United States of America and James H. Rafferty, Special Agent of the Internal Revenue Service v. Wayne R. Tucker

817 F.2d 757

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America and James H. Rafferty, Special
Agent of the Internal Revenue Service, Plaintiffs-Appellees,
v.
Wayne R. TUCKER, Defendant-Appellant.

Nos. 86-6229, 87-5111.

United States Court of Appeals, Sixth Circuit.

May 6, 1987.

1

Before ENGEL and BOGGS, Circuit Judges, and HOLSCHUH, District Judge.*

ORDER

2

The appellee, United states of America, has moved to dismiss appeals 86-6229 and 87-5111 as moot. The appellant, Wayne R. Tucker, has filed a response.

3

Upon consideration of the motion and response, this Court concludes that both appeals have been rendered moot by appellant's compliance with the district court order of November 15, 1986, and that court's subsequent dismissal of its January 20, 1987 order of contempt. See United States v. Aquinas College Credit Union, 635 F.2d 887, 888, (6th Cir. 1980), cert. denied sub nom. Schwallier v. United States, 450 U.S. 1042 (1981); United States v. Patmon, 630 F.2d 458 (6th Cir. 1980); McDonald's Corp. v. Victory Investments, 727 F.2d 82, 85-86 (3d Cir. 1984); S.E.C. v. Naftalin, 460 F.2d 471, 475 (8th Cir. 1972). Appellant's attempt on appeal to create a case or controversy by attacking the constitutionality of the magistrate's acts fails to raise a substantial question given the appellant's compliance with the district court order of November 15, 1986. As there is no case or controversy for this Court to address, it lacks jurisdiction to entertain appeals 86-6229 and 87-5111. Defunis v. Odegaard, 416 U.S. 312, 316 (1975).

4

Accordingly, it is ORDERED that the motion to dismiss appeals 86-6229 and 87-5111 is granted. Case No. 86-6229 is remanded to district court with directions that the order of November 15, 1986 be vacated insofar as it directs enforcement of the summons.

*

The Honorable John D. Holschuh, U.S. District Judge for the Southern District of Ohio, sitting by designation