Herbert K. McKirgan v. Internal Revenue Service Mike Kolpack

967 F.2d 588 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Herbert K. McKIRGAN, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE; Mike Kolpack, Defendant-Appellee. No. 91-35235. United States Court of Appeals, Ninth Circuit. Submitted June 4, 1992. * Decided June 15, 1992. Before EUGENE A. WRIGHT, CANBY and WIGGINS, Circuit Judges. 1 MEMORANDUM ** 2 Herbert McKirgan ("McKirgan") appeals the granting of the government's motion to dismiss. We affirm. 3 McKirgan contends that the district court erred in considering sources other than the pleadings without giving notice to the parties. As the district court stated, however, the government's motion to dismiss for lack of jurisdiction was a factual attack, so that it was appropriate for the district court to consider materials outside of the pleadings. St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.), cert. denied, 493 U.S. 993 (1989). Moreover, there is no requirement in such circumstances that the district court give…