Briefing Delays in Chamber of Commerce Could Portend Dismissal of Appeal

The government’s appeal in the Chamber of Commerce case raises important issues of administrative law (see our previous report here), but it seems increasingly unlikely that the court of appeals will ever reach those issues.

The government’s opening brief was filed in March. That brief (linked below) addresses several issues—including standing, the Anti-Injunction Act, and the authority of temporary regulations issued without notice-and-comment. At the time, the government had sought to avoid having to file its brief at all, filing a motion shortly before the (already extended) due date that asked the court of appeals to stay the briefing schedule indefinitely to await the “imminent” issuance of final regulations addressing inversions. The motion explained that, “having completed notice and comment, Treasury and IRS plan to finalize the proposed regulation,” and stated that the government would then “reevaluate whether it should proceed with this appeal.” As an alternative to a complete stay of the briefing, the government asked for an additional 45-day extension until April 30 to file its brief, and the plaintiffs consented to that extension request.

The court of appeals, however, did not act on the extension request before the due date, and the government accordingly filed its brief on March 16. It thus appeared for a time that the court of appeals might move forward towards deciding the case without waiting for the issuance of final regulations. That is no longer the case.

The court first granted the plaintiffs a fairly routine 45-day extension until May 31. But today the court granted the plaintiffs an additional 60-day extension until July 30. This extension, to which the government consented, is expressly linked to the issuance of the final regulations. Treasury has announced that those regulations will be issued in June, and the plaintiffs state in their motion that the extension is necessary to “facilitate the parties’ efforts to determine whether the final rule will cause the Government to dismiss its appeal or will otherwise affect the presentation of the issues.”

Although the government’s original motion back in March did not commit it to dismissing the appeal, it strongly signaled that the government is inclined towards that course of action once the final regulations are in place. Under Federal Rule of Appellate Procedure 42, an appellant can voluntarily dismiss its appeal as long as it pays certain costs to the appellee. Thus, even if the plaintiffs would want the appeal to continue in order to obtain an appellate decision on the broad administrative law issues, they cannot prevent the government from dismissing the appeal if it chooses to do so.

Chamber of Commerce – Appellees Request for Extension

Chamber of Commerce – Opening Brief for US

Chamber of Commerce – US motion for stay