. This matter concerns an issue of first impres

sion.

2. I filed a complaint in a U.S. district court “to

redress my harm that results from the defendant

Internal Revenue Service’s Whistleblower Office failing

to observe the protocols required by IRC § 7623.” The

defendants brought a “facial” attack against my

complaint, and the Idaho U.S. District Court dismissed

it “because § [IRC § 7623(b)(4)] provides another review

proceeding and the APA excepts those claims from

federal court jurisdiction.”

3. I argue that IRC § 7623(b)(4) conditions “ano

ther review proceeding” (by the Tax Court) on the

IRS making “any determination regarding an award,”

IRC § 7623(b)(4), that P.L. § 406(b)(1)(B) mandates

an “analysis,” and that a “determination” must be

based upon an analysis of my information. Because

the IRS failed to analyze my information, it was

unable to make a determination and did not do so,

thus the Tax Court may not attain jurisdiction in this

matter. Because the Tax Court may not attain juris

diction, the IRS inaction is subject to judicial review

by a district court. 5 U.S.C. § 704.

4. My harm results from the Whistleblower Office

failing to analyze my information and failing to make

a determination. My harm does not result from a

determination concerning my information, because

there was none. I wish for a district court to address

this matter because it has the power to order the IRS

to follow Congress’ mandate—that my claim informa

tion be analyzed; the Tax Court lacks such power.

II. Law

5. ... final agency action for which there is

no other adequate remedy in a court are

subject to judicial review.

5 U.S.C. 704.

6. ... persons engaged in a trade or business

and making payment in the course of such

trade or business to another person, of rent,

. . . compensations, or other fixed or deter

minable . . . income . . . shall

report the payment to the Internal Revenue Service

Secretary (“IRS”) on IRS Form 1099-MISC. IRC

§ 6041(a), and 26 C.F.R. § 1.6041-3(a)-(q).

7. IRC § 6721(a) imposes penalties upon the payor

in the case of its failure to report information on Form

1099-MISC as required by §§ 6041(a), and § 6721(e)

provides enhanced penalties in the case of intentional

disregard of reporting requirements. §§ 6722(a) and

§ 6722(e) provide for the same penalties in the case

of failure to provide Forms 1099-MISC to payees.

8. Public Law 109-432, Division A, Title IV, § 406

(“P.L. § 406”) significantly amended the Internal

Revenue Code (Title 26 U.S.C., or (“IRC”) whistleblower

provisions. It is contained at App.l6a-21a; App.21a

indicates whether and where the provisions are

encoded. P.L. § 406 amendments pertinent to this

matter include:

a) The Whistleblower Office is established. P.L. § 406

(b)(l); encoded at IRC § 7623 “Notes” section.

b) The Whistleblower Office “shall analyze informa

tion [of certain criteria] . . . and either investigate

the matter itself or assign it to the appropriate

Internal Revenue Service office.” P.L. § 406(b)

(l)(B), encoded at the IRC § 7623 “Notes” section.

(Emphasis supplied).

c) Having analyzed information of certain criteria,

the Whistleblower Office must “determine” to

proceed or not “for any reason including lack of

resources.” IRM 25.2.1.3.5.1 and 25.2.1.1.3.

(Emphasis supplied).

d) If the IRS proceeds with an action based upon

information provided to the Whistleblower Office,

it shall determine an award of 15-30% of collected

proceeds. IRC § 7623(b)(1). (Emphasis supplied).

e) A “determination regarding an award” may be

appealed to the Tax Court. Id., § 7623(b)(4).

f) “The Secretary of the Treasury shall each year

conduct a study and report to Congress on the

use of section 7623 . . . including—(l) an analysis

of the use of such section... and the results of

such use, and (2) any legislative or administrative

recommendations .. . .” App.21a.

9. The following passage mandates that an IRC

§ 7623(b)(4) “determination” be founded upon an

“analysis:”

Off-code provisions of the 2006 Act [P.L.

§ 406(b)(1)(B)] explicitly provide that the

IRS will analyze information received under

section 7623 and investigate the matter.. . .

this requirement must be satisfiedby the IRS

with respect to all information provided . . .

79 Federal Register No. 155, page 47,251. (Emphasis

supplied).

10. The Merriam-Webster Dictionary defines

the word “determination” as “the resolving of a ques

tion by argument or reasoning,” “the act of deciding

definitely and firmly,” “also: the result of such an act

of decision.” BLACK’S LAW DICTIONARY defines the word

as “The decision of a court of justice.” These dictionary

definitions—and common sense—have a “determina

tion” entailing a decision that results from the overt

analysis of a scenario’s pertinent facts.

11. P.L. § 406(b)(1)(B) mandates that the Whistle

blower Office “shall analyze information” from whistle

blowers—of information that meets certain criteria.

This mandate is seemingly redundant and unnecessary

for an IRC § 7623(b)(4) “determination,” because

“analysis” of pertinent information is a requisite step

for every determination. See ante, at t 10- Stated

differently, each IRS “determination” entails an

“analysis” of pertinent information, notwithstanding

the mandate of this paragraph’s first sentence.

12. The IRS has worked diligently to “improve

the process by which whistleblower information is

considered for action. These [enumerated] targets . . .

ensure that the decision on whether to proceed with

compliance action considers all relevant information.”

IRM 25.2.1.1.1.1. (Emphasis supplied).

13. The Tax Court case of O’Donnell\ George E.

and James G. v. Commissioner of Internal Revenue

Service, Docket No. 9752-11W (2012) illustrates the

importance of district court as opposed to Tax Court

jurisdiction. The Tax Court ordered summary judgment

for the IRS in O’Donnell and noted:

Various statements contained in various

documents submitted by petitioners suggest

that respondent has failed to properly consider

the information they submitted, or that

respondent otherwise failed to proceed as

required by section 7623.

The Tax Court’s jurisdiction is limited to circumstances

based upon an award determination, but the record

indicates that there had been no determination within

the meaning of IRC § 7623(b)(4). The proper avenue

for redress, in my view, was to seek a district court

ordering the IRS to make a determination, the avenue

which I take in this matter.

14. In considering a Federal Rule of Civil Proce

dure Rule 12(b)(1) dismissal motion for lack of subject

matter jurisdiction, the Court’s task is limited in

reviewing the sufficiency of the complaint.

The issue is not whether a plaintiff will

ultimately prevail but whether the claimant

is entitled to offer evidence to support the

claims. Moreover, it is well established that,

in passing on a motion to dismiss, whether

on the ground of lack of jurisdiction over the

subject matter or for failure to state a cause

of action, the allegations of the complaint

should be construed favorably to the pleader.

... a complaint should not be dismissed for

failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no

set of facts in support of his claim . . .

Scheuer v. Rhodes, 416 U.S. 232, 236 (Sp. Ct. 1974).

(Emphasis supplied).

15. Where a defendant moves to dismiss a com

plaint under Rule 12(b)(1) using a “facial” attack—as

in this matter—“it accepts the truth of the plaintiffs

allegations but asserts that they are insufficient on

their face to invoke federal jurisdiction.” Leite v. Crane

Co., 749 F.3d 1117, 1121 (9th Cir. 2014).

16. In a matter concerning a Rule 12(b)(6) dismis

sal of a pro se plaintiffs complaint, the Supreme Court

held that his “inartfully pleaded” allegations

are sufficient to call for the opportunity to offer

supporting evidence. We cannot say with

assurance that under the allegations of the

pro se complaint, which we hold to less

stringent standards than formal pleadings

drafted by lawyers, it appears ‘beyond doubt

that the plaintiff can prove no set offsets in

support of his claim . . . ”’ Conley v. Gibson,

355 U.S. 41, 45-46 (1957).

Haines v. Kerner, 404 U.S. 519, 520-21 (Sp. Ct. 1972).

(Emphasis supplied).

III. Facts

A. The Two Claims

17. San Francisco-based Airbnb, Inc. failed to

report to the IRS in any manner its 2017 payments

to its United States hosts of $4.4 billion. I reported

this failure by filing IRS Form 211 “Application for

Award for Original Information” dated February 12,

2018 (“Claim 2017”).

18. I allege that the defendant IRS failed to pro

cess and consider Claim 2017—in violation of the P.L

§ 406(b)(1) mandate and INTERNAL REVENUE MANUAL

(“IRM”) 25.2.1.2.3 requirement that it “analyze”

the Claim 2017 information. “ . . . the Whistleblower

Office coordinates with other IRS units, analyzes

information submitted, and makes award determi

nations.” IRM 25.2.1.1.1.2. (Emphasis supplied).

19. Because of the above failure, the IRS will not

proceed with any action based upon my information,

and thus will not assess Airbnb penalties for this

failure, which I compute to be approximately $885

million. The 2017 award payable to me if the IRS had

proceeded against Airbnb based upon my information

would have been $133 to $266 million. IRC § 7623(b).

20. Because of the failure noted ante at 1 18, the

IRS is unable to and did not make a “determination

regarding an award,” and the Tax Court thus cannot

attain jurisdiction with respect to this matter. IRC

§ 7623(b)(4).

21. I filed an IRS Form 211 Application for Award

dated 4/10/2017 (“Claim 2016”) regarding Airbnb’s

reporting to the IRS on Forms 1099-K—instead of

reporting on Form 1099-MISC—its payments to its

US hosts for the seven years ended 2016. Receiving

payment information on the correct form is important

to the IRS—it matches all payment information

received on Form 1099-MISC to payees’ reported tax

return income, but not for information received on

Form 1099-K.

22. The IRS assigned a number to Claim 2016

and rejected it by letter dated 8/16/17, contending

that it was “speculative and/or did not provide specific

or credible information ...”

23. Addressing Claim 2017, the Whistleblower

Office advised me by letter dated 3/13/18:

We received your request for reconsideration

dated February 12, 2018. Your claim was

previously rejected. A copy of that decision

is enclosed.

The 3/13/18 IRS letter used the same claim number

that it had used in correspondence regarding Claim

2016.

24. Succinctly stated, Claim 2017 concerns a

vastly different scenario than does Claim 2016. Claim

2016 concerns Airbnb’s payments to hosts through

2016, incorrect interpretation and implementation of

IRC § 6050W, the IRC § 6050W(e) de minimis rule,

and IRS Form 1099-K. Claim 2017 addresses the

fact of Airbnb reporting to the IRS none of its 2017

payments to hosts on any version of IRS Form 1099

or in any other manner and also relates the facts

contained on Claim 2016.

B. Whistleblower Office Claims Processing

Procedures

25. Overview, Whistleblower Office processing

for IRC § 7623(b) claims:

The Initial Claim Evaluation (ICE) Unit con

ducts an initial review of the whistleblower’s

Form 211 submission to identify potential

IRC § 7623(b) claims. ICE then forwards the

potential claims to subject matter experts

(SMEs) in the IRS operating divisions. The

SME then determines whether the whistle

blower’s information will be provided to field

offices for further investigation, taking into

consideration the quality of the information

provided, IRS enforcement priorities and, in

some cases, legal limitations on the use of

the information submitted.

IRS Whistleblower Program Fiscal Year 2018

Annual Report to the Congress, (“WB 2018 Report”)

at 14. (Emphasis supplied).

26. The assignment of a claim number is the first

review function of the Whistleblower Office before

claims are “forwarded to the appropriate operating

division for classification.” IRM 25.2.1.2(3)-(4).

27. “Classification’s role is only to determine if

the information on the Form 211 warrants further

review.” Claims not forwarded are rejected “based

on the classification’s rationale.” IRM 25.2.1.3.1. This

rejection “reflects an enforcement decision of the

operating division. . . . IRM 25.2.1.3.5. Classification

reports to the Whistleblower Office its determination

of whether a claim warrants further review. If it

rejects the claim it must indicate the reason; an

examination area not having sufficient resources is a

common reason for rejection. IRM 25.2.1.3.5. (Emphasis

supplied).

28. Where claims forwarded from Classification

are later “surveyed” / not examined, the specific

reason must be documented, which might be “Lack

of resources to perform an examination.” IRM

25.2.1.5.5.2.

29. I note that the procedures outlined antes, at

THf 25-28 are consistent with the responsibilities that

Congress vested in the Whistleblower Office with P.L.

§ 406.

C. The Whistleblower Office Failed to Analyze

Claim 2017 Before Rejecting It

30. The Whistleblower Office failure to “analyze”

Claim 2017, and its resulting inability to “determine”

whether to forward or “reject” Claim 2017 within

IRM parameters, is the crux of my complaint. The

Whistleblower Office failure to assign a claim number

to Claim 2017—being its first task in considering

each claim—antes at 1" 26—evinces the IRS failure to

execute its “analyze” and “determine” responsibilities.

31. With the Whistleblower Office and lower

courts contending that Claim 2017 was a reconsid

eration request of Claim 2016, see Ifl 23, 38 and 36,

and the Whistleblower Office rejecting Claim 2016

because it was “speculative and/or did not provide

specific or credible information . . .,” see ante at f 22,

the Whistleblower Office and lower courts thus

embrace the Claim 2016 repudiation rationale for

Claim 2017.

The fact of IRC § 6041(a) mandating Airbnb’s

reporting to the IRS its 2017 host payments of $4.4

billion is self-evident, and a simple/inexpensive inquiry

would allay the “specific” or “speculative” concern.

The fact that Claim 2017 was not forwarded as a

“potential claim” to subject matter experts as required,

see ante at 1 25, evinces the fact of Claim 2017 not

being considered.

32. The Whistleblower Office summarizes, in its

annual reports to Congress, the number of claims closed

into categories. “Claim Rejected”—where “allegations

are not specific, credible, or are speculative in nature”—

account for 64% of claims closed during fiscal year

2018, and the remaining closures were in several “claim

denied” or claims paid categories. WB 2018 Report

at 18.

33. Its WB 2018 Report related the Whistleblow

er Office priorities:

“ . . . the Whistleblower Office will continue

to focus IRS resources on claims that lead to

significant returns to the government.”

Id., at 8. (Emphasis supplied). Of the 217 claims for

which awards were made during 2018, 31 were under

IRC § 7623(b) (for claims that exceed $2 million). The

awards during 2018 related to civil and criminal

collections of $631 and $810 million, respectively. Id.,

at 2. The fact of Claim 2016 and Claim 2017 indicating

penalties that exceed the total collections during

2018—for which all awards were made—is wildly

inconsistent with the stated focus of the Whistleblower

Office, and its repudiation of Claim 2017. Simply

stated, no classification officer, upon considering Claim

2017, would have failed to route it to an examination

field office. This fact is further evidence that Claim

2017 was not “analyzed” within the meaning of P.L.

§ 406(b)(1)(B), thus a determination could not have

been made within the meaning of IRC § 7623(b)(4).

D. The Lower Courts’ Decisions

34. The district court characterized this matter

as follows:

At issue in the instant motion to dismiss es

whether this Court has jurisdiction to hear

Plaintiffs APA challenge to the IRS Whistle-

blower Office’s alleged inaction under IRC

§ 7623(b).... Here, Defendants bring a ‘facial’

attack against Plaintiffs Complaint. . . the

motion to dismiss is granted only if the nonmoving party fails to allege an element

necessary for subject matter jurisdiction.”

App.lla.

35. The district court granted the defendants’ dis

missal motion because “The Court lacks jurisdiction

under the APA because ... § 7623 provides another

review proceeding ...” and observed:

“[a]ny determination regarding an award

under paragraph (l), (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).”

App.l4a. (Emphasis supplied).

36. The Ninth Circuit affirmed the district court’s

dismissal “because Norvell failed to show that the

APA waiver of sovereign immunity applies to his

claims,” and held

We reject as without merit Norvell’s conten

tion that the IRS’s disposition of [Claim 2017]

was not a ‘determination’ within the meaning

of § 7623(b)(4).

App.2a.

IV. How the Lower Courts Erred

37. The district court summarized this matter:

Norvell filed this action alleging the IRS failed

to consider his application for a whistleblower

award as required by IRC § 7623(b). His

complaint alleges that the IRS’s failure to act

violates the requirements of the Administra

tive Procedures Act (APA), 5 U.S.C. §§ 701

et seq.

App.5a. More precisely, I filed this action because the

IRS failed to “analyze” the information in Claim

2017. The IRS was thus incapable of making a “deter

mination”—a condition of Tax Court jurisdiction.

38. The district court characterized Claim 2017 as

“containing new material”—apparently being material

differing from that in Claim 2016—and noted that

the IRS had characterized Claim 2017 as “your request

for reconsideration.” App.6a.l It further characterized

Claim 2017 as “alleging the same pattern of historical

conduct.” App.lOa. The district court held “Despite his

efforts to cast in a different light, Norvell’s [3/21/18]

letter2 was a request for reconsideration.” App.6a.

39. I emphasize three critical points regarding

the district court’s findings:

a) Airbnb’s “historical conduct” that I report in Claim

2017 differs sharply from that reported in Claim

2016. See ante at 1 24.

1 The Appendix pages 4a-7a contain the district court order dated

4/23/20 that the district court initially filed as ECF Number 20.

The district court later substituted those pages with the current

content—being the Ninth Circuit order filed 9/15/20, ECF

Number 26-1.

2 My 3/21/18 letter to the Whistleblower Office differentiated Claim

2017 from Claim 2016, and I stated “the two claims concern

different periods and different facts, I request that your office

assign a separate number for my recent claim, and treat it as a

separate claim.”

b) The district court made impermissible findings of

fact in differentiating Claim 2017 from Claim 2016,

and in holding that Claim 2017 was a request

for reconsideration, and

c) Whether Claim 2017 may be fairly termed a

request for reconsideration of Claim 2016 is

important to nothing. Repost at Tf 48(a).

40. The district court held “There is no dispute

that the IRS denial of [Claim 2016] was a determination

that could be appealed to the Tax Court.” App.5a. I

sharply disagree with the court’s interpretation of

IRC § 7623(b)(4)—that the IRS repudiation of Claim

2016 was a “determination.” As discussed, ante at

THf 10-11, a “determination” entails a decision that

results from the overt analysis of a scenario’s pertinent

facts. I allege in Claim 2016 that Airbnb should be

assessed penalties in the amount of $795 million for

transgressions in reporting payments to hosts through

the year 2016. Common sense and having investigated

dozens of Form 211 claims while employed by the

Treasury Department, has me contend that Claim 2016

could not have been reviewed as a potential IRC

§ 7623(b) claim under the procedures noted ante at

f 25. An individual initially reviewing Claim 2016

would have sent it to classification to be “analyzed,”

because the apparent probable return on IRS invest

ment would have been off the charts. Without being

analyzed, there could not have been a determination

made regarding Claim 2016.

41. The parties agree that § 7623(b)(4) provides

whistleblowers an option to appeal “any determination

regarding an award under” § 7623(b) to the Tax Court.

They disagree about the meaning of “determination,”

and thus the circumstances by which the Tax Court

has an opportunity for jurisdiction. I contend that

there is nothing in the record that establishes the

IRS making a “determination” regarding Claim 2017.

42. Disclosure. I was ignorant of the P.L. § 406(b)

(l)(B) mandate for “analysis,” encoded in the “Notes”

section of IRC § 7623, in preparing briefs for the

lower courts. I contend that this mandate—that the

Whistleblower Office “shall analyze information”—is

dispositive of this matter.

43. The word “determine” is significant in IRC

parlance. Before the IRS Secretary sends a notice of

tax deficiency to a taxpayer, it first “determines” the

deficiency based upon its analysis of facts and appli

cable law. IRC § 6212(a). Where a taxpayer petitions

the Tax Court to protest a notice of deficiency, the IRS

may not “determine” any additional tax for the same

year. IRC § 6212(c)(1).

44. In support of its posture of the IRS making

a determination regarding Claim 2017, the district

court noted that “other federal courts have consistently

dismissed attempts to challenge IRS inaction under

§ 7623 for lack of jurisdiction,” and cited Medinger v.

Commissioner ofInternal Revenue, 662 F. App’x 774,

776 (llth Cir. 2016), Amsinger v. United States, 99

Fed. Cl. 254, 258 (Fed. Cl. 2011) and Dacosta v. United

States, 82 Fed. Cl. 549, 555 (2008). App.l5a.

45. In fact, Medinger does not concern whether

the IRS made a “determination.” Instead, the Eleventh

Circuit in Medinger held that Medinger (the petitioner)

must appeal his adverse Tax Court decision to “the

applicable Circuit Court of Appeals, not to a district

court.” Medinger noted, “Nothing in [IRC § 7623(b)(4)]

confers jurisdiction on the district court to review

determinations made by the Whistleblower’s Officer

or the Tax Court.” Medinger, supra, at 1. (Emphasis

supplied). I emphasize that this matter concerns the

failure of the IRS to make a determination; it does

not concern the propriety of a determination having

been made. Therefore, Medinger does not serve as

district court authority for this matter.

46. Amsinger and Dacosta do not serve as author

ity for the district court posture because they concern

information provided before the enactment of IRC

§ 7623(b)—which conditions Tax Court jurisdiction

upon an IRS “determination.”

47. The following district court passage reflects

its erroneous understanding of the word “deter

mination:”

Norvell did get a determination from the

IRS on [Claim 2017]. In the IRS letter of April

5, 2018, the IRS rejects Norvell’s argument

that the claims are separate and treats both

claims the same, rejecting the second claim

on the same grounds as the first. That may

be a clear error, according to Norvell, but it

is nevertheless a rejection that treats both

claims the same. Rejections of whistleblower

claims are defined as “<determinations” in

the implementing regulations. See 26 C.F.R.

§ 301.7623-(3)(c)(7). The IRS’s rejection of

Norvell’s second claim constitutes the

required determination that Norvell needs to

appeal to the Tax Court.

App.6a. (Emphasis supplied).

48. I respond to the italicized portions of the above

passage:

(a) Whether somebody characterizes the two claims

as being the same claim is irrelevant. A commonsense construction of P.L. § 406(b)(1)(B) and the

word “determination” requires the IRS to analyze

all my information however characterized. Where

a [Claim] “is related to a previously submitted

Form 211, the Whistleblower Office will review the

claims and determine if the new Form 211 should

be processed as a new claim or associated with the

prior claim.” IRM 25.2.1.2.(2)a. Characterization

of my information does not implicate the Whistle

blower Office requirement to analyze the infor

mation, and the district court cites no authority

for its opposing posture.

(b)26 C.F.R. § 301.7623-(3)(c)(7) reads in pertinent

part:

“Rejections. A rejection is a determination

that relates solely to the whistleblower

and the information on the face of the

claim that pertains to the whistleblower.”

The district court’s duty is ascribing the meaning

of “determination” as used at IRC § 7623(b)(4)—

not the meaning of “rejection.” The author of the

last—quoted phrase would believe—from the

supposition “a wave is a mass of water”—that

water is a wave.

The IRS relates its IRC § 7623 responsibilities at

IRM 25.2 Information and Whistleblower Awards.

IRM 25.2.1.1.3(7) defines “rejection:”

A rejection is a determination that

relates to the whistleblower’s eligibility

to file a claim for award, or the submission

of information and claims for award {i.e.,

[1] the claim did not contain a tax issue,

[2] the information on the Form 211 was

not specific/credible information, [3] the

claim was purely speculative in nature,

or [4] the Service was unable to identify

the taxpayer based on the information

provided by the whistleblower).

(Emphasis supplied). While the Whistleblower

Office used the word “rejected” in repudiating

Claim 2017—see ante at f 25—the repudiation

is not a “rejection” as defined above, not being

based upon a “determination” regarding my

eligibility to file a claim, nor upon any of the

circumstances numbered [l]—[4] in the last quoted

passage.

for the district court holding that the IRS rejection

“constitutes the required determination.” That

rationale must be rejected for the same reason

that the Supreme Court rejected the regulations

underlying Title VI of the Civil Rights Act of

1964, § 602. The court in Alexander v. Sandoval,

532 U.S. 275, 278 (Sp. Ct. 2001) rejected the

regulations because they “do not simply apply

§ 601—since they indeed forbid conduct that § 601

permits

it is most certainly incorrect to

say that language in a regulation can conjure up

a private cause of action that has not been

authorized by Congress.” Id., at 291. Conversely,

the Congressional mandate of IRC § 7623(b)(4)—

that Tax Court jurisdiction is conditioned by an

IRS “determination”—may not be dispatched by

a regulation. While P.L. § 406(b)(1)(B) mandates an

analysis of my information, 26 C.F.R. § 301.7623-

(3)(c)(7) would allow the IRS to reject a claim with

out an analysis. The regulation must be rebuffed

because it subverts a Congressional mandate.

REASONS FOR GRANTING THE PETITION

49. Having retired from the U.S. Treasury Depart

ment after 29 years of investigating federal tax crimes,

I believe that the effectiveness of the Internal Revenue

Service lies with the public perception of its competency.

Word gets around—the public’s perception of IRS

competency is certainly eroded, where a prominent

company fails to report—as required by IRC § 6041

(a)—$4+ billion of “compensations” to 600,000 U.S.

individuals.

50. The “Final Four” international CPA firm that

advises Airbnb regarding the scenarios I discuss ante

at T[ 24 is testing the waters. Airbnb’s continuing

evasion of its reporting responsibilities will embolden

that firm to share the evasion tactic with and recom

mend it to other clients.

51. I’m mindful of the difficulty in evincing a

criminal case, or an IRC § 6694(b) preparer penalty

for “Understatement Due To Willful Or Reckless

Conduct.” But the evidence in this matter is compelling

that at least one—and probably multiple—individuals

are liable for IRC § 6694(b) sanctions. For three years

running, I thoroughly explained to Airbnb why their

conduct was unlawful, and sternly reminded it of their

reporting responsibilities.

52. The federal government announced in a press

release dated 10/22/203 that it had awarded a whistle

blower $114 million, which

marks the highest award in the program’s

history, and eclipses the next highest award

of $50 million made to an individual in June

2020. . . . Whistleblowers make important

contributions to the enforcement of securities

laws and we are committed to getting more

money to whistleblowers as quickly and as

efficiently as possible.”

I allege in Claim 2017 that Airbnb should be penalized

$885 million regarding its failure to report its 2017

payments to hosts and $795 million for prior years.

The 15%—30% award range associated with the Claim

2017 penalties is 221% to 442% of the record award

announced 10/22/20.

53. “The Whistleblower Office has strategy, policy,

administration . .. responsibility for the IRS Whistle

blower Program. In this capacity, the WO ensures

the service-wide handling of whistleblower claims is

consistent with relevant laws, regulations, policies ... ”

IRM 25.2.10.1.3 Roles and Responsibilities. While the

Internal Revenue Manual thoroughly acknowledges

the Whistleblower Office responsibilities mandated by

P.L. § 406, its failure to consider Claim 2017 (and Claim

2016) is dispositive evidence of it running amok.

54. P.L. § 406(c) mandates the IRS to annually

“conduct a study and report to Congress on the use of

section 7623,” and submit “recommendations regarding

the provisions of such section and its application.”

3 At https://www.sec.gov/news/press-release/2020-266

App.21a. The IRM mandate is emphatic: ‘The Secretary

of the Treasury must conduct a study.. . including

. . . results of such use.” IRM 25.2.2.12. The Whistle

blower Office failure to “analyze” Claim 2017 precludes

it from satisfying the P.L. § 406(c) and IRM 25.2.2.12

mandates to produce information regarding IRC § 7623

effectiveness—which would enable the Whistleblower

Office to identify the resources that should be budgeted

for Whistleblower Office operations. The inaction thus

thoroughly subverts Congressional intent, regarding

the “program [which] has been one of the IRS’s most

cost-effective sources of recovering unpaid taxes.”

John Myrick, “Million-Dollar Dirt: A Look at the IRS

Whistleblower Program,” Tax NOTES, April 4, 2016,

at 105.

55. It is the duty of the court to give effect,

if possible, to every clause and word of a

statute, avoiding, if it may be, any construc

tion which implies that the legislature was

ignorant of the meaning of the language it

employed.

Montclair v. Ramsdell, 107 U.S. 147, 152 (Sp. Ct. 1883).

(Emphasis supplied). Congress employed the word

“determination” twice in the thirty-six words of IRC

§ 7623(b)(4). There can be no disagreement, that P.L.

§ 406(b)(3) requires the IRS to “analyze” my Claim

2017 information, and a “determination” is dependent

upon an analysis. Congress meant what it said, and

said what it meant—in selecting those words—and

in mandating annual recommendations and a sub

stantive report regarding IRC § 7623. P.L. § 406(c).

This Court has explained many times over

many years that, when the meaning of the

statute’s terms is plain, our job is at an end.

The people are entitled to rely on the law as

written, without fearing that courts might

disregard its plain terms based on some

extratextual consideration.

Bostock v. Clayton County, 140 Sp. Ct. 1731, 1749

(Sp. Ct. 2020).

56. While employed with the U.S. Treasury

Department, I learned that payees report only 42% of

compensation on their income tax returns, which is

not reported to the IRS on Form 1099. Airbnb’s

failure to report $4.4 billion of compensation payments

to its hosts in 2017 is a recurring problem—it repeated

this transgression for its 2018payments.

57. Unofficially, the IRS monitors the “return”

on examiner’s time spent on cases. “For every dollar

collected from the informant program in audits of

1996-1998 returns, the IRS incurred slightly over

four cents in cost... At its best, the whistleblower

program should provide the IRS with direct information

on tax fraud and put good, usable evidence in the

hands of agents.” Myrick, supra, at 106. I’m confident

that an examiner’s “return”—on time spent reviewing

Claim 2017—would be off the charts.

58. Potential effectiveness aside, the Whistle

blower program is a political football. Senator Harry

Reid, D-Nev., described it as the “Award for Rats

Program,” id., at 105. But the IRS is criticized for

“aggressively seeking to minimize payments to whis

tleblowers and step around the generous award

provisions of the tax code,” and Senate Finance Com

mittee member Chuck Grassley, R-Iowa, expressed

those feelings in questioning IRS Commissioner John

Koskinen about the IRS Office of Chief Counsel’s

disdain for the Whistleblower program:

I again find myself frustrated with an IRS

Chief Counsel office that [seeks to] . . .

undermine the whistleblower program both

in the courts and the awards. I am especially

concerned that chief counsel is throwing every

argument it can think of against whistle

blowers in Tax Court.

Id., at 111. Given the conflicting views, the Supreme

Court should be especially concerned to respect the

intent and plain text of P.L. § 406.

59. Heckler v. Chaney is instructive to this mat

ter, as both matters concern agency inaction. Heckler

upholds the rebuttable presumption—that courts “

. . . defer to an agency’s construction of the statute it

is charged with implementing, and to the procedures it

adopts for implementing that statute.” Id., at 470

US 821, 832 (Sp. Ct. 1985). Heckler holds that the

presumption allows for APA review, “where the sub

stantive statute has provided guidelines for the agency

to follow in exercising its enforcement powers.” Id., at

833.

60. Any presumption in favor of the Whistleblower

Office posture is rebutted in this matter because IRC

§ 7623(b) mandates that a “determination” be based

upon an “analysis”—which is required by P.L. § 406

(b)(1)(B). Succinctly, Congress accords the IRS no dis

cretion about (a) analyzing my Claim 2017 information,

then (b) determining whether to proceed as noted ante

at ^ 8(c).

61. Justice Marshall would have agreed that a

commonsense construction of P.L. § 406(c) mandates

the inclusion—in an annual report to Congress—of

the Whistleblower Office failing to consider or analyze

Claim 2017. Without Claim 2017 information—which

concerns a significant and recurring problem—the

IRS is unable to rationally allocate its resources.

If inaction can be reviewed to assure that it

does not result. .. from factors that offend

principles of rational and fair administra

tive process, it would seem that a court must

always inquire into the reasons for the

agency’s action before deciding whether the

presumption applies.

Id., at 883. (Emphasis supplied). Justice Marshall

concurring opinion.

62. This matter is reminiscent of Adams v. Rich

ardson, 480 F.2d 1159 (DC Cir. 1973), where the

court upheld injunctions issued by a district court, to

compel enforcement proceedings against multiple

school districts. As in this matter, a government agency

failed to execute a discrete responsibility mandated

by Congress. The Adams court was swayed by the

fact—which it emphasized—that the statute “sets

forth specific enforcement procedures,” which had

not been observed. Id. at 1162. (Emphasis supplied).

63. Massachusetts v. EPA, 127 Sp. Ct. 1438

(2007) also concerned federal agency inaction, with

the court heavily influenced by the EPA ignoring a

discrete procedure. The Clean Air Act at 42 U.S.C.

§ 7521(a)(1) provides that the Environmental Protection

Agency (“EPA”)

shall by regulation prescribe . . . standards

applicable to the emission of any air pollu

tant from ... new motor vehicles ... which in

[the EPA’s] judgment causes or contributes

. to, air pollution ...

Id., at 1447. Several persons petitioned the EPA to

regulate carbon dioxide, it refused to do so, and the

Court held that the EPA must judge whether an air

pollutant

cause [s], or contribute [s] to, air pollution . . .

‘judgment’ is not a roving license to ignore

the statutory text. It is but a direction to

exercise discretion within defined statutory

limits ... If EPA makes a finding of endangerment, the Clean Air Act requires the

Agency to regulate emissions.

Id., at 1462. (Emphasis supplied). Most of the above

quote was cited with approval in American Electric

Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2539

(Sp. Ct. 2011). The court held that the reasons the EPA

cites for failing to comply with the “clear statutory

command”

. . . have nothing to do with whether green

house gas emissions contribute to climate

change ... [and] less do they amount to a

reasoned justification for declining to form a

scientific judgment. . . . The statutory ques

tion is whether sufficient information exists

to make an endangerment finding.

Massachusetts, supra, at 1462-63. (Emphasis supplied).

Under the Massachusetts and American Electric ration

ale, the IRS must analyze my Claim 2017 information,

without regard to whether it has resources to proceed

if the information looks promising. If my information

seems to have merit but the IRS determines not to

proceed, it satisfies its P.L. § 406 mandates by reporting

its inaction in its annual report to Congress. P.L.

§§ 406(b)(1)(B) and (c).

64. The EPA argued against it regulating carbon

dioxide emissions because doing so would require it to

tighten mileage standards, a task that Congress had

assigned to the Department of Transportation. The

Court characterized the EPA’s 42 U.S.C. § 7521(a)(1)

mandate as “protecting the public’s ‘health’ and

‘welfare,’” and declared the mandate “a statutory

obligation wholly independent of DOT’s mandate to

promote energy efficiency.” Id., at 1462. The IRS is

similarly burdened by a statutory obligation—budget

constraints or a prominent senator and chief counsel’s

aversion to the “rats program” notwithstanding.

65. ... with respect to the legislative power,

when Congress has passed a statute and a

President has signed it, it poses grave chal

lenges to the separation of powers for the

Executive at a particular moment to be able

to nullify Congress’ enactment solely on its

own initiative and without any determination

from the Court.

US. v. Windsor, 133 S. Ct. 2675, 2689 (2013). Yale Law

School professors Love, and Garg observe that

the principal concern in Madison’s day was

a Congress run amok. But. . . the president’s

refusal to enforce duly enacted statutes—what

we call “presidential inaction”—will often

dictate national policy but will receive virtu

ally none of Madison’s checks and balances.

Arpit K. Garg and Jeffrey A. Love, “Presidential

Inaction and the Separation of Powers,” MICHIGAN

Law Review Volume 112, Issue 7, (2014), at 1195.

They conclude

In a world in which presidential adminis

tration is the policymaking norm and yet

Madisonian checks are valued, presidential

inaction can, at least in principle, violate the

most basic structural features of our consti

tutional order.

Id., at 1211.

66. The Supreme Court in Norton v. Southern

Utah Wilderness Alliance, 542 U.S. 55 (Sp. Ct. 2004)

considered the operation of 5 U.S.C. § 706(l)—which

mandates that a reviewing court “compel agency

action unlawfully withheld”—in the face of 5 U.S.C.

§ 704—which permits judicial review in the absence

of another adequate remedy in a court. Norton holds

that § 706(1)

empowers a court only to compel an agency

‘to perform a ministerial or non-discretionary

act,’ or ‘to take action upon a matter, without

directing how it shall act.’

Id., at 64. (Citations omitted). As with this matter,

the claims in Norton “involve assertions that [an

agency] failed to take action . . . that it was required

to take.” Id., at 61. Norton held that an agency’s

“failure to act”

is simply the omission of an action without

formally rejecting a request—for example,

the failure to promulgate a rule or take some

decision by a statutory deadline. The impor

tant point is that a ‘failure to act’ is properly

understood to be limited, as are the other

items in § 55l(l3), to a discrete action.

Id., at 63. (Emphasis in original). Further, “the only

agency action that can be compelled under the APA

is action legally required,” id., such as

a specific, unequivocal command, the ordering

of a ‘precise, definite act. . . about which [an

official] had no discretion whatever’

Id. (Citations omitted). “Under the terms of the APA,

[the original plaintiff] must direct its attack against

some particular ‘agency action’ that causes it harm.”

Id., at 64. (Emphasis supplied).

67. Professors Garg and Love contend “consti

tutional concerns arise when the president fails to

meet the baseline for enforcement as established by

the relevant duly enacted statute,” id. at 1212, the

baseline being

language in a duly enacted law that requires

the president to act . . . the inaction in

question is presumptively (although not

definitively) invalid.

Id. (Emphasis supplied). This presumption is refuted

where the president has a “constitutionally justified

rationale for failing to enforce,” id., while evidence

that inaction is “the result of the president’s own

policy preferences” indicates a separation of powers

violation. Id.

68. Underenforcement of federal statutes may

violate the Take Care Clause, which provides the

President “shall take Care that the Laws be faith

fully executed.” U.S. Constitution, Article I, § 3. It

“allows the Executive to effectively repeal laws, which

is a legislative power.” Jentry Lanza, “Agency Underenforcement as Reviewable Abdication,” NORTHWESTERN

University Law Review, 112 No. 5 (2018), at 1203-4.

69. If our government

is to be one of true checks and balances, then

scholars, judges, and legislators alike will

have to recognize that [Executive Branch]

inaction is a real and growing problem.

Id., at 1250. In the next paragraph, I note the

distinct failure of the Whistleblower Office to take

discrete actions. These failures invade my interests

and those of the United States Treasury and implicate

our government’s separation-of-powers bedrock.

70. In summary, the Whistleblower Office’s fail

ure to analyze Claim 2017 starkly violates its P.L.

§ 406(b)(1)(B) mandate to do so. The Whistleblower

Office failure to “determine” an award under IRC

§ 7623(b)(4)-—which may be nothing due to resource

constraints—violates its P.L. § 406(a)(1)(D) and IRC

§ 7623(b)(4) mandates to do so. The Whistleblower

Office failure to determine an award under IRC § 7623

(b)(4)—which may be nothing—precludes Tax Court

jurisdiction regarding an award; the district court

thus has original jurisdiction in this matter because

Tax Court jurisdiction has been precluded. The Whis

tleblower Office’s failure to analyze Claim 2017 pre

cludes it from reporting to Congress in a substantive

manner as required by P.L. § 406(c). The IRS will

continue ignoring these Congressional mandates

absent Supreme Court review.

71. The lower court’s rationale in dismissing my

complaint—that the Whistleblower Office had made

a “determination” regarding Claim 2017—must be

rejected because it is based upon an impermissible

finding of fact. See ante at t 39(b). Also, their rationale

is not consistent with the commonly accepted meaning

of the word “determination.” See ante at H 9-10 and

42. Further, their rationale is sharply inconsistent

with the obvious failure of the Whistleblower Office

to “analyze” Claim 2017—which P.L. § 406(b)(1)(B)

mandates—because analysis is the bedrock of any

“determination.”

72. Because the Whistleblower Office failed to

make “any determination regarding an award”

within the meaning of IRC § 7623(b)(4), I have no

other remedy for the WO inaction than judicial review

by a district court.

73. My dismissal should be vacated because it

does not appear beyond doubt that I cannot prove

facts in support of my claims.

Respectfully submitted,

/s/ Bruce Norvell

Bruce Norvell

Petitioner Pro Se

P.O.Box 4037

Hadley, ID 83333-4037

(208) 721-0002

December ll, 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.