Lewis Teffeau v. Commissioner of IRS
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion for other relief - convert petition to mandamus; granting motion to dismiss. [1000104569-2] Originating case number: 27904-10 Copies to all parties and the district court/agency. .. [17-1463, 17-1464]--[Edited 09/26/2017 by CP]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petitioner - Appellant,
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee.
Petitioner - Appellant,
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee.
Appeals from the United States Tax Court. (Tax Ct. Nos. 27904-10, 27905-10)
Submitted: August 31, 2017
Decided: September 26, 2017
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Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and HAMILTON, Senior
Appeals dismissed and petition denied by unpublished per curiam opinion.
Joseph A. DiRuzzo, III, JOSEPH A. DIRUZZO, III, P.A., Fort Lauderdale, Florida, for
Bethany B. Hauser, Teresa E. McLaughlin, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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In these consolidated appeals, Appellants Lewis Teffeau and Linda Teffeau seek to
appeal the Tax Court’s order denying their motion to recuse. The Commissioner of
Internal Revenue has moved to dismiss the appeal as interlocutory. We grant the motion
to dismiss and dismiss the appeal. The Appellants have also moved to convert their
appeal into a petition for writ of mandamus. We grant the motion and deny the petition.
With respect to the Commissioner’s motion to dismiss, we have jurisdiction to
review decisions of the Tax Court “in the same manner and to the same extent as
decisions of the district courts in civil actions tried without a jury.” I.R.C. § 7482(a)(1)
(2012). In general, just as we have jurisdiction over final decisions of the district courts
under 28 U.S.C. § 1291 (2012), we have jurisdiction over final decisions of the Tax
Court. Chai v. Comm’r, 851 F.3d 190, 204 (2d Cir. 2017); see Handshoe v. Comm’r, 252
F.2d 328, 329 (4th Cir. 1958). We conclude, and the parties agree, that the Tax Court’s
order is not a final decision because it did not dispose of the entire case. See Gelboim v.
Bank of Am. Corp., 135 S. Ct. 897, 902 (2015); see also Catlin v. United States, 324 U.S.
229, 233 (1945).
Although the Tax Court’s order is not a final decision, the Appellants contend that
the order is an appealable collateral order. The collateral order doctrine is “a judiciallycreated exception that allows appellate courts to review orders that ‘finally determine
claims of right separable from, and collateral to, rights asserted in the action.’” United
States ex rel. Lutz v. United States, 853 F.3d 131, 137 (4th Cir. 2017) (quoting Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
Such orders “must 
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conclusively determine the disputed question,  resolve an important issue separate
from the merits of the action, and  be effectively unreviewable on appeal from a final
Id. (alteration in original) (internal quotation marks omitted).
requirements are “stringent,” lest the collateral order doctrine “overpower the substantial
finality interests § 1291 is meant to further.” Will v. Hallock, 546 U.S. 345, 349 (2006)
(internal quotation marks omitted).
We conclude the Tax Court’s order is not effectively unreviewable on appeal from
a final judgment. We have ruled that the denial of a motion to recuse is “clearly
interlocutory in nature and not appropriate for review prior to final action by the District
Court on the underlying cause of action.” Vuono v. United States, 441 F.2d 271, 272 (4th
Cir. 1971). Thus, we conclude the Tax Court’s order is not an appealable collateral order.
The Appellants also argue that another exception to the final decision rule applies.
In Gillespie v. United States Steel Corp., the Supreme Court ruled that the court of
appeals had jurisdiction over a “marginal[ly]” final order coming within the “twilight
zone of finality” that disposed of an unsettled issue of national significance because
review of that issue unquestionably “implemented the same policy Congress sought to
promote in § 1292(b),” and the issue of finality had not been presented to the Court until
argument on the merits, thereby obviating any benefit to judicial economy if the case
were remanded with the finality issue undecided. 379 U.S. 148, 152-54 (1964) (internal
quotation marks omitted); see Coopers & Lybrand v. Livesay, 437 U.S. 463, 477 n.30
(1978), superseded on other grounds by rule, Fed. R. Civ. P. 23(f), as recognized in
Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017). The twilight zone doctrine has since
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been very narrowly interpreted. Indeed, “[i]f Gillespie were extended beyond the unique
facts of that case, § 1291 would be stripped of all significance.” Coopers & Lybrand, 437
U.S. at 477 n.30.
We conclude the Tax Court’s order is not a marginally final order. As noted above,
the appeal of a denial of a motion to recuse is neither final nor an appealable collateral
order. Furthermore, the issue that the Appellants seek to raise is not unsettled. Although
courts have differed in their rationale, compare Kuretski v. Comm’r, 755 F.3d 929, 938-45
(D.C. Cir. 2014), with Battat v. Comm’r, No. 17784-12, 2017 WL 449951, at *12-16
(T.C. Feb. 2, 2017), appeal docketed, No. 17-11646 (11th Cir. Apr. 11, 2017), courts have
uniformly held that the President’s power to remove Tax Court judges for cause does not
violate the separation of powers, Kuretski, 755 F.3d at 939; Battat, 2017 WL 449951, at
*16, and no court has ruled otherwise. Thus, the Tax Court’s order does not fall within
the twilight zone of marginally final orders requiring immediate appeal.
The Appellants next argue that the Tax Court’s order is immediately appealable
because it had the practical effect of denying an injunction.
We have appellate
jurisdiction over “[i]nterlocutory orders of the district courts of the United States . . .
granting, continuing, modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions . . . .” 28 U.S.C. § 1292(a)(1) (2012). An order that has
the practical effect of granting or denying an injunction is an appealable interlocutory
order if it “(1) may have a serious, perhaps irreparable consequence and (2) can only be
effectually challenged through immediate appeal.” United States ex rel. Lutz v. United
States, 853 F.3d 131, 139 (4th Cir. 2017) (internal quotation marks omitted).
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It is unclear whether § 1292(a)(1) applies to Tax Court orders, but we need not
decide that issue in this case. Even assuming § 1292(a)(1) applies, the Appellants have
not shown that the Tax Court order here had the effect of denying an injunction because,
as discussed above, the Appellants have not shown that the Tax Court’s order “can only
be effectually challenged through immediate appeal,” United States ex rel. Lutz, 853 F.3d
at 139, as we have routinely dismissed interlocutory appeals of orders denying a motion
to recuse, see Vuono v. United States, 441 F.2d 271, 272 (4th Cir. 1971); Okpala v.
Computer Scis. Corp., CSC, 636 F. App’x 878, 879 (4th Cir. 2016) (Nos. 15-1637/1914);
United States v. Phillips, 420 F. App’x 269, 269 (4th Cir. 2011) (No. 10-7527); United
States v. Law, 354 F. App’x 738, 738 (4th Cir. 2009) (No. 09-7288). Furthermore, a court
does not enjoin itself. Cf. Penoro v. Rederi A/B Disa, 376 F.2d 125, 129 (2d Cir. 1967).
Thus, because the Tax Court’s order is not a final decision and is not an appealable
collateral order, a marginal order within the twilight zone of finality, or an order that had
the effect of denying an injunction, we conclude that we do not have jurisdiction over the
Appellants’ appeal, and the appeal is subject to dismissal.
The Appellants have also filed a motion to convert their appeal into a petition for
writ of mandamus. “A district judge’s refusal to disqualify himself can be reviewed in
this circuit by way of a petition for a writ of mandamus.” In re Beard, 811 F.2d 818, 827
(4th Cir. 1987). Thus, we grant the motion and proceed to the merits of the petition.
Mandamus relief is a drastic remedy and should be used only in extraordinary
circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976); Cumberland Cty.
Hosp. Sys., Inc. v. Burwell, 816 F.3d 48, 52 (4th Cir. 2016). A petitioner must show that
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first, he has “no other adequate means to attain the relief he desires.” Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380 (2004) (internal quotation marks omitted). Second, a petitioner
must show that he has a “clear and indisputable” right to the relief sought. Id. at 381.
Finally, “even if the first two prerequisites have been met, the issuing court, in the
exercise of its discretion, must be satisfied that the writ is appropriate under the
The Appellants appear to contend that we should grant the motion to convert their
appeal but not rule on the merits of the petition, instead allowing for a reinstatement of
the briefing schedule. But this would amount to a backdoor entrance to an interlocutory
appeal, in clear contravention of I.R.C. § 7482(a) and 28 U.S.C. § 1291, which thus
would strongly suggest that a writ would not be “appropriate under the circumstances.”
See Cheney, 542 U.S. at 381. In any event, the standards for evaluating the Appellants’
argument in a normal appeal versus a petition for writ of mandamus are entirely different:
in seeking a writ of mandamus, it is not enough that the Appellants’ arguments be
correct—they must be indisputably correct. See id. But two courts have ruled contrary to
the Appellants’ arguments, notwithstanding their differing rationales, see Kuretski, 755
F.3d at 938-45; Battat, 2017 WL 449951, at *12-16, and no court has ruled in favor of the
Appellants’ arguments. As a result, even if the Appellants’ arguments were ultimately
found to be correct, they are not “clear[ly] and indisputabl[y]” correct. See Cheney, 542
U.S. at 381. Thus, we conclude the Appellants are not entitled to a writ of mandamus.
Accordingly, we grant the Commissioner’s motion to dismiss and dismiss the
appeal. We grant the Appellants’ motion to convert the appeal into a petition for writ of
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mandamus and deny the petition. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
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