That statute bars jurisdiction in this court of a claim by a plaintiff who has pending in
any other court a suit against or in respect of the United States concerning the same operative
facts. This case was stayed at the behest of the parties to await resolution of a comparable
jurisdictional issue in Brandt v. United States, 710 F.3d 1369 (Fed. Cir. 2013).
In Brandt, the
Federal Circuit decided that Section 1500 did not bar an action filed in this court after a related
action had been dismissed by a district court but before the time for appeal of that dismissal had
run. 710 F.3d at 1379. The court of appeals held that this court’s jurisdiction was not ousted by
a subsequently filed appeal in the related case because there was a “period of time when [the]
case was not, as the statute requires, ‘pending in any other court,’” and an action filed in that
interim was jurisdictionally proper. Id. The Federal Circuit denied rehearing and rehearing en
banc in Brandt, and the government has advised that it will not file a petition for certiorari in that
case. See Def.’s Notice of Decision and Mot. to Continue Stay (“Def.’s Mot.”), ECF No. 44.
Nonetheless, the government has moved to continue the stay of this action pending the outcome
of appellate proceedings in the related case pending in the Court of Appeals for the Ninth
Circuit. See id.
At issue are payments of tax for the years 1992, 1993, 1999, 2000, and 2001. Compl.
¶¶ 5, 19-22, Attach. at 23.
Mr. Topsnik had paid some taxes for the years 1992, 1993, and
1999, Compl. ¶ 6, but the IRS on February 13, 2004, issued a Notice of Tax Lien for additional
taxes totaling $110,003.31, allegedly due for the 1992, 1993, 1994, and 1999 tax years. Compl.
Attach. at 11. Other liens and levies were filed, and litigation in the Tax Court ensued regarding
the IRS’s collection activities, without fully resolving the disputed issues.
The statute 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 stay was entered by the judge to whom the case was previously assigned.
Attached to the complaint are IRS lien notices, IRS notices of intent to levy, certificates
of release of federal tax liens, and correspondence between IRS officials and Mr. Topsnik’s
counsel regarding the liens and levies. The attachment is sequentially paginated by the
electronic filing system, and citations to the attachment will reflect this pagination.
See Topsnik v. Commissioner, No. 1454-09L (Tax Court filed Jan. 21, 2009), and
Topsnik v. Commissioner, No. 19398-09L (Tax Court filed Aug. 13, 2009). A further case in the
Tax Court, Topsnik v. Commissioner, No. 26894-10L (Tax Court filed Dec. 6, 2010), was filed