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Federal Rule of Appellate Procedure 28(j)

Posted on Oct. 7, 2022

In last Friday’s post on the Tax Court’s recent order in Dollarhide v. Commissioner, I brought up the discussion in the order of Seaview Trading a case on which we blogged here. I alluded to the fact that the IRS had filed a request that the 9th Circuit reconsider its decision in Seaview via an en banc hearing. Here is the brief filed by the IRS requesting the en banc hearing and here is the Seaview’s response. The government does not lightly request en banc hearings and doing so often signals its willingness to seek cert if it fails to get the requested relief from the circuit.

Another facet of appellate litigation is the opportunity to keep the circuit court informed of developments in the law that occur after submission of the briefs and prior to the court’s opinion. The IRS viewed the order by Judge Holmes in the Dollarhide case to be sufficiently significant that it brought that order to the attention of the 9th Circuit via a Federal Rules of Appellate Procedure Rule (FRAP) 28(j) letter. Seaview thought that the order in Dollarhide was of no consequence and responded with its own letter to the 9th Circuit basically explaining why the court should pay no attention to the letter from the IRS.

The 9th Circuit has not yet granted the request for an en banc hearing. The IRS letter essentially asks that the judges considering whether to grant the request note the description of the issue contained in the Tax Court’s order in Dollarhide.

In the Tax Court’s order, Judge Holmes pointed out that the reasoning in Seaview, a case involving a partnership, would apply equally to a return that an individual provided to an IRS agent. I don’t think that conclusion surprised anyone; however, the broad application of the Seaview decision no doubt played a role in the government’s decision to seek en banc review.

The FRAP 28(j) letter provides the opportunity to point out that submission of a brief need not be the end of communication with the court if a significant event occurs thereafter that could impact that court’s decision on an issue. These letters need to be narrowly crafted as letters providing information. This is not an opportunity to further brief the issue. The body of any cover letter and the body of any response need to be no more than 350 words. These letters also need to be sent only when something of sufficient significant takes places. That’s essentially the point that Seaview makes in writing in response to the FRAP 28(j) letter sent by the government. Basically it said no offense to Judge Holmes but his order was not sufficiently relevant or important to merit a FRAP 28(j) letter.

While FRAP 28(j) applies to all federal circuit court cases, not every court accepting briefs has an identical rule and some federal circuit courts have local rules that supplement FRAP 28(j). For example, unlike some other circuit courts, the 11th Circuit allows amicus who have already filed briefs in the case to file an FRAP 28(j) letter in Internal Operating Procedure 1 under Rule 29 for amicus briefs.  In contrast, neither the D.C. Cir., Fed. Cir., nor 3d Cir. allow an amicus to file an FRAP 28(j) letter.

I think every judge considering a matter that has been briefed would appreciate being told by one of the parties of a significant development in the law that occurred after submission of the briefs or oral argument as long as the party informing the court does not submit too many additional letters, does so only when the matter is significant and limits the additional information to alerting the court rather than relitigating the issue.  Just like Aesop’s shepherd boy who cried wolf, a party could overuse this process.

Seaview remains an important case to watch. Thanks to the parties for the opportunity to discuss a narrow procedural issue while we wait for the 9th Circuit to decide whether it will opine further on this case.

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