     Case: 18-50720      Document: 00514641328         Page: 1    Date Filed: 09/13/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-50720
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
In re: OLEG JANKOVIC,                                               September 13, 2018
                                                                       Lyle W. Cayce
              Petitioner                                                    Clerk




                          Petition for a Writ of Mandamus
                         to the United States District Court
                          for the Western District of Texas
                               USDC No. 5:10-CV-713


Before SOUTHWICK, HAYNES, and HO, Circuit Judges.
PER CURIAM:*
       In 2012, Respondents 1 obtained a judgment against Oleg Jankovic, now
exceeding over $13 million. Since that time, they have engaged in post-trial
discovery without success in collecting on the judgment. Pertinent to this
mandamus petition, they have repeatedly attempted to obtain Jankovic’s
business entities’ tax returns covering the last eight years. The district court
concluded that Jankovic has been uncooperative with those efforts. In July
2017, the district court issued an order of contempt, finding that Jankovic had



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 Respondents are Howard Lowry and Patrick Lowry, Individually, and as Owners
on Behalf of Tariq Al-Waffa for General Trading & Trading Agencies Company.
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“thwart[ed] the execution of correct and proper IRS authorizations” that would
allow Respondents to obtain the relevant tax returns from the Internal
Revenue Service directly. On January 4, 2018, Respondents moved to hold
Jankovic in contempt for failing to comply with the July 2017 order. After a
hearing 2, the district court issued an order conditionally granting the motion
for contempt. The district court ordered that Jankovic had until July 9

              to do whatever is necessary, including but not limited
              to correct and proper authorizations, letters to the IRS
              Commissioner, letters to his Congressmen to help
              expedite the process, daily calls and visits to the
              Internal Revenue Services (IRS) headquarters, and
              anything else that he needs to do, to have the IRS
              provide to the plaintiffs directly all of the tax returns
              on file with the IRS for JAI and JAI Holdings 3 from
              2010 to the present or, if no tax returns are on file with
              the IRS, an official statement or documentation from
              the IRS proving that no tax returns exist for JAI and
              JAI Holdings for the tax years requested.
       On July 6, Jankovic filed a motion to modify the conditional order,
claiming he had substantially complied with the order and seeking an
extension of the performance deadline. In response, the district court noted
that Jankovic had “produced no independent documents verifying [his] efforts,”
but granted an extension until August 24 to afford Jankovic “one last
opportunity to comply with all of the Court’s previous orders or to present
verifiable evidence of his efforts to do so.” Jankovic did not do so. Thus, on
August 28, the district court issued an order of contempt that ordered Jankovic
incarcerated until he purged himself of the contempt. Jankovic then filed this


       2 Jankovic argues the district court violated his due process rights by failing to hold
a hearing before issuing the order of contempt. But the district court held a hearing on March
21, 2018 at which “evidence was presented,” and Jankovic testified.
       3 JAI and JAI Holdings are Jankovic’s companies.           JAI refers to Jankovic and
Associates, Inc., a co-defendant in the underlying suit and party to the 2012 judgment.

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petition for writ of mandamus and a motion to stay the order of contempt
pending the mandamus proceeding. Because of the limited time before the
contempt order would take effect, we granted a temporary stay to allow time
for a response and proper consideration of the petition and motion. We now
VACATE the temporary stay order, DENY the motion to stay, and DENY the
petition for writ of mandamus.

      Mandamus is an extraordinary remedy, and a petitioner must meet
three requirement before a writ can issue: (1) “the party seeking issuance of
the writ must have no other adequate means to attain the relief he desires”;
(2) “the petitioner must satisfy the burden of showing that his right to issuance
of the writ is clear and indisputable”; and (3) “the issuing court, in exercise of
its discretion, must be satisfied that the writ is appropriate under the
circumstances.” In re Volkswagen, 545 F.3d 304, 311 (5th Cir. 2008) (en banc)
(internal alterations and quotation marks omitted).          Jankovic does not
explicitly address any of these factors in his petition. More importantly, he
does not meet any of them.

      First and foremost, he fails to show that appeal is not an “adequate
means” to obtain relief.     A civil contempt order is appealable after final
judgment. See Doyle v. London Guar. & Accident Co., 204 U.S. 599, 603 (1907)
(finding that “an order punishing for contempt . . . is . . . to be reviewed only
upon appeal from a final decree in the case”). Mandamus may not serve as a
substitute for the appeals process. In re Avental, S.A., 343 F.3d 311, 317 (5th
Cir. 2003). The petition fails on this point alone.

      However, even if we reached the next two prongs, Jankovic fails to make
the necessary showing.     To the extent Jankovic claims his right is clear and




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indisputable because the district court abused its discretion, 4 we disagree.
Construing the district court’s order of conditional contempt as requiring
Jankovic to complete the specific actions listed in the order 5 , we find the
district court was within its discretion to find clear and convincing evidence
that Jankovic failed to comply. See Hornbeck Offshore Servs., L.L.C., 713 F.3d
at 792 (noting that a court must find contempt by clear and convincing
evidence). Although Jankovic stated that he had submitted authorization
forms to the IRS, repeatedly communicated with the IRS regarding the tax
returns, and written to his congressional representatives, he provided no
documentation that he had done so. In addition, Respondents submitted a
status report to the district court explaining that as of August 24, 2018, they
had received no pertinent information from Jankovic. 6 Thus, because Jankovic
failed to show a clear and indisputable right to the writ, we VACATE the
temporary stay order, DENY the motion to stay, and DENY the petition for the
writ of mandamus.




       4 “We review contempt findings for abuse of discretion, but ‘review is not perfunctory.’”
Hornbeck Offshore Servs., L.L.C., v. Salazar, 713 F.3d 787, 792 (5th Cir. 2013) (quoting Crowe
v. Smith, 151 F.3d 217, 226 (5th Cir. 1998)). Facts are accepted as true unless clearly
erroneous, but we review questions of law de novo. Id.
       5   Had the district court simply ordered Jankovic to “do whatever is necessary” to
obtain the returns from the IRS, we would have a more difficult question. However, we need
not reach that question here because the district court specified particular actions, and
Jankovic has not complied with those specific requirements.
       6 Jankovic argues the contempt order is properly characterized as criminal because

his inability to force the IRS to produce his tax returns means he cannot purge the contempt.
But as noted supra, the contempt order required Jankovic to complete specific actions, all of
which were within his power to accomplish.

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