Opinion
Case No: 08-10037.
May 15, 2008
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
I. INTRODUCTION
Before the Court is Defendant's Motion to Dismiss. For the following reasons the Court GRANTS the motion.
II. BACKGROUND
III. STANDARD
42 U.S.C. § 12111et seq. Hartman v. Alliance Mortg. Co., Dugan v. Rank, 372 U.S. 609 Gazette v. City of Pontiac,41 F.3d 10611064th see also Miller v. Currie,50 F.3d 373377th Miller,50 F.3d at 377Gazette, 41 F.3d at 1064Vemco, Inc. v. Camardella,23 F.3d 129132th In re DeLorean Motor Co.,991 F.2d 12361240th Id. Haines v. Kerner,404 U.S. 519520-521
Although Plaintiff incorrectly served Defendant instead of the United States Attorney for the Eastern District of Michigan or the Attorney General, Defendant voluntarily responds and waives improper service.
IV. ANALYSIS
Plaintiff provided documentation to Defendant allegedly demonstrating Maretta Diane Markin-Hampton's ("Maretta") underpayment of $12,370,600 in federal income taxes. According to Plaintiff, Defendant discriminated against him when it failed to grant him a whistleblower award of 10% of Maretta's alleged underpayment.
It is true that 26 U.S.C. § 7623(b)(2) permits Defendant to "award such sums as it considers appropriate, but in no case more than 10 percent of the collected proceeds . . . resulting from the action. . . ." 26 U.S.C. § 7623(b)(2). However, an award under this statute is entirely discretionary, unless there have been negotiations and an explicit agreement on the amount of an award. See Carelli v. Internal Revenue Service, 668 F.2d 902, 904-905 (6th Cir. 1982); Krug v. United States, 41 Fed. Cl. 96, 98 (Fed.Cl. 1998) ("[A]n enforceable contract will arise . . . only after informant and IRS negotiate and fix a specific award. . . .") (quotations omitted); Merrick v. United States, 846 F.2d 725, 726 (Fed. Cir. 1988) ("The United States cannot be contractually bound merely by invoking the cited statute and regulation. An enforceable contract will arise under these authorities only after the informant and the government negotiate and fix a specific amount as the reward.") (citation omitted). Plaintiff does not allege he successfully completed negotiations with Defendant for a specific amount.
In apparent acknowledgment of the discretionary nature of § 7623(b)(2), Plaintiff seeks a remedy under the ADA, and asks for damages under that statute equal to 10% of the unpaid taxes. However, the ADA does not provide relief for Plaintiff's claims under Titles I, II, or III. Title I prohibits employment discrimination against disabled persons by employers with fifteen or more employees. 42 U.S.C. § 12112(a). Claims under Title I must first be filed with the U.S. Equal Employment Opportunity Commission ("EEOC"). See Dyer v. Wiregrass Hospice, L.L.C., 532 F. Supp. 2d 933, 935-936 (M.D. Tenn. 2008) (quoting Smith v. Ky. State Univ., 97 Fed. Appx. 22, 26 (6th Cir. 2004) (unpublished)) ("The key question presented by the defendants' exhaustion argument is whether the new allegations that the plaintiffs were `regarded as' disabled fall within the scope of the existing EEOC charge."); Braud v. Cuyahoga County Career Ctr., No. 06-1059, 2007 U.S. Dist. LEXIS 22526, at *8 (N.D. Ohio Mar. 27, 2007); Holt v. Ohio, No. 05-894, 2006 U.S. Dist. LEXIS 69960, at *20 (S.D. Ohio Sept. 26, 2006); see also Ang v. Procter Gamble Co., 932 F.2d 540, 545 (6th Cir. 1991)). Plaintiff did not file a complaint with the EEOC, and moreover, does not allege employment discrimination.
An action under Title II cannot be brought against the United States. 42 U.S.C. §§ 12131- 12132; Isle Royale Boaters Ass'n v. Norton, 154 F. Supp. 2d 1098, 1135 (W.D. Mich. 2001) ("Plaintiffs may not sue . . . a unit of the federal government, for discrimination under [Title II of] the ADA.").
Last, Title III applies only to private entities. 42 U.S.C. §§ 12182- 12181; Sandison v. Mich. High Sch. Athletic Ass'n, Inc., 64 F.3d 1026, 1036 (6th Cir. 1995) ("Generally stated, title III of the ADA, 42 U.S.C. §§ 12181- 89, prohibits discrimination on the basis of disability in public accommodations operated by private entities.").
Although Defendant argues the merits of Plaintiff's claim under the statutory scheme of 26 U.S.C. § 7623, review of Plaintiff's complaint reveals his request for 10% of Maretta Diane Markin-Hampton's allegedly unpaid taxes as damages, not as a cause of action under § 7623(b).
Even construing Plaintiff's pro se complaint liberally, and assuming he also makes a direct claim under § 7623(b), where there is no agreed upon reward, the Government has not waived sovereign immunity to suit under § 7623(b). See Hartman v. Alliance Mortg. Co., No. 98-5705/98-6172, 1999 U.S. App. LEXIS 23675, at *5 (6th Cir. Sept. 23, 1999) (unpublished) (citing Carelli, 668 F.2d at 904). Under § 7623(4), the denial of an award is appealable within thirty days to the United States Tax Court. Not only did Plaintiff fail to appeal to the Tax Court, he does not allege that there has been a final determination regarding his request. Even if Plaintiff had a cause of action under § 7623, this Court lacks jurisdiction to hear the claim because it has a value over $10,000. 28 U.S.C. § 1346(a)-(a)(2) ("The district courts shall have original jurisdiction, concurrent with the United States Claims Court [United States Court of Federal Claims], of . . . [a]ny other civil action or claim against the United States, not exceeding $10,000 in amount founded either upon the Constitution, or any Act of Congress. . . .").
V. CONCLUSION
The Court GRANTS Defendant's Motion to Dismiss.