Martin v. United States , 205 F. App'x 94 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-14-2006
Martin v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1733
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 06-1733
________________
FRANCIS G. MARTIN,
Appellant
v.
*UNITED STATES OF AMERICA
*(Amended per Clerk’s order of 6/20/06)
________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-3729)
District Judge: Freda L. Wolfson
________________
Submitted Under Third Circuit LAR 34.1(a)
August 2, 2006
Before: RENDELL, AMBRO and ROTH, Circuit Judges
(Filed: November 14, 2006 )
________________
OPINION
________________
PER CURIAM
Francis Martin appeals the dismissal of his civil rights complaint and mandamus
petition by the United States District Court for the District of New Jersey. For the
reasons below, we will affirm the District Court’s judgment.
On July 25, 2005, Martin filed a civil rights complaint against defendant Pamela
Logan, an appeals officer for the Internal Revenue Service (IRS).1 Martin alleged that
Logan denied him due process by refusing to afford him a face-to-face Collection Due
Process (CDP) hearing, pursuant to 26 U.S.C. § 6330, relating to certain outstanding and
unpaid income tax obligations. Martin also sought mandamus relief, pursuant to 28
U.S.C. § 1361, asking the District Court to order Logan to provide a face-to-face CDP
hearing. Logan filed a motion to dismiss arguing that the District Court lacked
jurisdiction to consider Martin’s civil rights claims and that Martin was not entitled to
mandamus relief. The District Court granted Logan’s motion and dismissed Martin’s
complaint.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over a District Court’s decision to grant a motion to dismiss. See Gould Elec. Inc.
v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
Martin argues the District Court erred in failing to require Logan to provide a face-
to-face CDP hearing. For substantially the reasons given by the District Court, we agree
that Martin is not entitled to mandamus relief.2 A writ of mandamus is a drastic remedy
1
Pursuant to this court’s order entered June 20, 2006, the United States of America
has been substituted as appellee in this matter.
2
The District Court also held that Martin’s civil rights claims were barred by
sovereign immunity. In this appeal, Martin disclaims any reliance on anything other than
mandamus. See Br. 1. Accordingly, we need not, and do not, reach the applicability of
sovereign immunity to civil rights-type claims against the IRS. We note that mandamus
2
that should only be granted in extraordinary situations. See In re Nwanze, 242 F.3d 521,
524 (3d Cir. 2001). A petitioner seeking such relief must show that he has “no other
adequate means to attain the desired result” and that his right to issuance of the writ is
“clear and indisputable.” Id. (internal quotation marks omitted).
In this case, Martin cannot show that he has a clear and indisputable right to a
face-to-face CDP hearing. A CDP hearing under § 6330(b) is an informal proceeding.
The treasury regulations for § 6330(b) provide that “[a] CDP hearing may, but is not
required to, consist of a face-to-face meeting, one or more written or oral communications
... or some combination thereof.” Treas. Reg. § 301.6330-1(d)(2)(Q & A-D6); see also
Kindred v. Comm’r of Internal Revenue, 454 F.3d 688, 691 n.7 (7 th Cir. 2006). Thus, it is
clear that Martin is not guaranteed nor entitled to a face-to-face CDP hearing. This is not
an “extraordinary” situation that warrants issuance of a writ of mandamus. Accordingly,
the District Court did not err in dismissing Martin’s complaint and denying him
mandamus relief.
For the foregoing reasons, we will affirm the judgment of the District Court.
claims such as Martin’s are not barred by sovereign immunity. See Georges v. Quinn,
853 F.2d 994, 995 (1 st Cir. 1988) (per curiam).
3