United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
A. Eddings has filed a pro se Petition for Writ of Mandamus,
EFC No. 294, which has been docketed as a request for court
order terminating restitution deductions,  as well as a
motion to expedite consideration of the mandamus petition,
ECF No. 299. Both matters have been referred to the
undersigned U.S. Magistrate Judge. ECF No. 301. The
government has opposed the petition, ECF No. 306, and
petitioner filed a reply, ECF No. 307. For the reasons that
follow, the undersigned concludes that mandamus jurisdiction
is lacking, and that the petition should be denied.
February 26, 2009, Mr. Eddings and his co-defendant were
indicted on numerous fraud-related charges. ECF No. 1. Mr.
Eddings was ultimately charged by superseding indictment on
May 12, 2011, with six counts of mail fraud, in violation of
18 U.S.C. § 1341; three counts of wire fraud, in
violation of 18 U.S.C. § 1343; three counts of money
laundering, 1 in violation of 8 U.S.C. § 1957, and three
counts of tax evasion, in violation of 26 U.S.C. § 7201.
ECF No. 81. Petitioner went to trial, and on November 4,
2011, the jury found him guilty on all counts. ECF No. 141.
Eddings was sentenced on April 24, 2012, and restitution was
ordered in the amount of $5, 880, 450.62. ECF No. 197. On
November 7, 2014, the Court of Appeals affirmed the
convictions, vacated the sentence, and remanded for
resentencing. ECF No. 230. The appellate court found error
regarding various Guidelines adjustments, but the amount of
restitution was not challenged on appeal. Id.
Petitioner was resentenced on May 17, 2016. ECF No. 282. The
original restitution amount was re-imposed. Id.
April 29, 2019, Mr. Eddings filed the instant pro se petition
for mandamus relief. ECF No. 294. In it, he seeks a court
order compelling the Financial Litigation Unit
(“FLU”) of the U.S. Attorney's Office to
provide a hearing pursuant to 26 U.S.C. § 6320.
Petitioner states that he received a demand notice from the
FLU on or about August 3, 2012, demanding payment of
court-ordered restitution. He attaches the demand notice. ECF
No. 294 at 1, 4, 6. Petitioner states that he satisfied the
demand by providing a bond; he attaches the purported bond
and proof of mailing. Id. at 1, 9, 11-13. When the
FLU failed to notify him that his lien had been released upon
receipt of the bond, defendant requested an “Other
Evidentiary Hearing” pursuant to 26 U.S.C. § 6320.
A copy of the request, an undated IRS Form 12153, is attached
to defendant's Motion to Expedite Consideration. ECF No.
299 at 4-5. Because he has not received such a hearing,
petitioner seeks a writ of mandamus compelling one. ECF No.
294 at 2.
Standards Governing Mandamus Relief
district courts have “original jurisdiction over any
action in the nature of mandamus to compel an officer or
employee of the United States to perform a duty owed to the
plaintiff.” 28 U.S.C. § 1361. However, mandamus is
an extraordinary remedy. Barron v. Reich, 13 F.3d
1370, 1374 (9th Cir. 1994). It is “available to compel
a federal official to perform a duty only if: (1) the
individual's claim is clear and certain; (2) the
official's duty is nondiscretionary, ministerial, and so
plainly prescribed as to be free from doubt, and (3) no other
adequate remedy is available.” Patel v. Reno,
134 F.3d 929, 931 (9th Cir. 1997). Where these requirements
are not met, the district court lacks mandamus jurisdiction.
Stang v. Internal Revenue Serv., 788 F.2d 564 (9th
Cir. 1986). The decision to grant mandamus relief is
discretionary, even if all three elements are satisfied.
Oregon Natural Resources Council v. Harrell, 52 F.3d
1499, 1508 (9th Cir. 1995).
does not meet the threshold requirements for mandamus relief.
First, his claim is far from clear and certain. To the
contrary, the claim is legally frivolous. Petitioner seeks an
order compelling the FLU of the U.S. Attorney's Office to
provide a type of hearing in relation to a restitution
obligation that is available only from the IRS in relation to
a lien imposed directly by that agency under the Federal Tax
Lien Act. See generally, 26 U.S.C. §§
6320-6327.Specifically, § 6320 provides for
notice and an opportunity for hearing when the IRS files a
tax lien pursuant to § 6321. Section 6330, which
petitioner cites in his Motion to Expedite Consideration,
provides the same notice and opportunity for hearing
requirements in the context of tax levies. The form that
petitioner submitted to request a hearing, IRS Form 12153
(Request for a Collection Due Process Hearing or Equivalent
Hearing), states on its face that such hearings may be
requested from the IRS Office of Appeals in response to
various specific IRS notices of tax lien filings and/or
levies. ECF No. 299 at 4. The demand notice that petitioner
received from the FLU regarding criminal restitution is not
an IRS notice of tax lien filing or levy, and therefore did
not trigger any protections under § 6320 or § 6330.
In sum, petitioner's factual allegations and supporting
documents do not establish a clear and certain claim for
relief. Rather, the relief he seeks is legally unavailable.
petitioner's claim rests on the factual premise that his
financial obligation to the government was extinguished by
his presentation of a bond. However, it is clear from the
face of petitioner's Exhibit A that this document had no
actual value or legal effect. The certificate is titled
“Private Registered Bond for Investment, ” with a
purported value of “One Hundred Million U.S. Dollars,
” and states that it is a “Private Registered
Self-Backed Bond Based On Future Earnings In Re: Live Birth #
[number illegible] for Investment at the Discretion of the
Secretary of the Treasury/U.S. Department of the Treasury as
Fiduciary.” ECF No. 294 at 9. Mr. Eddings is named as
the “Trustee/Secured Party.”
Id. This certificate is not a legitimate
financial instrument, and its presentation can have no effect
on petitioner's restitution obligation or give rise to a
right to a hearing of any kind.
the government's duty to provide the requested hearing is
not “free of doubt.” To determine whether such a
duty exists, the court must look to the entire Act at issue.
Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.
1986). Plaintiff seeks to enforce an alleged duty to provide
a hearing under the Internal Revenue Code, but the hearing
provisions of that code apply only where the IRS has itself
initiated specific types of liens and levies. Because
petitioner has not demonstrated that he is subject to an IRS
lien or levy, it is highly doubtful that the government has
any duty to provide a § 6320 or § 6330
hearing. Moreover, the cited sections of the
Internal Revenue Code do not authorize the FLU, which
plaintiff names as respondent, or any other subdivision of
the Department of Justice, to conduct tax lien hearings under
§ 6320 or § 6330. Nor does the statutory scheme at
issue here address or apply to liens arising from an order of
criminal restitution. For all these reasons, petitioner has
not demonstrated that the government has any duty at all to
provide the requested hearing - let alone a duty that is
“nondiscretionary, ministerial, and so plainly
prescribed as to be free from doubt.” Patel v.
Reno, 134 F.3d at 931.
adequate remedies exist to protect petitioner's rights
vis-à-vis restitution and any outstanding tax
liabilities. The Internal Revenue Code provides an
administrative appeal process for tax liens. 26 U.S.C. §
6326. To the extent that petitioner wishes to contest the
validity of any tax lien that exists independently of his
criminal restitution obligation, he thus has an adequate
remedy available. As to his restitution obligation,
petitioner's rights were thoroughly protected in the
criminal sentencing process, and appellate review was
available for any errors in the assessment of restitution.
Petitioner received the process he was constitutionally due
in relation to his restitution obligation at sentencing. To
the extent petitioner now wishes to contest the methods by
which the FLU seeks to collecting that debt, alternative
remedies also exist. Generally, district courts have
jurisdiction under 28 U.S.C. § 2241 to entertain
challenges to the collection of fines and restitution
payments, which involve the execution of sentence.
See, e.g., Montano-Figueroa, 162
F.3d 548, 549 (9th Cir. 1998) (reaching the merits of
petitioner's section 2241 challenge to amount and timing
of fine payments); see also United States v.
Lemoine, 546 F.3d 1042, 1046 (9th Cir. 2008) (reaching
the merits of petitioner's 2241 claim regarding
participation in Inmate Financial Responsibility
Program). Because alternative remedies exist,
mandamus will not lie.
petitioner fails to meet the prerequisites for relief, he has
failed to establish mandamus jurisdiction. See
Stang, 788 F.2d at 564-65. In the alternative,
petitioner has failed to state a claim for mandamus relief.
The fact that some of petitioner's restitution is owed
for tax evasion does not convert his restitution balance into
a tax lien that implicates the hearing provisions of the
Internal Revenue Code. The restitution order creates a lien
on defendant's property as a matter of law, 18 U.S.C.
§ 3613(c), and plaintiffs ...