Jose
United States v. Jose
Opinion
Dissenting Opinion
Silver, J.
dissenting:
Because I would decide this case on the merits and not dismiss it for lack of ripeness, I respectfully dissent.
The majority opinion is puzzling.
Courts have invoked the ripeness doctrine and refused to decide matters which would involve “entangling themselves in abstract disagreements_” Abbott Laboratories v. Gardner, 387 U.S. 136, 148 , 87 S.Ct. 1507, 1515 , 18 L.Ed.2d 681 (1967). Generally, those cases involve situations with very uncertain, remote or contingent events. Dames & Moore v. Regan, 453 U.S. 654, 687-91 , 101 S.Ct. 2972, 2991-92 , 69 L.Ed.2d 918 (1981); Webster v. Mesa, 521 F.2d 442, 444 (9th Cir.1975) (a challenge to a statutory provision requiring independent candidates to win a total percentage vote in the primary election was not ripe because no independent candidate had ever been disqualified by the statute which made the issue hypothetical). Courts have also relied on the ripeness doctrine in refusing to hear cases where the facts needed further development. Wheeler v. Barrera, 94 S.Ct. 2274 , 94 S.Ct. 2274 , 41 L.Ed.2d 159 (1974) (the state should be given the opportunity to comply with a federal program before a decision on compliance could be…
Lead Opinion
Silver, J.
ORDER
The Internal Revenue Service appeals the district court’s order conditionally enforcing two summonses served on Laddie F. Jose as Trustee of the Jose Business Trust and Jose Family Trust. The IRS challenges the condition of enforcement that requires the Examination Division to give Jose five days notice before disclosing to any other division of the IRS documents produced by Jose. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we dismiss the appeal as not ripe.
The record indicates that the IRS represented to the district court that the documents requested of Jose were for civil tax examination purposes only, not for a criminal investigation. The record does not indicate that the Examination Division has attempted to disclose the documents to any other IRS division, thereby triggering the five-day notice requirement. Thus, any detrimental impact the district court’s order may have on the IRS’s investigation is, at this time, purely speculative. Accordingly, the IRS’s appeal is not ripe for review. The appeal is DISMISSED.