Opinion
4865-19W
07-13-2022
LAWRENCE W. DOYLE & JOHN F. MOYNIHAN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson, Judge
In this whistleblower case under section 7623, we issued an opinion (Doc. 61, T.C. Memo. 2020-139) and thereafter remanded the case to the WBO for further consideration of petitioners' claim. (See Doc. 88.) After the WBO issued a "Supplemental Final Denial", the parties proposed a schedule for further proceedings (see Doc. 114), which we ordered them to follow (see Doc. 115). Under that schedule, the Commissioner was then to file a motion for summary judgment. Instead, the Commissioner has filed a motion (Doc. 140) asking us to stay proceedings in this case pending the outcome of Kennedy v. Commissioner, No. 21-1133 (D.C. Cir.). Petitioners opposed the motion (Doc. 141). We will deny the motion but will revise and update the ordered schedule.
We acknowledge it is sometimes appropriate to stay proceedings when the court of appeals that will have venue for the subject case may in the near future issue an opinion that will govern the outcome of the subject case. However, we are not yet persuaded this is such an instance. First, it is not clear that Kennedy will be decided in the near future. (It appears from the record of the appeal that final briefs will not be filed in that case until August 12, 2022. Oral argument in Kennedy has not been scheduled, and it is not possible to predict when an opinion may eventually be released.) Second, we cannot yet tell whether a decision in Kennedy would actually resolve this case.
The Commissioner's position is that we lack jurisdiction over this case--an issue that must precede any other--and if he were correct that we lack jurisdiction, then a motion for summary judgment (as we had ordered), which calls for a decision on the merits, would not be appropriate. It might therefore be expedient for the Commissioner to file not a motion for summary judgment but a motion to dismiss. It is therefore
ORDERED that the Commissioner's motion to stay proceedings is denied. But it is further
ORDERED that the schedule adopted in our prior order (Doc.115) is vacated, and that no later than August 19, 2022, the Commissioner shall file a dispositive motion or another appropriate filing. (After that filing, we expect to establish a schedule for a response and reply.)