Opinion
16-cv-7256 (JGK)
12-22-2018
JOSHUA ROSNER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER JOHN G. KOELTL, District Judge :
The plaintiff, Joshua Rosner, has filed a three-part motion (1) objecting to the Magistrate Judge's order denying in part the plaintiff's request to quash the Government's third-party subpoenas, (2) requesting appellate certification for the Magistrate Judge's order under 28 U.S.C. § 1292(b), and (3) for a writ of mandamus under 28 U.S.C. § 1361 compelling the Commissioner of the Internal Revenue Service to conclude that the plaintiff was financially disabled during the tax years in question. The plaintiff's motion is denied.
First, the plaintiff argues that the Magistrate Judge incorrectly denied in part the plaintiff's request to quash the Government's third-party subpoenas because the Magistrate Judge failed to consider "the broader basis for [the plaintiff's] objections to the discovery sought by the Government," and because the order apparently contradicted a previous order of this Court. Pl.'s Mem. at 1. The Magistrate Judge's order did not contradict any previous order. Moreover, it is not clear what comprises the "broader basis" for the plaintiff's objections to the discovery. To the extent the plaintiff argues that discovery in this case should not extend beyond the administrative record, the plaintiff's argument has no merit. See Rosner v. United States, No. 16cv7256, 2018 WL 3392867, at *8 (S.D.N.Y. July 12, 2018) ("[I]n the context of tax refund actions, courts have allowed discovery beyond the administrative record . . . ."). In sum, the plaintiff's objection to the Magistrate Judge's order is unfounded.
Second, the plaintiff argues that certification for an interlocutory appeal of the Magistrate Judge's order is warranted in this case because it is necessary for the plaintiff to "seek the Circuit Court's review of significant federal questions that are issues of first impression." The Court construes this as a request that the Court certify for an interlocutory appeal this Court's order overruling the plaintiff's objection to the Magistrate Judge's discovery order. There is no basis for interlocutory review. The request is denied. See Mills v. Everest Reinsurance Co., 771 F. Supp. 2d 270, 273 (S.D.N.Y. 2009) (stating that appeals under 28 U.S.C. § 1292(b) are limited to "extraordinary cases where appellate review might avoid protracted and expensive litigation" and require "more than a claim that the court's ruling was wrong"). Granting the plaintiff's request would not "materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). To the extent the plaintiff seeks certification of an interlocutory appeal to address the merits of his case, his request is premature because this Court has not ruled on the merits of his case; there is no cognizable need for an immediate appeal of this discovery ruling.
Third, the plaintiff requests that the Court issue a writ of mandamus compelling the Commissioner of the Internal Revenue Service to conclude that the plaintiff was financially disabled during the tax years in question. The plaintiff argues, among other things, that the Commissioner misapplied various statutes and did not properly defer to the rules of the Secretary of the Treasury. As the Court previously notified the plaintiff, a writ of mandamus should be sought in a complaint. Dkt. No. 114 at 1. In any case, this case does not present an "extraordinary situation[]" warranting the "drastic" remedy of a writ of mandamus. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). Finally, the plaintiff's request for a writ of mandamus is properly characterized as a request for a decision on the merits of his case. Such a request should be made in a motion for summary judgment after the conclusion of discovery.
CONCLUSION
The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained above, the plaintiff's motion objecting to the Magistrate Judge's order, requesting certification for a 28 U.S.C. § 1292(b) appeal, and for a writ of mandamus is denied.
The Clerk is directed to close docket numbers 107 and 112.
SO ORDERED.
Dated: New York, New York
December 22, 2018
/s/ _________
John G. Koeltl
United States District Judge