Tuesday, July 3, 2012
In Kornhauser v. Commissioner of Social Security, No. 11-10291 (11th Cir. July 2, 2012), plaintiff challenged a denial of disability benefits. The case was referred to a magistrate, briefs were filed, and the magistrate recommended that the Commissioner's denial be vacated. Nonetheless, the magistrate observed that plaintiff's brief had used smaller margins and smaller type in the footnotes than authorized by local rule (which required that margins be 1-1/4 inches wide and footnotes be in no smaller than ten-point type). Calling these "intentional violations," the magistrate proposed that "when plaintiff's counsel seeks attorney's fees, that the typical request for a cost-of-living increase be denied."
The district court adopted the magistrate's recommendation and entered final judgment for the plaintiff, who then petitioned for fees under the Equal Access to Justice Act in the amount of $5,935. The Commissioner then stipulated that plaintiff's attorney was entitled to $5,000 in fees. The fees request was referred to the magistrate, who recommended a reduction in the stipulated figure by $963 as a sanction for the earlier-noted violation of local rules.
Plaintiff objected to the recommendation, stating that the violation was not "intentional" but an "honest mistake" and that she had not been given the opportunity to correct the brief before the sanction was imposed. The district court overruled the objection and awarded fees of $4,037, as the magistrate had recommended.
Finding abuse of discretion, the Eleventh Circuit vacated. It found no procedural rule that sanctioned the conduct involved and thus that the sanction was based on the court's inherent power under Chambers v. NASCO, which requires a finding of bad faith and compliance with due process. No show-cause order had issued before the finding of "intentional" violation.
The district court was instructed to grant plaintiff EAJA attorney's fees of $5,000.
Monday, July 2, 2012
Most of the post-decision analysis and commentary has focused on other aspects of the NFIB v. Sebelius decision (the constitutional authority of Congress, the palace intrigue surrounding whether Chief Justice Roberts changed his vote, the presidential election, etc). Readers of this blog may be clamoring for... the Anti-Injunction Act, which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” 26 U. S. C. §7421(a). Below is an excerpt from Chief Justice Roberts’ majority opinion [pp.12-13]:
The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” §7421(a) (emphasis added). Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”
Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).
Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.” See Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37 (1922); Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 779 (1994).
The Anti-Injunction Act and the Affordable Act, however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate. See Bailey v. George, 259 U. S. 16 (1922) (Anti-Injunction Act applies to “Child Labor Tax” struck down as exceeding Congress’s taxing power in Drexel Furniture).
He concludes [p.15]:
In light of the Code’s consistent distinction between the terms “tax” and “assessable penalty,” we must accept the Government’s interpretation: §6201(a) instructs the Secretary that his authority to assess taxes includes the authority to assess penalties, but it does not equate assessable penalties to taxes for other purposes.
The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.
As most know by now, of course, the Supreme Court ultimately upheld the Affordable Care Act based on Congress’s taxing power [Part III-C of the opinion] because the “requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” [p.44] Chief Justice Roberts recognized the tension there – here’s what he had to say [p.33]:
It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power. It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense to be guided by Congress’s choice of label on that question. That choice does not, however, control whether an exaction is within Congress’s constitutional power to tax.
For more, here’s a recap of the Anti-Injunction Act issue from Tejinder Singh (SCOTUSblog).
PS: Since everyone else who predicted the outcome is touting their forecasting prowess… What can personal jurisdiction teach us about the upcoming SCOTUS health care ruling?