Company Files Amicus Brief Opposing Motion To Vacate Circle K Opinion.

THE CIRCLE K CORPORATION,

====== SUMMARY ======

The Wedbush Corporation has filed an amicus curiae brief opposing a motion by the government and Circle K Corporation, which asks the court to withdraw its opinion in Circle K Corporation v. United States, 23 Cl. Ct. 665 (1991).

In the decision, the court held that the company was entitled to treat the loss from its sale of stock as an ordinary loss under the inventory exception of section 1221(1), despite the company's Securities and Exchange Commission filings indicating that the stock was purchased "solely for the purpose of investment." (For a summary of the decision, see Tax Notes, June 3, 1991, p. 1147; for the full text, see 91 TNT 116-11 or H&D, May 29, 1991, p. 2219.)

Wedbush says it would be significantly affected by the withdrawal of the opinion because it is involved in a dispute with the IRS concerning the denial of its ordinary loss deduction for losses resulting from the sale of stock that was originally acquired by the company to allow access to a source of order flow.

In its brief against the motion to vacate the Circle K opinion, Wedbush argues that in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 115 S. Ct. 386 (1994) and Bates v. United States, 34 Fed. Cl. 51, (1995), the Supreme Court held that federal courts should not vacate decisions for mootness as a result of settlement. Wedbush also argues that granting the motion would not be in the public interest and that it may encourage gamesmanship and forum shopping.

====== FULL TEXT ======

(Judge Moody Tidwell)

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

[1] Wedbush Corporation respectfully requests this Court's permission to submit a brief as Amicus Curiae in opposition to the parties' Joint Motion Requesting the Court to Withdraw Its Opinion in This Case Filed on August 2, 1991, which motion was filed on April 5, 1996 in the above-captioned case. The amicus submits that this Court should be made aware of Supreme Court precedent, of which the parties have not previously informed the Court, that restrains this Court from granting the parties' joint motion.

[2] This Court issued an opinion deciding the merits of the above-captioned case on August 2, 1991. Circle K Corporation v. United States, 23 Cl. Ct. 665 (1991). Almost five years later, the parties have agreed to settle the case, subject to review by the Joint Committee on Taxation, and avoid an appeal. The defendant has imposed as a condition precedent to the settlement the withdrawal of this Court's opinion dated August 2, 1991. The plaintiff agreed to this condition, and on April 5, 1996 the parties filed a Joint Motion Requesting the Court to Withdraw Its Opinion in This Case Filed on August 2, 1991.

[3] In their joint motion, the parties did not inform this Court of the U.S. Supreme Court's decision in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 115 S. Ct. 386 (1994). The Supreme Court there held that federal courts should not vacate decisions for mootness as a result of settlement. See also Bates v. United States, 34 Fed. Cl. 51, 57 n.2 (1995) ("Any settlement [after a decision is filed] should not be premised upon a withdrawal of the decision"; citing Bancorp). The amicus submits that its brief, attached hereto, will provide this Court with relevant legal analyysis which will assist the Court in responding to the parties' joint motion and which has not previously been offered to the Court.

[4] The amicus is aware of the restrictive standards for filing an amicus brief in this Court, including those most recently stated in Fluor Corp. and Affiliates v. United States, 35 Fed. Cl. 284 (1996), in which the Court denied the filing of an amicus brief where it was opposed by both parties before the Court. However, the facts supporting this motion are distinguishable from the circumstances of the movant in Fluor Corp. More specifically, (i) the Court's response to the parties' joint motion in this action will significantly impact the rights of the amicus, (ii) the interests of the amicus are not aligned with those of either party, (iii) the amicus is not requesting an opportunity to address the merits of the case, and (iv) consideration of an amicus curiae brief here will not unnecessarily delay the case.

[5] The amicus is a corporation engaged in the securities business and for which the withdrawal of this Court's August 2, 1991 opinion in this case would have a significant impact. It has engaged in transactions for which the tax treatment will be directly affected by the Court's opinion in this case which the parties seek to have vacated. The amicus has received a notice of proposed adjustment dated October 22, 1996 from the Internal Revenue Service which raises the identical substantive matter that is the subject of the Court's opinion at issue here. Withdrawal of the Court's opinion in this case would likely require relitigation by the amicus, or by other similarly-situated taxpayers, of the identical legal issue. Further, the interests of the amicus are not aligned with either party in the above-captioned case -- the interest of the plaintiff is to resolve the action without further judicial review, and the interest of the defendant is to eliminate this Court's opinion as precedent for similarly-situated taxpayers. Because this Court's decision in this case will directly impact the amicus's rights, leave to file an amicus curiae brief is warranted. Fluor, 35 Fed. Cl. at 285.

[6] The amicus does not intend to address the merits of this case. Rather, it merely desires that this Court consider the Supreme Court's directive in Bancorp that the remedy of vacatur be reserved for extraordinary circumstances.

[7] The amicus has attached its amicus curiae brief to this motion in the event the motion is granted. Therefore, granting this motion of the amicus will not unnecessarily delay the resolution of the above-captioned action.

[8] The amicus has advised counsel for the plaintiff and the defendant of its intention to file this motion. Both parties oppose the motion.

[9] The amicus requests permission to file the attached amicus curiae brief.

Respectfully submitted,

Gerald A. Kafka

Attorney for Amicus Curiae

Of Counsel:

Dated: November 5, 1996

CERTIFICATE OF SERVICE

[10] I certify that service of the foregoing Motion for Leave to File Amicus Curiae Brief has this 5th day of November, 1996, been made on both counsel for plaintiff and counsel for the United States by first class, U.S. mail, postage prepaid at the following respective addresses:

A. Jerry Busby

George L. Squires

Douglas L. Poms

MEMORANDUM OF LAW OF AMICUS CURIAE

TABLE OF CONTENTS

Interest of Amicus Curiae

Summary of Argument

Argument

I. The Supreme Court Has Ruled That, Absent Exceptional

II. The Agreement of the Parties to the Motion as a Condition

III. The Public Interest Disfavors Allowance of the Parties' Motion

A. Interest in an Orderly Judicial Process Counsels Against

B. The Public Interest in Judicial Economy and Facilitation of

IV. Bancorp Applies with Equal Force to Vacatur of Trial Court

V. Granting Vacatur May Encourage Gamesmanship and Inappropriate

TABLE OF AUTHORITIES

CASES

Aetna Cas. and Sur. Co. v. Home Ins. Co., 882 F. Supp. 1355

Bailey v. Blue Cross/Blue Shield of Virginia, 878 F. Supp. 54

Bates v. United States, 34 Fed. Cl. 51 (1995)

Circle K Corporation v. United States, 23 Cl. Ct. 665 (1991)

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips Corp.,

McGowan v. Commissioner, 67 T.C. 599 (1976)

National Football League Players Ass'n v. Pro-Football, Inc., 79

U.S. Bancorp v. Bonner Mall Partnership, 115 S. Cl. 386 (1994)

Pohl Corp. v. United States, 22 Cl. Ct. 849 (1991)

Stolz v. American Life Assurance Co. of N.Y., 922 F. Supp. 435

19 Solid Waste Dept. Mechanics v. Albuquerque, 76 F.3d 1142

STATUTES/REGULATIONS

Treas. Reg. section 1.6662-4(d)(3)(iii)

MEMORANDUM OF LAW OF AMICUS CURIAE

INTEREST OF AMICUS CURIAE

[11] The amicus curiae, Wedbush Corporation ("Wedbush"), is a securities firm with its principal office in Los Angeles, California. Wedbush currently is in a dispute with the Internal Revenue Service ("IRS") for its 1990 and 1992 taxable years regarding the Federal tax treatment as capital or ordinary of losses resulting from its sale of stock originally acquired to allow Wedbush access to a source of order flow. A revenue agent's report (30-day letter) was issued to Wedbush on October 22, 1996, proposing to deny Wedbush ordinary loss deductions in excess of $25 million. This dispute involves in significant part the applicability of this Court's decision in the above-captioned action.

[12] Wedbush learned recently that the parties to the above- captioned action requested on April 5, 1996 that this Court withdraw its opinion filed on August 2, 1991, which opinion is relied on by Wedbush in its ongoing dispute with the IRS. Thus, Wedbush has a direct and significant interest in whether this Court grants or denies the parties' motion for withdrawal of its opinion.

SUMMARY OF ARGUMENT

[13] As a condition precedent to settlement, the parties in the above-captioned action jointly moved this Court on April 5, 1996 to withdraw its opinion filed on August 2, 1991. Circle K Corporation v. United States, 23 Cl. Ct. 665 (1991). In their motion, the parties do not raise or address the ruling of the Supreme Court, rendered in a unanimous decision, that prohibits vacatur occasioned by settlement of the parties. U.S. Bancorp v. Bonner Mall Partnership, 115 S. Ct. 386 (1994). The Supreme Court in Bancorp held that vacatur may not be granted absent a showing by the losing party of "exceptional circumstances" and, further, that "those exceptional circumstances do not include the mere fact that the settlement agreement provides for vacatur. . . ." Id. at 393. The amicus curiae respectfully submits that Bancorp restrains this Court from withdrawing its opinion at the parties' request absent a showing by the losing party of "exceptional circumstances," which showing has not been made.

[14] The Supreme Court described vacatur as an extraordinary equitable remedy to which a moving party must demonstrate entitlement. See id. at 392. Although vacatur by reason of mootness may be appropriate where occasioned by circumstances beyond the parties' control, it is not appropriate where occasioned by the mere settlement of the parties. In that circumstance, the losing party "has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur." Id. Because Congress has statutorily prescribed the traditional avenues of appeal by which a party may seek relief from a legal judgment, "[t]o allow the party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would -- quite apart from any considerations of fairness to the parties -- disturb the orderly operation of the federal judicial system." Id.

[15] It is irrelevant in this case that the motion for vacatur is jointly made. it is the burden of the party "seeking relief from the status quo" of the judgment who must demonstrate "not merely equivalent responsibility for the mootness, but equitable entitlement to the extraordinary remedy of vacatur." Id.

[16] Further, the public interest is not served by vacatur by reason of settlement, "Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur." Id., citing Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips Corp., 510 U.S. 27 (1993) (Stevens, J., dissenting). This public interest is particularly acute in cases involving this Court, with its national jurisdiction, and tax issues, which potentially affect every citizen. In this instance, the opinion which the parties seek to withdraw has been in the public domain for five years, and the amicus and other taxpayers nationwide have relied upon the opinion in question in structuring business transactions, in tax return reporting and in disputes with the federal taxing authorities.

[17] Principles of judicial economy also are adversely implicated by an inappropriate grant of vacatur by this Court. In this particular case, for example, the amicus curiae is currently in a dispute with the IRS on an issue in which the amicus curiae relies on this Court's decision. Thus, if the Court's opinion is withdrawn, it is possible, and indeed likely, that the Court will be presented with the same purely legal issue in another case and be put to the burden of retrying an issue it already has tried, on cross-motions for summary judgment, and decided.

[18] Likewise, the judicial interest in settlement of cases does not support the practice of vacatur. "[W]hile the availability of vacatur may facilitate settlement after the judgment under review has been rendered," "it may deter settlement at an earlier stage." Id. at 393. (Emphasis in original.)

[19] Vacatur of trial court decisions is not subject to a different standard than decisions of appellate courts by reason of prognostication as to the likelihood of reversal on appeal. In Bancorp, the Supreme Court explicitly considered and rejected this rationale. "We again assert the inappropriateness of disposing of cases, whose merits are beyond judicial power to consider, on the basis of judicial estimates regarding their merits." Id.

[20] Finally, vacatur by reason of settlement may encourage the type of gamesmanship frowned upon by this Court and others if it is an option available to litigants in the settlement process. See, e.g., Pohl Corp. v. United States, 22 Cl. Ct. 849, 852-53 (1991) ; McGowan v. Commissioner, 67 T. C. 599, 607-08 (1976) . This Court's stature and dignity in the eyes of taxpayers who look to this Court as one of the principal forums for resolution of tax matters may be adversely affected if gamesmanship is inadvertently countenanced by this Court.

ARGUMENT

I. THE SUPREME COURT HAS RULED THAT, ABSENT EXCEPTIONAL

[21] In a decision directly applicable to the parties' motion for withdrawal of the opinion in this case, the Supreme Court held that vacatur for mootness by reason of settlement should not be granted. Bancorp, 115 S.Ct. 386 (1994). In that case, the respondent filed a petition for bankruptcy. The petitioner moved to suspend the automatic stay of its foreclosure of the respondent's shopping mall. The District Court reversed the Bankruptcy Court's granting of the motion. The Ninth Circuit affirmed, and the petitioner petitioned the Supreme Court for certiorari. After the Court granted the petition, and received briefing on the merits, the parties settled the case. The petitioner, however, also requested that the Court vacate the judgment below. The Supreme Court held that federal courts should not vacate decisions where mootness results from a settlement.

[22] In an opinion that discussed the considerable existing jurisprudence on vacatur, the Supreme Court described vacatur as an extraordinary equitable remedy to which a requesting party must demonstrate entitlement. Although vacatur may be proper when a controversy becomes moot due to circumstances unattributable to any of the parties or by the unilateral action of the party who prevailed in the lower court, the rationale for vacatur does not exist where mootness occurs by reason of the voluntary settlement of the parties. The Court articulated the principal condition that has guided its decisions on vacatur to be "whether the party seeking relief from the judgment below caused the mootness by voluntary action." Id. at 391. Where mootness results from settlement," the losing party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur." In that circumstance, vacatur should be denied because the "judgment is not unreviewable, but simply unreviewed by [the party's] own choice." Such conduct "disentitle[s) [the moving party] to the relief he seeks." Because the losing party has voluntarily surrendered the traditional right of appeal, it may not make "a refined form of collateral attack on the judgment" by employing the extraordinary equitable remedy of vacatur. Id. at 392.

[23] The Supreme Court recognized that in "exceptional circumstances," vacatur by reason of settlement might "conceivably" be appropriate, but firmly concluded that "those exceptional circumstances do not include the mere fact that the settlement agreement provides for vacatur . . . ." id. at 393.

[24] Bancorp has been applied by numerous circuit courts of appeal and district courts to deny vacatur where mootness occurs by voluntary act of the losing party. See, e.g., National Football League Players Ass'n v. Pro-Football, Inc., 79 F.3d 1215 (D.C. Cir. 1996); 19 Solid Waste Dept. Mechanics v. Albuquerque, 76 F.3d 1142 (10th Cir. 1996) (vacatur of district court decision denied); Stolz v. American Life Assurance Co of N.Y., 922 F. Supp. 435 (W.D. Wash. 1996)(same); Bailey v. Blue Cross/Blue Shield of Virginia, 878 F. Supp. 54 (E.D. Va. 1995) (same). See also Bates v. United States, 34 Fed. Cl. 51, 57 n.2 (1995) (where the Court advised the parties that given the judicial work to date on the matter, "it is likely a decision will be filed in the near future. Any settlement thereafter should not be premised upon a withdrawal of the decision;" citing Bancorp).

[25] Bancorp applies with equal force in this instance. The parties' settlement has been conditioned on a withdrawal by the Court of its opinion. In so doing, the losing party has voluntarily surrendered its right of appeal. It has made no showing of exceptional circumstances to warrant vacatur of this Court's opinion. For this reason alone, Bancorp mandates that this Court deny the parties' motion.

II. THE AGREEMENT OF THE PARTIES TO THE MOTION AS A CONDITION

[26] In Bancorp, the Supreme Court explicitly considered and rejected the argument that the mutual agreement of the parties to the settlement warranted vacatur because it was fair to both parties. That argument, the Court stated:

misconceived the emphasis on fault in our decisions. That the

115 S. Ct. at 392. In other words, the party that has lost by reason

[27] If the United States seeks relief from the opinion rendered by this Court, its recourse is the traditional one of an appeal with the Court of Appeals for the Federal Circuit. Instead, and five years after the opinion was filed and published, it agreed to settle the case, thereby relinquishing its right of appeal. Having settled the case, the United States cannot now seek the Court's assistance in a collateral attack on its opinion. /1/

III. THE PUBLIC INTEREST DISFAVORS ALLOWANCE OF THE PARTIES' MOTION

A. INTEREST IN AN ORDERLY JUDICIAL PROCESS COUNSELS AGAINST

[28] In contemplating an equitable remedy such as vacatur, the public interest must be considered. The Supreme Court determined in Bancorp that the public interest counsels against vacatur by reason of settlement for reasons that apply with equal force in this instance. "Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur. Id. at 392. The public interest is "best served by granting relief when the demands of 'orderly procedure' cannot be honored" but, conversely, "the public interest requires those demands to be honored when they can." Id. Bancorp represents a considered decision by the Supreme Court that vacatur as a condition of settlement is a situation where orderly judicial procedures should be honored by letting the decision stand.

[29] The public interest in orderly judicial procedure in tax matters is especially strong. The Court of Federal Claims plays an important role in this process because, unlike U.S. district courts that also adjudicate tax refund cases, it is a court of national jurisdiction. Consequently, its opinions serve as precedent for taxpayers nationwide in structuring transactions, in tax return reporting and in resolution of disputes with the federal taxing authorities. Tax cases constitute approximately one-third of this Court's docket. Moreover, judicial decisions in tax matters constitute substantial authority for taxpayers for purposes of avoiding certain penalties. See Treas. Reg. section 1.6662- 4(d)(3)(iii) (judicial decisions are substantial authority for purposes of avoiding Internal Revenue Code section 6662 penalty).

[30] The opinion at issue in this case has been in the public domain for five years. The amicus curiae is a taxpayer currently in a dispute with the IRS in which it relies on this Court's opinion. There may be others similarly situated. The withdrawal of the opinion at this juncture thus gives rise to the type of disturbance of the "orderly operation of the federal judicial system" against which Bancorp counsels. Id. at 392.

[31] In this regard, the amicus curiae understands the natural preference of the plaintiff-taxpayer for settlement rather than risk a successful appeal by the United States, although it is fair to say that by litigating the matter plaintiff took the risk of appellate review. But particularly where a decision has implications for other taxpayers, the amicus curiae submit that Bancorp mandates that plaintiff's desire for resolution give way to the broader public interest in an orderly judicial process.

B. THE PUBLIC INTEREST IN JUDICIAL ECONOMY AND FACILITATION OF

[32] Other public policy rationales were proffered in Bancorp as justifications for vacatur and were rejected. One such rationale was the interest in judicial economy and facilitation of resolution by settlement. The Supreme Court considered this rationale but decided that "while the availability of vacatur may facilitate settlement after the judgment under review has been rendered," it may "DETER settlement at an earlier stage. SOME litigants, at least, may think it worthwhile to roll the dice rather than settle in the district court, or in the court of appeals, if, but only if, an unfavorable outcome can be washed away by a settlement-reached vacatur." Id. at 393. (Emphasis in original.)

[33] Although the Supreme Court noted in Bancorp that the judicial economies achieved by settlement are more extensive at the trial court level than at the appellate level, those economies arise when the parties settle PRIOR TO trial. Virtually nothing in the nature of economy is gained when settlement occurs after a trial court has heard the case and rendered its opinion. Cf. Bates v. United States, 34 Fed. Cl. 51, 57 n.2 (1995).

[34] Moreover, in considering vacatur of an appellate opinion, the Supreme Court was not persuaded by the argument that leaving the issue temporarily unresolved would facilitate the ultimate resolution of the issue by encouraging its continued examination and debate. The Court noted that "debate AMONG the courts of appeal sufficiently illuminates the questions that come before us for review. The value of additional intra-circuit debate seems to us far outweighed by the benefits that flow to litigants and the public from the resolution of legal questions." Id. at 393. (Emphasis in original.) It is equally true that debates among trial courts illuminate questions that rise to the level of appellate review, but intra-trial court debate on the same question must bow to the same considerations as the Supreme Court articulated with regard to intra-appellate debate.

[35] Finally, because this Court is a court of national jurisdiction and its decision has vitality for other taxpayers, the likelihood that this Court will be asked to retry the same issue with another litigant is not remote. /2/ It offends principles of judicial economy for the Court to be burdened in this manner with a retrial when it already has heard evidence and legal argument, deliberated, decided and crafted an opinion.

IV. BANCORP APPLIES WITH EQUAL FORCE TO VACATUR OF TRIAL COURT

[36] Bancorp cannot be distinguished on the ground that this court is being asked to withdraw its own opinion rather than, as in Bancorp, the opinion of a court below. In both cases, the losing party has chosen through settlement of the case to forego appellate review and seeks to employ the equitable remedy of vacatur to effect a collateral attack on the opinion rendered. As stated in Bancorp, the foregoing is the primary basis for denying vacatur and is unaffected by the rationale that trial court decisions are subject to review as of right and more likely to be reversed.

[37] Indeed, in Bancorp the Supreme Court explicitly stated that as regards vacatur of district court judgments, it was inappropriate to consider factors such as the likelihood of reversal as a rationale for more liberal application of vacatur to such courts' opinions. The Court also noted that the underlying empirical proposition as to reversal rates was suspect. Id. at 393.

V. GRANTING VACATUR MAY ENCOURAGE GAMESMANSHIP AND INAPPROPRIATE

[38] Vacatur for mootness by reason of settlement can encourage forum shopping and inappropriate gamesmanship by litigants. Sometimes the government or a taxpayer will decide to take a dispute to trial as a test case, knowing that a number of similar cases will be brought in the future. If vacatur was an option in the event an unfavorable decision is reached in the test case, the losing party could settle the case on terms favorable to the winning party with the condition that the decision is vacated, and then bring another test case in a more favorable forum.

[39] Forum shopping is greatly frowned upon by this Court -- by either party. As the Court stated in Pohl Corporation v. United States, 22 Cl. Ct. 849, 852-53 (1991):

If the facts in the cases pending before the Tax Court indeed

[40] Likewise, the Tax Court has not tolerated similar behavior by the Internal Revenue Service in that forum. In McGowan v. Commissioner, 67 T.C. 599 (1976), involving a test case situation, the IRS filed a Notice of Concession shortly before trial and requested the Court to issue a decision of no deficiency without issuing an opinion on the merits. The Tax Court rejected the concession on the grounds that it was within its discretion to retain jurisdiction in the interests of justice. Id. at 605. The Tax Court noted that many taxpayers would be impacted by the outcome of the case, and suggested that the IRS was engaging in gamesmanship by its actions. Id. at 607-08.

[41] The dignity of the judicial system depends on courts not facilitating the type of forum shopping and gamessmanship that would certainly occur if requests for vacatur for mootness resulting from settlement were granted. See, e.g., Stolz, 922 F. Supp. at 436 (where parties settled after judgment was rendered and sought vacation of the judgment, "[t]he Court has then operated as little more than an elaborate settlement mechanism, and has been ill used at that. . . . It is a waste of judicial resources and an abuse of the judicial process to use the court in this way. Allowing vacation of judgments under such circumstances only serves to encourage the practice."); Aetna Cas. and Sur. Co. v. Home Ins. Co., 882 F. Supp. 1355, 1358 (S.D.N.Y. 1995) (to same effect). In this instance, the Court's decision has continuing vitality for other taxpayers. The stature of this Court as a forum of national jurisdiction in tax matters especially counsele against any inadvertent facilitation of gamesmanship, particularly where other litigants may be affected.

[42] Accordingly and for the reasons set forth above, the amicus curiae respectfully requests that this Court deny the parties' joint motion for withdrawal of its opinion filed on August 2, 1991.

Respectfully submitted,

Gerald A. Kafka

Counsel for Amicus Curiae

Of Counsel:

Dated: November 5, 1996

CERTIFICATE OF SERVICE

[43] I certify that service of the foregoing Memorandum of Law of Amicus Curiae in Opposition to Joint Motion of Parties to Vacate Opinion of This Court has this 5th day of November, 1996, been made on both counsel for plaintiff and counsel for the United States by first class, U.S. mail, postage prepaid at the following respective addresses:

A. Jerry Busby

George L. Squires

Douglas L. POMS

FOOTNOTES

/1/ That the losing party may believe this Court's decision to be wrong is no rationale for vacatur, as it "obviously collides head on with the Supreme Court's admonition that a party should not be allowed to use vacatur 'as a refined form of collateral attack on the judgment.'" 19 Solid Waste Dept. Mechanics, 76 F.3d at 1144-45 (denying vacatur where city government withdrew policy that district court found invalid where city contended that one reason for vacatur was incorrectness of district court decisions; citing Bancorp).

/2/ In its thirty-day letter issued to the amicus curiae, the IRS explicitly contends that "Circle K should not be followed." Thus, if the amicus curiae ultimately proceeds to litigation, the scope and application of this Court's decision likely will be at issue.

END OF FOOTNOTES