In Uncategorized on 12/07/2018 at 16:53

Whistleblower 11099-13W, Docket No. 11099-13W, filed 12/7/18, is setting up for a record-breaking summary J. And Judge James S (“Big Jim”) Halpern is up for the challenge, as he designates 11099.

11099 claims Ogden done him/her wrong. Nothing new here. 11099 is also jousting with Ogden about what should (or should not) be in the administrative record. Also nothing new. 11099 wants to put in expert testimony, call ex-Chief Whistler Robert Gardner as a witness, and add testimony and stuff outside what Ogden claims is the entire administrative record.

Also nothing new. See my blogpost ”Two Old Cases,” 1/10/18, where Kenneth William Kasper was terminally unhorsed by Judge Mark V. Holmes, whom I then characterized as “friend of Chenery (the doctrine, not the dodgeflogger), and Foe of the Partitive Genitive (but apparently in recovery).” Section 7623(b) defaults to the Administrative Procedures Act as for scope of review (abuse of discretion).  And if abuse of discretion is the guide, then all there is to review is what the agency had before it, and whatever the petitioner can wild-card into the administrative record that the agency had but overlooked.

But 11099 isn’t fazed by Judge Holmes’ “somber reasoning and copious citation of precedent.”

IRS of course wants summary J (nothing new there either), but isn’t getting it, because Judge Big Jim finds a factual dispute about what should be in the administrative record.

But the record-breaking news is here.

“Moreover, petitioner has filed a pretrial memorandum, in which he states his disagreement with our holdings in Kasper as to the scope and standard of review for whistleblower award determinations, and he urges us to reconsider our holdings (including that he is entitled to a trial de novo because the record rule does not govern the scope of our review in whistleblower cases).” Order, at p. 2.

So IRS can deal with 11099’s motions directed to the administrative record.

But 11099 is told to file a motion for partial summary J on his record-breaking allegations.


  1. Hi Lew,

    I don’t know what has happened, but the order, you referred to in this piece, was vacated and set-aside on 12/10/18. Speculation?

    Happy Holidays to you and your family good sir!

    Regards, FCA Aficinado

    (Comment: so hard to be a WB-in-waiting, hoping that the IRS from the Commissioner on down would support their WB’s like the SEC does … Also Sen. Grassley could get on the stick and fix his laws that let the IRS do the bait & switch, and complete ignore, things it does to its WB’s that destroys confidence in the Service.)


  2. I blogged the withdrawal of the 12/8/18 order. Speculation is pointless; Kremlinology was never my strong suit. Let’s follow the case and see.


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