Captive Insurance Adviser Seeks Rehearing in Reporting Challenge

CIC SERVICES, LLC,
Plaintiff-Appellant,
v.
INTERNAL REVENUE SERVICE; DEPARTMENT OF TREASURY;
UNITED STATES OF AMERICA,
Defendants-Appellees.

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

On Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville

APPELLANT'S PETITION FOR REHEARING EN BANC

Adam R. Webber
ELLIOTT, FAULKNER & WEBBER
4244 Indian Ripple Rd., Ste. 150
Beavercreek, OH 45440
(937) 264-8710
awebber@elliottfaulknerlaw.com

William S. Consovoy
Jeffrey M. Harris
Cameron T. Norris
CONSOVOY MCCARTHY PLLC
ANTONIN SCALIA LAW SCHOOL
SUPREME COURT CLINIC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
will@consovoymccarthy.com
jeff@consovoymccarthy.com
cam@consovoymccarthy.com

Counsel for Appellant

---

TABLE OF CONTENTS

Table of Authorities

Introduction

Background

Argument

Conclusion

Certificate of Compliance

Certificate of Service

Addendum

TABLE OF AUTHORITIES

Cases

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)

Autocam Corp. v. Sebelius, 730 F.3d 618 (6th Cir. 2013)

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)

Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) (en banc)

Direct Mktg. Ass'n v. Brohl, 135 S. Ct. 1124 (2015)

Fla. Bankers Ass'n v. U.S. Dept. of the Treasury, 799 F.3d 1065 (D.C. Cir. 2015)

Flora v. United States, 357 U.S. 63 (1958)

Foodservice & Lodging Inst., Inc. v. Regan, 809 F.2d 842 (D.C. Cir. 1987)

Free Enter. Fund v. PCAOB, 561 U.S. 477 (2010)

Gardner v. Toilet Goods Ass'n, 387 U.S. 167 (1967)

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) (en banc)

Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013)

Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44 (2011)

Nat'l Rest. Ass'n v. Simon, 411 F. Supp. 993 (D.D.C. 1976)

Pullan v. Kinsinger, 20 F. Cas. 44 (C.C.S.D. Ohio 1870)

Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011)

United States v. Adewani, 467 F.3d 1340 (D.C. Cir. 2006)

United States v. Morton Salt Co., 338 U.S. 632 (1950)

Statutes

26 C.F.R. §1.6011-4

26 C.F.R. §1.6011-4(b)

26 C.F.R. §301.6111-3

26 U.S.C. §6011(a)

26 U.S.C. §6111

26 U.S.C. §6112

26 U.S.C. §6707

26 U.S.C. §6707(c)1

26 U.S.C. §6707A

26 U.S.C. §6707A(c)(1)

26 U.S.C. §6707A(d)

26 U.S.C. §6708

26 U.S.C. §720

26 U.S.C. §7421(a)

26 U.S.C. §831(b)

26 U.S.C., subt. F, ch. 63

26 U.S.C., subt. F, ch. 64

28 U.S.C. §2201(a)

Other Authorities

6 Cir. IOP 35(a)

FRAP 35(b)(1)(B)

Hickman & Kerska, Restoring the Lost Anti-Injunction Act, 103 Va. L. Rev. 1683 (2017)

IRS Notice 2016-66, 2016-47 I.R.B. 745 (Nov. 21, 2016)

Pierce, Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59 (1995)

---

INTRODUCTION

Preenforcement review is the lifeblood of administrative law. Thanks to the Administrative Procedure Act, law-abiding citizens can proactively challenge illegal regulations in court; citizens do not have to violate the regulation first and then raise its invalidity as a defense to an enforcement action. Abbott Labs. v. Gardner, 387 U.S. 136, 139-41, 152-53 (1967). Without preenforcement review, plaintiffs would have to “bet the farm” to “test[ ] the validity” of agency action — a risk most would understandably never take. Free Enter. Fund v. PCAOB, 561 U.S. 477, 490-91 (2010) (cleaned up). Gone would be the judicial “check” that the APA created to rein in the “excesses” and “rapid expansion” of the administrative state. United States v. Morton Salt Co., 338 U.S. 632, 644 (1950).

The IRS is not exempt from the APA. Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55 (2011). But once the IRS begins enforcement, the Anti-Injunction Act prohibits plaintiffs from suing to “restrain[ ] the assessment or collection of any tax.” 26 U.S.C. §7421(a). Instead of stopping assessment or collection, plaintiffs must “pay the tax and sue for a refund afterwards.” Autocam Corp. v. Sebelius, 730 F.3d 618, 622 (6th Cir. 2013), GVR'd on other grounds, 573 U.S. 956 (2014). The reason for this “'pay now and litigate later'” rule is simple: the treasury wants its money now, and it does not want taxpayers using meritless lawsuits to delay their tax bills. Flora v. United States, 357 U.S. 63, 75, 68 (1958). The federal government's need for quick revenue was especially pressing in the wake of the Civil War, when the Anti-Injunction Act was enacted. See Hickman & Kerska, Restoring the Lost Anti-Injunction Act, 103 Va. L. Rev. 1683, 1720-25 (2017). The Act formally codified an “old and familiar rule” of equity that barred injunctions against tax assessors and collectors. Pullan v. Kinsinger, 20 F. Cas. 44, 48 (C.C.S.D. Ohio 1870).

This appeal presents an exceptionally important question about the relationship between the APA and the Anti-Injunction Act: When a regulation does not itself implicate the “assessment or collection” of taxes, but one of the consequences for violating that regulation is a tax penalty, does the Anti-Injunction Act trump the APA and insulate the regulation from preenforcement review? Here, for example, CIC Services challenged IRS guidance that requires its industry to comply with onerous reporting requirements; violations of those reporting requirements are punishable by, among other things, a tax penalty. All agree that challenges to tax-reporting requirements do not implicate the Anti-Injunction Act. Direct Mktg. Ass'n v. Brohl, 135 S. Ct. 1124 (2015). But does attaching a tax penalty change the answer?

It shouldn't. Plaintiffs like CIC are suing to challenge the agency's mandate, not the tax penalties that happen to be attached. Their injuries are the costs of complying with the mandate, not their liability for tax penalties that the IRS has not assessed (and may never). The mandate imposes duties independent of the tax penalties, appears in a separate statutory provision, and would injure the plaintiff even if the tax penalties were eliminated. Run-of-the-mill APA cases like this one lack the direct connection to “assessment or collection” of taxes that the Anti-Injunction Act requires.

Yet a divided panel of this Court concluded otherwise. Add. 5-14. Respectfully, its opinion conflicts with the text of the Anti-Injunction Act and the Supreme Court's unanimous decision in Direct Marketing — as Judge Nalbandian persuasively explained in dissent. Add. 16-24. The panel's opinion also wrongly rejects this Court's interpretation of the Anti-Injunction Act in Autocam — an interpretation that, contrary to the panel's assertion, remains “good law.” Add. 13. And the panel's opinion splits with precedents of the Seventh and Tenth Circuits, which adopt Autocam's reading of the Act. The panel instead followed the D.C. Circuit's opinion in Florida Bankers Association v. U.S. Department of the Treasury, 799 F.3d 1065 (D.C. Cir. 2015) (Kavanaugh, J.). But that decision has received withering criticism from experts in tax law and administrative law alike. See Add. 19 n.3. Judge Henderson dismantled its reasoning, Fla. Bankers, 799 F.3d at 1072-84 (dissent), as did Judge Nalbandian, Add. 18-24. Florida Bankers is wrong; the Seventh Circuit, Tenth Circuit, and this Court's Autocam decision are right.

The full Court should grant rehearing. The panel's departure from the precedents of the Supreme Court, this Court, and two sister circuits is reason enough to do so. But the consequences of the panel's opinion make en-banc review indispensable. If allowed to stand, the opinion gives the government a foolproof way to circumvent judicial review of any agency action: just slap a tax penalty on it. This Court should “shudder at the government-empowering consequences” of the panel's opinion. Fla. Bankers, 799 F.3d at 1073 (Henderson, J., dissenting).

And this Court should shudder at what the opinion means for CIC. To get its day in court, CIC now must violate the reporting requirements, incur substantial tax penalties, pay them, and sue for a refund. Just one problem: violating a reporting requirement is a crime. Asking CIC's attorneys and accountants to become criminals (and risk fines, their professional licenses, and even jail time) is forcing them to forego judicial review altogether. Nothing in the text, history, or caselaw surrounding the Anti-Injunction Act or APA requires this unjust result. CIC respectfully asks the Court to grant its petition and rehear this appeal en banc.

BACKGROUND

The Tax Code authorizes the IRS to define — via “regulations” — the “reportable transactions” that must be submitted with tax returns. 26 U.S.C. §6707A(c)(1). To circumvent this “regulations” requirement, the IRS defines “reportable transactions” to include “transactions of interest,” which are transactions flagged in IRS “guidance” documents. 26 C.F.R. §1.6011-4(b). The IRS used this workaround to publish Notice 2016-66, a guidance document that designates “section 831(b) micro-captive transactions” as transactions of interest. Notice 2016-66, at 1, 2016-47 I.R.B. 745 (Nov. 21, 2016), irs.gov/pub/irs-drop/n-16-66.pdf. The Notice never went through notice and comment or the other necessary procedures for “regulations.”

Micro-captives — the industry targeted by Notice 2016-66 — are small insurance companies that businesses use and own themselves, instead of hiring an insurer that offers coverage to the general public. The Tax Code encourages these arrangements by giving micro-captives several tax incentives. See 26 U.S.C. §831(b). Despite this congressional blessing, the IRS takes a jaundiced view of micro-captives. It thinks they have “the potential for tax avoidance or evasion,” though it admits it “lack[s] sufficient information” about which micro-captives might be abusing the system. Notice 2016-66, at 1.

Notice 2016-66 subjects all micro-captives and their advisers to multiple report-ing requirements. Because the Notice labels them “transactions of interest,” taxpayers who conduct micro-captive transactions now must file a special return with the IRS. 26 U.S.C. §6011(a); 26 C.F.R. §1.6011-4. The Notice also means that “material advisers” — the lawyers, accountants, and consultants who counsel micro-captives — must file their own special return with the IRS, 26 U.S.C. §6111; 26 C.F.R. §301.6111-3, and keep a list of their clients, 26 U.S.C. §6112. The consequences for violating these reporting requirements are spelled out in separate provisions of the Tax Code. Failing to file an accurate return can trigger a tax penalty. Id. §§6707; 6707A. So can failing to turn over a client list. Id. §6708. And a willful violation of either requirement is a crime. Id. §7203.

Notice 2016-66 directly affects CIC, whose attorneys and accountants advise micro-captives. Compliance with the reporting requirements costs CIC, at a minimum, hundreds of hours of labor and over $100,000. CIC challenged the Notice by filing a preenforcement suit. It asked the district court to enjoin Notice 2016-66 as an illegal attempt to circumvent the APA and other statutes. The IRS's sole defense was the Anti-Injunction Act.¹

The district court accepted this defense, and a divided panel of this Court affirmed. While the panel agreed that challenges to tax-reporting requirements do not implicate the Anti-Injunction Act, it held that these reporting requirements are different because one of the penalties for violating them is a tax. Add. 10-12. CIC's suit “is focused on that tax's assessment or collection,” the panel reasoned, because CIC's “suit 'would have the effect of restraining — fully stopping' the IRS from collecting the penalties imposed for violating the Notice's requirements.” Add. 11. The panel rejected CIC's argument that it was challenging the Notice, not the tax penalties, as “'nifty wordplay.'” Add. 12. Plaintiffs cannot “'sidestep'” the Anti-Injunction Act by challenging only “the regulatory aspect of a regulatory tax,” it explained. Add. 13. The panel acknowledged that its reasoning conflicted with Autocam, but it deemed the D.C. Circuit's opinion in Florida Bankers more persuasive and felt unbound by Autocam because the Supreme Court “vacated” that decision in light of Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014). Add. 13.

Judge Nalbandian dissented. He explained how the panel's opinion departs from the text of the Anti-Injunction Act and the Supreme Court's decision in Direct Marketing, Add. 16-18; why Florida Bankers is unpersuasive, Add. 18-22; and how the panel's opinion erects insurmountable hurdles to judicial review, Add. 22-24. Judge Nalbandian pointed out that the panel's opinion would even bar injunctive relief against racially discriminatory reporting requirements. Add. 19. Notably, the panel majority did not disagree. Add. 14 n.8.

ARGUMENT

This Court grants en-banc review when a panel opinion either “directly conflicts with Supreme Court or Sixth Circuit precedent,” or contains “a precedent-setting error of exceptional public importance” because it, for example, “conflicts with the authoritative decisions of other [circuits].” 6 Cir. IOP 35(a); FRAP 35(b)(1)(B). The panel's opinion does both.

I. The panel's opinion directly conflicts with the text of the Anti-Injunction Act, the Supreme Court's decision in Direct Marketing, and this Court's decision in Autocam.

The Anti-Injunction Act states that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” 26 U.S.C. §7421(a). “Assessment” and “collection,” Justice Thomas explained for a unanimous Court in Direct Marketing, are terms of art in “federal tax law.” 135 S. Ct. at 1129. Assessment is “the official recording of a taxpayer's liability.” Id. at 1130; see 26 U.S.C., subt. F, ch. 63. Collection is “the act of obtaining payment of taxes due.” 135 S. Ct. at 1130; see 26 U.S.C., subt. F, ch. 64. The word “restraining,” moreover, is used “in the AIA in its equitable sense”; it applies to suits that would “stop” assessment or collection, not suits that would “merely inhibit” them. 135 S. Ct. at 1332. Courts of equity, after all, “did not refuse to hear every suit that would have a negative impact on [tax] revenues.” Id. at 1133. Taken together, the statutory text is “keyed to the acts of assessment . . . and collection themselves.” Id. at 1131. The Anti-Injunction Act does not apply when plaintiffs challenge some part of the tax process that occurs “before” assessment and collection, such as “'provisions of law for the ascertainment of liability to any tax.'” Id. at 1129.²

That is why the Act does not apply to cases like this one. CIC is not trying to stop the “assessment or collection” of tax penalties. It has not violated any reporting requirement, and the IRS has not assessed any tax penalty. “[T]he notice and reporting requirements” that CIC challenges “precede the steps of 'assessment' and 'collection.'” Id. at 1131 (emphasis added). CIC's suit would stop the Notice, but it would not stop assessment or collection “themselves”; “assessment and collection . . . are triggered after the [IRS] has received the returns and made the deficiency determinations that the notice and reporting requirements are meant to facilitate.” Id. (emphasis added). The IRS “still needs to take further action to assess the [penalty] and to collect payment from [the violator].” Id. 

Nor is CIC suing “for the purpose of restraining” assessment or collection. CIC is challenging an IRS notice that subjects it to reporting requirements, not the statute that imposes tax penalties for violations of those requirements. CIC's injuries stem entirely from the reporting requirements; it “does not allege tax liability as its injury,” Add. 16 (Nalbandian, J., dissenting), and it has every intention of complying with the reporting requirements (and thus not incurring tax penalties) if the Notice is upheld. The reporting requirements, moreover, are not a “regulatory tax.” Add. 13 (majority op.). They appear in different statutory provisions from the tax penalties, impose freestanding legal obligations, and carry criminal consequences independent of the tax penalties. Supra 5. Indeed, if the tax penalties did not exist, CIC would have filed this exact same suit. “Put simply, this is not a dispute over taxes.” Add. 17 (Nalbandian, J., dissenting).³

Applying the Anti-Injunction Act to preenforcement challenges of this nature is “anomalous.” Add. 23-24 (Nalbandian, J., dissenting). It does not serve the Act's purpose of protecting the government's coffers; at the preenforcement stage, tax penalties do not exist to be collected but to coerce compliance with the underlying mandate. Applying the Anti-Injunction Act in this context, moreover, requires plaintiffs to do the opposite of what the Act was designed to encourage. Instead of encouraging plaintiffs to obey the law (i.e., pay the tax and sue for a refund), the panel's opinion encourages plaintiffs to break the law (i.e., disobey the reporting requirement, incur a tax penalty, and sue for a refund). It is impossible to “imagine that the Congress intended such an anomalous result in a system which depends for its very existence on the principle of voluntary compliance.” Nat'l Rest. Ass'n v. Simon, 411 F. Supp. 993, 996 (D.D.C. 1976).

That is why the Court rejected this interpretation of the Anti-Injunction Act in Autocam. There, Catholic-owned companies raised religious objections to a regulatory mandate that required them to insure contraceptives. 730 F.3d at 620. Because the “primary enforcement mechanism” for this contraceptive mandate was a “tax” penalty, the Court asked the parties to brief the “jurisdictional” question whether the Anti-Injunction Act barred the plaintiffs' preenforcement suit. Id. at 621. The Court concluded it did not because the plaintiffs were challenging the mandate, not the tax penalty attached to it. The Court's analysis, which mirrors CIC's argument here, is worth quoting in full:

This suit is not precluded by the AIA because it is not intended to “restrain” the IRS's efforts to “assess or collect” taxes. The plaintiffs seek to enjoin a part of the coverage requirements imposed by the mandate, not the IRS's mechanism for collecting “tax” from noncompliant employers.

Such suits are common in other regulatory contexts. For instance, if a regulated party violates EPA regulations regarding diesel fuels, that party is assessed a “penalty” that is treated as a “tax” for AIA purposes. Nonetheless, pre-enforcement challenges to these regulations are routine and courts have never applied the AIA to bar such suits. Because the plaintiffs seek to enjoin the legal obligation created by the mandate, rather than enjoin enforcement or collection of taxes by the IRS, we agree that the AIA does not bar a RFRA challenge to the mandate.

Id. at 622 (cleaned up).

The panel's only response to Autocam is that it is “no longer good law,” Add. 13, but the panel was mistaken. True, Autocam rejected the plaintiffs' claim on the merits, 730 F.3d at 625-28; the Supreme Court resolved the merits differently in Hobby Lobby, 573 U.S. at 707-19; and Autocam was GVR'd “in light of . . . Hobby Lobby,” 573 U.S. 956. But Hobby Lobby did not reject Autocam's interpretation of the Anti-Injunction Act. The Supreme Court reached the merits of the preenforcement challenge, and it affirmed a Tenth Circuit decision that found the Anti-Injunction Act inapplicable for the same reasons as Autocam. 723 F.3d at 1126-28. Thus, “the Supreme Court's one-paragraph vacatur gives no cause for questioning [Autocam's] holding on” the Anti-Injunction Act, and “that holding continues to have precedential weight.” United States v. Adewani, 467 F.3d 1340, 1342 (D.C. Cir. 2006) (cleaned up). The Autocam Court agreed. On remand from the Supreme Court, it ordered the district court to permanently enjoin the contraceptive mandate — something that would have been impermissible if the Anti-Injunction Act applied. Dkt. 214-1, Autocam, Nos. 12-2673/13-2316 (Dec. 11, 2014). The panel's opinion thus creates an intra-circuit split with Autocam — a conflict that only the en-banc Court can resolve.

But even if Autocam lacked precedential weight, that opinion (authored by Judge Gibbons and joined by Judge Stranch) — plus Judge Nalbandian's dissent here — means that at least three judges of this Court disagree with the panel majority. Respectfully, these three judges have the better view, one that the Supreme Court expressly vindicated in Direct Marketing and implicitly vindicated in Hobby Lobby. Only en-banc review can resolve these internal and vertical conflicts.

II. The panel's misreading of the Anti-Injunction Act is exceptionally important because it splits with two other circuits and severely curtails judicial review of administrative agencies.

The panel's opinion also conflicts with the majority of other circuits to consider this issue. Like Autocam, the Seventh and Tenth Circuits concluded that the Anti-Injunction Act did not bar preenforcement challenges to the contraceptive mandate because those suits challenged the mandate itself, not the tax penalty attached to it. Their interpretation of the Act splits with the panel's.

As the Seventh Circuit held, preenforcement challenges to the contraceptive mandate “[we]re not suits 'for the purpose of' restraining the assessment or collection of a tax”; they “s[ought] relief from a regulatory mandate that exists separate and apart from the assessment or collection of taxes.” Korte v. Sebelius, 735 F.3d 654, 669 (7th Cir. 2013). The mandate was “not structured as a predicate to the imposition of a tax but [wa]s instead an independent regulatory mandate”; indeed, the “stiff tax penalties” attached to it were not the only “consequences for noncompliance.” Id. While the Seventh Circuit acknowledged that invalidating the mandate would “incidentally affect . . . tax liability” by making it impossible for individuals to be “liable for the tax penalty,” the court rejected this reasoning as too attenuated: “the Anti-Injunction Act does not reach all disputes tangentially related to taxes,” “the assessment or collection of a tax must be the primary purpose of the lawsuit,” and “[t]hese lawsuits target the mandate itself.” Id. at 669-70 (cleaned up).

The Tenth Circuit, sitting en banc, unanimously endorsed this same reading of the Anti-Injunction Act. See Hobby Lobby, 723 F.3d at 1126-28; id. at 1164 (Briscoe, J., concurring in part and dissenting in part); id. at 1191 (Matheson, J., concurring in part and dissenting in part). Preenforcement challenges to the contraceptive mandate, the majority opinion explained, were “not challenging the IRS's ability to collect taxes”; they were “seeking to enjoin the enforcement, by whatever method, of one HHS regulation.” Id. at 1127 (emphasis added).⁴

These decisions and the panel's opinion cannot both be right. Like the contraceptive mandate, the reporting requirements here are independent regulatory mandates that are codified in separate statutory provisions from the tax penalties. Supra 5. And like the contraceptive mandate, the reporting requirements here are enforced with mechanisms other than tax penalties. Supra 5. To be sure, an HHS regulation about contraceptives is less related to taxation than an IRS notice about tax-reporting requirements. But the panel's interpretation of the Anti-Injunction Act would sweep in both: no less than CIC's challenge to Notice 2016-66, a suit challenging the contraceptive mandate “'would have the effect of restraining — fully stopping' the IRS from collecting the penalties imposed for violating the [mandate's] requirements.” Add. 11.

Therein lies the danger of the panel's opinion — and why en-banc review is so badly needed. The government could attach a tax penalty to any agency action and, using the panel's logic, foreclose preenforcement review. And foreclosing preenforcement review would, practically speaking, eliminate judicial review and the accountability it provides. Gardner v. Toilet Goods Ass'n, 387 U.S. 167, 172 (1967); see Pierce, Seven Ways to Deossify Agency Rulemaking, 47 Admin. L. Rev. 59, 91 (1995) (“With pre-enforcement review unavailable, . . . agencies often could predict with confidence that a rule will never be subject to judicial review” and would “frequently issue rules that conflict with statutes or with the Constitution.”).

That is certainly true here. According to the panel, CIC cannot obtain judicial review unless it deliberately violates the reporting requirements imposed by Notice 2016-66, the IRS assesses a tax penalty, CIC pays it, and CIC sues for a refund. Each of these steps is “fraught” with difficulties. Add. 23 (Nalbandian, J., dissenting). Deliberately violating a reporting requirement is a crime punishable by up to a year in prison and $100,000 in fines. 26 U.S.C. §7203. And for CIC's attorneys and accountants, deliberately breaking the tax laws would violate the ethical strictures of their professions. Even if CIC violated the reporting requirements, the decision to assess a tax penalty is committed to the IRS's unreviewable discretion, 26 U.S.C. §§6707A(d); 6707(c) — making the IRS (the would-be defendant) the sole arbiter of whether CIC can sue. And this all assumes that CIC could pay the penalties once the IRS decides to assess them — “to the tune of $50,000 . . . for each transaction [CIC] fails to report.” Add. 22 (Nalbandian, J., dissenting).

If the Tax Code requires all that before a plaintiff can obtain judicial review, then it is unconstitutional. See Fla. Bankers, 799 F.3d at 1083-84 (Henderson, J., dissenting) (collecting authorities). Thankfully, it doesn't. The panel's opinion reaches that untenable conclusion only by misreading the Anti-Injunction Act, failing to heed the Supreme Court's decision in Direct Marketing, and splitting with the precedent of this Court and two others. The full Court should hear this appeal.

CONCLUSION

This Court should grant CIC's petition for rehearing en banc.

Respectfully submitted,

Adam R. Webber
ELLIOTT, FAULKNER & WEBBER
4244 Indian Ripple Rd., Ste. 150
Beavercreek, OH 45440
(937) 264-8710
awebber@elliottfaulknerlaw.com

William S. Consovoy
Jeffrey M. Harris
Cameron T. Norris
CONSOVOY MCCARTHY PLLC
ANTONIN SCALIA LAW SCHOOL
SUPREME COURT CLINIC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
will@consovoymccarthy.com
jeff@consovoymccarthy.com
cam@consovoymccarthy.com