James Mozingo v. Douglas Shulman

Filing 920090424

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2361

JAMES JOSEPH MOZINGO, Petitioner - Appellant, v. DOUGLAS H. SHULMAN, Commissioner, Internal Revenue, Respondent - Appellee.

On Petitions for Writ of Prohibition and Writ of Mandamus. (XXX-XX-6194)

Submitted:

March 24, 2009

Decided:

April 24, 2009

Before SHEDD, DUNCAN, and AGEE, Circuit Judges.

Petitions denied by unpublished per curiam opinion.

James Joseph Mozingo, Petitioner/Appellant Pro Se. Christine Durney Mason, David I. Pincus, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent/Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: James Joseph Mozingo filed in this court a document, titled "Petition for Judicial In it, Review he of Determination the Notice by of

Administrative

Agency."

challenged

Federal Tax Lien filed by the Commissioner of Internal Revenue, and sought a writ of prohibition or a writ of mandamus. Commissioner filed a motion to dismiss, asserting that The this

court does not have jurisdiction to directly review the issuance of a notice of federal tax lien. To the extent that Mozingo

wishes for this court to review the Notice of Federal Tax Lien or the Commissioner's determination of Mozingo's tax liability, we lack jurisdiction to do so and grant the motion to dismiss in part. construe See 28 U.S.C. §§ 1291, as a 2342(3) petition (2006). filed Because within we

Mozingo's

filing

this

court's original jurisdiction, see 28 U.S.C. § 1651 (2006), we deny in part the motion to dismiss and address the filing as a petition for writ of prohibition and/or mandamus. A writ of prohibition will not issue unless it

"clearly appears that the inferior court is about to exceed its jurisdiction." Smith v. Whitney, 116 U.S. 167, 176 (1886). A

writ of prohibition is a drastic remedy which should be granted only where the petitioner's right to the requested relief is clear and indisputable. In re Vargas, 723 F.2d 1461, 1468 (10th 2

Cir. 1983); In re Missouri, 664 F.2d 178, 180 (8th Cir. 1981). Further, a writ of prohibition should be granted only where the petitioner has no other adequate means of relief. In re

Banker's Trust Co., 775 F.2d 545, 547 (3d Cir. 1985). Here, we find that Mozingo has not established that he has a clear right to the relief he seeks. other means by to which the to extent challenge that the Moreover, Mozingo has federal seeks a tax lien. of

Accordingly,

Mozingo

writ

prohibition, we deny the petition. Mozingo alternatively requested that this court issue a writ of mandamus requiring the Commissioner to provide him with documents, records, and authorities to support the

determination of his tax liability.

Mozingo has failed to show

that he has a "clear right to the relief sought," as required for the granting of mandamus relief. See Allied Chem. Corp. v. Moreover, as stated

Daiflon, Inc., 449 U.S. 33, 35 (1980).

above, Mozingo has other means to obtain the relief he seeks. Thus, mandamus relief is not warranted. See In re United

Steelworkers of Am., 595 F.2d 958, 960 (4th Cir. 1979). In conclusion, we grant in part and deny in part the Commissioner's motion to dismiss, and we deny Mozingo's

petitions for writs of prohibition and mandamus.

We dispense

with oral argument because the facts and legal contentions are 3

adequately

presented

in

the

materials

before

the

court

and

argument would not aid the decisional process.

PETITIONS DENIED

4