Court Dismisses Bivens Claim Against IRS Agents for Asserting Accuracy-Related Penalties (4/21/25)

In Ray v. Priver, et al., 2025 U.S. Dist. LEXIS 71600, 2025 WL 1113406 (D. D.C. 4/15/25), CL here and GS here, The Court dismissed Ray’s Bivens actions against IRS agents that, he claimed, violated his constitutional rights in the IRS’s assertion of the accuracy-related penalty under § 6662(b)(1) and (2) and then in improperly influencing the Tax Court’s sustaining of the penalties in Ames v. Commissioner, T.C. Memo. 2019-36, GS here, aff’d in part and reversed in part with respect to a portion of the penalties, Ray v. Commissioner. 13 F.4th 467 (5th Cir. 2021), after remand motion to Reopen the Record denied in Tax Court (10/28/22), aff’d on appeal Ray v. Commissioner, 2023 U.S. App. LEXIS 21799, 2023 WL 5346067 (5th Cir. 8/18/23), GS here*, and petition for rehearing denied Ray v. Commissioner, 2023 U.S. App. LEXIS 27464 (5th Cir. 10/16/23). At the end of all that commotion from the main Tax Court case in 2019, Ray was liable for some of the accuracy-related penalty but not for a portion for which the Court of Appeals reversed the Tax Court on its denial of the “reasonable cause” defense.

I asked Gemini, Google’s AI Tool, to summarize the case. The following is the result which I have massaged somewhat (reminder these AI Tools, while good, need to be carefully reviewed and revised as appropriate).

Background:

• In 2014, the IRS audited Ray and issued a notice of deficiency, including a penalty under 26 U.S.C. § 6662(a) & (b)(1) (negligence or disregard) (b)(2) (substantial understatement).
• Ray claims this penalty was unwarranted, alleging that two other IRS agents found insufficient evidence for it. He asserts that Lawson and Priver knew this but still pursued the penalty and falsified evidence in his administrative file.
• Ray initially challenged the penalty in Tax Court, where he alleges Priver and Lawson repeatedly lied and falsified evidence. The Tax Court upheld the penalty, but the Fifth Circuit reversed finding Ray not liable for some of the penalty based on reasonable cause. On remand, the Tax Court entered decision sustaining the deficiency and the portion of the penalty approved by the Fifth Circuit.
• Ray later obtained files through a FOIA request, which he claims revealed that Priver and Lawson maliciously prosecuted the penalty claim and concealed exculpatory evidence.

Claims:

• Ray sued Priver and Lawson in their individual and official capacities, alleging what he called a Bivens action:
• Count I: Malicious prosecution in violation of the Fourth Amendment.
• Count II: Denial of a fair trial under the Fifth Amendment's Due Process Clause.

Defendants' Motion to Dismiss:

• Defendants moved to dismiss, arguing:
• Improper service (later moot due to government acceptance of service).
• Sovereign immunity bars official-capacity claims (conceded by Ray).
• Failure to state a claim against individual defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

Court's Ruling:

• The Court GRANTED the Defendants' motion to dismiss.
• The Court agreed that Ray's claims against Priver and Lawson in their official capacities are barred by sovereign immunity.
• Regarding the individual-capacity claims, the Court applied the two-step Bivens analysis:
• New Context: The Court found that Ray's claims arise in a "new context" because they involve IRS employees, a different statutory mandate (Internal Revenue Code), and do not align with the specific constitutional violations in the three previously recognized Bivens cases (Fourth Amendment unreasonable search and seizure, Fifth Amendment sex discrimination, and Eighth Amendment cruel and unusual punishment).
• Special Factors: The Court found "special factors" counseling against a new Bivens remedy, primarily the existence of a comprehensive alternative remedial scheme within the Internal Revenue Code. This scheme includes administrative review, the ability to sue for a refund, challenging assessments in Tax Court, and the Treasury Inspector General for Tax Administration (TIGTA) for investigating employee misconduct. The Court emphasized that even if these remedies don't provide complete relief (like monetary damages), their existence is sufficient to preclude a new Bivens action. 

• JAT Addition: The Court relied significantly on the Supreme Court’s admonition that expansions from past Bivens applications is “now a ‘disfavored’ judicial activity.” Hernandez v. Mesa, 589 U.S. 93, 102 (2020); and Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (citing Ashcroft v. Iqbal, 556 U. S. 662, 675 (2009)). 

Conclusion:

The Court concluded that Ray's case presents a new Bivens context, and the presence of an existing remedial scheme within the Internal Revenue Code constitutes a "special factor" that makes it inappropriate for the judiciary to imply a new damages remedy against individual IRS employees. Therefore, the Court dismissed Ray's amended complaint.

JAT Comments:

Political Thrashing Around Acting Commissioners and Commissioner of Internal Revenue (4/18/25; 4/19/25)

I thought I was through posting for the day and even for a few days. But this new item popped up. Jonathan Swan, Andrew Duehren, Alan Rappeport and Maggie Haberman, Head of I.R.S. Being Ousted Amid Treasury’s Power Struggle With Elon Musk (NYT 4/18/25), here. I think readers should be able to read the article, but if not a free article of some of the same content is Katherine Doyle, Trump is replacing the acting IRS commissioner, part of a dispute between treasury and Elon Musk (NBC News 4/18/25), here.

President Trump nominated a political actor, William Hollis Long II (“Billy”), Wikipedia here, but he has yet to have confirmation hearings. As the articles note, there has been some thrashing around in the “Acting” leadership in the IRS because of political meddling by Trump and his sycophants. I don’t propose to go into that.

The statute requires that the Commissioner have “demonstrated ability in management.”  § 7803(a)(1)(A), here. I would think that, by reasonable inference, Acting Commissioners should also meet that requirement. Hence, in the past Acting Commissioners were often drawn from high level Executive IRS officers who have demonstrated ability in management. Melanie Krause, Wikipedia here, former Acting who left a couple of days ago, had such demonstrated ability. She was replaced by Gary Shapley, one of the “whistleblowers” on the IRS investigation (conducted with the USAO Delaware) of Hunter Biden. It was never clear to me that Mr. Shapley had any such “demonstrated ability in management.” Nor, is it evident that Mr. Long, a former auctioneer and U.S. Representative, has such “demonstrated ability in management.”

Trump may have appointed Mr. Long to create further dysfunction in the IRS, so lack of management skills may be the whole point. Still, I would think that someone who is both smart and with management skills could do a better job of wrecking the IRS.

Trump’s First Term Commissioner was Charles P. (“Chuck”) Rettig, Wikipedia here. I know Chuck and like him a lot. I was not aware of his demonstrated ability in management, but I did know him to be a very smart, competent, and experienced tax attorney with great people skills. From what I can determine, he did a great job as Commissioner. By contrast, I have no reason to believe that Billy Long brings those characteristics, much less management skills, to the job for which he has been appointed. Maybe with his auctioneer skills, he can sell off the outsourcing of the IRS to the highest bidder (perhaps Musk).

Update on 4/19/25 @ 3:45pm: The President has named Michael Faulkender, Deputy Secretary of Treasurer, as the Acting Commissioner of Internal Revenue to act until the Presidential nominee (currently Billly Long, the auctioneer) is approved by the Senate. Faulkener's Wikipedia page is here. It is not apparent from the Wikipedia description that Faulkender has “demonstrated ability in management,” although he certainly appears to be a smart and capable person and likely can meet the demands of the office. 

In terms of credentials and apparent mental firepower, Faulkender stands head and shoulders over the immediately preceding Acting Commission, Gary Shapley, Wikipedia here, who lasted just a few days in office and whose only claim to prominence was that, as an IRS Criminal Investigation Special Agent, he blew the whistle on claimed mismanagement of the Delaware U.S. Attorney’s investigation of Hunter Biden. Having blown the whistle on matters that implicate Joe Biden, Shapley became the darling of the conservatives and particularly Donald J. Trump, who hates Joe Biden with a passion. It was not clear to me how Shapley remotely qualified for the position of Acting Commissioner of Internal Revenue. Of course, as I noted above, it is not clear to me how the nominee for Commissioner, Billy Long, the auctioneer, remotely qualifies.

The Section 7217 Crime of Executive Office, including President, Requesting or Directing IRS to Examine or Audit (4/18/25)

I have been thinking about President Trump’s public scrap with Harvard University, In doing so, I have reviewed § 7217, titled " Prohibition on executive branch influence over taxpayer audits and other investigations," here, which makes it a felony crime (5 years) for any “applicable person”—including the President—"to request, directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.” I won’t go through the “applicable person” list because the President is clearly one of them. And the crime is to "directly or indirectly" make the request.

I discuss § 7217 in my Federal Tax Procedure Book, 2023 Practitioner Edition p. 420 and Student Edition p. 291. In reviewing that discussion to see whether I should change anything in the Working Draft for the 2024 Editions, I have made minimal changes to the text but have added a footnote with respect to the exclusion of the Attorney General from the prohibition. As revised in the Working Draft for the 2024 Editions, the second sentence (with footnote for the Practitioner Edition) says:

The executive branch personnel within the scope of this prohibition are: (i) the President and Vice President and their respective executive offices; and (ii) persons at level 1 of 5 U.S.C. § 5312 (generally department heads other than the Attorney General).n1828a*
   n1818a I have not researched legislative history of this section to determine whether it explains why the Attorney General was excluded from the prohibition on Executive level actors. One reason might be that DOJ Tax, acting on behalf of the AG, must interact with the IRS often to carry out its duties and probably could and should be able to request the IRS to examine or audit. Another reason could be that the prohibition, enacted in 1998, was at a time when the norm had been established to avoid such White House or Executive Office direction of the AG and DOJ generally.
          The exclusion of the AG from the prohibition takes on great significance in the Trump Second Administration (2024-2028) where (i) Trump acts contrary to the norm, publicly claiming that the DOJ acts under his control and (ii) Trump installed a compliant AG, Pamela Bondi, willing to do his bidding or his wishes as she perceives them. Could Trump skirt the prohibition by asking or directing the AG to request an IRS examination? For example, it is widely reported that, in his attempt to make Harvard University bend the knee to him, Trump has publicly proclaimed that the IRS should revoke Harvard’s tax exempt status. E.g., Aimee Picchi, Can Trump or the IRS strip Harvard of its tax-exempt status? Here's what to know (CBS News 4/17/25). By publicly attacking Harvard’s tax exempt status, is that enough to indirectly direct the AG to make the request to the IRS or even for the IRS, “sua sponte,” to act to examine Harvard? The statute does prohibit requests “directly or indirectly.” A comparison might be made to Henry II who in a moment of pique at Thomas Becket, Archbishop of Canterbury, is  alleged to have said "Will no one rid me of this turbulent priest?” (or some variant) which some of his sycophants took as a direction or request and murdered Becket in 1170. See Wikipedia “Thomas Becket,” here (last edited 4/9/25 and viewed 4/17/25) (noting that “Regardless of what Henry said, it was interpreted as a royal command.”). Can the President avoid § 7217 in that manner? Or, to extend the thought, could the IRS begin examinations of persons with whom the President expresses displeasure? Or at least the principal actors drawing the President’s angst? Readers might also consider Trump’s Executive Order among many on the first day of office supposedly to end the weaponization of Government. See Executive Order titled “Ending the Weaponization of the Federal Government” # 14147 (1/20/25), here. I think the record to date shows at least the possibility that Trump has weaponized the Federal Government despite his own Executive Order. Of course, violating his own Executive Order merely shows that the President is a hypocrite, and, so far as I am aware, hypocrisy is not a crime, nor is violating an Executive Order.

* Note that the footnote number is consistent with the 2023 text but that footnote number will be different in 2024 final Professional Edition and the content of the footnote may even be revised before publication of the Edition.

Another Bullshit Tax Shelter Goes Down; On Frank Lyon (4/17/25)

Judge Lauber nails another bullshit tax shelter in GWA, LLC v. Commissioner, T.C. Memo. 2025-34, TC here at Dkt # 357, GS here [to come] and TN here. Suffice it to say that Judge Lauber was not confused by the smoke and mirrors the taxpayer threw up on the proverbial wall. The key issue is whether the financial contract was an option contract or an ownership contract. For the tax benefits, the taxpayer wanted to treat it as an option contract, the form in which it appeared; the taxpayer argued it was an option contract that permitted deferral and ultimate favorable tax treatment; the IRS asserted it was an ownership contract not allowing such treatment. Other issues were (i) whether the treatment as an ownership contract was, under the facts, a change of accounting requiring a § 481 adjustment (it did) and (ii) whether the taxpayer was subject to penalties (it is).

I write to discuss the role of Frank Lyon Co. v. United States, 435 U.S. 561, 573 (1978) in the opinion. Frank Lyon was a disaster of an opinion, and my principal poster child as to why tax cases are too important to have the Supreme Court decide them. (That is hyperbole, of course, but not much.) In Frank Lyon, the Court, while nominally honoring the venerable tax concept of substance over form, entered a fact-intensive multi-element inquiry to bless the form of a sale-leaseback transaction with tax ownership benefits (depreciation) going to the nominal lessor (Frank Lyon). I think that most careful observers of Frank Lyon believe that Frank Lyon was incorrectly decided. E.g., Charles I. Kingson, How Tax Thinks, 27 Suffolk U. L. Rev. 1031, 1034-35 (2004). “few [tax] shelters are shoddier than those approved by the Court in Lyon and Brown [Commissioner v. Clay B. Brown, 380 U.S. 563 (1965)]”; and Bernard Wolfman, The Supreme Court in the Lyon's Den: A Failure of Judicial Process, 66 Cornell L. Rev. 1075, 1098 (1981). Still, perhaps saving the day, courts generally find enough in Frank Lyon to reject bullshit tax shelters, as Judge Lauber did in GWA, LLC v. Commissioner.

I won’t get into a back story on Frank Lyon in which I was peripherally involved at DOJ Tax. Perhaps I will write on it sometime, in order to explain why, in my judgment, the Court imprudently granted the petition for certiorari in the first place and then wrote the opinion the way it did (in my view imprudently, rather than DIG the case). Nevertheless, that should not detract from the opinion on its four corners. Since Frank Lyon, most of the bullshit tax shelter legal opinions cite and claim to rely on Frank Lyon. Most judicial opinions cite Frank Lyon in shooting down bullshit tax shelters.

Tax Court Rejects Bullshit Syndicated Conservation Easement Shelter for the Usual Reasons (3/31/25)

In Ranch Springs, LLC v. Commissioner, 164 T.C. ___, No. 6 (3/31/25), links below *, the Tax Court rejected another bullshit tax shelter, here of the syndicated conservation easement ilk. The fact pattern for this ilk of bullshit tax shelter may be simply stated: a grossly overvalued property contributed to charity for charitable easement purposes. The holding highly summarized is:

• the real value is determined in an amount grossly less (joining grossly and less may not be good English, but readers will get the concept); and
• the 40% gross valuation misstatement penalty applies because, well, the valuation was grossly misstated.

A more detailed summary is found in the Syllabus and, for those wanting more, in the 66-page opinion (actually 64 excluding the caption and the Syllabus), but that is the guts of the holdings.

These are unexceptional holdings, in my opinion, so I am not sure why the Court designated this a “T.C.” opinion rather than a “T.C. Memo.” opinion. The parts I found interesting (set forth below) are hardly the stuff of which T.C. opinions are usually made. Perhaps the reason is in the third “Held” conclusion in the Syllabus relating to the proffered “before value” found to be erroneous as a matter of law as follows:

Held, further, assuming arguendo that limestone mining was a permissible use, the version of the income method P’s experts used to determine the “before value” of the property is erroneous as a matter of law because it equates the value of raw land with the net present value of a hypothetical limestone business conducted on the land. A knowledgeable willing buyer would not pay, for one of the assets needed to conduct a business, the entire projected value of the business.

. Oh well…..

So, what did I find interesting?

Updates on Filing under the Corporate Transparency Act (“CTA”) (2/27/25; 3/4/25)

Added 3/4/25 10:00 am: Please note below that, on March 2, 2025, Treasury announced here that 

(i) Treasury will not enforce penalties or fines associated with the beneficial ownership reporting requirements of the Corporate Transparency Act, even after the anticipated interim final rules are promulgated;

(ii) Treasury in the near future will  issue "a proposed rulemaking that will narrow the scope of the rule to foreign reporting companies only."

That background for all this is that, because of the lack of transparency of U.S. entities, the U.S. consistently rates high on lists of tax haven countries, all the while the U.S. complains about foreign countries' lack of transparency. The CTA was designed to address lack of transparency. Most practitioners I know felt that it was required to address money laundering and related genres of crime. Yet, in an announcement that reads more like a political paper (see the link above), Treasury is giving up enforcing that which the statute clearly requires. On the political nature of the announcement, Trump went on his social media outlet very soon after bragging about it.

On February 18, 2025, FinCEN, noting that it was no longer enjoined from enforcing the filing requirements of the CTA, advised that the filing must be done, except in narrow cases, by March 21, 2025. See FinCEN Extends Beneficial Ownership Information (FinCEN 2/18/25), here. The document is short (2 pages), so all interested in filing should read it.

On February 10, 2025, the House passed unanimously the Protect Small Businesses from Excessive Paperwork Act, H.R. 736, unanimously. That Act modifies the filing deadline to January 1, 2026 instead of by January 1, 2025, as required under current regulations. See H.R.736 - Protect Small Businesses from Excessive Paperwork Act of 2025 at Congress.Gov, here; and Maureen Leddy, House Passes Bipartisan Bill to Delay Corporate Transparency Act Deadline (ThomsonReuters 2/14/25), here.

I expect that the Senate will pass the legislation and that President Trump will sign it. Further, I expect that, since the CTA is disliked by certain portions of the Trump followers in both houses, there will be some legislative commotion prior to that delayed deadline to address some of the features in the CTA. I have no prediction on whether that commotion will result in legislation defanging the CTA. Stay tuned.

Added 2/28/25 12:00pm 

On 2/27/25 FinCEN issued this public notice: FinCEN Not Issuing Fines or Penalties in Connection with Beneficial Ownership Information Reporting Deadlines (FinCEN 2/27/25), here. The notice is short, so I just copy and paste the contents (bold face supplied by JAT):

Today, FinCEN announced that it will not issue any fines or penalties or take any other enforcement actions against any companies based on any failure to file or update beneficial ownership information (BOI) reports pursuant to the Corporate Transparency Act by the current deadlines. No fines or penalties will be issued, and no enforcement actions will be taken, until a forthcoming interim final rule becomes effective and the new relevant due dates in the interim final rule have passed. This announcement continues Treasury’s commitment to reducing regulatory burden on businesses, as well as prioritizing under the Corporate Transparency Act reporting of BOI for those entities that pose the most significant law enforcement and national security risks.

No later than March 21, 2025, FinCEN intends to issue an interim final rule that extends BOI reporting deadlines, recognizing the need to provide new guidance and clarity as quickly as possible, while ensuring that BOI that is highly useful to important national security, intelligence, and law enforcement activities is reported.

FinCEN also intends to solicit public comment on potential revisions to existing BOI reporting requirements. FinCEN will consider those comments as part of a notice of proposed rulemaking anticipated to be issued later this year to minimize burden on small businesses while ensuring that BOI is highly useful to important national security, intelligence, and law enforcement activities, as well to determine what, if any, modifications to the deadlines referenced here should be considered.

The interim final rule is like a Treasury Temporary Regulation that sets an enforcement or application date prior to the Final Regulation after notice and comment. 

Tax Court Sustains Regulation's Filling Gap in Statute on Factors Other than Ambiguity (2/26/25/ 3/4/25)

In Hamel v. Commmissioner, T.C. Memo. 2025-19 (Hamel II), TN here, GD here * and GS here **, decided 2/25/25, upon reconsideration of its prior opinion in Hamel v. Commissioner, 2024 T.C. Memo. 62 (Hamel I), GS here, the Court rejected Hamel’s argument that the regulation failed the Loper Bright requirement of the best interpretation of the statute. The regulation in question interpreted the requirement in TEFRA §6229(e) to furnish notice of an otherwise unidentified partner in a specific way in order to avoid the extended statute of limitations. Basically, Hamel argued that the IRS otherwise knew of the unidentified partner even though the notice required by the regulation was not furnished as the regulation required.

Loper Bright Enterprises v. Raimondo, 603 U. S. ____, 144 S.Ct. 2244 (2024) overruled Chevron deference based on statutory ambiguity. In overruling Chevron deference, the Court noted that Congress might confer discretionary authority to the agency to fill gaps but such authority will not be assumed from statutory ambiguity alone. The Supreme Court also cautioned that prior authority relying upon Chevron deference was not necessarily overruled.

The principal authority relied upon in Hamel I was Gaughf Props., L.P. v. Commissioner, 139 T.C. 219 (2012), aff'd, 738 F.3d 415 (D.C. Cir. 2013). Gaughf  relied upon Chevron deference to sustain the regulation. Hence, Hamel I was based upon a Chevron deference holding. Hamel filed the motion for reconsideration urging that Loper Bright required reconsideration of the Gaughf precedent applied in Hamel I. As I understand Hamel II (I did not find it easy to understand), the Court held that the statutory provisions were sufficient to authorize the Treasury to fill in those details by regulation. In other words, although the statutory provision was ambiguous (i.e., did not permit resolution of the issue by textual interpretation alone), the Treasury was given the discretion to fill in the details. Hence, the resolution was not based on ambiguity alone, and the manner chosen by Treasury in the regulation was not arbitrary and capricious.

The Court relied in part upon Nat’l Muffler Dealers Ass’n v. United States, 440 U.S. 472 (1979) for the following which it apparently felt was unaffected by Loper Bright (Slip Op. 7-8):

Bullshit Tax Shelter "Investors" Reach the End Game on Tax Dodging from 1999 BLIPS "Transaction" (2/20/25)

Yesterday, the Tax Court (Judge Goeke) entered its opinion in Blum v. Commissioner, T.C. Memo. 2025-18, TN here, GD here*, and GS here**. The opinion is 48 pages long. After reading Slip Op. pp. 1 & 2, I had the sense that Judge Goeke would have made it much shorter except for inappropriate arguments made by the Blums (really their counsel), which he apparently felt necessary to address. So that readers might get that same sense, I quote pages 1 & 2 in their entirety (footnote omitted):

This affected items case deals primarily with the responsibility of taxpayers and the Internal Revenue Service (IRS) to update information about the partners of a partnership under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. No. 97- 248, §§ 401–407, 96 Stat. 324, 648–71. The Treasury regulations 1 explicitly and clearly state the requirements for partnerships and their partners to update names and addresses of the partners as well as the IRS’s obligations when mailing a notice of Final Partnership Administrative Adjustment (FPAA).

           Petitioners did not adhere to the regulations; the IRS did. Petitioners did not properly identify Scott Blum as an indirect partner in the TEFRA partnership or update the address for sending the FPAA with respect to his partnership interest. Instead, they try to place the blame for their alleged nonreceipt of the FPAA on the revenue agent (RA) who audited their personal and partnership returns. Petitioners do this because they want to avoid a district court’s decision in the TEFRA partnership case that held that Mr. Blum engaged in a tax shelter and improperly deducted a $78.5 million artificial loss (tax shelter loss). They knew about the partnership case while it was ongoing in district court and are obviously unhappy with the outcome. We find not only that the IRS mailed the required FPAA with respect to Mr. Blum’s partnership interest to the correct address but also that petitioners received it.

          Throughout this case, petitioners have concocted numerous unfounded theories about the IRS’s alleged failure to follow proper procedure. They have also made multiple misrepresentations to the Court and omitted important information. Testimony by IRS employees clearly and credibly establishes that the IRS indeed followed proper procedures and that the IRS mailed the FPAA as required by the Code and the regulations.

          Apart from their argument about their alleged nonreceipt of the FPAA, petitioners also make multiple baseless arguments to avoid paying the tax that they owe pursuant to the district court’s decision.  They argue that the district court did not really disallow the tax shelter loss and that they resolved the disallowance of the $78.5 million tax shelter loss in a prior Tax Court case for a mere $373,641 in tax. They also challenge the timeliness of the FPAA and the affected items Notices of Deficiency that precipitated the filing of the Petition. Each of these arguments fails. Accordingly, we find, in accordance with the district court’s decision in the TEFRA case, that petitioners are not entitled to deduct the $78.5 million tax shelter loss.

Final Paper on SSRN Titled: Loper Bright Is the Law But Poor Statutory Interpretation (2/28/25)

Today, I finalized a paper which has been posted to SSRN. The posting is here:

John A. Townsend, Loper Bright Is the Law But Poor Statutory Interpretation (February 18, 2025). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5143707

As I understand SSRN, although it is posted and can be publicly accessed, SSRN still has to go through an approval process. I am not sure why that is, but I think that the paper can be accessed through the link above.

I had previously posted to SSRN a draft of the paper (the draft is here).

Readers may also be interested in the updates that I make during the year to the discussion of deference (Chevron, Loper Bright, et al.) in the 2025 Working Draft of the Federal Tax Procedure Book.  I will publish the 2025 Editions on SSRN in early August 2025. In the meantime, because of all the developments in the general subject of deference since the publication of the August 2024 editions, I will periodically post aggregate changes on the page to the right titled Federal Tax Procedure Book 2024 Editions Updates (7/26/24; 1/5/25), here.

The Relation of the Current DOJ Commotion to Loper Bright (2/15/25)

Readers have undoubtedly heard of the commotion about the DOJ order to the prosecutors in the U.S. Attorney’s Office in SDNY to dismiss the criminal case against NY Mayor Adams. There are many good accounts out there, but I link one to segue into a theme I have addressed before. Both sides of the commotion invoked then-Attorney General Robert H. Jackson, later Supreme Court Justice, to support their positions. Adam Liptak, A Rupture on the Right Over Prosecutors, Politics and the Rule of Law (New York Times 2/14/25), here.

Each side invoked Jackson’s classic speech on the role of the federal prosecutor. Robert H. Jackson, The Federal Prosecutor (Speech Delivered by Attorney General Jackson at the Second Annual Conference of United States Attorneys) (4/1/1940), from DOJ website here and from the Robert H. Jackson Center here. Jackson’s speech is generally considered the classic statement of the responsibilities and duties of federal prosecutors and particularly the local U.S. Attorneys.

It is ironic that both sides claimed support in Jackson’s speech. (Like Abraham Lincoln’s Second Inaugural equally ironic statement that “Both read the same Bible and pray to the same God and each invokes His aid against the other.”) I am familiar with Jackson’s speech from my days at DOJ Tax Division, and have just re-read it. My personal cut on the speech is that it favors the protesting Acting U.S. Attorney for SDNY,  Danielle R. Sassoon, rather than the President’s appointed DOJ hatchet man, Emil Bove with Pam Bondi in the background. Others can read the speech and reach their own conclusions.

The pre-eminent Jackson scholar is John Q. Barrett, here, a law professor and director of the Robert H. Jackson Center, here. The NYT article quotes Professor Barrett as follows:

John Q. Barrett, a law professor at St. John’s University who is writing a biography of Justice Jackson, said there was little doubt about how he [Jackson] would have viewed the Justice Department’s handling of the Adams case. “Pretty obviously he [Jackson] would be dismayed and appalled,” Professor Barrett said.