Attorney-at-Law

THE SECOND TIME AROUND -PART DEUX

In Uncategorized on 08/01/2017 at 15:45

Judge Lauber is singing the Sammy Cahn-Jimmy Van Heusen 1960 hit, as IRS tries a second go at summary J in Whistleblower 23711-15W, filed 8/1/17. Whistleblower 23711-15W is hereinafter referred to as “One-Fifteen Whiskey.”

IRS tried summary J back in February and got stuffed by Judge Lauber. For the details of the stuffing, see my blogpost “Tainted,” 2/22/17.

Not a whit dismayed, IRS tries again, forgetting to tell Judge Lauber they tried before. I seem to remember in my young day as a State courtier that, when you made certain motions, you put in your affidavit in support the following: “no prior application for the relief sought herein has been made to any court or judge. “ But maybe I’m just old-fashioned.

Well, if I am, so is Judge Lauber. In fact, he gets just a trifle testy with IRS. “In his second motion, respondent does not acknowledge that we denied his first motion five months ago. We look with disfavor on this piecemeal litigating strategy, and we will direct respondent to show cause why we should not refuse to consider his new motion.” Order, at p. 1.

IRS has what it claims are fresh declarations from a CID type, and a couple Ogden Sunseteers staffers (hi, Judge Holmes) to show that, notwithstanding they sweated One-Fifteen Whiskey good, all they got was privileged material, that they put in separate envelopes, and nobody else never did nothing never with that fruit of the poisoned cliché.

Although scope of review was never discussed before, IRS unloads on abuse-of-discretion, record rule, Chenery, and hoc genus omne. Well, a couple days ago (hi again, Judge Holmes), I put odds of 8 to 5 on abuse-of-discretion in the scope of review classic. See my blogpost “A Hotly Burning Question What Has Swept The Continent – Redivivus,” 7/28/17.

But before we get there, Judge Lauber has to deal with the sandbagging issue.

“Unlike the local rules of some district courts, Rule 121 of this Court’s Rules does not require leave of Court before filing a second motion for summary judgment. See Uscinski v.Commissioner, T.C. Memo. 2005-124, 89 T.C.M. (CCH) 1337, 1339; compare, e.g., U.S. Bank Nat’l Ass’n v. Verizon Commc’ns Inc., No. 3:10-CV-1842-G, 2013 WL 12124306, at *6 n.14 (N.D. Tex. June 18, 2013); Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1328, 1338 (S.D. Fla. 2007). Nevertheless, Federal courts ‘do not approve in general the piecemeal consideration of successive motions for summary judgment.” Allstate Fin. Corp. v. Zimmerman, 296 F.2d 797, 799 (5th Cir. 1961). Accordingly, parties moving for summary judgment in this Court may ‘normally be held to the requirement that they present their strongest case for summary judgment when the matter is first raised.” Ibid.

“Every circuit to have considered the issue seems to have concluded that the decision to consider a second motion for summary judgment is committed to the trial court’s sound discretion.” Order, at p. 3. (Citations omitted.)

But there may be exceptions. Oh, how jolly! Exceptions! Just the thing for a warm summer’s day!

“To be sure, no Federal ‘litigant has an absolute right to bring multiple, piecemeal motions for summary judgment.’ But a renewed or second motion for summary judgment may be considered proper after denial of a prior motion if supported by ‘an expanded record.’ Conversely, ‘successive motions for summary judgment may be procedurally improper if the arguments in the second motion could have been raised in the first motion.’ Courts routinely refuse to consider a second motion for summary judgment when the movant ‘has not raised any new facts or arguments which it could not have raised in the first round of briefing.’” Order, at p. 4. (Citations omitted, but get them, and bookmark these paragraphs; if you’re ever in a sandbagging slugfest, they’re a great cut-and-paste for your memo of law, and you needn’t, in fact you can’t, cite the source).

Anyway, IRS has the whole administrative record; the CID dude and the couple staffers (hey, Judge Holmes, always a pleasure) were available back in February, and their papers discuss what happened long before February and not since; and the law hasn’t changed on scope of review.

So, IRS, says Judge Lauber, lay it on me.

“Moreover, respondent’s position would confine the Court’s review to the administrative record in a whistleblower case. (None of the declarations supplied in support of respondent’s second motion for summary judgment was part of the administrative record in this case.) The administrative record in a whistleblower case, developed by the IRS, is by definition accessible to and subject to the control of respondent. Unless the administrative record is somehow incomplete, so as to require supplementation through discovery, it is hard to see why respondent, if his position as to the scope and standard of review is correct, should not be limited in a whistleblower case to a single motion for summary judgment.” Order, at pp. 4-5.

Now let IRS show cause why their second time around shouldn’t get tossed.

And here are three questions to answer: Are there any new grounds for summary J that weren’t there in February? Was there any reason why the info you now trot out wasn’t trotted out back in February? And what kept you from arguing abuse-of-discretion scope of review back in February?

IRS, cough up or strike out.

Summary J isn’t love. Ol’ Blue-eyes to the contrary notwithstanding, it isn’t better the second time around.

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