collecting “a long line of cases” where “the Supreme Court has itself . . . specifically af- firmed the appropriateness of mandamus relief to compel federal officers to pay monies out of the public treasury, where the duty to do so was clear and ministerial”
How later courts described this case
- collecting “a long line of cases” where “the Supreme Court has itself . . . specifically af- firmed the appropriateness of mandamus relief to compel federal officers to pay monies out of the public treasury, where the duty to do so was clear and ministerial”
- "[T]he existence of § 1361 jurisdiction is unavoidably bound up with the merits."
- in case where IRS promised to apply overpayment, Court held them to promise, but noted that IRS normally has discretion to make this choice in first instance
- “when the applicable period of limitations has run and no refund claim whatsoever has been filed, there is no room to argue that the statutory requirement has been waived”
Written by the judges who cited it.
The opinion
TONE, Circuit Judge, dissenting.
In City of Highland Park v. Train, 519 F.2d 681, 691-692 (7th Cir. 1975), we held that mandamus was not available because another remedy, an action under § 304(a)(2) of the Clean Air Amendments of 1970, 42 U.S.C. § 1857h-2(a)(2), would have been available to obtain the same relief if plaintiffs had chosen to comply with the proce *1258 dural prerequisites to an action under that section. For me, that case and this can be distinguished on a principled basis only if the taxpayer here did not have a reasonable opportunity to pursue the remedy provided by 28 U.S.C. § 1346 (a)(1). Although the taxpayer and his counsel may well have been misled by the District Director’s letter of July 10, 1972, the statutory remedy was nevertheless available if timely asserted and the fact that the remedy became time barred did not make mandamus appropriate when it would not have been so previously. I therefore reluctantly dissent.