Stevens v. Colt

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 20, 2011
• Docket: 10-14387
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT COURT OF APPEALS U.S. ________________________ ELEVENTH CIRCUIT APR 20, 2011 No. 10-14387 JOHN LEY Non-Argument Calendar CLERK ________________________

D.C. Docket No. 3:09-cv-00487-HLA-TEM

CHARLES THOMAS STEVENS, in propria persona,

llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,

versus

KEN COLT, official capacity as an employee/Revenue Officer, a.k.a. K. Colt, JOHN HOOPES, official capacity as an employee/Revenue Officer, JOHN 1-10 DOES,

llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 20, 2011)

Before HULL, MARTIN and BLACK, Circuit Judges. PER CURIAM:

Charles Thomas Stevens, proceeding pro se, appeals the district court’s

dismissal of his mandamus petition, which sought to compel Internal Revenue

Service (IRS) Agents Ken Colt and John Hoopes to provide documents supporting

the Agents’ authority to file liens and levies on Stevens’ assets. On appeal,

Stevens contends the district court’s dismissal of his petition was improper

because the district court had mandamus jurisdiction pursuant to 28 U.S.C. § 1361.

Further, Stevens claims the district court erred in finding that the prohibitions in

the Anti-Injunction Act and federal tax exception in the Declaratory Judgment Act

barred his suit because his petition did not seek injunctive or declaratory relief.

After review, we affirm the district court’s order.1

To invoke mandamus jurisdiction, “(1) the plaintiff must have a clear right

to the relief, (2) the defendant must have a clear duty to act, and (3) no other

adequate remedy must be available.” Jones v. Alexander, 609 F.2d 778, 781 (5th

Cir. 1980). Further, the Anti-Injunction Act, 26 U.S.C. § 7421(a), provides that

“no suit for the purpose of restraining the assessment or collection of any tax shall

be maintained in any court by any person.” Section 7421 bars not only suits that

1 Mandamus jurisdiction is a question of law subject to de novo review. Lifestar Ambulance Serv., Inc. v. United States, 365 F.3d 1293, 1295 (11th Cir. 2004).

2 directly seek to restrain the assessment or collection of taxes, but also suits that

seek to restrain IRS actions “which are intended to or may culminate in the

assessment or collection of taxes.” Kemlon Prods. and Dev. Co. v. United States,

638 F.2d 1315, 1320 (5th Cir.), modified on other grounds, 646 F.2d 223 (5th Cir.

1981) (quotation omitted). A complementary provision is found in the

Declaratory Judgment Act, which does not permit declaratory judgments in suits

“with respect to Federal taxes.” 28 U.S.C. § 2201(a). Because the federal tax

exception in the Declaratory Judgment Act is at least as broad as the Anti-

Injunction Act, a determination that the Anti-Injunction Act applies also forecloses

declaratory relief. Mobile Republican Assembly v. United States, 353 F.3d 1357,

1362 n.6 (11th Cir. 2003).

Stevens failed to demonstrate entitlement to mandamus relief sufficient to

sustain mandamus jurisdiction.2 Specifically, he failed to identify a clear, non-

discretionary duty owed by Colt and Hoopes to provide Stevens with documents

supporting the notices of lien and levy. See Jones, 609 F.2d at 781. Moreover,

2 We note that the district court erred by initially concluding Fed. R. Civ. P. 81(b) prohibited mandamus relief. Although Rule 81(b) abolished the writ of mandamus, the All Writs Act, 28 U.S.C. § 1651, provides that federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Further, it is well- established that 28 U.S.C. § 1361 confers original jurisdiction over claims for mandamus relief and waives sovereign immunity for this type of action. Sheehan v. Army and Air Force Exch. Serv., 619 F.2d 1132, 1140 (5th Cir. 1980), rev’d on other grounds, 456 U.S. 728 (1982).

3 the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B), provided an alternative

avenue of relief, as it authorizes judicial review of an agency decision to withhold

agency records. Lastly, the Anti-Injunction Act barred Stevens’ suit because his

petition contests the validity of the notices of tax lien and levy, which are IRS

actions that will culminate in the collection of taxes. See Kemlon Prods. and Dev.

Co., 638 F.2d at 1320. Declaratory relief is similarly foreclosed. See Mobile

Republican Assembly, 353 F.3d at 1362 n.6. Accordingly, we affirm the district

court’s dismissal of Stevens’ mandamus petition.

AFFIRMED.