Tomlinson v. Florida Iron and Metal, Inc., 18850.

Citation291 F.2d 333
Decision Date14 June 1961
Docket NumberNo. 18850.,18850.
PartiesLaurie W. TOMLINSON, District Director of Internal Revenue for the District of Florida, Appellant, v. FLORIDA IRON AND METAL, INC., Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Myron C. Baum, Atty., Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson and David O. Walters, Attys., Dept. of Justice, Washington, D. C., Don M. Stichter, Asst. U. S. Atty., Tampa, Fla., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellant.

Roger L. Davis, Fort Lauderdale, Fla., Robert W. Patton, Leonard M. Anton, Tampa, Fla., for appellee.

Before TUTTLE, Chief Judge, RIVES, Circuit Judge, and DE VANE, District Judge.

TUTTLE, Chief Judge.

This is an appeal from an order denying a motion by appellant District Director of Internal Revenue to disqualify one Roger L. Davis, an attorney of record for appellee, under the provisions of 5 U.S.C.A. § 99.1

The facts are not in dispute. The suit between Florida Iron and Metal, Inc. and the appellant is a suit for the recovery of taxes alleged to have been illegally collected by him as Director of Internal Revenue for the District of Florida. Before it was filed, claims for refund were filed with the Internal Revenue Service as required by law. These claims were disallowed and suit followed. At the time that the claims were pending and at the time the suit was filed Davis was an attorney in the office of the Chief Counsel of the Internal Revenue Service, and thus was an attorney employed in the office of the general counsel for the Department of the Treasury. Within two years of the termination of his employment in the Treasury Department Davis was employed as an attorney for the taxpayer and appeared in court proceedings in connection with the litigation. Thereupon the appellant filed a motion to disqualify him from such appearance and employment. The district court denied the motion. This appeal followed.

We have the threshold question whether such an order is appealable. We conclude that it is under the principle announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and applied by this Court in Tomlinson v. Poller, 5 Cir., 220 F.2d 308, 311. As we said in the Poller case, this is "a matter entirely disconnected with the principal contention of the taxpayers in the pending suit," and, "This order constitutes a final decision on that ancillary matter." Here, if the order was in error, the harm resulting therefrom is in the nature of the frustration of a public policy which cannot be avoided or mitigated by any appeal taken after the trial, with Davis participating, is finally ended. See in this connection Overby v. United States Fidelity and Guaranty Co., 5 Cir., 224 F.2d 158.

We next come to the motion to dismiss the appeal for mootness. The two year period as to which the statute would be applicable if it covers this case expired on April 20, 1961. It is not disputed that the employment under which Davis appeared in court in this case is continuing employment. It was so conceded on oral argument in this Court. We think that if Davis was disqualified under the law to accept such employment, then the order of the trial court refusing to disqualify him is appealable so long as he is continuing to act under such illegal engagement.

Coming now to the merits of the controversy, we find two principal contentions made by the appellee: First, the statute does not apply to services performed in court by the persons mentioned, but forbids only the pursuit of claims within the departments of the government. Second, it does not apply to a suit for refund for taxes against an Internal Revenue Director because this is not a "claim against the United States.

It is not disputed that Davis was an employee in a department of the government; nor is it disputed that the claims for refund of taxes were actually filed and were actually pending in the Internal Revenue Service while Davis was in the Chief Counsel's office. It is not alleged that he had any knowledge about the claims. Such knowledge is irrelevant under this particular statute.

As to the first contention, that the statute does not apply to actions in court, but only to pursuing claims administratively, we say only that we think the language of the section is not reasonably susceptible to any...

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  • April 1977 Grand Jury Subpoenas, In re
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • September 7, 1978
    ...(sic) 385 F.2d 992, 994 (5th Cir. 1967), Cert. denied, 390 U.S. 921, 88 S.Ct. 853, 19 L.Ed.2d 980 (1968); Tomlinson v. Florida Iron & Metal, Inc., 291 F.2d 333, 334 (5th Cir. 1961) (order denying motion for disqualification is final where "harm resulting therefrom is in the nature of the fr......
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    ... ... scheme concocted by Alexander & Allen, Inc., a Florida-based group of broker-dealers. The ... , 5 Cir., 1975, 517 F.2d 272, 275; Tomlinson v. Florida Iron & Metal, ... Page 810 ... ...
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    • January 24, 1979
    ...93 S.Ct. 54, 34 L.Ed.2d 89 (1972); MacKethan v. Peat, Marwick, Mitchell & Co., 557 F.2d 395 (4th Cir. 1977); Tomlinson v. Florida Iron & Metal, Inc., 291 F.2d 333 (5th Cir. 1961); Schloetter v. Railoc of Ind., Inc., 546 F.2d 706 (7th Cir. 1976); Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 6......
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    • U.S. Court of Appeals — District of Columbia Circuit
    • November 19, 1976
    ...385 F.2d 992, 994 (5th Cir. 1967), cert. denied, 390 U.S. 921, 88 S.Ct. 853, 19 L.Ed.2d 980 (1968); cf. Tomlinson v. Florida Iron & Metal, Inc., 291 F.2d 333, 334 (5th Cir. 1961).20 See Melamed v. ITT Continental Baking Co., 534 F.2d 82, 84 (6th Cir. 1976).21 See Fullmer v. Harper, 517 F.2d......
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