Thursday, June 2, 2011

Supplemental briefing in the Fourth Circuit

On May 23, the Fourth Circuit asked the parties in both Virginia v. Sebelius and Liberty University v. Geithener to file supplemental briefs addressing a series of questions concerned the applicability and effect of the Anti-Injunction Act in the present controversies. (This issue also consumed a decent portion of the discussion yesterday at the Sixth Circuit, though the matter had not been briefed there.) Specifically, the Fourth Circuit asked the parties to address the following three questions:

1. When applicable, does the Anti-Injunction Act, 26 U.S.C. § 7421(a), deprive a federal court of subject-matter jurisdiction? See J.L. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 5-8 (1962). If so, does it divest federal courts of jurisdiction in this case? See Bob Jones University v. Simon, 416 U.S. 725, 736-48 (1974). 
2. Can a court determine that a challenged exaction qualifies as a “tax” for purposes of the Anti-Injunction Act without reaching the question of whether the exaction qualifies as a “tax” for purposes of Art. I, § 8, cl. 1? Compare Bailey v. George, 259 U.S. 16 (1922), with Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). 
3. Assuming the Anti-Injunction Act does apply in this case, does a plaintiff have the ability to challenge the exaction provided by § 5000A in a refund suit or otherwise? See 26 U.S.C. § 7422(a); 28 U.S.C. §§ 1331, 1340, 1346. 

 The parties submitted those briefs at the Fourth Circuit Tuesday.

* You can find the United States's supplemental brief in Virginia v. Sebelius here.

* You can find Virginia's supplemental brief here.

* You can find the United States's supplemental brief in Liberty University v. Geithner here.

* You can find the supplemental brief of Liberty University et al. here.

In addition, the Pacific Legal Foundation has moved to file a supplemental amicus letter brief in Virginia v. Sebelius, which you can find here. No word yet on whether the court will grant PLF's motion.