Judge Bybee authors a dissent that makes a very good (albeit sub silentio) argument that the Supreme Court should grant certiorari in this important case.
There's only one problem. It's a tax case. About administrative law. Zzzzzzzzzzzz.
But still. It's a darn good argument. Listing all sorts of splits and competing views and saying, essentially, that even though this might seem to be the most soporific issue in the universe, it's actually something that's important. Look how he begins:
"The question presented in this case is one fundamental to administrative law: What is the scope of review—and, concomitantly, the standard of review—of the Tax Court’s review of the Secretary of the Treasury’s decision to deny equitable relief to an innocent spouse? . . . .
The question is of more than passing interest. It goes to the heart of the place of the Tax Court in our administrative system. The question has splintered the Tax Court, which has proceeded along three different paths, dragging four circuit courts with them in the process. The Tax Court initially held that it would review the Secretary’s exercise of discretion under § 6015(f) for abuse of discretion. [Cite] The D.C. and Fifth Circuits confirmed that position. [Cites]
Then, a divided Tax Court changed its mind and held that it would use a de novo scope of review—including trial de novo—but an abuse-of-discretion standard of review. [Cites] That position was confirmed by a divided Eleventh Circuit. [Cites]
Finally, a divided Tax Court changed its mind yet again and decided that it was entitled to both a de novo scope of review and a de novo standard of review. [Cites]
The majority’s position not only departs from the D.C., Fifth, and Eleventh Circuits, but also its reasoning is
inconsistent with the Eighth Circuit’s decision in Robinette v. Commissioner. 439 F.3d 455, 459–61 (8th Cir. 2006) (rejecting the Tax Court’s claim to de novo scope of review in proceedings under 26 U.S.C. § 6330 and concluding that the Commissioner’s decision was subject to abuse of discretion review under APA § 706(2)(A)); see also Keller v. Comm’r, 568 F.3d 710, 718 (9th Cir. 2009) (citing Robinette with approval).
I cannot follow the majority in this convoluted path. Because the Tax Court is a “reviewing court” for purposes of the judicial review provisions of the APA, I am persuaded that its scope of review is the administrative record before the IRS, and that the Tax Court can only review the Secretary’s exercise of discretion for an abuse of discretion pursuant to 5 U.S.C. § 706(2)(A). I respectfully dissent."
Almost makes you want to read the majority opinion and dissent in their entirety, right? Right?
We'll see if the Supreme Court feels like being an uber-nerd and take this one up.