Martin v. Olson

Filing 17

ORDER granting ECF No. 7 Motion to Dismiss; denying as moot ECF No. 9 Motion to Admit Evidence; Clerk directed to enter judgment and close the case. Signed by Judge Robert C. Jones on 1/16/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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SCOTT R. MARTIN,
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Petitioner,
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vs.
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NINA E. OLSON,
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Respondent.
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3:17-cv-00474-RCJ-VPC
ORDER

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This is a pro se Petition for a writ of mandamus ordering Nina Olson, the National

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Taxpayer Advocate (“the Advocate”), to respond to various inquiries. Specifically, Plaintiff

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Scott Martin has demanded that the Advocate investigate certain “procedural irregularities” by

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employees of the Internal Revenue Service (“IRS”) and report her findings to him. (Pet. 2, ECF

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No. 1). Plaintiff disclaims any desire for a taxpayer assistance order (“TPO”). (See id.). The

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United States has moved to dismiss for lack of subject matter jurisdiction, sovereign immunity,

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and failure to state a claim.

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The Court grants the motion for lack of jurisdiction. “The district courts shall have

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original jurisdiction of any action in the nature of mandamus to compel an officer or employee of

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the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C.

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§ 1361. “Mandamus is an extraordinary remedy and is available to compel a federal official to

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perform a duty only if: (1) the individual’s claim is clear and certain; (2) the official’s duty is

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nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other

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adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997) (citing Azurin v.

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Von Raab, 803 F.2d 993, 995 (9th Cir. 1986)). Plaintiff has identified no nondiscretionary,

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ministerial duty owed to him by the Advocate. The Advocate’s power to issue a TPO is

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discretionary. See 26 U.S.C. § 7811(a)(1) (“may issue”). In any case, Plaintiff disclaims any

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desire for a TPO. Rather, he seeks to compel an investigation and subsequent report to him by

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the Advocate. But in neither the Petition nor the response to the motion to dismiss does Plaintiff

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identify any statute or regulation creating a duty in the Advocate to do so.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 7) is GRANTED.

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IT IS FURTHER ORDERED that the Motion to Admit Evidence (ECF No. 9) is

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DENIED as moot.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

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IT IS SO ORDERED.

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January day of November, 2017.
Dated this 17th16, 2018.

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_____________________________________
ROBERT C. JONES
United States District Judge

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