In Re: Michael Balice v. ( 2016 )

CLD-167 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 16-1242
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In re: Michael Balice,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
(Related to Civ. No. 2-14-cv-03937)
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Submitted Pursuant to Rule 21, Fed. R. App. P.
March 3, 2016
Before: FISHER, JORDAN and VANASKIE, Circuit Judges
(Opinion filed: March 11, 2016)
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OPINION*
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PER CURIAM
Pro se petitioner Michael Balice has filed a petition for writ of mandamus. For the
reasons set forth below, we will deny the petition.
In June 2014, the United States filed a civil action against Balice in which it
sought, among other things, to reduce to judgment Balice’s 1998 federal income tax
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
liabilities. Balice filed several motions to dismiss the complaint. While his motions
raised numerous, complex claims, at bottom he argued that the District Court lacked
subject-matter jurisdiction because “the commencement of this legal action by the
Executive branch of the federal government, to enforce the collection of an income tax
allegedly imposed under the 16th Amendment, blatantly violates the 16th Amendment.”
D.N.J. Civ. A. No. 2:14-cv-03937 dkt. #7 at pg. 1. The District Court denied Balice’s
motions. See dkt. #71. Balice then filed at least two more motions to dismiss, which the
District Court also denied. See dkt. #102.
Balice then filed a petition for mandamus in this Court. He reasserts the challenge
to the District Court’s jurisdiction described above. He asks us to order the District Court
to (a) vacate its orders denying his motions to dismiss and (b) dismiss the Government’s
complaint.
We will deny Balice’s petition. Mandamus is a drastic remedy that is granted in
only extraordinary cases. In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir.
2005). To demonstrate that mandamus is appropriate, a petitioner must establish that he
has “no other adequate means” to obtain the relief requested, and that he has a “clear and
indisputable” right to issuance of the writ. Madden v. Myers, 102 F.3d 74, 79 (3d Cir.
1996). Mandamus may not be used as a substitute for appeal. See In re Diet Drugs
Prods. Liab. Litig., 418 F.3d at 378-79.
Here, Balice has asked us to review the District Court’s orders denying his sundry
motions to dismiss. Mandamus relief is unavailable because he may obtain that review
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on direct appeal once his case is finally resolved. See Harrison v. Nissan Motor Corp.,
111 F.3d 343, 352 (3d Cir. 1997); Commc’n Workers of Am., AFL-CIO v. AT&T Co.,
932 F.2d 199, 210 (3d Cir. 1991). Moreover, Balice has failed to show that “the district
court’s lack of subject matter jurisdiction is ‘clear and indisputable.’” In re Sch. Asbestos
Litig., 921 F.2d 1310, 1314 (3d Cir. 1990). To the contrary, as we explained recently in
dismissing a previous appeal brought by Balice, he presents “the type of tax-protester
arguments that . . . have long been rejected as frivolous.” Balice v. Comm’r, C.A. No.
15-2366, 2016 WL 456634, at *2 (3d Cir. Feb. 5, 2016).
Accordingly, we will deny Balice’s mandamus petition.
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