Dacosta v. United States ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOHN DACOSTA,
Plaintiff-Appellant,
AND
N.B. SALTY MILLER,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
2010-5097
__________________________
Appeal from the United States Court of Federal
Claims in case No. 09-CV-558, Judge George W. Miller.
__________________________
Decided: September 9, 2010
__________________________
JOHN DACOSTA, of Miami, Florida, pro se
N.B. SALTY MILLER, of Nashville, Tennessee, pro se.
KAREN G. GREGORY, Attorney, Appellate Section, Tax
Division, United States Department of Justice, of Wash-
DACOSTA v. US 2
ington, DC, for defendant-appellee. With her on the brief
were JOHN A. DICICCO, Acting Assistant Attorney Gen-
eral, and KENNETH L. GREENE, Attorney.
__________________________
Before RADER, Chief Judge, LINN and MOORE, Circuit
Judges.
PER CURIAM.
John DaCosta and N.B. Salty Miller (collectively
“Plaintiffs”) appeal a final decision of the Court of Federal
Claims, which dismissed their claims against the govern-
ment for increased tax informant rewards. DaCosta v.
United States, No. 09-CV-558, 2010 WL 537572 (Fed. Cl.
Feb. 16, 2010) (“DaCosta II”). Because we agree that
jurisdiction over Plaintiffs’ claims is precluded by the
Court of Federal Claims’ earlier resolution of the same
jurisdictional issue, DaCosta v. United States, 82 Fed. Cl.
549 (2008) (“DaCosta I”), we affirm.
BACKGROUND
Under 26 U.S.C. § 7623 (2006), the government re-
wards informants for reporting tax violations. Plaintiffs
provided the Internal Revenue Service (“IRS”) with in-
formation about such violations and filed Applications for
Reward for Original Information. Plaintiffs each received
$139,321.01 computed from the taxes that the IRS col-
lected based on their tips. DaCosta I, 82 Fed. Cl. at 551.
In 2007, Plaintiffs sued the government pro se, claim-
ing that the government actually collected over $2 million
in taxes and that their rewards were a “gross underpay-
ment” of a 15% reward allegedly promised by an IRS
agent. The government moved to dismiss for lack of
subject matter jurisdiction.
3 DACOSTA v. US
The Court of Federal Claims granted the govern-
ment’s motion. For tax information that Plaintiffs alleg-
edly supplied after December 20, 2006, the Court ruled
that Plaintiffs pleaded sufficient facts to state a claim
under § 7623(b)(1), which mandates rewards for tips
provided after that date, but that only the Tax Court had
jurisdiction to hear this claim under § 7623(b)(4).
DaCosta I, 82 Fed. Cl. at 555. For information supplied
before December 20, 2006, the Court observed that Plain-
tiffs’ claims fell under § 7623(a), which does not mandate
relief. Instead, to establish jurisdiction under the Tucker
Act, 28 U.S.C. § 1491, Plaintiffs needed to plead an “ex-
press or implied contract with the United States” for a
reward. The Court interpreted Plaintiffs’ complaint as
alleging an implied-in-fact contract with the government.
DaCosta I, 82 Fed. Cl. at 556. Such a contract requires
the government to bind itself through an agent who
possessed actual authority to contract. City of El Centro
v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). The
Court held that Plaintiffs failed to plead sufficient facts to
show that they contracted with an IRS agent who had
actual authority, and therefore could not establish a basis
for jurisdiction. DaCosta I, 82 Fed. Cl. at 557.
Plaintiffs did not appeal DaCosta I. Instead, in 2009,
they filed a second complaint that restated their reward
claims and included related claims for tortious breach of
contract and breach of the duty of good faith and fair
dealing. They also raised new facts, alleging that the IRS
promised rewards by sending them a copy of IRS Publica-
tion 733; that the IRS institutionally ratified the contract
by accepting their information; that the IRS entered an
oral agreement by paying them each $139,321.01; and
that the IRS purposely failed to collect the maximum
possible taxes to avoid paying bigger rewards to Plaintiffs.
DaCosta II, 2010 WL 537572, at *2.
DACOSTA v. US 4
The government again moved to dismiss for lack of ju-
risdiction. The Court of Federal Claims granted the
motion, ruling in the alternative that (1) issue preclusion
barred relitigation of subject matter jurisdiction, and (2)
that Plaintiffs’ new allegations still failed to show an
implied-in-fact contract with the government. It also
concluded that it lacked jurisdiction over Plaintiffs’ re-
maining tort-based claims under the Tucker Act. Plain-
tiffs appeal the dismissal of their 2009 complaint. We
have jurisdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
“This Court reviews a dismissal of a claim for lack of
jurisdiction by the Court of Federal Claims de novo.”
Bank of Guam v. United States, 578 F.3d 1318, 1325 (Fed.
Cir. 2009). “We review a trial court’s application of issue
preclusion, also known as collateral estoppel, de novo.”
Shell Petroleum, Inc. v. United States, 319 F.3d 1334,
1338 (Fed. Cir. 2003). “Issue preclusion is generally
appropriate if: (1) an issue is identical to one decided in
the first action; (2) the issue was actually litigated in the
first action; (3) the resolution of the issue was essential to
a final judgment in the first action; and (4) the party
defending against issue preclusion had a full and fair
opportunity to litigate the issue in the first action.” Id.Plaintiffs’ sole argument against issue preclusion is
that their second complaint does not involve an identical
jurisdictional issue because it alleges a contract implied in
fact, while their complaint in DaCosta I pleaded a con-
tract implied in law. Plaintiffs note that in their first
complaint they cited and attached a copy of § 7623. Pls.’
Principal Br. ¶ 10. They contrast this with the “300 pages
of facts” that they submitted with their second complaint,
which they dub “War and Peace.” Id. ¶ 14. Based on this
5 DACOSTA v. US
change, they argue that they have stated a different claim
with a different jurisdictional basis.
Plaintiffs misinterpret the distinction between a con-
tract implied in law and in fact. The former is “a fiction of
law where a promise is imputed to perform a legal duty,
as to repay money obtained by fraud or duress.” Hercules
Inc. v. United States, 516 U.S. 417, 424 (1996) (quotations
omitted). The latter “requires findings of: 1) mutuality of
intent to contract; 2) consideration; and, 3) lack of ambi-
guity in offer and acceptance.” City of El Centro, 922 F.2d
at 820. The differences arise from the underlying legal
theories, not what is attached to the complaint.
The Court of Federal Claims noted that Plaintiffs’
first complaint alleged an “implied contractual relation-
ship” without specifying whether the relationship was
implied in law or in fact. DaCosta II, 2010 WL 537572, at
*4. The Tucker Act does not provide jurisdiction over
claims based on implied-in-law contracts. See Barrett Ref.
Corp. v. United States, 242 F.3d 1055, 1059 (Fed. Cir.
2001). Recognizing this, the Court analyzed whether
Plaintiffs’ complaint alleged an implied-in-fact contract
and determined that it did not. DaCosta I, 82 Fed. Cl. at
557. Therefore, the Court of Federal Claims has already
decided that Plaintiffs could not establish an implied-in-
fact agreement, and that decision precludes relitigation
here because the jurisdictional issue is “identical to one
decided in the first action,” Shell Petroleum, 319 F.3d at
1338.
The new allegations in Plaintiffs’ second complaint
are of no consequence on this jurisdictional question. The
Court of Federal Claims noted and applied the general
rule that a jurisdictional issue cannot be revisited unless
new, previously unavailable facts can cure the original
jurisdictional defects. See Park Lake Res. Ltd. Liab. Co. v.
DACOSTA v. US 6
U.S. Dep’t of Agric., 378 F.3d 1132, 1137 (10th Cir. 2004)
(“But the change in circumstances that cures the jurisdic-
tional defect must occur subsequent to the prior litiga-
tion.”); Magnus Elecs., Inc. v. La Republica Arg., 830 F.2d
1396, 1401 (7th Cir. 1987) (preventing plaintiff from
curing jurisdiction with facts it was “aware of from the
beginning of the suit”); Dozier v. Ford Motor Co., 702 F.2d
1189, 1192 (D.C. Cir. 1983) (same). The Court noted that
all of Plaintiffs’ new allegations about the IRS’s conduct
involve facts that arose before it decided DaCosta I, that
Plaintiffs should have been aware of those facts, and that
they should have amended their original complaint or
sought reconsideration at that time. DaCosta II, 2010 WL
537572, at *5-6. On appeal, Plaintiffs do not challenge
these determinations or argue that their new allegations
were previously unknown. Although we construe their
pleadings liberally because they act pro se, see Pentagen
Techs. Int’l Ltd. v. United States, 175 F.3d 1003, 1005
(Fed. Cir. 1999), Plaintiffs have not provided facts that
would justify a new analysis of jurisdiction.
Because we agree that DaCosta I precludes relitiga-
tion of the issue of subject matter jurisdiction over Plain-
tiffs’ contract and tort claims, we do not reach the Court of
Federal Claims’ alternative ruling that, if preclusion did
not apply, Plaintiffs’ complaint would still fail to allege
sufficient facts to establish an implied-in-fact agreement
with the government. For the foregoing reasons, the
decision of the Court of Federal Claims is affirmed.
AFFIRMED
COSTS
No costs.