A “Hardening Look” Review for the IRS

This article appeared on Yale Journal on Regulation on December 9, 2019.
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Welcome back to Ninth Circuit Review‐​Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s cases.

Altera Part I: IRS Becoming Less Exceptional in Admin Law

“IRS exceptionalism” continues its slow bleed.

For reasons that escape me, the White House and federal courts historically have treated the IRS differently than other executive branch agencies when it comes to administrative law and regulatory process. But that’s changing.

For example, the IRS no longer escapes OIRA review, as it had since the 1980s. Last year, the OMB won a power struggle with the Treasury Department; now, IRS rules are subject to the same White House regulatory review process that other executive branch agencies must undergo.

Judicial review, too, is becoming more “normal” for the IRS, as the agency increasingly becomes beholden to the same administrative law doctrines that courts long have employed in reviewing other agencies. Let’s call it “hardening look review.”

The latest sign is the Ninth Circuit’s denial last month of an en banc rehearing in Altera v. Commissioner.

Altera is a big deal for tax administration” writes Professor Kristin Hickman, because “even as individual judges in the Altera litigation have disagreed over how administrative law doctrines apply in the case, no judge has questioned whether those doctrines apply in the tax context.” According to Prof. Hickman, “[t]hat would not have been true ten years ago.”

It’s a fascinating case, with big implications for both the economy and, of course, administrative law. For more, I highly recommend Prof. Hickman’s blog, and also coverage at TaxProf Blog.

Altera Part II: Judge Milan Smith Rings Death Knell for Auer

Administrative law doctrines develop in lower courts within the “markers” set from above by the Supreme Court. Accordingly, this blog has been paying close attention to the fate of the Court’s schizoid opinion in Kisor v. Wilkie.

On the one hand, Justice Kagan’s plurality opinion upheld the Auer doctrine, which requires courts to give binding judicial respect to an agency’s reasonable interpretations of regulatory ambiguities. On the other, her opinion “reinforced” and “expanded on” the doctrine’s limits, so much so that Justice Gorsuch claimed that Auer deference emerges “enfeebled” and “maimed.”

So, which is it? Did Kisor affirm or enfeeble Auer deference? Some scholars claim that the doctrine lives. Others, including me, argue that Kisor effectively killed Auer deference by imposing so many conditions on its use.

In prior posts, I’ve described how the Ninth Circuit seemed to be applying an anti‐Auer gloss to Kisor. Last month, my analysis was strongly supported by Judge Milan Smith’s powerful dissent to the denial of an en banc rehearing in Altera, which was joined by Judges Consuelo Callahan and Bridget Bade.

Judge Smith observed that “Treasury does not ask for Auer deference,” even though “some amici suggest it could.” I find it quite telling that the agency would leave this argument on the table.

But there’s more! Judge Smith continued, “it is clear that such deference would not be available even if not disclaimed,” due to “the very detailed limitations on Auer deference spelled out in Kisor.”

Altera Part III: Judicial Disqualification

Remarkably, 10 active judges recused themselves from considering the petition for an en banc rehearing in Altera.

They were (year confirmed): Judges Margaret McKeown (1998), Kim Wardlaw (1998), Jay Bybee (2003), Carlos Bea (2003), Paul Watford (2012), John Owens (2014), Michelle Friedland (2014), Eric Miller (2019), Collins (2019), and Lee (2019).

For comparison’s sake, consider that the average circuit court (excluding the Ninth Circuit) has about twelve judges.

The high number of recusals in Altera piqued my curiosity. To learn more, I reviewed F.R.A.P., the Ninth Circuit’s Rules, and its General Orders. But those sources were largely fruitless.

As it turns out, recusal is regulated by statute. Under 28 U.S.C. § 455, “a justice, judge, or magistrate judge … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Furthermore, in Liteky v. United States, the Supreme Court set forth the general rule that, to warrant recusal, a judge’s bias must have originated in a source outside the case itself.

In fact, there’s an entire case book given to the subject of judicial disqualification, and it’s on its second edition! I’m always awed and humbled whenever I discover whole swaths of law about whose existence I’d not known.

Another Cri de Coeur for Reforming Chevron

Last Winter, I discussed Szonyi v. Whitaker. Specifically, I’d bemoaned the split panel’s resort to Chevron deference for answers regarding a “pure” question of law.

As I saw it back then, the court’s error was doubly dire because it contravened prevailing circuit law. Twice before Szonyi, Ninth Circuit panels had adopted interpretations contrary to that advanced by the Board of Immigration Appeals. Nevertheless, the split Szonyi panel determined that the statute is ambiguous, and, under Brand X, sided with the agency over its own best reading.

At the time, I’d written that “the court was being modest to a fault when it refrained from adopting its own ‘best’ reading of a ‘purely’ legal question of the sort at issue in Szonyi.”

Last month, however, my disappointment abated somewhat, upon learning that at least two judges agree with me.

In a thoughtful dissent to the denial of an en banc rehearing in Szonyi, Judge Daniel Collins tore into Chevron and its corollary doctrines of deference. Judge Carlos Bea joined.

Judge Collins’s dissent sets the tone with its first sentence: “This case well illustrates why Chevron v. NRDC has become the subject of so much recent criticism.” And it only gets better from there.

Ultimately, his point is that Chevron raises constitutional concerns, so courts must be rigorous in its application. In his opinion, the Szonyi panel had demonstrated the sort of “reflexive” deference that gives Chevron a bad name. 

Judge Collins’s dissent bears a strong resemblance to other criticisms of Chevron in the Federal Reporter, including opinions from then‐​Judge Gorsuch in Gutierrez‐​Brizuela v. Lynch and also Judge Kent Jordan in Egan v. Delaware River Port Authority

Ninth Circuit Again Sounds Alarm on Unworkability of CIMT Framework (SCOTUS, Are You Listening?)

In a per curiam opinion, a Ninth Circuit panel did something curious last month in Fugow v. Barr.

Fugow involved a hot‐​button topic in the administration of immigration law — namely, how to discern a “crime involving moral turpitude” (CIMT) in the deportation context.

The court started by observing that neither it nor the agency has been able “to establish any coherent criteria for determining which crimes fall within that classification and which crimes do not.”

Having admitted that judicial review would be “incoherent,” the court then proceeded to conduct judicial review, as is its duty.

As I’ve observed repeatedly, the court routinely calls out the nonsensical nature of the prevailing CIMT framework in immigration law. It’s well past time for the Supreme Court to step in and clean up this confusion.

Court KOs Class Action

On November 21st, a unanimous panel affirmed the district court’s dismissal of class actions brought by spectators against boxers and the promoters of the 2015 Mayweather‐​Pacquiao fight.

Judge Jacqueline Nguyen’s opinion threw above its weight, and she kept it clean of undue boxing jokes. In pulling her “pun”ches, she showed considerable ring savvy, unlike the author of this post.

On a serious note, I bought that fight, and empathize with the putative class.