June 26, 2019

Tenth Circuit: Mandamus Unavailable when Appeal in Normal Course will Supply Remedy

The Tenth Circuit Court of Appeals issued its opinion in Feinberg v. Commissioner of Internal Revenue on Friday, December 18, 2015.

Petitioners Neil Feinberg, Andrea Feinberg, and Kellie McDonald operate Total Health Concepts, or THC, an authorized Colorado marijuana dispensary. After the Internal Revenue Service (“IRS”) disallowed their business expense deductions and sent them a large bill, on the ground that their conduct violates federal criminal drug laws, the petitioners challenged that ruling in tax court. In the tax court proceedings, the IRS issued discovery requests asking the petitioners about the nature of their business in order to establish that petitioners are indeed trafficking in marijuana. The petitioners resisted these requests by asserting that their Fifth Amendment privilege against self-incrimination relieved them of the duty to respond. In response, the IRS filed with the tax court a motion to compel production of the discovery it sought, arguing because the Department of Justice’s memorandum on the legalization of marijuana by the states generally instruct federal prosecutors not to prosecute cases like this one, the petitioners should be forced to divulge the requested information. The tax court granted the motion to compel and ordered the petitioners to produce the requested discovery. In seeking to overturn this ruling, because the tax court proceedings were ongoing, the petitioners sought a writ of mandamus from the Tenth Circuit Court of Appeals.

The Tenth Circuit ultimately denied the petition for a writ of mandamus made by petitioners. The court based this denial on two independent grounds. First, the court invoked the rule that a writ of mandamus isn’t available when an appeal in the normal course would suffice to supply any necessary remedy, and more specifically, the rule established in Mid-America’s Process Service v Ellison, that any error in a court’s order compelling production of civil discovery that the petitioners believed protected the Fifth Amendment could be satisfactorily redressed in an appeal after final judgment. The court found the rule in Mid-America’s Process Service is controlling and dispositive of the issue.

Alternatively, the Tenth Circuit determined even if Mid-America’s Process Service didn’t control this case at bar, the petitioners offered no persuasive reason for thinking an appeal after final judgment would fail to remedy any wrong they might suffer. The court left open the possibility that a future party in this context may be able to put fourth a convincing argument as to why the immediate remedy of mandamus is necessary to prevent an irreparable injury. However, the petitioners here were unable to do so. And that by itself, the court reasoned, supplies an independent reason – beyond the controlling precedent of Mid-America’s Process Service – to withhold the extraordinary remedy of mandamus in this case.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

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