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Supreme Court to Review Split Sixth Circuit Decision on Judicial Review of Agency Guidance
Monday, May 4, 2020

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.

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