CIC Servs Petition for Rehearing En Banc Petition Denied with Hyperbolic Concurring and Dissenting Opinions (8/29/19; 8/31/19)

I have written earlier about the constricted pre-enforcement litigation opportunities for IRS guidance.  See Pre-Enforcement Litigation of IRS Guidance (Federal Tax Crimes Blog 8/6/19), here.  In that posting, I cite CIC Services LLC v. IRS, 925 F.3d 247 (6th Cir. 2019), here, (holding pre-enforcement procedural challenge to an IRS Notice was barred).

In CIC Servs. v. IRS, ___ F.3d ___, 2019 U.S. App. LEXIS 26007 (6th Cir. 2019), here, the Sixth Circuit denied petition for rehearing en banc.  Denials for petitions for rehearing en banc are frequent and usually unexceptional, but, in my judgment, this denial is exceptional because of the concurring and dissenting opinions on the denial.  The principal concurring and dissenting opinions (by Judges Clay, concurring, and Thapar, dissenting) are noteworthy, not because they are particularly enlightening to those who have followed the issue but because they are populated with so much hyperbole.  I will leave it to readers to parse the opinions if they choose.

I am trying to imagine what exactly caused this burst of hyperbole.  I gather that Judge Thapar, who was on President Trump's list of possible Supreme Court nominees, started the ball rolling by writing a dissenting opinion using the narrow legal issue as an attack on the administrative state.  Hyperbole in attacks on the administrative state are much used by judges with strong conservative/libertarian bents.  Readers of Judge Thapar's dissent who have followed this area of the law will recognize his overture to Justice Gorsuch, in an equally hyperbolic opinion, citing an "elephant in the room" in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016), here (which was a concurring opinion to the panel opinion Justice Gorsuch wrote because he could not get another judge to agree with the hyperbole in the concurring opinion). Sixth Circuit Judge Nalbandian had already stated the case in his panel dissent with less hyperbole.  So, why did Judge Thapar enter the fray on a denial for petition for rehearing en banc?  Maybe he saw the denial as an opportunity to rail against the administrative state for his own personal satisfaction.  Maybe.  But, maybe also, he saw the dissent as an opportunity to further endear himself with the audience that could elevate him to the Supreme Court (most prominently, the Federalist Society through whom President Trump vets judicial nominations and those in sway of the Federalist Society, including President Trump and those who help him select judicial nominees).  See Fred Barnes, See Reshaping the Judiciary (Washington Examiner 5/31/19), here.  The opinion will certainly resonate with that audience.  And, assuming President Trump fails to obtain re-election, Thapar's only hope for a Supreme Court position will be an opening in the next year or so.  (Senate Leader McConnell has already said that, for a Trump nominee, he will reject the rule he created whole cloth to deny Merrick Garland a seat on the Supreme Court because nominated in the election cycle; and, of course, McConnell is a big supporter of Thapar.)  After next year, I suspect, there is no hope for Thapar to be a Supreme Court Justice.  So, its now or never, and he must remind that audience that he is their man (as if they did not already know that).

Judge Thapar's opinion drew the concurring opinion of Judge Clay, who opens with this zinger by calling Judge Thapar's dissent the "latest attempt to inflict death by distorted originalism on the modern administrative state."

Finally the concurring opinion by Judge Sutton, seems to be merely a plea or suggestion, without hyperbole, to the Supreme Court to take cert and smooth the rough edges in the law.

Addendum 8/31/19 11:45 am:

1.  I should disclose my bias regarding the administrative state that seems to be a lightning rod for conservatives, libertarian and those who are neither but desire to whip up conservatives and libertarians for political purposes.  I am agnostic on the general notion of the administrative state, other than the certainty that any community from towns through nation-states need administration and thus needs administrative agencies.  I thus do not subscribe to the notion that administrative agencies are per se evil or that, as Reagan said it, the problem is the Government (which functions largely through administrative agencies).  Administrative agencies may be good or bad, depending upon whether they serve the people of the U.S. where they are in their understanding of the constitutional role they serve.  Ad hominen attacks on the administrative state are not helpful, and can erode the salutary benefits of administrative agencies.  If there is an argument that an agency is misbehaving or trying to assume or exert authority it does not have or should not have, then state the argument.  That's it.  So, I tend to agree with Judge Clay, although without perhaps as much hyperbole (on either side).

2.  Now, I go on a bit of a frolic and detour.  Those who have read my writings on that emblem of the administrative state, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), here, know that I cite often Professor Kristin E. Hickman (bio here).  As I said in one article, The Report of the Death of the Interpretive Regulation Is an Exaggeration, here, pp. 4 & 5 at fn. 13:

For balance, although I disagree with Professor Hickman on this issue, I consider Professor Hickman a legal “rock star” since I first read some of her writings, probably in the late 1990s or very early 2000s incident to teaching Federal Tax Procedure at the University of Houston Law School.  In teaching Tax Procedure, I extolled Professor Hickman because she spotted the emerging area of deference as one of importance for tax law students and professors and staked out her position as perhaps the leading scholar on the confluence of administrative law and tax administration.  Even apart from tax administration, she is one of the leading scholars in administrative law.  I suggested to my students that, if they were attracted to the scholarly world, Professor Hickman would be a role model to emulate.  Spot the as yet undeveloped, but important, issue; become the expert.

Professor Hickman filed a Brief in CIC Servs on the petition for rehearing en banc titled:  "Brief of Professor Kristin E. Hickman as Amicus Curiae in Support of Appellant's Petition for Rehearing En Banc and Reversal," here.  Professor Hickman's argument is well stated and extends arguments she has made in several contexts over the years. E.g., Kristin E. Hickman & Gerald Kerska, Restoring the Lost Anti-Injunction Act, 103 Va. L. Rev. 1683 (2017), here (cited in her brief and in the panel and petition denial opinions).

What struck me as a long, long ago Latin student was her self-description as Amicus Curiae.  Amicus Curiae (or some variation, as I will discuss) generally means friend of the court and refers to a brief or argument made by someone who is not a party in the case but desires to state arguments that the "friend" thinks or hopes the court will consider (the "friend" may have a financial or scholarly interest in the argument).  See Wikipedia Entry for Amicus Curiae, here.  The term is from the Latin.  As I suspect many know, Latin has different endings for nouns to indicate gender--male, female or neuter.  So, as we used to say in high school Latin class in Greenwood, SC, the word amicus has three endings for the nominative, for each of the singular and plural:

singular:  amicus (masculine), amica (feminine), amicum (neuter)
plural: amici (masculine), amicae (feminine), amica

So, purists in the language would say, for example, that a single male filing such a "friend" brief would style himself "amicus curiae" and more than one males filing a single "friend" would style themselves "amici curiae."  Similarly, a single female filing such a "friend" brief would style herself "amica curiae" and more than one females filing a single friend brief would style themselves amicae curiae.  The use of this Latin construct does not lend itself easily to different concepts of gender that is a modern development or to mixed groups of male and  female that cry out for a single designation rather than, for example, "amicus and amica curiae" (one in each category) or perhaps "amici and amicae curiae" (more than one in each category) or "amicus and amicae curiae" (one male and more than one female) or "amici and amica curia (more than one male and one female).  So, the law has settled on amici when more than one male or female is involved.

But that does not address what should happen when a single person with a specific gender files a brief.  Then for the one male, it is clearly amicus curiae.  But what is it when the person is one female, amica curiae or amicus curiae?

Professor Hickman, a female, styles her brief "amicus curiae."  Others, more true to the Latin tradition, would say that a sole female should have styled it "amica curiae."  See e.g., Amicus, Amica or Amicum--Which is Your Friend (Reuters Legal Solutions Blog 12/3/10, here; see, for example, this posting by Leandra Lederman (also, like Hickman a prolific author, although in different subjects), U.S. Supreme Court Brief of Amica Curiae Leandra Lederman in Ballard v. Commissioner, in Support of Petitioners (SSRN Posted 2018), here, related to the earlier case of Ballard v. Commissioner, 544 U.S.40 (2005)), There are others out there, you can google [or is it Google?] them.  I don't know what the "right" answer is, but point it out for readers further consideration when they are so moved.

Finally, there is one other weird thing while we thrash around in Latin.  In the case that started this discussion, CIC Servs. v. IRS, ___ F.3d ___, 2019 U.S. App. LEXIS 26007 (6th Cir. 2019), here (reh. denied), the Court identified Professor Hickman as "Amici Curiae" (which as noted  above is in the masculine and plural, neither of which aptly describes Professor Hickman).  Go figure.

And to close, to let readers further wonder, what about the "curiae" thing?  As we used the terms in English, amicus curiae or amici curiae (or its feminine variants) is friend or friends of the court, with court in the singular.  But, why then would we not use amicus or amici curia?  Well, I am told that the Latin genitive is "curiae" which is its use in this expression (on genitive in Latin, see here).