Former AAG Tax Justice Robert H. Jackson's Contribution in Dobson to the Deference Discussion Currently in the News and Before the Supreme Court (12/20/23)

I recently completed an article that features prominently Justice Robert H. Jackson who served on the Supreme Court in the 1940s. Jackson’s role in the article is based on the unanimous decision he authored in Dobson v. Commissioner, 320 U.S. 489 (1943), reh. den. 321 U.S. 231 (1944). Dobson was a tax case. The issue was whether the Tax Court’s statutory interpretation of tax law was entitled to deference in the appellate courts. While, as DOJ Tax Alumni certainly know, Congress legislatively did away with deference to Tax Court interpretations of law in 1948 in what is now § 7482(a) (requiring review the same as appellate review of district court opinions), Justice Jackson’s Dobson decision in 1943 was rock solid for two reasons: (i) agency interpretations of law were entitled to deference as Dobson amply laws out, and the Tax Court was statutorily an agency; and (ii) the statutory standard for review of agency decisions permitted review only if the Tax Court interpretation was “not in accordance with law” (1939 Code § 1141(c)), a standard which Dobson held required deference. Indeed, the form of deference Dobson lays out is basically what we call Chevron deference today.

Dobson ties into the subject of my article, titled The Tax Contribution to Deference and APA § 706 [linked at end of this blog). Many readers also probably know that the Supreme Court has accepted cert to decide whether Chevron deference to agency interpretations of law should be overruled or clarified. A major issue is whether § 706 precludes, permits, or requires deference to agency interpretations. In this regard, recall that Dobson emphasized that the Tax Court was statutorily an agency, making prior court precedents and the holding in Dobson to require deference to the Tax Court interpretations relevant to a discussion of deference to agency interpretations. More importantly, the statutorily prescribed standard for review of Tax Court  interpretations was “not in accordance with law” which Dobson held required deference. The APA incorporated that same standard in § 706: “(2)hold unlawful and set aside agency action, findings, and conclusions found to be (A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” My argument is that the use of the same standard for agency interpretations of law certainly permits (perhaps even requires) deference to agency interpretations.

Preparing the article required that I give renewed attention to Justice Jackson and his background in the tax law, some of which was with DOJ Tax. The Wikipedia discussion of Justice Jackson is here. I provide the following excerpt from the article surveying his tax litigation background (in which I think DOJ Tax Alumni may have interest):

2. Dobson Nuance.

a. Dobson’s author - Justice Robert Jackson

Dobson was authored by Justice Robert Jackson, who, although not a substantive tax expert, had been a trial lawyer in private practice and in the Government in the following capacities after coming to Washington in the New Deal revolution:

• Chief Counsel of the IRS where he advised on tax law and managed the IRS’s trial lawyers in the Board of Tax Appeals (“BTA” with the name changed to Tax Court in 1942; for the critical part of this article, in 1942, the BTA’s name had been changed to Tax Court). As Chief Counsel, Jackson tried at least one prominent tax case.43

 • Assistant Attorney General for the Tax Division, overseeing the Government’s tax trials in all courts except the Tax Court.

Death of Hank Chamberlain on 4/22/23 (5/10/23)

Harold ("Hank") Chamberlain died on 4/22/23. Hank's obituary is here. From the obituary regarding his tenure at DOJ Tax:

[After graduating from University of Arkansas Law School], Hank went straight to work for the Internal Revenue Service in the Office of the Chief Counsel as a trial attorney followed by a couple of years at the Tax Division of the U.S. Department of Justice.

My database shows that Hank was a trial attorney in the Refund 2 Section from 1961 to 1963.

After leaving DOJ Tax in 1963, he moved to Houston and set up a law practice that ultimately became now Chamberlain Hrdlicka, here, in Houston, expanding to several other cities. 

When I was with the firm in the late 1970s for a 1.5 year period, the firm was named Chamberlain, Hrdlicka, White & Waters, with all of the then-named partners being DOJ Tax Division alumni, all from Refund 2 I believe. Over the years, several other DOJ Tax Division lawyers worked there. Hank left the Chamberlain Hrdlicka firm sometime that I don't now recall and continued his practice virtually until his death either as a sole practitioner or in association with another firm.

Hank contacted me in the last few years to start up some discussion, particularly to engage me on topics from my Federal Tax Crimes and Federal Tax Procedure Blogs. It was good to re-connect with him.

Hank used to have several exuberant expressions as he wandered around visiting every lawyer in the  firm every morning. I will repeat some of them I recall, putting them in quotes which might not be fully accurate, but do give the sense of what I recall.

One was that, after he had accomplished something noteworthy for the firm: "That's not bad for a one-eyed guy from Dumas Arkansas." (As best I recall, he had lost one of his eyes in a scuffle sometime before he left Dumas.)

Another Hank saying: "Give me 15 minutes' notice and I will give an hour talk on any tax subject." I don't know that anyone every tested him on the short notice thing, but I do recall he could give exuberant talks which often were fuzzy or imprecise in the details, but they seemed to work with the audiences for the occasions.

Still another Hank saying: "I had the firm move to a floor where we were the last stop on an elevator bank. That way I could introduce myself to the others in the elevator, shake hands, and hand them my business card. I got a lot of business that way."

Death of Thomas (“Tom”) L. Stapleton (4/27/23)

Tom Stapleton died on April 24, 2023. His Washington Post obituary is here.

 Tom was in the Appellate Section, first as a line attorney, then as Reviewer, and then as Assistant Chief of Appellate. After Appellate, Tom went to Metropolitan Life, where he rose to Senior Vice President and Tax Director. He then was of counsel to Davis & Harman, LLP. His online bio from the law firm is here.

While I was in Appellate (1969-1974), Tom was a Reviewer. He reviewed briefs drafted by the assigned line appellate lawyer and occasionally took oral arguments. Tom reviewed at least 5 (probably 6 or 7) of my briefs, including 2 or perhaps 3 insurance company tax briefs. He was one of the best reviewers, if not the best, that I worked with in Appellate. He was very good at improving briefs.

On another note, the obit says he was a Brooklyn Dodger fan (presumably because he grew up in Brooklyn) and that Jackie Robinson was his hero. I was a Brooklyn Dodger fan from Greenwood, SC, and Jackie was my hero. I did not have as easy an opportunity to attend games at Ebbets Field as Tom did, but I took every opportunity when in NY.

Death of John Kaleba (4/9/23)

John Kaleba died on 4/4/23. His obituary is here.

 According to the information I received, John served as a trial attorney in Western Criminal Enforcement Section from 1999 to 2004 or 2005.

I did not know John, but I received a comment that “He was a really wonderful man.” I think that is reflected in his obit. 

Death of Michael K. Cavanaugh (2/11/23)

Michael K. Cavanaugh, a DOJ Tax Alum, died this past weekend.  His obituary is here.

Excerpt from the obit re his DOJ Tax service is:  “He earned an LL.M. in taxation from New York University School of Law. Michael was a trial attorney with the Tax Division of the Department of Justice prior to becoming a partner at Keck, Mahin, & Cate and then Foley & Lardner.”

I understand that his DOJ Tax tenure was in Appellate in the early 1960s; a search of cases confirms that.

The following information from the obit might be useful to Alums, particularly those in the Chicago vicinity:

Visitation Thursday, February 16, 2023, from 5:00 p.m. to 7:30 p.m. at Michalik Funeral Home, 1056 W. Chicago Ave., Chicago, IL 60642. Family and friends will meet Friday, February 17, 2023, at Assumption Catholic Church, 323 W. Illinois St., Chicago, IL 60654 for a 10:30 a.m. Funeral Mass.

Death of Michael Swygert-Smith 9/22/22 (2/9/23)

Michael Swygert-Smith (known as Mike Smith in his Tax Division days) passed away on 9/22/22.  The obituaries are in the Washington Post here, and The Winchester Star, here.

The obits say Mike worked in the “Tax Appellate Division of the Department of Justice under Attorney General Robert F. Kennedy” and that he left “After a number of years arguing tax cases before the Fifth Circuit in the Southeast , and working as an aide on RFK's political campaigns.” The Fifth Circuit then did include some Southeast states (later split off into the Eleventh Circuit), but I have to assume that Mike’s appellate docket included other areas of the Fifth Circuit (e.g., Texas, Louisiana and Mississippi) and indeed other Circuits. (That was my experience in DOJ Tax Appellate, coming along not too long after Mike.)

Brian Schwalb Sworn in as D.C. Attorney General (1/5/23)

I previously blogged that DOJ Tax Alum Brian Schwalb had been elected D.C. Attorney General.  Brian Schwalb Elected D.C. Attorney General (11/12/22), here.  On January 2, 2023, Brian was sworn in as DC Attorney General.  See Press Release here.  \

The Press Release has this on his DOJ Tax stint:  “After graduating from Duke University and Harvard Law School, and completing a two-year judicial clerkship, Brian served as a trial attorney in the Tax Division of the U.S. Department of Justice.”

Another item in the press release caught my attention (bold face supplied by JAT):

“As I reflect on how we find answers to these questions of equity, safety and democracy, I think about advice my father gave me. Today – January 2nd – would have been my dad’s 87th birthday. When he left the Justice Department in 1965, many of the law firms in Washington wouldn’t consider hiring him because he was Jewish. I can only imagine how he’d feel seeing his son standing on this stage taking the oath of office as D.C.’s Attorney General. Dad’s advice to me was simple: God gives us two ears and one mouth for a reason. Listen twice as much as you talk. As your independently-elected Attorney General, I will listen to everyone. I will collaborate with anyone who is committed to what is best for the District. But I will be beholden to no one – no one other than the residents who have retained me to represent Washington’s best interests.”

So, I wondered whether his dad was a DOJ Tax Alum.  I checked my database of DOJ Tax alums and found that indeed his dad was a DOJ Tax Alum.  I have “Burton A. Schwalb” listed as a trial attorney in Refund 3 from 1960 to 1965.  At the time he was entered in the database, he was listed as with Schwalb, Donnenfeld, Bray & Silbert, a firm that ceased to exist in 1990s.  My database shows that two of the other name partners in that firm -- Jack Bray and Earl Silbert -- were also DOJ Tax Alumni.  I could not determine whether Donnenfeld was a DOJ Tax Alum, but given that three of the four name partners were, that is a possibility.

As an aside, old-timers (like me) may remember Earl Silbert who burst into the national scene after his DOJ Tax stint as the D.C. U.S. Attorney prosecutor in the initial Watergate investigation. I met Earl Silbert while I was with DOJ Tax Appellate.  By then, Earl was down the hall working for some other DOJ function, I think perhaps Office of Legal Counsel.  Earl was working with Carl Rauh (not a DOJ Tax Alum) who became Principal Assistant to Earl as D.C. U.S. Attorney and thereafter a partner in law practice. My recollection is that Earl and Carl were working on D.C.'s "no-knock" legislation when I met them.  See Earl's oral history here.  While I don't remember the exact content of my discussions with them, I do recall generally that they were both very smart, dedicated, and really class people.