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Louisiana State Univ.

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Tuesday, January 10, 2006

Second Circuit Rules Tax Court Not Subject To FOIA

The Second Circuit, sounding very tired, ruled in Megibow v. Clerk of the United States Tax Court, considered whether the Tax Court "...qualifies as a court of the United States, and is therefore expressly outside the ambit of FOIA. See 5 U.S.C. ยง 551(1)(B) (excluding from FOIA "the courts of the United States"). The question is one of first instance, and heretofore has not been addressed by us. The district court below...in a thorough and well-reasoned opinion, concluded that the Tax Court is, in fact, a court for the purposes of FOIA. Accordingly, it held that FOIA could not be applied to the Tax Court. We affirm for the reasons given by the district court. We have considered all of Appellant's arguments and find them to be without merit. The judgment of the district court is hereby AFFIRMED." Read the entire ruling (although there isn't much more) here. The lower court decision is Megibow v. Clerk of the United States Tax Court, 2004 U.S. Dist. LEXIS 17698; 94 A.F.T.R.2d (RIA) 5804.

In a related (non-media law) case, Megibow v. Commissioner, decided several days later, the two judge panel dismissed the appeal (a third judge having recused himself). The judges wrote: "Notably absent from appellant's brief is any argument that the tax court's decision was incorrect on the merits. Appellant vaguely challenges the procedural fairness of the proceedings below. In lieu of an argument, however, counsel has provided this Court with pages of Supreme Court precedent without any application of the law to the facts of this case. Appellant's excursion into the tax court's jurisdiction and the role of its special trial judges for almost twenty pages of his brief appears to argue that Judge Wherry is a Special Trial Judge, rather than a Tax Court Judge. Appointed by President Bush on April 23, 2003, Judge Wherry is most assuredly a Tax Court Judge, a fact which was available in the public record at all relevant times.

"As to the issue of procedural due process, appellant labels a single case, quoted at great length, the "Supreme Court Decision Governing Everything," but does not tell us how it applies to the facts of this case. Despite Judge Wherry's first grant of an extension for the filings of appellant's opening and reply briefs, appellant argues that the court's denial of his second motion for an extension was influenced by an "ex parte communication" from the government, i.e., the government's brief in opposition. This contention is wholly without merit; the record clearly indicates appellant's counsel was sent a copy of the allegedly concealed brief the same day it was filed with the court.

"Appellant also fails to challenge the merits of the court's denial of petitioner's motion for summary judgment. Contrary to appellant's contentions, the court did not refuse to file petitioner's motion in violation of a procedural rule, but rather denied the motion in its opinion because "the purposes of summary judgment would not be served by a ruling thereof." Because appellant does not challenge this opinion on the merits, he has waived any challenge to its correctness on appeal.

"Where appellant has been represented by counsel throughout these proceedings, it is "not our obligation to ferret out a party's arguments. That, after all, is the purpose of briefing."...We feel obligated to note our serious concerns about the quality of representation provided by the petitioner's attorney. We admonish counsel to follow the briefing requirements imposed pursuant to Federal Rule of Appellate Procedure 28(a), and we remind him of his professional duty to provide quality representation to his clients. Continuing conduct of this nature could subject counsel to sanctions by this Court.

"For the foregoing reasons, the appeal is DISMISSED." Read the entire ruling here.

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