Amsinger v. United States
| Decision Date | 07 July 2011 |
| Docket Number | No. 10-404 T,10-404 T |
| Parties | THOMAS I. AMSINGER, Pro Se, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Tax; 26 U.S.C. § 7623 (2006); Reward Claim; Allegation of an Implied Contract; Failure to State a Claim.
Thomas I. Amsinger, St. Louis, MO, pro se.
Mark A. Ryan, United States Department of Justice, with whom were John A. DiCicco, Principal Deputy Assistant Attorney General, Stephen I. Frahm, Chief, Court of Federal Claims Section, G. Robson Stewart, Assistant Chief, Washington, DC, for defendant.
Mr. Thomas I. Amsinger filed his complaint in this court on June 29, 2010.1The fundamental nature of Mr. Amsinger's claim is that the Internal RevenueService (IRS) breached an implied contract with plaintiff whereby the government was obligated to pay Mr. Amsinger a reward for information leading to the collection of unpaid taxes. The court has before it defendant's motion to dismiss the complaint pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC). Defendant's motion has been fully briefed. For the reasons set forth below, defendant's motion is granted.
According to the complaint, Mr. Amsinger contacted the IRS in late 2002, and had meetings and telephone conversations with a Tax Fraud Administrative Assistant, Ms. Drury, in 2003. Compl. ¶¶ 8-9, 13; Pl.'s Resp. ¶¶ 1, 6, Ex. J. The subject of these communications was plaintiff's allegations that the trustee of a revocable living trust had improperly taken funds from that trust and had not claimed these funds as income in her tax filings. Compl. ¶¶ 8-9, 12-13. It is plaintiff's contention that an implied contract for a reward was established by these communications with Ms. Drury. See Compl. ¶ 8 ().
Over the course of the next few years, Mr. Amsinger filed three IRS Form 211's regarding the trustee's tax liability, all of which were rejected by the IRS. See Compl. ¶¶ 8, 15-17, 19, 22, 26-27, Exs. B, C, F, H, I; Pl.'s Resp. ¶¶ 2, 5-6, 10, Exs. J, N, O. All of the rejections from the IRS stated that plaintiff's applications did not meet the IRS criteria for a reward. Plaintiff asserts that taxes were eventually collected from the trustee as a result of his provision of information in the Form 211's. See Compl. ¶¶ 11, 20; Pl.'s Resp. ¶ 11. For this reason, plaintiff asserts that the United States breached the implied contract that entitles him to a reward. Compl. at 7.
The court acknowledges that Mr. Amsinger is proceeding pro se, and is "not expected to frame issues with the precision of a common law pleading." Roche v. U.S. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Pro se plaintiffs are entitled to a liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (). Accordingly, the court has examined the complaint and response brief thoroughly and has attempted to discern all of plaintiff's legal arguments.
In rendering a decision on a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed factual allegations to be true and construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). However, plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and must do so by a preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). If jurisdiction is found to be lacking, this court must dismiss the action. RCFC 12(h)(3). When the government has challenged the merits of a claim by means of a motion filed under RCFC 12(b)(1), this court may dismiss that portion of the complaint for failure to state a claim upon which relief can be granted, under RCFC 12(b)(6). E.g., Stephanatos v. United States, 81 Fed. Cl. 440, 442 (2008); Cherbanaeff v. United States, 77 Fed. Cl. 490, 492 (2007); Esch v. United States, 49 Fed. Cl. 631, 634 (2001) (citation omitted); see Def.'s Mot. at 10 n.8.
It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) "when the facts asserted by the claimant do not entitle him to a legal remedy." Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). When considering a motion to dismiss for failure to state a claim, "the allegations of the complaint should be construed favorably to the pleader." Scheuer, 416 U.S. at 236. The court must also inquire whether the complaint meets the plausibility standard described by the United States Supreme Court, i.e., whether it adequately states aclaim and provides a "showing [of] any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007) (citations omitted).
The Tucker Act delineates this court's jurisdiction. 28 U.S.C. § 1491 (2006). This statute "confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States . . . ." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) (citations omitted). These include claims "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). The court must determine at the outset whether plaintiff's claims fall within the "specified categories of actions against the United States" that are within this court's jurisdiction. Fisher, 402 F.3d at 1172.
The Tucker Act concurrently "waives the Government's sovereign immunity for those actions." Fisher, 402 F.3d at 1172. The statute does not, however, create a substantive cause of action or right to recover money damages in the Court of Federal Claims. Id. "[T]o come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages." Id. (citations omitted). In other words, the source underlying the cause of action must be money-mandating, in that it "'can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" United States v. Testan, 424 U.S. 392, 400 (1976) (). If the provision relied upon is found to be money-mandating, the plaintiff need not rely upon a waiver of sovereign immunity beyond the Tucker Act. Huston v. United States, 956 F.2d 259, 261 (Fed. Cir. 1992) (citing United States v. Mitchell, 463 U.S. 206, 218 (1983)). If, on the other hand, no money-mandating provision supports jurisdiction for a cause of action, this court must dismiss the suit. RCFC 12(h)(3).
The complaint in this case presents certain "allegations against defendant" which could be read to include claims over which this court has no jurisdiction. For example, the IRS is criticized for its failure to appoint a case manager to administer plaintiff's reward, and for negligence in processing plaintiff's applications for a reward. Compl. at 7. Plaintiff clearly states in his response brief that "[t]his is not a tort case." Pl.'s Resp. ¶ 1. To the extent that the complaint could be read to include tort claims, the court, for the sake of clarity, dismisses any and all tort claims from this case for lack of jurisdiction. See 28 U.S.C. § 1491(a)(1) ().
Plaintiff, proceeding pro se, has not indicated which type of "implied contractual agreement," Compl. at 7, underlies his claim. As defendant notes, contracts implied-in-law are not within the jurisdiction of the court. See, e.g., Barrett Refining Corp. v. United States, 242 F.3d 1055, 1059 (Fed. Cir. 2001). To the extent that the complaint could be read to include a claim founded on a contract implied-in-law, the court dismisses any implied-in-law contract claims from this case for lack of jurisdiction.
Plaintiff also asserts that 26 U.S.C. § 7623(a) (2006) and 26 U.S.C. § 7623(b) (2006) entitle him to a reward.3 Defendant persuasively argues that the United States Tax Court exercises exclusive jurisdiction over claims brought under § 7623(b). See Def.'s Mot. at 12-13 (citing cases). This court has so held. See, e.g., DaCosta v. United States, 82 Fed. Cl. 549, 555 (2008). Thus, plaintiff's claims founded on 26 U.S.C. § 7623(b) are dismissed for lack of jurisdiction.
Defendant contends that plaintiff's claim founded on the reward statute, 26 U.S.C. § 7623(a), and its implementing regulation, 26 C.F.R. § 301.7623-1 (2010), should be dismissed for lack of jurisdiction. See Def.'s Mot. at 6 () (capitalization altered). The government's position relies on a line of case...
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