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Supreme Court to Review Split Sixth Circuit Decision on Judicial Review of Agency Guidance

This morning—in connection with the Supreme Court’s inaugural teleconference arguments—the Court announced it would review the Sixth Circuit’s decision in CIC Services v. IRS. That case covers the applicability of the Anti-Injunction Act to a challenge to IRS guidance.

Certiorari is not altogether surprising, given the sharply contrasting views (and vivid language) the case elicited at the Sixth Circuit.

  • Judge Clay’s panel opinion and en banc-denial concurrence decried “death by distorted originalism on the modern administrative state.”
  • Judge Nalbandian’s panel dissent criticized the plaintiff’s choice between “risk[ing] financial ruin and criminal prosecution.”
  • Judge Thapar’s rehearing dissental contended that “people should not have to risk prison time in order to challenge the lawfulness of government action.”
  • And Judge Sutton’s rehearing concurrence–which hinted at today’s outcome–stressed that “[i]n a dispute in which the Court’s decisions plausibly point in opposite directions, it’s worth asking what value we would add to the mix by en-bancing the case in order to create the very thing that generally prompts more review: a circuit split.”

The blog’s previous coverage of the case is available here and here. Now we wait to learn whether covid means we’ll be dialing into the conference-call argument on C-SPAN this fall, or whether the Justice Department will get/have to defend its guidance regime in person.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 125


About this Author

Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH

Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The...