Judge in Trump Return Disclosure Damages Mega-Suit Appoints Amicus to Assist the Court on Jurisdictional Issue as to Party Adversity (4/30/26;5/1/26)

I recently wrote on Trump’s suit against the IRS for damages for tax return disclosures. See Could the District Court Invite or Appoint an Amicus to Present the U.S. Position in Trump v. IRS? (2/7/26; 2/12/26), here. The district court (Judge Williams) has appointed amicus curiae to “assist the Court in identifying the applicable law governing an analysis” of the issue she identifies—subject matter jurisdiction where because the parties may not be opposed there may be no case or controversy required for jurisdiction. See order of 4/29/26, CL here (document 43 on the docket sheet, CL here).

In an earlier order on the same day, Judge Williams said “it is unclear to this Court whether the Parties are sufficiently adverse to each other so as to satisfy Article III’s case or controversy  requirement.” Order dated 4/29/26, here (document 41 on the docket sheet), at p. 3. Based on that concern, the Order asks the “the Parties to address the question of subject matter jurisdiction before addressing the relief requested in the Motion.” Order at p.. 4. The Order appointing amicus curiae is apparently based on that concern as to which the response the nominal parties may give could be suspect.

The Order for Amicus assistance is more limited than I suggested in my original blog posting. However, the same concerns could prompt Judge Williams to appoint amicus (either sua sponte or on motion) for other aspects of the case where party adversity may be questionable.

Added 5/1/26 11:30am: The New York Times has this article on these events: Andrew Duehren, Judge Asks Justice Department: Will You Oppose Trump? (NYT 4/29/26), here.

Could the District Court Invite or Appoint an Amicus to Present the U.S. Position in Trump v. IRS? (2/7/26; 2/12/26)

Yesterday, I posted a blog on the Amici Brief filed in Trump v. IRS, (S.D. Fla. No. 26-cv-20609), CL Docket sheet here. On Amici Brief in Trump and Related Parties Suit for Damages from Unauthorized Inspections and Disclosures of Return Information by Employee of IRS Contractor (2/6/26), here. Basically,  a principal theme of the Amici Brief is that the Trump plaintiffs are suing the Government where Trump is also the Government “decider” (to echo George Bush’s claim). That presents some major issues, some of which are discussed in the Amici Brief and I address in the prior blog.

Today, I wanted to expand on an issue that I began considering after posting yesterday’s blog: 

Can the district court sua sponte or at the urging of some Amici invite or appoint an Amicus to represent the United States if the United States at Trump’s direction aligns itself with the Trump plaintiffs?

There is precedent that might permit the district court to invite or appoint an Amicus to participate in the proceeding to represent the United States’ interest where the parties are aligned (thus perhaps not creating a case or controversy). The precedent is Bob Jones University v. United States, 461 U.S. 574 (1983), GS here. In that case, the IRS denied tax-exempt status to two education organizations—Bob Jones and Goldsboro Christian Schools--which allegedly had a "sincerely held" religious belief that their God required them to racially discriminate. The Fourth Circuit sustained the IRS position. In the Supreme Court, the White House directed the SG’s office to disavow the IRS position that had prevailed in the Fourth Circuit. There is intrigue and high drama about the White House doing that, but I offer more on that below in order to stay on track for the main body of this posting.  Perceiving that, at that point, the parties were aligned and no one was arguing in support of the Fourth Circuit opinion, the Supreme Court invited William T. Coleman, a prominent D.C. lawyer, to brief and argue the case as Amicus Curiae;  the opinion in the case describes Coleman as follows: “William T. Coleman, Jr., pro se, by invitation of the Court, 456 U. S. 922, argued the cause as amicus curiae urging affirmance.” (As in many Supreme Court cases, there were other Amici briefs filed, but Coleman’s was likely the one that the Justices paid most attention to; I have sometimes expressed doubt as to the efficacy of Amici Briefs that often flood the Supreme Court in hot button issue cases where the Amici often just give the same or slight variations of the arguments made by the parties or Amici, often with slightly different wording; Coleman’s was different because the Supreme Court respected him andinvited it.) In the merits decision, the Supreme Court affirmed the Fourth Circuit, thus rejecting the White House’s forced position that put the parties in alignment.

The bottom-line, where in Trump v.  IRS the Trump-related parties and the Government (at the direction of Trump) have interests that are or may be aligned, the district court might invite or appoint an Amicus to assist the court in doing justice in the case. The court could do that sua sponte as the Supreme Court did in Bob Jones or it could do it on motion from Amici.

Petition for Writ of Certiorari in NonTax Case Raising Issue of Continued Viability of Chevron (3/19/23; 4/30/23))

On March 24, 2023, the Supreme Court will consider in conference the petition for certiorari in Loper Bright Enterprises, Inc. v. Raimondo, 45 F. 4th 359 (D.C. Cir. 2022), here. The docket entries on the Supreme Court site are here and on the SCOTUSblog site are here.  

Revised 4/30/23 2:00pm: The order list for 4/24/23, here, did not include any action on the petition for Loper Enterprises. The petition has now been distributed for conference five times -- the original time on 3/31/23 and then by relisting for conferences on 4/3/23, 4/14/23, 4/21/23, and 4/28/23. Supreme Court pundits would jump to speculations about four conference considerations without action, but I am not a Supreme Court pundit and, in any event, don't like speculations on such scant data coupled with scant expertise. However, those wanting to view the data and potential correlation of relists of petitions and eventual grant of certiorari should read Ralph Mayrell & John Elwood, The statistics of relists over the past five terms: The more things change, the more they stay the same (SCOTUSblog 1/4/22), here, which summarizes the data:

While the justices grant only the tiniest percentage of petitions – about 1% of all petitions and about 4% of petitions filed by paying petitioners – relisted cases fare far, far better. For the court’s 2016 to 2020 terms, between 31% and 43% of petitions that were relisted at least once were eventually granted review. And between 66% and 75% of all cases granted certiorari were relisted at least once. The odds vary a bit from year to year, and grants among relists are recently on an upswing, but the basic truth remains: The justices mostly grant cases that they have relisted, and relisted cases are far more likely to be granted.

The questions presented by Loper in its petition, here (with JAT insertions in brackets to help understand them):

          1. Whether, under a proper application of Chevron, the MSA [the statute] implicitly grants NMFS [the agency] the power [by regulation] to force domestic vessels to pay the salaries of the monitors they must carry [to insure compliance with  regulations].

          2. Whether the Court [(i)] should overrule Chevron or, [(ii)] at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency. 

In the Solicitor General’s Brief in Opposition, here, the Questions as stated by the Petitioner are conflated into a single Question Presented with some :

          Whether the court of appeals erred in holding that the National Marine Fisheries Service was acting within the scope of its delegated statutory authority under the [Act] when the agency adopted a rule in 2020 under which certain vessels fishing in the Atlantic herring fishery may be required to hire third-party observers, who are carried on the boats to collect data for fishery conservation and management purposes.

I will not try to plumb the depth of the nuance the SG introduced with its framing of the Question Presented because it is not necessary for this blog entry.

Although I have no special knowledge about that agency’s rulemaking processes, the agency’s Final Rule went through notice and comment and apparently was a regulation or regulation-equivalent for Chevron purposes. At least the lower courts felt it qualified the for Chevron Framework which generally requires notice and comment regulations.

So the question was whether the alleged silence in the statute permitted the courts to assume a delegation to the agency of interpretive rulemaking authority. Note that I call it interpretive rulemaking authority rather than legislative rulemaking authority. The briefs do not directly raise the question of whether the rule was interpretive or legislative, but the SG’s brief infers interpretive rulemaking authority in arguing the Chevron reasoning of political accountability (p. 27):

Supreme Court Denies Certiorari in Oakbrook Land Holdings (1/17/23)

I have previously discussed the Circuit arguable split between the Eleventh and Sixth Circuits over the procedural validity of the so-called Treas. Reg. 26 C.F.R. 1.170A-14(g)(6) (the Proceeds Regulation). See Sixth Circuit Creates Circuit Conflict with Eleventh Circuit on Conservation Easement Regulations (Federal Tax Procedure Blog 3/15/22), here, discussing Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. 2021) (held regulation procedurally arbitrary and capricious and thus invalid for failure of regulation to address a significant comment); and Oakbrook Land Holdings, LLC v. Commissioner, 28 F.4th 700 (6th Cir. 2022) (Proceeds Regulation interpretation valid). On 1/9/23, the Supreme Court denied Oakbrook's petition for writ of certiorari. (See Sup. Ct. Case 22-323 Docket Entries here.)

Denials of certiorari usually do not state or hint the reasons for the denial of certiorari. Certain inferences can be drawn if one or more Justices make a statement or dissent from denial of certiorari, but there was none here.

The Government’s brief in opposition to the petition for writ of certiorari, here, perhaps was influential in the denial. The broad claims the Government made (Br. 18-24, with numbering same as in brief) were:

1. “The decision below does not implicate any conflict with a decision of another court of appeals that warrants this Court’s review.” (Br. 18.)

a. regarding a possible conflict with Hewitt, the Government argued (Br. 18) that both courts applied the correct standard but just reached different conclusions as to the Proceeds Regulation. In perhaps inartful language, the Government claims that:

Hewitt did not purport to vacate or otherwise invalidate the proceeds regulation  as such; instead, it held only that “the Commissioner’s interpretation of § 1.170A-14(g)(6)(ii), to disallow the subtraction of the value of post-donation improvements to the easement property in the extinguishment proceeds allocated to the donee, is arbitrary and capricious and therefore invalid.” 21 F.4th at 1353 (emphasis added).

I think, however, that the Hewitt court did not declare the interpretation invalid; rather, it declared invalid the regulation that contained the interpretation. The difference is important. In any event, the Government closes this section with the following (Br. 19):

Third, petitioners do not identify any other court of appeals that has addressed whether the agency adequately responded to comments when promulgating the proceeds regulation nearly 40 years ago, and the government is not aware of any. Indeed, it appears that this case was the first in which the Tax Court itself opined on the issue. The issue would therefore benefit from further percolation in the regional courts of appeals, counseling against this Court’s review in this case at this time.

 [b not discussed]

c The Government argues (Br. 21-24) that, in any event, apart from the validity of the regulation, the deed violated the statutory language which, if true, would temper any perceived conflict between Oakbrook and Hewitt.

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: