1 In considering a motion to dismiss for failure to state a claim under ...

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in a certain fashion, Am. compl. 4; pl. obj. 44-48. However, even if it were appropriate, 10 the alleged facts are insufficient for a grant of mandamus. 11 Next, an award of attorney’s fees and costs is requested under 26 U.S.C. §7430(a) as a result of plaintiff’s successful proceeding in the United States Tax Court, Am. compl. 4; pl. obj. 13. That claim must be brought in the court in which the litigant prevailed, not here. 26 U.S.C. §7430(a). One claim cannot be decided under Rule 12. It concerns a certain document that plaintiff contends was used by the IRS in reaching invalid assessments against him. Plaintiff cites 5 U.S.C. §552a as authority for requiring the IRS to divulge such 10 The conditions for mandamus are the statement of a clear right to the relief sought and the unavailability of any other adequate remedy. See In re Asbestos School Litigation, 46 F.3d 1284, 1288-89 (3d Cir. 1994). Furthermore, mandamus is a drastic remedy to be restricted to “extraordinary situations,” and invoked “sparingly” and with discretion. Id. at 1288. 11 The amended complaint also requests an injunction against the IRS, Am. compl. demand 4. Even if not styled a petition for a writ of mandamus, such a request is barred by the Anti-Injunction Act, 26 U.S.C. §7421(a). Our Circuit has held that even under a statutory exception to the Anti-Injunction Act, taxpayers will not be successful unless they can allege facts sufficient to meet the “traditionally required” conditions necessary for injunctive relief: irreparable harm, absence of legal remedy, and unlikelihood no chance the government will prevail on merits. Robinson v. United States, 920 F.2d 1157, 1160 (3d Cir. 1991) (citing Flynn v. United States, 786 F.2d 586, 590 (3d Cir. 1986)). 8
information, Am. compl. 113-15. The IRS denies that it is aware of such a document, def. memorandum at 15. Defendants refer to an affidavit by an attorney with the IRS District Counsel in Philadelphia in support of their factual position (“Curran Declaration”). Because the issue involves facts outside plaintiff’s pleadings, the procedural posture changes from Rule 12 to Rule 56 - summary judgment. 12 Information was also submitted by plaintiff at a status conference on August 13, 1997 to rebut the affidavit. Under Rule 12(b)(1), before such an issue may be considered “and disposed of as provided in Rule 56, ... all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12(b). At this stage, under the law of summary judgment, plaintiff must produce or point to matters that show a genuine issue of material fact - i.e., as to the existence of the controverted document. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. Otherwise, summary judgment must be granted for defendant-movants. Id. The matters that may be offered must be in the form recognized by Rule 56, such as “depositions, answers to interrogatories ... admissions ... together with affidavits.” Fed.R.Civ.P. 56(c). Plaintiff will be granted until December 12, 1997 to submit any further evidence or argument on the document in question. Otherwise, for the reasons given, the amended complaint does not appear to have stated a claim either upon which relief could 12 Summary judgment is appropriate when after considering the record in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled to judgement as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323-325, 106 S. Ct. 2548, 91 L. Ed.2d 265 (1986); Charlton v. Paramus Board of Education , 25 F.3d 194, 197 (3d Cir. 1994). 9
Page 1 and 2: IN THE UNITED STATES DISTRICT COURT
Page 3 and 4: that the IRS failed to send notices
Page 5 and 6: on alleged ... disregard in connect
Page 7: It is also claimed that the conduct
Page 11: IN THE UNITED STATES DISTRICT COURT

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