# John Vishnevsky and Margaret Vishnevsky v. United States

> Court of Appeals for the Seventh Circuit · August 9, 1978 · 581 F.2d 1249

URL: https://www.frixlaw.com/law-library/cases/9465051

## Case

- **Full name:** John VISHNEVSKY and Margaret Vishnevsky, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** August 9, 1978
- **Citations:** 581 F.2d 1249; 42 A.F.T.R.2d (RIA) 5681; 1978 U.S. App. LEXIS 9661
- **Precedential status:** Published
- **Opinion:** Dissent by Tone
- **Judges:** East, Pell, Tone
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9465051

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465051. Public record. Not legal advice.