Rick Vangelisti v. United States , 66 F.3d 337 ( 1995 )

66 F.3d 337

76 A.F.T.R.2d 95-6558

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Rick VANGELISTI, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.

No. 94-15018.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 16, 1995.*
Decided Sept. 1, 1995.

1

Before: D.W. NELSON, T.G. NELSON, Circuit Judges, and KING,** District Judge.

2

MEMORANDUM***

3

Rick Vangelisti appeals the district court's dismissal of his complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. We affirm.

4

In accord with our recent decision in Argabright v. United States, 35 F.3d 472 (9th Cir.1994), we hold that the Section 701(a)(2) exception of the Administrative Procedure Act, 5 U.S.C. Sec. 701(a)(2), precludes judicial review of decisions by the Internal Revenue Service (IRS) pursuant to 26 U.S.C. Sec. 6404(e)(1). Thus, the district court did not err in declining to review the IRS's failure to consider Vangelisti's request for an abatement.

5

We also affirm the district court's refusal to order the IRS to consider seriously Vangelisti's request for an abatement. Although mandamus may be available for a discretionary act if the agency violates "statutory or regulatory standards delimiting the scope or manner in which such discretion can be exercised," Han v. United States Dep't of Justice, 45 F.3d 333, 337-38 (9th Cir.1995), there are no statutory or regulatory standards limiting the IRS's discretion under Sec. 6404(e)(1). See Argabright, 35 F.3d at 476 (holding Sec. 6404(e)(1) lacks "judicially manageable standards ... for judging how and when the agency should exercise its discretion...." (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985) (internal quotes omitted)). Thus, mandamus jurisdiction is unavailable.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

**

Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3