* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 23 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOHN C. DEWEY,

Plaintiff-Appellant,

v. UNITED STATES OF AMERICA, and its agency, THE INTERNAL REVENUE SERVICE OF THE UNITED STATES,

Defendants-Appellees. No. 98-8044 (D.C. No. 92-CV-287-J) (D. Wyo.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination-2-

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This appeal is before us for the second time. We r emanded this case to the district court for consideration in light of Commissioner v. Schleier , 515 U.S. 323 (1995). The issues in this appeal are whether a mo netary settlement received by plaintiff after a jury verdict in his favor in a lawsuit pursuant to the Age Discrimination in Employment Act (ADEA) was excludable from gross income under 26 U.S.C. § 104(a)(2), and whether the Intern al Revenue Service (IRS) conducted a reexamination of plaintiff’s books and records connected with his 1984 tax return in violation of 26 U.S.C. § 7605(b) . We review the district court’s grant of summary judgment in favor of defendant de novo , see Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996), and we affir m. The district court was correct in its application of Schleier to this case. The Supreme Court held in Schleier that for a recovery to be excludable from gross income under § 104(a)(2), “the taxpayer must demonstrate that the underlying cause of action giving rise to the recov ery is based upon tort or tort type rights; and second, the taxpayer must show that the damages were received on account of personal injuries or sickness.” 515 U.S. at 337 (quotations omitted). The Court held that the plaintiff’s sett lement of his ADEA claim did not satisfy both requirements, and, therefore, the settlement was not excludable-3-

from gross income. We agree with the district court that, based on Schleier , plaintiff’s settlement pursuant to his ADEA claim w as not excludable from gross income under § 104(a)(2). Plaintiff’s ADEA award w as not based upon tort or tort-type rights, and neither was the award receive d on account of personal injuries or sickness. See Schleier, 515 U.S. at 332, 334. The district court found that, contrary to plaintif f’s assertion, the IRS did not reexamine plaintiff’s 1984 taxes in violation o f 26 U.S.C. § 7605. Like the district court, we recognize the government’s conte ntion that this matter is moot because plaintiff received a refund for the tax ass essed as a result of the process of which plaintiff complains. We do not reach the mootness issue, however, because we agree with the district court that no se cond examination as contemplated by § 7605 occurred. All the informati on considered by the IRS in making the alternative minimum tax calculation on p laintiff’s 1984 tax return was already in its possession. See Hough v. Commissioner , 882 F.2d 1271, 1275-76 (7th Cir. 1989) (holding that “use of information a lready in the possession of the Commissioner is not an examination for purposes of section-4-

7605(b)”). We affirm the grant of summary judgmenton this issue for the reasons stated by the district court. AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge