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Let’s Talk Judge Priscilla Owen and Abortion Rather Than Focus on Kenneth Marra’s Judicial Nomination

Let’s be clear that the opposition to Justice Owen was all about abortion. Justice Owen is a friend of President Bush from Texas.

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EXECUTIVE SESSION

______

NOMINATION OF KENNETH A. MARRA, OF FLORIDA,

TO BE UNITED STATES  DISTRICT JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

[Senate]
[Pages S8340-S8350]
From the Congressional Record Online through the Government Publishing Office www.gpo.gov]

SEPT 9, 2002 | REPUBLISHED BY LIT: AUG 31, 2021

[Congressional Record Volume 148, Number 112 (Monday, September 9, 2002)]

The PRESIDING OFFICER. Under the previous order, the hour of 1 p.m.
having arrived, the Senate will proceed to executive session and
proceed with the consideration of Executive Calendar No. 889, which the
clerk will report.

The legislative clerk read that nomination of Kenneth A. Marra, of
Florida, to be United States District Judge for the Southern District
of Florida.

The PRESIDING OFFICER. The Senator from Vermont.

Mr. LEAHY. Madam President, I do believe that Judge Kenneth Marra
will be confirmed to the U.S. District Court for the Southern District
of Florida. I have heard of no opposition.

This is a judge who got strong bipartisan support in the Senate Judiciary Committee,
which usually guarantees a confirmation on the floor. When that happens, the
Democratic-led Senate will confirm its 74th judicial nomination made by
President George W. Bush.

This will also be the 25th judicial emergency vacancy that we have
filled since I became chairman last summer, and the 18th since the beginning of this year.

The confirmation of Judge Marra will bring additional resources to
the U.S. District Court for the Southern District of Florida. Judge
Marra was nominated to fill a new position Congress created by statute
to address the large caseload, particularly the immigration and
criminal cases, facing the Federal court in Florida.

He is one of three Federal judicial nominations on the Senate Calendar for action.
I recall during the past administration, the Clinton administration,
we all worked very hard in cooperation with Senator Graham and Senator
Mack to ensure that the Federal court in Florida had its vacancies
filled promptly with consensus nominees. Due to the bipartisan
cooperation between one Democrat Senator and one Republican Senator and
a Democratic President, the Senate was able to confirm 22 judicial
nominees from Florida, including 3 nominees to the Eleventh Circuit.
But it is unfortunate that this tradition of cooperation, coordination,
and consultation has not continued with the current administration.

By my recollection, it was only the nomination of Judge Rosemary
Barkett of the Florida Supreme Court to the Eleventh Circuit that
generated any significant controversy or opposition. I do recall that
she was strongly

[[Page S8341]]

opposed by a number of Republican Senators because they did not agree with her judicial philosophy.

Those voting against her included  Senators Hatch, Grassley, McConnell, Specter, and Thurmond,as well as Senators Lott, Nickles, and Hutchison of Texas.

They have an absolute right to do that, of course. I respect that right.

Judge Barkett received the highest rating of the ABA, “well qualified,” and yet 36 Republicans voted against her confirmation, even though she had the
strong bipartisan support of her home State Senators.

Recent claims by  some that it is unprecedented to vote against a judicial nominee with a “well qualified” rating and to vote against her
based on her judicial philosophy thus ring hollow.

Unfortunately, that is not the way the administration has dealt with
Senators Graham and Nelson now. But it is a tribute to Senator Graham
and Senator Nelson that we have made the progress we have had. They
could very easily have exercised their right as Senators and refused to
accept the nominees of President Bush. Of course, they would go no
further under the blue-slip policy that both Republicans and Democrats
strongly support. But they have been more than gracious in their
willingness to support these nominees. That is why they have gone
through.

This Democratic-led Senate has expeditiously moved President Bush’s
judicial nominees. We have worked hard to provide bipartisan support
for the White House’s nominations in spite of an almost unprecedented
lack of willingness on the part of the White House to work with us.

In fact, I have been here 26 years: During the terms of President
Ford, President Carter, President Reagan, President George Herbert
Walker Bush, President Clinton, and now President George W. Bush. This
administration is the least willing of any White House during all that
time–Republican or Democrat–to work with the Senate on judicial
nominations. But even without that cooperation, even with the
unprecedented lack of cooperation, we are making progress.

I would like to discuss the progress we have made. This chart shows
what has happened in the 15 months the Democrats have controlled the
Senate. Contrast that to the Republicans’ first 15 months when they
controlled the Senate. In less than 15 months of Democratic control of
the committee, we have held more hearings for more nominees, voted on
more nominees in committee, and confirmed more nominees than the
Republicans did in their first 15 months of control of the committee in
1995 and 1996.

We have confirmed more of President George W. Bush’s Federal trial
court nominees in less than 15 months than were confirmed in the first
2 years of his father’s Presidency. In fact, we confirmed more in the
first 15 months than the Republicans were willing to confirm in their
last 30 months.

I mention this because there seems to be some idea that somehow the
Democratic-led Senate is holding up judges. I think most of the
Presidents with whom I have served would have been delighted to have
had a Senate as cooperative as we have been.

Let me repeat that. In 15 months, Democrats have done more on
judicial confirmations than Republicans did in 30 months.
They, on the other side, do not want to compare our record of
accomplishment in evaluating judicial nominees with theirs in their
prior 6 1/2 years of control. They do not want to own up to their
delay and defeat through inaction of scores of judicial nominees during
the last administration.

All too often the only defense of their record we hear is the claim
that President Clinton ultimately appointed 377 judicial nominees, 5
fewer than President Reagan. This statement overlooks the fact that the
Republicans only allowed 245 of President Clinton’s judicial nominees
to be confirmed. That averages, incidentally, to about 38 confirmations
per year during their 6 1/2 years of control. We confirmed 74 judicial
nominees in less than 15 months, including 13 to the circuit courts. I
believe we have reported 80 out of the Judiciary Committee.

I mention this because of the persistence of the myth of inaction in
face of such in the face of such a clear record of progress by
Democrats. After a while, if someone keeps distorting the facts, if
someone keeps stating things that are not true, people actually come to
believe it is true. I am reminded of what Adlai Stevenson once said. I
will quote him:

I have been thinking that I would make a proposition to my
Republican friends . . . that if they will stop telling lies
about the Democrats, we will stop telling the truth about
them.

The truth is, of course, as these charts show, that we have a pretty
good record of accomplishment despite the lack of cooperation from the
administration.

With today’s vote, the Democratic-led Senate will confirm its 74th
judge–exceeding the number of circuit and district court nominees
confirmed in the last 30 months of Republican control of the Senate. We
have done more than Republicans did, and we have done it in less than
half the time.

We have confirmed more of this President’s nominees, both circuit and
district court nominees, in less than 15 months, than were confirmed in
the comparable 15 months of the first term of former President Reagan,
the first President Bush, and President Clinton.

Let’s take a look at what has happened in the first 15 months. With
today’s vote, the Democratic-led Senate has confirmed 74 of this
Republican President’s judicial nominees in less than 15 months.
Under President Reagan–and incidently, I might point out, he had a
Senate of his own party–there were 54 confirmation in the first 15
months. Under George H. W. Bush, there were 23; for the first 15 months
of President Clinton, 45. Incidentally, that is with a Senate under the
control of his own party. And now, in 15 months, under President George
W. Bush, we have had 74 judicial confirmations–74. By any standard you
want, here is a case where a different party than the President has
controlled the Senate, and we have done more than was done for
President Reagan when his own party controlled the Senate, for
President Bush when another party controlled the Senate, for President
Clinton when we, the Democrats, controlled the Senate.

It shows we can move and will move, and we have been doing that
notwithstanding the fact that there has been less cooperation from the
White House than I have seen with either Democratic or Republican
Presidents in 26 years in the Senate.

It is unfortunate. President Bush will probably get a record number of his judges  through at the current pace of confirmations.

But I have to think how much better it could be done with less rancor and with even a modicum of cooperation.

We have acted fairly and expeditiously notwithstanding the fact that Democrats have felt very concerned that for year after
year after year after year in many of the circuit courts of this
country, Republicans refused to even hold hearings for the nominees,
even though they had the highest ratings of the American Bar
Association.

They would not even hold hearings, to say nothing about having a vote.

Then when the Republicans came in, suddenly there was an emergency;
they had to fill the vacancies in those circuits. Their obstruction
created the problem. But notwithstanding that, in many of those cases
where Democrats were not allowed to even have a hearing year after year
after year, we have in the last 15 months moved forward with hearings
and votes, and positive votes, on the vast majority of his judicial
nominees.

I have no idea what political game is being played at the White
House. I know the people are very nice. Judge Gonzalez is a very nice,
very polite person. He is charming to be with. But the cooperation is
not there. The President is very nice, very charming. But the
cooperation is not there. We could do far better if they would just
pick up the phone and call the last three people from the last three
Republican administrations–they do not even have to call a Democratic
administration–and see how well this could be done.

As the distinguished ranking member, my good friend from Utah, knows,
I went down several times and worked with the Clinton White House so
they could have cooperation with, and they did cooperate with,
Republican Senators in moving through judges. I would hope that with
that precedent in mind, some might do the same.

Democrats have reformed the process for considering judicial nominees
to

[[Page S8342]]

ensure bipartisan cooperation and greater fairness. For example, we
have ended the practice of secretive, anonymous holds that plagued the
period of Republican control, when any Republican Senator could hold
any nominee from his or her home state, his or her own circuit or any
part of the country for any reason, or no reason, without any
accountability. We have returned to the Democratic tradition of
regularly holding hearings, every few weeks, rather than going for
months without a single hearing. In fact, we have held 23 judicial
nominations hearings in our first 13 months, an average of almost two
per month.

In contrast, during the six and one-half years of Republican control,
they went 30 months without holding a single judicial nominations
hearing. By holding 23 hearings for 84 of this President’s judicial
nominees, we have held hearings for more circuit and district court
nominees than in 20 of the last 22 years during the Reagan, first Bush,
and Clinton Administrations.

As this chart shows, we have held more hearings for President Bush’s
judicial nominees in less than 15 months than were held in 15 months
for any of the past three Presidents. In the first 15 months of the
first term of President Reagan, 17 judicial nominations hearings were
held. In the first 15 months of President George H.W. Bush’s term, 11
hearings were held. And, in the first 15 months of President Clinton’s
first term, 14 judicial nominations hearings were held. In contrast, we
have held 23 hearings in less than 15 months. That is almost as many as
were held in the first 15 months of the terms of the first President
Bush and President Clinton combined. We have more than exceeded the
number of hearings held in the last 30 months of Republican control of
the Senate, when they held only 15 hearings.

While some complain that a handful of circuit court nominees have not
yet had hearings, they fail to acknowledge that Democrats have held
hearings for more of President Bush’s circuit court nominees, 18, than
in any of the six and one-half years in which the Republicans
controlled the Committee before the change in majority last summer.
Republicans have utterly failed to acknowledge this fairness and
progress under the Democratic majority. The myth of obstruction of
judicial nominees fits their political strategy better than the truth.

The years of Republican inaction on a number of circuit court
vacancies has made it possible for Democrats to have several
“firsts,” or astounding accomplishments in addressing judicial
vacancies. For example, we held the first hearing for a nominee to the
Sixth Circuit in almost five years (that is more than one full
presidential term) and confirmed her, even though three of President
Clinton’s nominees to the Sixth Circuit never received a hearing or a
vote. We held the first hearing on a Fifth Circuit nominee in seven
years (including the entire period of Republican control of the Senate)
and confirmed her last year, while three of President Clinton’s Fifth
Circuit nominees never received hearings or votes on their nominations.

We held the first hearing on a Tenth Circuit nominee in six years, and
we have confirmed two of President Bush’s nominees to the Tenth
Circuit, while two of President Clinton’s nominees to that circuit
never received hearings or votes. We held the first hearing for a
Fourth Circuit nominee in three years, for Judge Roger Gregory, and the
first hearing for an African American nominee to that court in United
States history, even though Judge Gregory and four other nominees to
that circuit (including three other African Americans) never received
hearings or votes during Republican control of the Senate. These are
just a few examples of the historic accomplishments of the Democratic-
led Senate which debunk Republican myths that Democrats caused the
vacancy crisis, are delaying judicial appointments or have been
retaliating for years of obstruction on circuit court vacancies by
Republicans.

There were only 16 circuit court vacancies when Republicans took over
the Senate in January 1995. Unfortunately, from January 1995 until
Republicans relinquished control and allowed the Judiciary Committee to
be reorganized in the summer of 2001, circuit court vacancies more than
doubled from 16 to 33. Republicans executed a partisan political
strategy to hold vacancies open on the circuits for a Republican
president to fill. It would certainly have been easier and less work
for Democrats to retaliate for the unfair treatment of the last
President’s circuit court nominees. We did not. We have been, and will
continue to be, more fair than the Republican majority was to President
Clinton’s judicial nominees.

Here is another chart that shows that more of President Bush’s
judicial nominees have been given committee votes than the nominees of
prior presidents. Unlike my Republican predecessor, I have scheduled
hearings and votes on district and circuit court nominees whom I do not
support. The Judiciary Committee has voted on 82 judicial nominees and
favorably reported 80. In less than 15 months, we have voted on more of
President Bush’s district and circuit court nominees than were voted on
in the first 15 months of any of the past three Presidents. Moreover,
we have voted on more nominees in less than 15 months than were voted
on in the first 15 months of Presidents Reagan and George H.W. Bush
combined, or Presidents George H.W. Bush and Clinton combined. We have
even voted on more nominees in less than 15 months than were voted on
in the last 30 months of Republican control of the Senate, when 73
nominees were voted on by the Committee.

Because we have moved quickly and responsibly, the number of
vacancies is not at the 153 mark it would be had we taken no action.
Vacancies have been reduced to 79 and are headed in the right
direction. On July 10, 2001, with the reorganization of the Senate, we
began with 110 vacancies. When Republican gained control of the Senate
in 1995 the federal judicial vacancies numbered 65. The vacancies
increased during their six and one-half years to more than 110. Under
the Democratic majority, by contrast, the number of vacancies is being
significantly reduced. Despite the large number of additional vacancies
that have arisen in the past year, with the 61 district court
confirmations we have as of today, we have reduced district court
vacancies to 50, almost to the level it was at when Republicans took
over the Senate in 1995.

In fact, when we adjourned for the August recess we had given
hearings to 91 percent of this President’s judicial nominees who had
completed their paperwork and who had the consent of both of their
home-State Senators. That is, 84 of the 92 judicial nominees with
completed files had received hearings.

When we held our most recent hearing on August 1, we had given
hearings to 66 district court nominees and we had run out of district
court nominees with completed paperwork and home-State consent. Only
two district court nominees were eligible for that hearing. This is
because the White House changed the process of allowing the ABA to
begin its evaluation prior to nomination. This change has cost the
federal judiciary the chance over the last year to have 12 to 15 more
district court nominees on the bench and hearing cases, because now the
ABA can only begin its evaluation once the nomination is submitted to
the Senate. The ABA also must wait until the Administration provides
the Senate with the nominee’s public questionnaire, and lately the
nominees’ documents have been arriving on a delayed basis, as well.
Indeed, many of the two dozen nominations most recently received will
likely not get hearings before adjournment this year in large measure
because the White House unilaterally changed the process for
consideration and has built additional delays into it.

In January I had proposed a simple procedural adjustment to allow the
ABA evaluation to begin at the same time as the FBI investigation, as
was the practice in past Republican and Democratic Administrations over
50 years. Had this proposal been accepted, I am confident there would
be more than a dozen fewer vacancies in the federal courts. Instead,
our efforts to increase cooperation with the White House have been
rebuffed. We continue to get the least cooperation from any White House
I can recall during my nearly three decades in the Senate. Yet, even
with such lack of cooperation from the White House, the Senate has set
an impressive rate of confirming judicial nominees.

[[Page S8343]]

Here is another chart that shows how Democrats have dramatically
reduced the time between nomination and confirmation of circuit court
nominees. Since the Democrats assumed the majority last July, the
average time to confirm circuit court nominees has been drastically
reduced to 147 days, from a high during the most recent years of
Republican control of 374 days. We have reduced the average time from
nomination to confirmation to two-and-a-half times less than the
average time to confirmation during Republican control during the 106th
and 105th Congresses when it took an average of 374 and 314 days,
respectively, to confirm President Clinton’s circuit court nominees.
The Judiciary Committee has reported two more circuit court nominees
favorably to the Senate. We have held hearings on 18 circuit court
nominees and the Judiciary Committee has already voted on 17 of those
18 nominees.

In spite of the obstacles the White House has put in the way of their
own nominees through their lack of consultation and cooperation, we
have been able to have a productive year while restoring fairness to
the judicial confirmation process. I regret that the White House has
chosen the strident path that it has with respect to judicial
nominations, especially to the circuit courts. As several Senators
noted last week, the Administration does not have carte blanche to
insist on an ideological takeover of the Courts of Appeals with
activist ultra-conservative nominees intended to tip the balance in
circuits around the country. The total number of district and circuit
court confirmations now stands at 74, and there remain a few weeks left
in this session. So while we have been working hard and productive, the
Judiciary Committee and the Senate have not become a rubber stamp.
I am proud of the efforts of the Senate to restore fairness to the
judicial confirmation process over this time. The Senate Judiciary
Committee is working hard to schedule hearings and votes on additional
judicial nominees, but it takes time to deal with a mess of the
magnitude we inherited. I think we have done well by the federal courts
and the American people, and we will continue to do our best to ensure
that all Americans have access to federal judges who are unbiased,
fair-minded individuals with appropriate judicial temperament and who
are committed to upholding the Constitution and following precedent.
When the President sends judicial candidates who embody these
principles, they will move quickly, but when he sends controversial
nominees whose records demonstrate that they lack these qualities and
whose records are lacking we will take the time needed to evaluate
their merits and to vote them up or down.

I would like to thank the Members of the Judiciary Committee who have
labored long and hard to evaluate the records of the individuals chosen
by this President for lifetime seats on the federal courts. The
decisions we make after reviewing their records will last well beyond
the term of this President and will affect the lives of the individuals
whose cases will be heard by these judges and maybe millions of others
affected by the precedents of these decisions of these judges.
Before anyone takes for granted how fairly Democrats have treated
this President’s judicial nominees, receiving up or down votes, they
should take a look at how poorly judicial nominees were treated during
the 6\1/2\ years of Republican control of the Senate. In all, several
dozen judicial nominees of President Clinton never received a hearing
or a vote.

When confronted with this, Republicans often lament that about 50 of
the first President Bush’s judicial nominees did not get a hearing
before the end of the session in Congress in 1992. What they
consistently fail to mention about this, however, is quite revealing.
That year, the Senate confirmed more of President George H.W. Bush’s
judicial nominees than in any year of his presidency. He had 66
judicial nominees confirmed that year, but the Senate simply could not
get to the other 53 nominees he submitted in response to the creation
of dozens of new judgeships. So, even though some of his nominees were
returned, the Senate confirmed a substantial number, 66, of his
judicial nominees in the 10 months they were in session that year,
which was an election year, by the way.

Perhaps coincidentally, 66 is the highest number of judicial
confirmations in one year that Republicans ever allowed President
Clinton to reach. They averaged 38 judicial confirmations per year. In
the last two years of the Clinton Administration, Republicans allowed
only 33 and 39 judges to be confirmed, respectively in 1999 and 2000.
President George H.W. Bush had 66 confirmations in his last year of
office, an election year. In President Clinton’s last year in office
only 39 judges were confirmed, during Republicans control. In 1996,
Republican allowed only 17 judges to be confirmed, none to the circuit
courts. In those two election years combined Republicans allowed only
56 confirmations. In 1992, an election year, Chairman Biden pushed
through 66 confirmations.

Unlike Democrats in 1992, Republicans cannot honestly claim that they
moved a substantial number through but could not get to them all.
Confirming only 39 judicial nominees in 2000 and returning more than
that, 41, in that year alone, simply does not compare with what
happened in 1992 when Democrats worked hard to move through 66 of the
first President Bush’s judicial nominees in the space of 10 months. If
66 was such an easy number to reach, why did Republicans reach that
level only once in six years of control? The answer is easy. They did
not want to do so. I think Republicans wanted to ensure that they never
treated President Clinton better than the best year of former President
Bush (his last year) and they wanted to ensure that President Clinton
did not beat President Reagan’s number of confirmations, as a matter of
partisan pride.

Had Republicans kept up the pace of confirmation set by Democrats in
the first President Bush’s last year and the first two years of the
Clinton Administration, President Clinton would have appointed
substantially more than the 377 judges who were ultimately confirmed in
his two terms as president, and the Democratic-led Senate Judiciary
Committee would not have begun last July with 110 vacancies.
Ironically, perhaps, Democrats have been so fair to President George W.
Bush, despite the past unfairness of Republicans, that if we continue
at the current pace of confirmation and vacancies continue to arise at
the same rate, then Bush will appoint 227 judges by the end of his
term. If he were elected to a second term, at the current pace, he
would amass 454 judicial confirmations, dramatically more than
President Reagan, who Senator Hatch often calls the all-time champ.
This, too, demonstrates how fair Democrats have been. Perhaps some may
say we have been foolishly fair, given how Democrats were treated in
the past. We have exceeded the pace set in 1992, 1993 and 1994, with 74
confirmations to date in little more than a year.

In fact, when we adjourned for the August recess we had given
hearings to 91 percent of this President’s judicial nominees who had
completed their paperwork and who had the consent of both of their
home-State Senators. That is, 84 of the 92 judicial nominees with
completed files had received hearings.

Any way you look at the numbers, raw numbers or percentages,
comparisons with the prior six years of Republican control or with
prior Congresses and Republican presidents, the Democrats have done
more in less time. We have been more fair by far. Yet we have been
unfairly labeled as obstructionist because we have not been able to
have hearings for every single judicial nominee in the short period we
have been in the majority. This President still has over two years left
in his term.

I withhold the remainder of my time.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Madam President, I rise today to respond to some of the
amazing assertions made by my distinguished colleague and friend from
Vermont. Of course, I do so with some trepidation because each time we
have a back and forth like this one, I help my colleague further the
impression that he is out to create and that he has done a good job of
creating, especially with the press.

The impression my colleague is seeking to create is that both sides
come to

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the table with unclean hands in the matter of confirmations. It is a
false impression and it provides a smokescreen of the stark reality of
the poor performance of the Judiciary Committee this past year and
during this session.

Naturally, my friend takes pride in his accomplishments this year,
but not all of them. Let me list a few he misses. President Reagan took
pride in nominating the first woman to the Supreme Court. My Democrat
colleagues have now presided over the “Borking” of the first woman in
history, and one of the leading women jurists in this country,
Priscilla Owen.

My colleague has also set a new record for a Judiciary Committee
chairman. He has voted in 1 year against more judicial nominees than
any chairman in the 212 years of the Republic. Moreover, most of my
Democrat colleagues on the Judiciary Committee have voted against more
judicial nominees in this last one year than I have in my 26 years on
the Judiciary Committee. I voted against only one Clinton nominee, only
one, but as painful as that was, I did it standing straight for all to
see in the disinfectant light of the Senate floor, not in the shadows
of a committee vote.

Also, in rejecting Justice Owen, my Democrat colleagues rejected for
the first time in history a nominee who has received the American Bar
Association’s unanimous rating, highest rating of well qualified, the
rating that earlier this year they announced to be the gold standard
for judicial nominees and which, of course, they now criticize because
the independent body has rated President Bush’s nominees as highly
qualified as any we have ever seen.

In other words, Priscilla Owen, who had the support of both home
State Senators, which is a requisite for consideration by the
Committee, who had the highest rating given by the American Bar
Association for a judicial nominee, who is a supreme court justice in
Texas, and who, by anybody’s measurement who is fair, is in the
mainstream of American jurisprudence, was dumped unceremoniously in the
committee by a 10-to-9 party vote, a partisan party vote at that, and
without giving her nomination the chance of being brought up on the
floor of the Senate where I believe she would have passed, if not
overwhelmingly, certainly comfortably.

I have heard my colleague from Vermont defend against that by listing
the 42 judicial nominees who did not get confirmed by the end of the
Clinton administration. He doesn’t point out that there were 54
nominees left hanging at the end of the first Bush administration when
they were in charge. And he does not explain that most, if not all, of
the nominees left hanging at the end of the Clinton administration,
however qualified, did not progress because either they were nominated
too late or did not have their home state Senators’ support or had
other problems that we cannot address.

In an attempt to cloud up the rejection of Justice Owen’s nomination,
I have also heard my colleagues point to the Clinton judges from Texas
in particular who never got a hearing. One said at the Owen hearing
that I did not give them a hearing. It was a very unfair
characterization, and I will respond to it now.

As my friend knows well enough, neither of those nominees had the
support of their home state Senators. This prevented me, and would have
prevented the distinguished Senator from Vermont, if he were in my
shoes, from scheduling a hearing for them. In part, this was because
President Clinton ignored the Texas Senators and the Texas nominating
commission in making those nominations. The practice of honoring the
home State Senators is not one I put in place; it was put in place
under Democrat leadership of the committee, and appears agreeable to
both parties.

Today, Democrat Senators from the States of North Carolina,
California, and Michigan have prevented the Judiciary Committee from
holding hearings on six of President Bush’s original Circuit Court of
Appeals nominees who were nominated a year and a half ago, some of the
greatest nominees I have seen in the whole time I have been in the
Senate and on the Judiciary Committee, now 26 years.

I know there are those who seem to justify wrong in childlike fashion
with the intellectual crutch of, “They did it, too.” Let me say that
we Republicans have never done what was done to Justice Owen. I can’t
think of anything in history that compares to that. Some Democrats have
attempted to leave the impression that Republicans have unclean hands
so as to soften the scrutiny of what was done to Justice Owen. The
American people will see through this.

But let me assure you, none of those nominees who did not get
hearings would trade places with Charles Pickering of Mississippi or
Priscilla Owen of Texas. It is beyond peradventure that they would
prefer to be ghosts of nominations past than called racists, unjustly
called racists, and have their fine records of public service soiled by
the Judiciary Committee.

I am heartened to know that beyond the overwhelming support from her
home State of Texas and scores of op-eds written across the country in
support of the Owen nomination, Justice Owen’s nomination to the Fifth
Circuit has received editorial support from over 24 newspapers
published across the Nation and across the political spectrum. I have
previously submitted these for the Record.

Prior to the vote in Committee, only three newspapers, in fact–in
New York, Los Angeles, and San Francisco–had come out firmly against
the nomination.

I am heartened by this national support not just for the sake of
Justice Owen, but because at her hearing I expressed alarm at the
efforts of some to introduce ideology into the confirmation process. I
am heartened that editorial and op-ed writers across the country
reflect not only support for Justice Owen but also the near universal
rejection of this misguided effort to make the independent Federal
judiciary a mere extension of Congress and less than the independent,
coequal branch it was intended to be.

Let me respond further to my good friend from Vermont. He is right
that in this session so far the Senate has confirmed 73 judges. There
is much eagerness in my friend’s voice asserting that this number
compares favorably to the last three sessions of Congress during which
I was chairman.

Although I am flattered to hear my record used as the benchmark for
fairness, I am afraid this does not make for a fair comparison because
I was never chairman during any of President Clinton’s first 2 years in
office.

Let me repeat that. I was never chairman of the Judiciary Committee
during any President’s first 2 years in office. I am glad to say,
therefore, that the proper comparison is not, as they say, about me.

My colleague speaks of the last 15 months when I was chairman, but
this compares apples to oranges.

During President Clinton’s first Congress, when Senator Biden was the
chairman of the Judiciary Committee, the Senate confirmed 127 judicial
nominees. And Senator Biden achieved this record despite not receiving
any nominees for the first 6 months–in fact, Senator Biden’s first
hearing was held on July 20 of that year, more than a week later than
the first hearing of this session, which occurred on July 11, 2001.
Clearly, getting started in July of year one is no barrier to the
confirmation of 127 judges by the end of year two. But we have
confirmed only 73 nominees in this session.

Senator Biden’s track record during the first President Bush’s first
two years also demonstrates how a Democrat-led Senate treated a
Republican President. Then-Chairman Biden presided over the
confirmation of all but 5 of the first President Bush’s 75 nominees in
that first two-year session. Chairman Thurmond’s record is similar. The
contrast to the present could hardly be starker.

Mr. President, we are about to close President Bush’s first 2 years
in office having failed the standards set by Chairmen Biden and
Thurmond. That is nothing over which to be proud. We still have 80
vacancies on the courts, and 32 emergency vacancies.

Mr. President, one final point about Justice Owen. Much of the
opposition against her was driven by interest groups that advocate for
the right to abortion. Yet in Justice Owen we had the first nominee we
have considered this session who has, as a judge, read those cases,
cited them, quoted them, applied them and followed them. She did,
however, interpret the new Texas parental notice law and sought in one

[[Page S8345]]

particular case to make it rarer to bypass than some of her colleagues
on the court, although the Texas Supreme Court agreed in most all other
respects.

Of course, the charge that she is a judicial activist was a cynical
trick of words from Washington special interest lobbyists who have made
their careers taking positions without letting the words of the
Constitution stand between them and their political objectives.

Why did they oppose her? Ironically enough, they are doing so because
they do not like the Texas statute requiring parental notice in cases
of abortions for children. Justice Owen voted to give the statute some
meaning. Justice Owen’s opponents think a minor should always be able
to avoid the Texas Legislature’s standards. It is the groups allied
against Justice Owen who are the judicial activists, the ones who are
looking to achieve in the courts an outcome that is at odds with the
law passed by the elected legislators.

Let’s be clear that the opposition to Justice Owen was all about abortion.

But in Justice Owen’s case, it was not that she opposed
abortion rights–no decision of hers ever denied that right.

I fear  that the opposition to Justice Owen is not about abortion rights
exactly, but something much more insidious–it was not about abortion
rights exactly but about abortion profits.

Simply put, the abortion industry is opposed to parental notice laws
because they place a hurdle between them and their clients–not the
girls who come to them, but the adult men who pay for the abortions.

These adult men, whose average age rises the younger the girl is, are
eager not to be disclosed to parents, sometimes living down the street.

At $1,000 per abortion and nearly 1 million abortions per year, the
abortion industry is as big as any corporate interest that lobbies in
Washington. They not only ignore the rights of parents to hide their
young daughters’ abortions, they also protect sexual offenders and
statutory rapists.

And who are the lobbyists for the abortion industry? Exactly the same
cast that has launched an attack on Justice Owen. One wonders, as
columnist Jeff Jacoby did in the Boston Globe, who are the extremists
on this issue, who is out of the mainstream? Not Justice Owen–82
percent of the American people favor consent and notice laws such as
Justice Owen interpreted–86 percent in Illinois.

I will say it again, while my colleagues continue in general to apply
an abortion litmus test, the assault against Justice Owen was not about
abortion rights, it was about abortion profits. It is not about a
woman’s right to an abortion, it is about assailing parental laws that
threaten the men who pay for abortions. It is whether parents should at
least know, not even consent to, but just know, when a minor child is
having an abortion paid for by an adult.

Let’s speak truth to power.

Justice Owen was picked to be opposed because she is a friend of President Bush
from Texas.

She was opposed by an axis of profits.

This axis of profits combines the money of trial
lawyers and the abortion industry to fund the Washington special
interest groups, and spreads its influence to the halls of power in
Washington and in State courts across this country.

The Opposition against Justice Owen was intended not only to have a
chilling effect for women jurists that will keep them from weighing in
on exactly the sorts of cases that most invite their participation and
their perspectives as women, but also on all judges in all State courts
who rule on cases the trial lawyers want to win and cash in on.

When my colleagues voted against her, they chose to besmirch a model
young woman from Texas, who grew up, worked hard and did all the right
things–including repeatedly answering the call of public service at
sacrifice of personal wealth and family. My Democrat colleagues voted,
in effect, against the American promise of fairness.

This is a young woman who gave up a lucrative career to give public
service on the Texas Supreme Court, and who deserves to be on the Fifth
Circuit Court of Appeals.

Such a vote should have taken place in the light of this Senate
floor, but the American people will hear of the result notwithstanding
the shadows.

I only hope the American people will repair the damage done to the
Constitution when they vote in November.

I have reviewed Mr. Marra’s distinguished career and I can say, without hesitation, that he will be an excellent addition to the
prestigious Southern District of Florida.

Mr. Marra comes to the federal bench with a unique and extremely
useful qualification: Judge Marra is a former Social Studies teacher at
Elmont Memorial High School in Elmont, New York. After teaching high
school for several years, Judge Marra inexplicably decided to change
career paths and went to law school, graduating from Stetson University
College of Law in 1977. He then went to work for the United States
Department of Justice as part of its honor law graduates program. While
at the Department of Justice, he was involved in litigation which
sought to protect the land, water and mineral rights of Native
Americans from encroachment and to regain such resources that had been
wrongfully lost over the years.

After three years with the Department of Justice, Judge Marra joined
the law firm of Wender, Murase & White of Washington, D.C., where he
was involved in patent and trademark litigation, corporate law and
litigation in the area of federal Indian law. In 1984 Judge Marra
joined the law firm of Nason, Gildan, Yeager, Gerson & White. He worked
at that firm for the next twelve years focusing on commercial
litigation and representing clients at both the trial and appellate
levels. Judge Marra gained experience in a variety of matters,
including antitrust, contracts, construction defects, condominium and
homeowner association disputes, and employment and housing
discrimination.

In 1996 Judge Marra was appointed to the Fifteenth Judicial Circuit
in Palm Beach County, Florida. He has served in the civil, family and
criminal divisions.

Judge Marra will make a fine member of the Federal bench.

I reserve the remainder of my time.

The PRESIDING OFFICER. The Senator from Vermont is recognized.

Mr. LEAHY. Madam President, I am sure it was inadvertent that when
the distinguished Senator from Utah was talking about the editorials
against the nominee, Priscilla Owen, he said there were only three
against.

I refer, for example, to the Atlanta Journal-Constitution, and I will
quote from it and then put the whole editorial in the Record.
I ask unanimous consent that articles in opposition to her be printed
in the Record.

There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the New York Times, Sept. 4, 2002]

The Wrong Judge

Priscilla Owen, President Bush’s latest nominee to the
United States Court of Appeals for the Fifth Circuit, has
been at times so eager to issue conservative rulings in cases
before her on the Texas Supreme Court that she has ignored
statutory language and substituted her own views. This
criticism comes not from the “special interest groups” she
has charged with misstating her record, but from Alberto
Gonzales, President Bush’s own White House counsel.

Mr. Gonzales, who served with Justice Owen on the Texas high
court, once lambasted her dissent in an abortion case for
engaging in “unconscionable . . . judicial activism.” Mr.
Gonzales says today that he nonetheless supports the
elevation of Justice Owen. We do not.

In choosing a nominee for the Fifth Circuit–the powerful
federal appeals court for Texas, Mississippi and Louisiana–
President Bush has looked to the extreme right wing of the
legal profession. Even on Texas’ conservative Supreme Court,
Justice Owen has distinguished herself as one of the most
conservative members. A former lawyer for the oil and gas
industry, she reflexively favors manufacturers over
consumers, employers over workers and insurers over sick
people. In abortion cases Justice Owen has been resourceful
about finding reasons that, despite United States Supreme
Court holdings and Texas case law, women should be denied the
right to choose.

Justice Owen’s views are so far from the mainstream that,
on those grounds alone, the Senate should be reluctant to
confirm her. But what is particularly disturbing about her
approach to judging is, as Mr. Gonzales has identified, her
willingness to ignore that text and intent of laws that stand
in her way.

In an important age discrimination case, Justice
Owen dissented to argue that the plaintiff should have to
meet a higher standard than Texas law requires.

Justice Owen has also shown a disturbing lack of
sensitivity to judicial ethics.

She has raised large amounts of campaign contributions
from corporations and law firms, and

[[Page S8346]]

then declined to recuse herself when those contributors have
had cases before her. And as a judicial candidate, she
publicly endorsed a pro-business political action committee
that was raising money to influence the rulings of the Texas
Supreme Court.

After the Senate Judiciary Committee rejected Judge Charles
Pickering, another far-right choice, for a seat on the Fifth
Circuit earlier this year, the Bush administration declared
that it would not be intimidated into choosing more centrist
nominees. Sadly, the administration has lived up to its
threat. In this dispute the Senate is right: the
administration should stop trying to use the judiciary to
advance a political agenda that is out of step with the views
of most Americans.

Justice Owen is a choice that makes sense for Justice Department ideologues who want to turn the courts into a champion of big business, insurance companies and the religious right. But the American people deserve better. Justice Owen’s nomination should be rejected.
____

[From the Los Angeles Times, July 23, 2002]

Ideologues All in a Row

Last year President Bush eliminated the American Bar Assn.
from the process of vetting potential judicial nominees, a
role it performed ably and in a nonpartisan way for the nine
presidents before him. Now he relies on the ideological tests
of the very conservative Federalist Society.

Not surprisingly, the men and women who pass this rigid
test look remarkably alike on the bench. They often side with
business in disputes involving employee rights, consumers and
the environment. They strongly oppose abortion, and their
opinions reveal a strong streak of judicial activism dressed
up as traditional principle.

Priscilla Owen is among them. A protege of Bush confident
Karl Rove, who engineered her 1994 election to the Texas
Supreme Court, Owen is a nominee to a seat on the U.S. 5th
Circuit Court of Appeals. She comes before the Senate
Judiciary Committee today to defend a record of indifference
to the problems of most Americans.

Senators should ask her why, for example, she voted to
reverse a jury verdict in favor of a woman who had sued her
health insurance company for refusing necessary surgery to
remove her spleen and gallbladder. Her colleague on the Texas
high court, Alberto Gonzales, now Bush’s top legal advisor,
dissented, writing that Owen’s decision turned the legal
standard in that case “on its head.”

Gonzales, a solid conservative himself, also took issue
with Owen in an abortion case that should draw tough
questions from Sen. Dianne Feinstein (D-Calif.), chairwoman
of today’s hearing. Texas law allows pregnant teenagers in
some instances to seek permission from a judge to have an
abortion without their parents’ consent. Owen has staunchly
opposed such “judicial bypasses.” In one case, Gonzales,
wrote, Owen’s opinion would have “create[d] hurdles that
simply are not found in the . . . statute” and would be “an
unconscionable act of judicial activism.” in other cases,
her colleagues have accused her of “inflammatory rhetoric.”
For all this, Owen’s nomination puts Feinstein in a tough
spot. She was chairwoman last March when the Judiciary
Committee rejected Charles Pickering, another Bush pick for
the 5th Circuit. She is anxious to avoid being labeled
obstructionist. But given her repeated calls for mainstream
nominees, not to mention her long support for abortion
rights, Feinstein should vote no, and so should her
colleagues.

Although it is now one of the most conservative appellate
federal courts, the 5th Circuit has a long and honorable
history–defending civil rights during the 1960s and the
rights of asbestos workers, systematically deceived and
injured by their employers, in the 1970s. Owen would add
nothing positive to that legacy.

Americans want independent, common-sensical and capable
judges, not those whose political ideology–from either
direction–wins them a nomination. As long as Bush continues
to exclude the American Bar Assn. from the nomination
process, he should not be surprised that his choices draw
fire.
____

[From the San Antonio Express-News, July 21, 2002]

Bush Court Choice Should Be Rejected

Once competency is established, the most important
qualification for a judge is commitment to following the law
as it is written–regardless of personal philosophy.
Justice Priscilla Owen is clearly competent, but her record
demonstrates a results-oriented streak that belies
supporters’ claims that she strictly follows the law.

Because of Owen’s record as a member of the Texas Supreme
Court, the Senate Judiciary Committee should reject her
nomination to sit on the U.S. 5th Circuit Court of Appeals.
Her most infamous opinions involve cases in which minors
were seeking a legal bypass allowing them to get an abortion
without parental consent.

In those cases, she consistently landed in a small court
minority that opposes such bypasses, while a majority of her
fellow judges on an all-Republican court upheld the law as
legislators wrote it.

Former Justice Al Gonzales clearly pointed that out. In an
opinion that countered a dissent she supported, he wrote:
“To construe the Parental Notification Act so narrowly as to
eliminate bypasses, or to create hurdles that simply are not
to be found in the words of the statute, would be an
unconscionable act of judicial activism.”

Now serving as President Bush’s White House counsel,
Gonzales is defending his former state court colleague.
However, opinions she wrote in the parental consent cases
show a clear line between strict constructionist judges and
activists.

Owen, who remains on the state’s high court, is an
activist.

In recent years, judicial nomination struggles on Capitol
Hill have become a game, played by both parties, or petty
obstructionism.

The Senate should not block a judicial nominee simply
because he or she is more conservative or more liberal than
the Senate’s majority party.

It also should not engage in petty personal attacks. But
concerns about Owen go to the heart of what makes a good
judge.

When a nominee has demonstrated a propensity to spin the
law to fit philosophical beliefs, it is the Senate’s right–
and duty–to reject that nominee.

A hearing on Owen’s nomination is set for this week.

Although Owen should be rejected for a lifetime
appointment, the Democrat-controlled Senate should have given
her a hearing long ago. Bush nominated Owen on May 9, 2001.
Owen and the president were owed better treatment. Even
nominees who are destined for rejection deserve timely
consideration, and the Democrats should pick up the pace in
considering Bush’s judicial picks.

During his years as Texas governor, Bush did a masterful
job of selecting quality, moderate judges. But his decision
to nominate Owen is a disappointment.

We urge Bush to take more care in future nominations and
return to his previous policy of nominating judges who
believe in the law more than any ideological agenda.
____

[From the San Francisco Chronicle, July 23, 2002]

Feinstein’s Decisive Moment

Sen. Dianne Feinstein, D-Calif., faces a momentous
decision. Today, the Senate Judiciary Committee will hold
hearings on Priscilla Owen, the president’s candidate for a
lifetime appointment to the United States Court of Appeals
for the Fifth Circuit. With the committee divided along party
lines, Feinstein could cast the decisive vote.

When George W. Bush became president, he excoriated
judicial activism and vowed to nominate justices who
interpret the law, instead of trying to rewrite it.

Priscilla Owen simply does not satisfy the president’s own
criteria for this position. According to a report issued by
People For the American Way, a liberal advocacy group, Owen
has demonstrated a disturbing pattern of overruling the law
when it clashes with her conservative ideology.

In one case, for example, Owen’s dissenting decision would
have effectively rewritten a key Texas civil rights law by
making it more difficult for employees to prove
discrimination. Her colleagues on the bench–mostly Bush
appointees–wrote that her ruling “defies the Legislature’s
clear and express limits on our jurisdiction.”

With respect to reproductive rights, Owen advocated a far
more restrictive interpretation of the Texas law that allows
a minor to obtain an abortion without parental notification.
Her dissent prompted then-Justice Alberto Gonzales, now the
White House counsel, to write that her opinion constituted
“an unconscionable act of judicial activism.” Gonzales,
naturally, now expresses the White House party line, hailing
Owen’s integrity and ability. “I’m confident she will follow
the law as defined by the Supreme Court,” Gonzales was
quoted as saying in the San Antonio Express-News.

But close observers of her Texas record are less confident
of her objectivity. Danielle Tierney, a Planned Parenthood
spokeswoman from Texas, said Owen has “a record of active
opposition to reproductive and women’s rights.”

Owen has also tried to finesse laws that protect public
information rights, the environment, and jury findings.

The point is, Owen has created a strong record of “rewriting”
the law when it does not match her conservative convictions.

This is why it is vital that Feinstein reject this  nomination.
____

[From the Dallas Morning News, July 16, 2002]

Justice Owen: Perpetrator or Victim of Politics?

her activism has been extreme, even by texas standards

(By Craig McDonald)

Texas Supreme Court Justice Priscilla Owen, who faces a
Senate Judiciary Committee hearing Thursday on her nomination
to the 5th U.S. Circuit Court of Appeals, flunks the stated
judicial criteria of both President Bush and the Democratic
chairman of the Judiciary Committee.
Although the president nominated Justice Owen, she flunks
his own pledge to appoint “strict constructionists” who
narrowly interpret laws rather than write opinions promoting
a political agenda. “I want people on the bench who don’t
try to use their position to legislate from the bench,” Mr.
Bush has said. Yet Justice Owen’s record on the Texas Supreme
Court is one of a judicial activist who seeks to make laws
from the bench.

[[Page S8347]]

Justice Owen also flunks the criteria of Senate Judiciary
Committee Chairman Patrick Leahy, who has pledged to stop any
“ideological court packing.” Justice Owen’s record has
established her as an ideological extremist out of the
mainstream–even on the all-conservative Texas Supreme Court.

Justice Owen’s extreme opinions have mobilized a large
coalition of Texas organizations working to stop her
appointment. The groups fighting her nomination range from
the Texas chapter of the American Association of University
Women to the Women’s Health and Family Planning Association.

They include the AFL-CIO, the National Association for the
Advancement of Colored People, Planned Parenthood, the Texas
Civil Rights Project, the Texas Abortion Rights Action League
and others.

While each of those organizations has its own reasons for
opposing Justice Owen, my group–Texas for Public Justice–is
particularly troubled by the fact that she has amassed a body
of rulings that advance the agendas of the special interests
that bankrolled her judicial campaigns. Thirty-seven percent
of the $1.4 million that Justice Owen raised for her Supreme
Court campaigns came from donors with a direct stake in case
in her court.

Letting special interests bankroll judicial campaigns has shattered public confidence in Texas courts.

A 1999 Texas Supreme Court poll found that 83 percent of Texans,
79percent of Texas lawyers and 48 percent of Texas judges say
campaign contributions significantly influence judicial
decisions.

Commenting on the poll, U.S. Supreme Court Justice Anthony Kennedy said, “The law commands allegiance only if it commands respect. It commands respect only if the public thinks judges are neutral.”

Since Justice Owen joined the high court in 1995, she has
written and joined a slew of opinions that favor businesses
over consumers, defendants over plaintiffs and judges over
lawmakers and juries. A 1999 study by Austin-based Court
Watch found that individuals won just 36 present of their
cases during Justice Owen’s tenure, compared to a win rate of
66 percent for businesses, 70 percent for insurers and 86
percent for medical interests.

While all nine Texas Supreme Court justices are pro-business conservatives, Justice Owen and Nathan Hecht became an isolated bloc of extremist dissent about 1998.

Masquerading as “strict constructionists,” Justices Owen
and Hecht have promoted the interests of big business and the
far right with much less restraint than their fellow Texas
justices. That ultraconservative activism is all the more
disturbing, given that it mirrors the agenda of the top
donors to their judicial war chests.

In making lifetime appointments to federal appeals courts,
the president and the Senate can–and should–do better.

Justice Owen lacks criminal trial experience, has taken more
than $500,000 in judicial contributions from interests with
cases in her court and has produced a body of activist
opinions that are extremist–even by Texas standards.
____

[From the San Antonio Express-News, July 21, 2002]

Judge Owens Flunks Bush’s Own “Strict Constructionists” Test

(By Jan Jarboe Russell)

In a perfect world, there wouldn’t be “liberal” judges or
“conservative” judges, there would just be good judges.
After all, if you ask ordinary people what they want in a
federal judge, what they want are judges who are fair,
learned and impartial, judges who have the ability to lay
aside their own political views and do their public duty.

Why then is it so darn hard to find these kind of plain-
and-simple judges? The answer, of course, is the dreaded P
word; politics. The ongoing battle in the Senate Judiciary
Committee over the nomination of Priscilla Owen to the 5th
U.S. Circuit Court of Appeals is a perfect example of how
politics is making a certifiable mess of America’s judicial
system.

In seven years on the Texas Supreme Court, the only way
moderate-thinking people in Texas survived Owen’s relentless
ultra-conservative dissents was to toughen our stomachs and
take her many efforts to rewrite our state laws one day at a
time. This is a woman who has consistently ruled against
consumers, has routinely overturned decisions of juries, has
curtailed access to public records, and by anyone’s measure
is an avid anti-abortion ideologue.

Mind you: the Texas Supreme Court is no bastion of
liberalism. The nine members of the court are 100 percent
pedigree Republican, but Owen was such a right-wing activist
she managed to earn the nickname “Justice Enron” for
accepting $8,600 in Enron campaign funds in one year–$1,000
of it from Kenneth Lay himself–and turning around the next
and writing an opinion that saved Enron $225,000 in school
taxes.

As one of only nine states in the nation with the sorry
system of electing our judges with expensive campaigns paid
for by the very lawyers and businesses that come before these
judges for justice, Texas gets exactly the kind of justice we
deserve. In the case just mentioned, for example, Enron paid
for the privilege of robbing the public school children of
Spring, a Houston suburb, of their rightful share of taxes.

I don’t expect President Bush to nominate judges to the
federal bench with whom I agree politically. But I do expect
Bush to nominate people to lifetime positions on the federal
bench who meet Bush’s own standards of “strict
constructionists,” judges who will interpret rather than
write the law. Owen fails the Bush test.

In no less than a dozen cases in which the Texas Supreme
Court was asked to allow a pregnant teenager to bypass the
state’s parental notification requirement and have an
abortion, Owen voted every time to deny the bypass and
created hurdles that were not written in the state’s law. In
one case, when lawyers for a high school senior requested
that the court act quickly on the girl’s request for
permission to bypass the notification requirement, Owen wrote
a dissent that asked: “Why then the rush to judgment?” The
girl was in the 15th week of pregnancy at the time.

Owen’s rulings in these abortion notification cases were so
strident that Alberto Gonzales, now Bush’s White House
counsel but then a member of the Texas Supreme Court, wrote
in a majority opinion that Owen and two other dissenting
justices were thwarting the clear intent of the law. To
accept their reasoning, he wrote, “would be an
unconscionable act of judicial activism.”

Gonzales finds himself in the role of reluctant cheerleader
for Owen. In a telephone interview from his office in the
West Wing the other day, Gonzales claimed that he never
accused Owen of judicial activism and believes she would be
an excellent judge. His opinion has written in black-and-
white only two years ago–he clearly called her dissent an
“unconscionable act of judicial activism”–but maybe in his
struggle to find the gray, Gonzales meant that he thought all
of three of the judges were unconscionable. Who knows?

Politics makes people parse words very carefully.

Owen’s political credentials are indeed impressive. She is
a protege of Karl Rove, the president’s political adviser,
and it is Rove who is pushing her judicial nomination. But
politics should not be the primary measure of a judge’s
ability to administer justice.

As much as it pains me to say it, Justice Enron should stay
put in Texas.
____

[From the Houston Chronicle, July 31, 2002]

DiFi, Owen Would Be Very Odd Couple

(By Cragg Hines)

Sen. Dianne Feinstein, a wonderfully calm, cool
Californian, loves to be the swing vote. It increases the
sense that she is unbought and unbossed, and it makes her
political currency slightly more valuable than that of
colleagues who fall predictably one way or another on an
issue.

Part of this is political tromp l’oeil, an illusion so
strong that it’s difficult to tell it’s not genuine. For,
when the roll is called, only rarely is Feinstein not
reliably found where she sought to be–in her regular center-
left Democratic pew.

Which brings us to the nomination of Justice Priscilla Owen
of the Texas Supreme Court to be a judge on the 5th U.S.
Circuit Court of Appeals, a place where the conservative
judicial activist, corporate suck-up and made member (blood
oath?) of the Federalist Society has no earthly place being.

Feinstein ran last week’s hearing by the Senate Judiciary
Committee on Owen’s nomination and said she was “keeping an
open mind” regarding President Bush’s determination to give
Owen lifetime employment. (For the forgetful: Bush and Owen
both got their start in statewide politics as clients of the
White House political high priest, Karl Rove.)

Feinstein’s self-advertised “open mind” is about the only
hope for supporters of Owen. The Judiciary Committee’s nine
Republicans need one of the panel’s 10 Democrats to vote with
them to get the nomination to the floor.

If the nomination is not cleared by the committee, it’s
dead. None of this sending it to the floor without a
recommendation in a Senate with a one-vote Democratic margin
and run by Majority Leader Tom Daschle, D-S.D.

(Owen opponents would still like to hear something definitive from two other Demoracts–Sen. Joseph R. Biden, Jr. of Delaware, who did not show up for last week’s hearing, and the enigmatic gentleman from Wisconsin, Sen. Russell D. Feingold–but the focus is on Feinstein.)

Owen’s opponents believe that Feinstein will eventually
vote against the Texas jurist, but they cannot be absolutely
certain. Feinstein is not about to help them divine the
oracle at the moment.

“I’ve been giving it a great deal of thought,” Feinstein
said this week as the Senate headed toward summer recess.

“I’m not going to let my decision be known, but at an
appropriate time, I will.

“What I’ve said, and I’ve taken this position, I think,
rather scrupulously, is that I don’t make up my mind until
after the hearing.”

There was little in the hearing that should lead Feinstein,
or any senator, to believe that Owen is anything but the very
bright, very ideological, very driven hard-right jurist
revealed in her work over the last seven years on Texas’
highest civil court.

Finally, Sen. Richard J. Durbin, D-Ill, asked Owen directly
about her position on abortion.

“My position is that Roe v. Wade has been the law of the land for many, many years . . . ,”

Owen said, noting that decision had been modified
(and made more restrictive bysubsequent rulings).

“None of my personal beliefs would get
in the way of me applying that law or any other law.”

[[Page S8348]]

But Owen’s record, in a series of recent abortion-related
cases, suggests otherwise. In all but one of the cases, Owen
sought to tweak and torture the Texas law to something not
intended by the Legislature.

Feinstein was listening to all of this and, one assumes,
took it on board. In case she didn’t, an editorial in The Los
Angeles Times the morning of the hearing should have helped:

The work of Owen and similarly situated conservative jurists “reveal(s) a strong streak of judicial activism dressed up as traditional principle.”

The home state newspaper parsed Feinstein’s situation: She
also chaired the hearings earlier this year in which the
Judiciary Committee rejected Bush’s nomination of Charles
Pickering of Mississippi for a seat on the 5th Circuit Court.

“She is anxious to avoid being labeled obstructionist,”
The Times said of Feinstein. “But given the repeated calls
for mainstream nominees, not to mention her long support of
abortion rights, Feinstein should vote no, and so should her
colleagues.” Feinstein said she weighs such opinion but that
it is not dispositive.

One piece of baggage Feinstein would like to discard in the Owen matter is that her vote will have anything to do with a business relationship that the senator’s husband, Richard C. Blum, has with Dr. James Leininger of San Antonio, a generous supporter of Owen’s judicial campaign.

“I’ve never met (Leininger), talked with him, seen him,
heard from him–and that’s that,” Feinstein said. Nor, she
said, “have I ever talked to my husband about this, nor has
he ever talked to me about it.”

So Feinstein should be able to vote against Owen with a
clear conscience.

Mr. LEAHY. In part, this article says:

Senate Judiciary Committee Chairman Patrick Leahy has held
hearings on 82 Bush judicial nominations, 80 of which have
been approved by the committee. Most of those nominees have
been pro-life conservatives whose performance on the bench
the committee still judged to be fair and professional. For
example, last week the committee unanimously reported on
President Bush’s choice of Federal District Judge Reena Raggi
of New York for the U.S. Circuit Court of Appeals for the
Second Circuit.

Parenthetically, I might add that Judge Raggi was originally
appointed by President Ronald Reagan, a conservative Republican who
promised to appoint only judges who satisfied his litmus test.

The American people appreciate balanced judging, and thanks
to the Senate Judiciary Committee, they’re getting it.

I ask unanimous consent that the editorial be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Through constant repetition, conservatives have managed to
make a code phrase out of “judicial activism,” applying it
to rulings that in their mind go beyond the words in
legislation or the U.S. Constitution. But conservatives
themselves are hardly immune from the problem.

Case in point: Texas Supreme Court Justice Priscilla Owen, rejected last week for the 5th U.S. Circuit Court of Appeals by the Senate Judiciary Committee because of her record of making law from the bench. The committee made the right decision for the American people.

Owen’s activist judging has gone so far beyond the statutes
enacted by the Texas Legislature that she was even criticized
by fellow conservatives on the state Supreme Court, including
Alberto Gonzales, who is now Bush’s White House counsel.

On abortion, age and employment discrimination, insurance
and tax matters, the former corporate oil lawyer repeatedly
embellished the plain language of the law to rewrite it to
conform with her own ideological views. She also found ways
to side consistently with corporations, including Enron,
which contributed generously to her Supreme Court election
campaign.

President Bush has accused the Senate Judiciary Committee
of blind partisanship, but the facts don’t bear that out. In
less than two years, the Democratic-controlled committee has
approved more Bush nominees for the federal bench than the
Republican-controlled Senate Committee did in six years with
President Clinton.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has held
hearings on 82 Bush judicial nominations, 80 of which have
been approved by the committee. Most of those nominees have
been pro-life conservatives whose performance on the bench
the committee still judged to be fair and professional. For
example, last week the committee unanimously confirmed Bush’s
choice of Federal District Judge Reena Raggi of New York for
the 2nd U.S. Circuit Court of Appeals.

Nevertheless, Bush lashed out angrily at the Owen defeat:
“I don’t appreciate it one bit, and neither do the American
people.”

Quite the contrary, Mr. President. The American people
appreciate balanced judging, and thanks to the Senate
Judiciary Committee, they’re getting it.

Mr. LEAHY. Madam President, I ask unanimous consent for 1 more
minute, with another minute to be given to the Senator from Utah.

Mr. REID. Will the Senator yield?

Mr. LEAHY. Yes.

Mr. REID. I was going to go into a quorum call for 5 or 6 minutes
anyway. If the Senators would like 3 more minutes each or something,
that is fine. Otherwise, I will go into a quorum call.

Mr. LEAHY. Madam President, I ask unanimous consent for that time.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LEAHY. Madam President, there was a suggestion made–I am sure
inadvertent–by the distinguished Senator from Utah that it was
unprecedented to see a nominee with a well-qualified rating be voted
against. Actually, the Senator from Utah has voted against such a
person, like Judge Rosemary Barkett of Florida, as have a number of
others. But then there were a whole lot of others who we can say were
not voted against? Why? Because they were never allowed to have a vote
during Republican control of the Senate.

This is a partial list of nominees who never had a vote, but they had
the highest rating possible: H. Alston Johnson from the Fifth Circuit
was never given a hearing by the Republicans; James Duffy from the
Ninth Circuit was never given a hearing; Kathleen McCree Lewis from the
Sixth Circuit was never given a hearing or a vote; Judge James Lyons,
from the Tenth Circuit, was never given a vote or a hearing; Allen
Snyder, from DC, had a hearing but no vote; Judge Robert Cindrich, from
the Third Circuit, was never given a hearing or a vote; Judge Stephen
Orlofsky, from the Third Circuit, was never given a hearing or a vote;
Judge Andre Davis, from the Fourth Circuit, was never given a hearing
or a vote; and Enrique Moreno, of the Fifth Circuit, was never given a
hearing and never given a vote.

These are people with the highest possible rating from the ABA.
Republicans can say they never voted against them. Why? Because they
were never brought up and never given a vote. If they had been given a
vote, they would have known where they stood.

My good friend from Utah, perhaps inadvertently, thought I was
comparing a time when he was not chairman. I do compare a time when he
was chairman. I will take the first 15 months that he was chairman with
a Democratic President.

The Democratic President nominees got 14 hearings in 15 months; the
Republican President nominees, under my chairmanship, got 23 hearings.
Nominees who received hearings under Republicans were 67; under the
Democrats with a Republican President, 84.

Nominees confirmed, 56; in the same period of time, it was 74 with
us.

Nominees voted on in committee: They allowed 61 during that 15
months. We have had votes on 82 of this President’s judicial nominees.
It is nice to say nominations are not being handled fairly. The fact
is, if we used the Republican precedent as a mark of fairness, we would
not have to do anything else for the rest of the year because we are
way beyond what they did.

I reserve the remainder of my time.

Mr. HATCH. Madam President, how much time remains on each side?

The PRESIDING OFFICER. The Senator from Utah has 4 minutes 5 seconds.

Mr. HATCH. How much on each side?

The PRESIDING OFFICER. The Senator from Vermont has 7 seconds.

Mr. HATCH. Madam President, again, the Senator from Vermont and I are
friends, but I totally disagree with what he has been saying. It is a
smoke screen.

Allow me to address the fate of nominees first sent up by the first
President Bush. In fact, some pending today without a hearing who were
nominated by the first President Bush nearly 10 years ago.

These are nominees still on the list after 10 years that the Democrats have not
allowed to come up:

Terrence Boyle for the Fourth Circuit and John Roberts for the DC Circuit,

considered one of the two or three greatest appellate lawyers in the country
before the Supreme Court; Henry Saad for the Sixth Circuit; Ronald Leighton
for the Western District of Washington; and Richard Dorr for the Western District
of Missouri.

All five of these nominees were nominated by the first President Bush,
better than 10 years ago, but never received committee action at that
time. I hope they, too, will soon

[[Page S8349]]

receive their long-awaited hearings and confirmation votes.
By the way, there were 42 left over at the end of the Clinton
administration. Nine of them were put up so late, there was no way
anybody could have gotten them through. That brings us down to 33, and
of the 33, there were others who did not have the support of both home-
State Senators. There were those who, for one reason or another, could
not make it.

Contrast that when Bush 1 left office and the Democrats were in
control. There were 54 left over. That is 11 more than were left when
President Clinton left office.

If you want to talk statistics, I can talk them all day long, and I
can tell you we have been much more fair than what we have seen in the
first 2 years of the Bush 2 administration.

I suggest that instead of spending our time talking about the same
small handful of Clinton nominees, we should focus on the ones pending
before us today who never saw the light of day the last time the
Democrats controlled the Senate.

Justice Owen, for instance–and this is an important point–is
literally the first one in history who had the support of both-home
State Senators, the highest rating of the American Bar Association, and
was voted down in committee and not even given a chance to have a vote
on the Senate floor.

Currently, there are 80 empty seats on the Federal judiciary. That is
a 9.3-percent vacancy rate, one of the highest in modern times. This
means that 9.3 percent of all Federal courtrooms are presided over by
an empty chair.

There are currently 21 nominees who are slated to fill positions
which have been declared judicial emergencies by the Administrative
Office of the Courts. Of those, 11 are Circuit Court of Appeals
nominees.

Only 5 of President Bush’s first 11 circuit court nominees nominated
on May 9, 2001–a year and a half ago almost–have had hearings. In
other words, the Judiciary Committee has taken no action whatsoever on
nearly half of the circuit court nominations that have been pending for
over 16 months.

There is no reason for this other than stall tactics. All of these
nominees received qualified or well-qualified ratings from the American
Bar Association.

There were 31 vacancies in the Federal courts of appeals on May 9,
2001, and there are 28 today. The Senate Democrats are trying to create
an illusion of movement by creating great media attention and
controversy concerning a small handful of nominees in order to make it
look like progress. But we are not making any progress in filling
circuit vacancies.

President Bush has responded to the vacancy crisis in the appellate
courts by nominating a total of 32 top-notch men and women to these
posts–but the Senate is simply stalling them. Over the past year, the
Senate has confirmed only 13. There are still 19 Circuit Court nominees
pending in Committee. By comparison, at the end of President Clinton’s
second year in office, we had confirmed 19 circuit judges and had 15
circuit court vacancies.

There were only two Circuit Court nominees left pending in committee
at the end of President Clinton’s first year in office. In contrast,
there were 23 of President Bush’s Circuit Court nominees pending in
Committee at the end of last year.

Some try to blame the Republicans for the vacancy crisis, but that is
bunk. At the end of the 106th Congress when I was chairman, we had 67
vacancies in the Federal judiciary. During the past 9 months, the
vacancy rate has been hovering right around 100. Today is at 80.
Some think that the point of “advise and consent” is to match
statistics from previous years. This rear-view-mirror driving is
nonsense. The Senate has a duty to exercise its advice and consent, and
it has done so on only 40 percent of President Bush’s appellate court
nominations so far this Congress. The question is not: How many judges
should we let President Bush have? The question is: Is the Senate
getting its work done?

The Sixth Circuit Court of Appeals, which encompasses the states of
Michigan, Ohio, Kentucky and Tennessee, has only 8 of 16 seats filled,
leaving that court half-empty. The President has nominated 8
individuals to fill these vacancies, but only two have received a
hearing, despite the fact that two of these nominees have been pending
since May 9, 2001.

The U.S. Court of Appeals for the District of Columbia is also
functioning far below its normal capacity, with 4 out of 12 authorized
judgeships currently vacant. Although the President nominated Miguel
Estrada and John Roberts on May 9, 2001, to fill seats on this Court,
they have not yet been given a hearing.

The PRESIDING OFFICER. The Senator’s time has expired.

Mr. LEAHY. Madam President, last year when the Republicans controlled
the Senate Judiciary Committee, they did not hold one hearing on
President Bush’s nominees. We have done 82.

Mr. GRAHAM. Mr. President, I would like to thank the Judiciary
Committee for recognizing the needs of Florida and favorably reporting
the nomination of Judge Kenneth A. Marra.

Ken Marra, a skilled and respected Judge in Florida’s Fifteenth
Circuit, has been nominated to serve as a Federal judge in the busy
Southern District of Florida. If confirmed, he will fill a newly
created and much needed judgeship position.

Judge Marra’s solid qualifications make him an ideal candidate for
service on the Federal bench. A circuit judge since 1996, he currently
serves in the Palm Beach County Court’s civil, family and criminal
divisions. Before his tenure as a circuit judge, Judge Marra spent 16
years practicing commercial litigation in Palm Beach County and
Washington, DC. He also served as a trial attorney with the United
States Department of Justice.

Judge Marra is a graduate of the State University of New York at
Stony Brook and earned his law degree from the Stetson University
College of Law in 1977. Before attending law school, the judge taught
social studies to high school students in New York.

The strength of Judge Marra’s nomination is evident from the strong
support that he has earned from his local bar.

When asked to comment on his nomination for a January 4 Palm Beach Post
article, Amy Smith,president of the Palm Beach County Bar Association, said,

“He is an absolutely perfect choice: impeccable background, extremely intelligent, consistently one of the highest rated judges in the judicial evaluations done here.”

Ms. Smith said;

Marra’s judicial demeanor “is gracious and humble. The President couldn’t have made a better choice.”

When the Palm Beach County Bar Association released its biennial
survey of circuit and county judges earlier this spring,

Judge Marra ranked the highest in the neutrality and fairness category, with 63 percent of the attorneys rating him as “outstanding.”

In Florida, Judge Marra submitted his application to a judicial
nominating committee comprised of a diverse group of Floridians, who in
turn recommended three candidates to the President for consideration.
Senator Bill Nelson and I interviewed these candidates.

In summary, Mr. Marra is an intelligent, well-respected, and
qualified candidate for the Federal bench.

I appreciate the Senate’s consideration of Judge Marra’s nomination
and look forward to working with my colleagues to confirm additional
nominees to Florida’s Southern and Middle Districts, two of the largest
and busiest judicial districts in the country.

The PRESIDING OFFICER. All time has expired.

The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Kenneth A. Marra, of Florida, to be United
States District Judge for the Southern District of Florida? The yeas
and nays have been ordered. The clerk will call the roll.

The bill clerk called the roll.

Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the
Senator from Illinois (Mr. Durbin), the Senator from Iowa (Mr. Harkin),
the Senator from Connecticut (Mr. Lieberman), the Senator from Maryland
(Ms. Mikulski), the Senator from Washington (Mrs. Murray), are
necessarily absent.

Mr. NICKLES. I announce that the Senator from Colorado (Mr. Allard),
the Senator from Missouri (Mr. Bond), the Senator from Kentucky (Mr.
Bunning), the Senator from Colorado

[[Page S8350]]

(Mr. Campbell), the Senator from New Hampshire (Mr. Gregg), the Senator
from North Carolina (Mr. Helms), the Senator from Arkansas (Mr.
Hutchinson), the Senator from Pennsylvania (Mr. Santorum), the Senator
from Alabama (Mr. Sessions), the Senator from Alabama (Mr. Shelby), the
Senator from New Hampshire (Mr. Smith), the Senator from Pennsylvania
(Mr. Specter), are necessarily absent.

The PRESIDING OFFICER (Mr. Nelson of Florida).

Are there any other Senators in the chamber desiring to vote?

The result was announced–yeas 82, nays 0, as follows:

[Rollcall Vote No. 211 Ex.]

YEAS–82

Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Brownback
Burns
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Hagel
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Sarbanes
Schumer
Smith (OR)
Snowe
Stabenow
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden

NOT VOTING–18

Akaka
Allard
Bond
Bunning
Campbell
Durbin
Gregg
Harkin
Helms
Hutchinson
Lieberman
Mikulski
Murray
Santorum
Sessions
Shelby
Smith (NH)
Specter

The nomination was confirmed.

Mr. REID. I move to reconsider the vote.

Mr. LEAHY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

The PRESIDING OFFICER. Under the previous order, the President will
be notified of the Senate’s action.

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Appellate Judges

Here’s the Tax Deductible 11th Cir. Opinion Judge Jill Pryor Has Been Bayin’ Her Colleagues For

And it is an $17 million dollar windfall for Pryor care of her judicial colleagues, with Judge Babs Lagoa leading the line in this unanimous, 36 page published opinion.

Published

on

David F. Hewitt, et al. v. Commissioner of IRS

LIF COMMENT

You are about to read corruption at it’s highest level, and we’re not referring to the Hewitt’s, but the delayed and delayed and delayed again tax easement cases against Judge Jill Pryor et al in Tax Court which is about a $17M+ tax dodge.

Judge Jill A. Pryor desperately needed a published tax case opinion and after 2 long years waiting – and in the interim stalling her two tax cases – the 11th Circuit, where she sits as a judge, duly obliges.

This collegiate opinion by her judicial colleagues was predicted by LIT and LIF.

The opinion is unanimous, has a designated lower court hand-picked judge to sit on the panel and despite its length, a 36-page opinion on a considerably contentious matter, there is no concurring or dissenting opinion.

We find that disturbing and unusual in the Eleventh Circuit, when reviewing past published opinions.

This precedential opinion is issued as a new year gift to Ochlocracy and a Corrupt Federal Judiciary.

DEC 29, 2021 | REPUBLISHED BY LIT: DEC 30, 2021

KPMG (UK) Partner Hewitt (no, not this Hewitt, but tweet is highly relevant)

Before WILSON, LAGOA, Circuit Judges, and MARTINEZ, District Judge (from MIAMI, SD Fl. District Court, of course, where Lagoa’s father-in-law is also a sitting judge).

LAGOA, Circuit Judge (Jones Day Partner and attorney husband Paul Huck Jr., is known as the “GodFather” of the Federalist Society in MIAMI):

David and Tammy Hewitt seek review of the Tax Court’s order determining that they were not entitled to carryover a char itable contribution deduction for the donation of a conservation easement (the “Easement”).

The Tax Court concluded that the Easement did not satisfy the “protected-in-perpetuity” require- ment, see I.R.C. § 170(h)(5), because the Easement deed violated the judicial extinguishment proceeds formula set forth in Treas. Reg. § 1.170A-14(g)(6)(ii).

Specifically, in the event of judicial extinguishment, the Easement deed subtracts the value of post-donation improvements to the property from the extinguishment proceeds before determining the donee’s share of the proceeds, which the Commissioner asserts violated § 1.170A-14(g)(6)(ii) and, thus, § 170(h)(5)’s protected-in-perpetuity requirement.

On appeal, the Hewitts make several arguments as to why the Tax Court erred.

They contend that the Commissioner’s inter- pretation of § 1.170A-14(g)(6)(ii) is incorrect, as subtraction of the value of post-donation improvements from the proceeds allocated to the donee is the “better reading” of the regulation.

As to this interpretation argument, we recently determined, in TOT Prop- erty Holdings, LLC v. Commissioner, that § 1.170A-14(g)(6)(ii) “does not indicate that any amount, including that attributable to improvements, may be subtracted out.” 1 F.4th 1354, 1363 (11th Cir. 2021) (quoting PBBM-Rose Hill, Ltd. v. Comm’r, 900 F.3d 193, 208 (5th Cir. 2018)).

But, based on the taxpayers’ concession in TOT, id. at 1362 & n.13, we did not address whether § 1.170A-14(g)(6)(ii) was procedurally valid under the Administrative Procedures Act (“APA”) or substantively valid under the framework in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

Unlike the taxpayers in TOT, the Hewitts challenge the regulation’s validity on appeal.

Specifically, the Hewitts argue that the Commissioner’s interpretation of § 1.170A-14(g)(6)(ii)—prohibiting the subtraction of the value of post-donation improvements to the property on which a conservation easement exists from the proceeds in the event of judicial extinguishment—is arbitrary and capricious for violating the procedural requirements of the APA, see 5 U.S.C. § 706, because the U.S. Treasury Department failed to respond to significant comments as to the improvements issue in promulgating the regulation.

The Hewitts further argue that the regulation is substantively invalid under Chevron as an unreasonable interpretation of the statute.

After careful review, and for the reasons explained below, we conclude that the Commissioner’s interpretation of § 1.170A- 14(g)(6)(ii) is arbitrary and capricious and violates the APA’s procedural requirements.1

And because we find the Commissioner’s interpretation of § 1.170A-14(g)(6)(ii) to be invalid under the APA, the Easement deed’s subtraction of the value of post-donation improvements from the extinguishment proceeds allocated to the donee does not violate § 170(h)(5)’s protected-in-perpetuity requirement.

Accordingly, we reverse the Tax Court’s order disallowing the Hewitts’ carryover deduction for the conservation easement and remand for further proceedings.

1 Because we conclude that § 1.170A-14(g)(6)(ii) is procedurally invalid under the APA, we do not reach the Hewitts’ Chevron-related arguments.

I. FACTUAL AND PROCEDURAL BACKGROUND

David and Tammy Hewitt2 reside in Randolph County, Alabama, near Alabama’s border with Georgia. David’s father moved to Alabama in the early 1950s, acquiring land there to raise cattle, farm, and harvest timber. In the early 1990s, his father transferred a portion of this land to David’s sister.

David subsequently acquired 257.2 acres of land in Randolph County (the “Property”) in four transactions.

His sister transferred approximately 232 acres to David through a series of three warranty deeds dated January 27, 1997, January 23, 1998, and July 1, 1998. In 2001, David purchased 25 more acres of adjected land and bought out the interest of two unrelated persons who co- owned a 400-acre parcel with his father.

By 2012, David and his sister owned approximately 1,325 acres in Randolph and Cleburne Counties, Alabama.

The cumulative property owned between the two siblings had no zoning ordinances at the time of the

2 We refer to the Hewitts individually by their first names where relevant.

Easement’s grant and consisted of pastureland along a county road and wooded areas with steep topography, rough terrain, and limited road access. David has used, and continues to use, portions of the Property as a cattle ranch.

On December 28, 2012, David donated the Easement on the Property to and for the benefit of Pelican Coast Conservancy, Inc., a wholly owned subsidiary of the Atlantic Coast Conservancy, Inc. (collectively, “the Conservancy”), through a document entitled Deed of Conservation Easement, which was recorded with the Probate Judge for Randolph County the same day.

The Easement deed provides that the Easement’s purpose is “to assure that the Property will be retained forever predominately in its natural condition and to prevent any use of the Property that will impair or interfere with the Conservation Values as set forth in this Easement.”

The Easement deed sets forth a list of “prohibited uses” and permits the Conservancy the right to enter upon the Property at reasonable times to preserve and protect the conservation features. The deed also contains a “permitted uses” section, which reserved to the Hewitts the right to build certain types of improvements on certain areas of the Property.

Additionally, section 15 of the deed governs judicial extinguishment of the
Easement. Subsection 15.1 provides:

Extinguishment.

If circumstances arise in the future such as render the purpose of this Easement impossible to accomplish, this Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction, and the amount of the proceeds to which Conservancy shall be entitled, after the satisfaction or prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination or extinguishment (herein collectively “Extinguishment”) shall be determined to be at least equal to the perpetual conservation restriction’s proportionate value unless other- wise provided by Alabama law at the time, in accordance with Subsection 15.2 . . . .

In turn, subsection 15.2 provides:

Proceeds.

This Easement constitutes a real property interest immediately vested in Conservancy. For the purposes of this Subsection, the parties stipulate that this Easement shall have at the time of Extinguishment a fair market value determined by multiplying the then fair market value of the Property unencumbered by the Easement (minus any increase in value after the date of this grant attributable to improve- ments) by the ratio of the value of the Easement at the time of this grant to the value of the Property, without deduction for the value of the Easement, at the time of this grant For the purposes of this paragraph, the ratio of the value of the Easement to the value of the Property unencumbered by the Ease- ment shall remain constant. (emphasis added).

As stipulated by the parties, the Conservancy provided David with a contemporaneous written acknowledgement within the meaning of I.R.C. § 170(f)(8), and the Conservancy was a “qualified organization” within the meaning of I.R.C. § 170(h)(3) at the time of the Easement donation. The Commissioner also does not con- test that the Property complied with the requirements of I.R.C. § 170(h)(4)(A)(ii)–(iii).

While David is the sole owner of the Property, the Hewitts jointly filed their tax returns for the relevant tax years at issue— 2012, 2013, and 2014.

For the 2012 tax year, the Hewitts reported a noncash, charitable contribution for the donation of the Easement in the amount of $2,788,000.

An appraisal of the Easement was attached to their 2012 return, which the Commissioner—only for the purposes of this appeal—does not contest was a qualified appraisal prepared by a qualified appraiser as required by I.R.C. § 170(f)(11)(E).

However, the Hewitts and the Commissioner do not stipulate to the appraisal’s contents. Due to limitations on charitable contribution deductions, the deduction for the Easement contribution was $57,738.

The Hewitts timely filed their federal income tax returns for the 2013 and 2014 tax years.

The 2013 return claimed a noncash, charitable contribution carry-forward deduction from the 2012 charitable contribution deduction for the Easement in the amount of $1,868,782, and the 2014 return carried the same deduction in the amount of $861,480.

On August 16, 2017, the Commissioner timely mailed a statutory notice of deficiency (“NOD”) for the 2013 and 2014 taxable years to the Hewitts.

The NOD provided that the Hewitts owed:

(1) a $336,894 tax deficiency and an I.R.C. § 6662 penalty of $134,757.60 for the 2013 year;

and

(2) a $347,878 tax deficiency and $136,458.40 penalty for the 2014 year.

The NOD disallowed $2,730,262 of the charitable contribution carryover deduction from 2012 for 2013 and 2014.On November 14, 2017, the Hewitts timely filed a petition for redetermination with the Tax Court, challenging the disallowances for the carryover deductions related to the Easement in the NOD.

In a pretrial memorandum, the Commissioner argued that the Easement deed failed to comply with Treas. Reg. § 1.170A- 14(g)(6) due to an “improvements clause” included therein.

The case proceeded to trial.

In their post-trial brief, the Hewitts contended, among other things, that § 1.170A-14(g)(6)(ii), as interpreted by the Commissioner, was not a valid exercise of Treasury’s rulemaking authority.

On June 17, 2020, the Tax Court issued a memorandum opinion determining that the Hewitts were not entitled to carryover the charitable contribution deduction for the donation of the Easement.3

The Tax Court explained that section 15 of the deed “subtracts the value of posteasement improvements before determining the Conservancy’s share of the extinguishment proceeds and fails to allocate the extinguishment proceeds in accordance with” § 1.170A-14(g)(6), as that regulation “does not permit the value of posteasement improvements to be subtracted from the proceeds before determining the donee’s share.”

The Tax Court rejected the Hewitts’ argument that an easement donee’s right to any extinguishment proceeds is limited to those from the property as it existed at the time of the grant as contrary to the regulation’s text.

Therefore, the Tax Court explained that “[f]or purposes of the extinguishment provisions, the subject property may change, but the donee’s property right to the extinguishment proceeds may not.”

The Tax Court also rejected the Hewitts’ challenge to § 1.170A-14(g)(6)(ii)’s procedural and substantive validity based on its decision in Oakbrook Land Holdings, LLC v. Comm’r, 154 T.C. 180 (2020).

This appeal ensued.

3 The Tax Court found the Hewitts were not liable for the penalties assessed against them in the NOD, and the Commissioner does not challenge this rul- ing on appeal.

II. STANDARD OF REVIEW

We review the Tax Court’s legal conclusions de novo and its factual findings for clear error. Kardash v. Comm’r, 866 F.3d 1249, 1252 (11th Cir. 2017).

III. ANALYSIS

Under the APA, a “reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

Our review standard is “narrow,” and we “will not substitute [our] judgment for that of the agency.” Lloyd Noland Hosp. & Clinic v. Heckler, 762 F.2d 1561, 1565 (11th Cir. 1985). However, “[i]n employing this defer- ential standard of review,” we do “not rubber stamp the action of the agency.” Port of Jacksonville Mar. Ad Hoc Comm., Inc. v. U.S. Coast Guard, 788 F.2d 705, 708 (11th Cir. 1986).

Rather, “we must determine whether the decision was based on a consideration of the relevant factors and whether there was a clear judgment error.” Lloyd Noland, 762 F.2d at 1565 (citing Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).

Furthermore, “we may not supply a reasoned basis for the agency’s ac- tion that the agency itself has not given,” although we will “uphold a decision of less than ideal clarity if the agency’s path may reason- ably be discerned.” State Farm, 463 U.S. at 43 (first quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1974), then quoting Bowman Transp. Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 286 (1974)); ac- cord Judulang v. Holder, 565 U.S. 42, 52–55 (2011). And “courts may not accept . . . counsel’s post hoc rationalizations for agency actions,” as “an agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” State Farm, 565 U.S. at 50.

The APA “prescribes a three-step procedure for so-called ‘notice-and-comment rulemaking.’” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015); accord 5 U.S.C. § 553.

First, an agency “must issue a ‘[g]eneral notice of proposed rulemaking,’ ordinarily by publication in the Federal Register.” Perez, 575 U.S. at 96 (alter- ation in original) (quoting § 553(b)).

Second, “if ‘notice [is] re- quired,’ the agency must ‘give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments,’” and the agency “must consider and respond to significant comments received during the period for public comment.” Id. (alteration in original) (quoting § 553(c)).

Third, in promulgating the final rule, the agency “must include in the rule’s text ‘a concise general statement of [its] basis and pur- pose.’” Id. (alteration in original) (quoting § 553(c)). As the Su- preme Court has explained, “Rules issued through the notice-and- comment process are often referred to as ‘legislative rules’ because they have the ‘force and effect of law.’” Id. (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302–03 (1979)).

Thus, “[t]he APA requires the agency to incorporate into a new rule a concise general statement of its basis and purpose.” Lloyd Noland, 762 F.2d at 1566. As we have explained, “state- ment[s] may vary, but should fully explain the factual and legal ba- sis for the rule.” Id.

Indeed, “[b]asis and purpose statements must enable the reviewing court to see the objections and why the agency reacted to them as it did,” id., as “

[o]ne of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions,” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016).

And, in the statement, the agency must rebut “vital relevant” or significant comments. See Lloyd Noland, 762 F.2d at 1567; Hussion v. Madigan, 950 F.2d 1546, 1554 (11th Cir. 1992) (“Under the ‘arbitrary and capricious’ standard of review, an agency is required to respond to significant comments that cast doubt on the reasonableness of the rule the agency adopts.” (quoting Balt. Gas & Elec. Co. v. United States, 817 F.2d 108, 116 (D.C. Cir. 1987))).

The purpose of notice-and- comment rulemaking is to “give[] affected parties fair warning of potential changes in the law and an opportunity to be heard on those changes” while “afford[ing] the agency a chance to avoid er- rors and make a more informed decision.” Azar v. Allina Health Servs., 139 S. Ct. 1804, 1816 (2019).

Turning to the statutory and regulatory tax provisions at hand, I.R.C. § 170(a) generally allows taxpayers to deduct certain charitable contributions.

While a taxpayer normally is not entitled to deduct the donation of “an interest in property which consists of less than the taxpayer’s entire interest in such property,” id. § 170(f)(3)(A), an exception is made for a “qualified conservation contribution,” id. § 170(f)(3)(B)(iii), (h); accord TOT, 1 F.4th at 1361.

Congress created this exception, codified at I.R.C.§ 170(f)(3)(B)(iii), (h), in 1980.

Tax Treatment Extension Act of 1980, Pub. L. No. 96-541, § 6, 94 Stat. 3204, 3206; Oakbrook, 154 T.C. at 185. Under § 170(h), for a contribution to be a “qualified conservation contribution,” the contribution must be “(A) of a qualified real property interest, (B) to a qualified organization, (C) exclusively for conservation purposes.” § 170(h)(1).

A “qualified real property interest” includes “a restriction (granted in perpetu- ity) on the use which may be made of the real property.” 170(h)(2)(C). Additionally, § 170(h)(5)(A) provides that, for pur- poses of subsection (h), “[a] contribution shall not be treated as exclusively for conservation purposes unless the conservation pur- pose is protected in perpetuity.”

The statute, however, does not define the “protected in perpetuity” requirement. TOT, 1 F.4th at 1362.

On May 23, 1983, Treasury issued a notice of proposed rule- making with “proposed regulations relating to contributions of partial interests in property for conservation purposes.”

Qualified Conservation Contribution; Proposed Rulemaking, 48 Fed. Reg. 22,940, 22,940 (May 23, 1983). Then, on January 14, 1986, Treasury issued final regulations, including the regulation at issue in this case—Treas. Reg. § 1.170A-14(g)(6)—governing the allocation of proceeds between the donor and donee in the event of judicial ex- tinguishment of a donated conservation easement. Income Taxes; Qualified Conservation Contributions, 51 Fed. Reg. 1496 (Jan. 14, 1986). Section 1.170A-14(g)(6), titled “Extinguishment,” provides:

(i) In general. If a subsequent unexpected change in the conditions surrounding the property that is the subject of a donation under this paragraph can make impossible or impractical the continued use of the property for conservation purposes, the conservation purpose can nonetheless be treated as protected in perpetuity if the restrictions are extinguished by judicial proceeding and all of the donee’s proceeds (deter- mined under paragraph (g)(6)(ii) of this section) from a subsequent sale or exchange of the property are used by the donee organization in a manner con- sistent with the conservation purposes of the original contribution.

(ii) Proceeds. [F]or a deduction to be allowed under this section, at the time of the gift the donor must agree that the donation of the perpetual conservation restriction gives rise to a property right, immediately vested in the donee organization, with a fair market value that is at least equal to the proportionate value that the perpetual conservation restriction at the time of the gift, bears to the value of the property as a whole at that time. . . .

For purposes of this para- graph (g)(6)(ii), that proportionate value of the do- nee’s property rights shall remain constant. Accordingly, when a change in conditions give rise to the ex- tinguishment of a perpetual conservation restriction under paragraph (g)(6)(i) of this section, the donee or- ganization, on a subsequent sale, exchange, or involuntary conversion of the subject property, must be entitled to a portion of the proceeds at least equal to that proportionate value of the perpetual conservation restriction, unless state law provides that the donor is entitled to the full proceeds from the conversion without regard to the terms of the prior perpetual conservation restriction.

To summarize, “the regulations require that the donee of an easement be granted a vested right to the value of judicial sale proceeds (e.g. in condemnation) multiplied by ‘a fraction equal to the value of the conservation easement at the time of the gift, divided by the value of the property as a whole at that time.’” TOT, 1 F.4th at 1362 (quoting PBBM-Rose Hill, 900 F.3d at 207).

And, in TOT, we found that § 1.170A-14(g)(6)(ii)’s proceeds formula “does not al- low for ‘any increase in value after the date of th[e] grant attribut- able to improvements’ to be subtracted from the extinguish- ment proceeds before the fraction is applied to the proceeds.”
Id. at 1363 (alteration in original).

But while we agreed with the Commissioner’s interpretation of the proceeds regulation in TOT, we expressly did not consider the validity of the regulation under the APA, as the taxpayers there did not make such a challenge. Id. at 1362 n.13; see also PBBM-Rose Hill, 900 F.3d at 209 n.8 (declining to address a challenge to § 1.170A-14(g)(6)(ii)’s validity as the tax- payer failed to make the argument below).

Unlike TOT, the Hewitts assert that Treasury failed to com- ply with the procedural requirements of the APA in promulgating Treas. Reg. § 1.170A-14(g)(6)(ii). Specifically, the Hewitts contend that the administrative record demonstrates that comments raising concerns with § 1.170A-14(g)(6)(ii) were filed during the rulemaking process, that those comments were “significant” such that they required a response from Treasury, and that Treasury failed to adequately respond to those significant comments in the final regulation’s “basis and purpose” statement, in violation of the APA’s procedural requirements.

As such, the Hewitts contend that § 1.170A-14(g)(6)(ii), as interpreted by the Commissioner to prohibit the subtraction of the value of post-donation improvements to the easement property in the proceeds allocated to the donee in the event of judicial extinguishment, is arbitrary and capricious un- der the APA.

As previously noted, Treasury issued a notice of proposed rulemaking following Congress’s enaction of § 170(h) for “proposed regulations relating to contributions of partial interests in property for conservation purposes” and to clarify “the statutory rules in effect under [the Tax Treatment Extension Act of 1980].” 48 Fed. Reg. at 22,940. One of the subparagraphs in the proposed regulations ultimately became § 1.170A-14(g)(6). Id. at 22,946–47.

Of relevance here, the preamble to the proposed rulemaking explained that section 6 of that act “made extensive changes in the existing statute, eliminated the expiration date, and incorporated the relevant language into a new section 170(h).” Id. at 22,940. It further provided that “[t]he regulations reflect[ed] the major policy decisions made by the Congress and expressed in committee reports.” Id.

And Treasury stated that it would consider any writ- ten comments submitted before adopting the proposed regulations. Id. at 22,941.

Following Treasury’s request for public comments, it re- ceived more than 700 pages of commentary from ninety organiza- tions and individuals. Of the ninety commenters, thirteen offered comments as to the proposed extinguishment proceeds regulation. Oakbrook, 154 T.C. at 186.

The Hewitts contend that seven of those thirteen commenters “expressed concern that allocation of post-extinguishment proceeds under the proposed Proceeds Regulation was unworkable, did not reflect the reality of the donee’s in- terest, or could result in an unfair loss to the property owner and a corresponding windfall for the donee.”

Turning to the most detailed comment, the New York Landmarks Conservancy (“NYLC”) urged Treasury to delete the proposed proceeds regulation because it contained pervasive “prob- lems of policy and practical application.” NYLC stated that while Congress enacted the statute “to encourage the protection of [the]
. . . environment through the donation of conservation restrictions,” the proposed regulation “would thwart the purpose of the statute by deterring prospective donors,” as those donors would “likely . . . be discouraged from making a donation which may tie themselves or future owners to share proceeds of a sale or exchange with the charitable organization [donee] under circumstances which cannot possibly be foreseen.”

NYLC explained that prospective donors frequently were concerned about “perpetuity” issues, which were “mollified upon the donor’s recognition that common law permits the extinguishment of restrictions when they no longer serve the original intended purposes.”

But NYLC believed “[t]he prospect of extinguishment would no longer mol- lify these fears if a split of proceeds under unknown circumstances would be required.” As such, and because “the possibility of extin- guishment is relatively remote,” NYLC stated it was “unnecessary” for Treasury “to provide for allocation of proceeds after extinguishment.”

NYLC also specifically commented on the issue of whether the value of post-donation improvements to the easement property should be included or excluded from the extinguishment pro- ceeds formula contained in the regulation. NYLC stated that the regulation’s structure “contemplates that a ratio of value of the conservation restriction to value of the fee will be fixed at the time of the donation and will remain in effect forever thereafter.”

But NYLC asserted that the formula “fail[ed] to take into account that improvements may be made thereafter by the owner which should properly alter the ratio.”

In support of its concern, NYLC pre- sented a mathematical example, which was based on a fact pattern in the proposed regulations, see 48 Fed. Reg. at 22,945, to show that requiring the prospective donor to turn over extinguishment proceeds attributable to post-donation improvements to the donee “would obviously be undesirable to the prospective donor and would constitute a windfall to the donee organization.” See Oak- brook, 154 T.C. at 224 (Toro, J., concurring in result).

Thus, “in light of the potential inequities,” NYLC recommended “that the proposed proceeds formula be revised to prevent such inequities should the . . . Treasury decide to retain the provision” but “strongly recommend[ed] deletion of the entire extinguishment provision.” (emphasis added).

While NYLC offered the most extensive comments on the proposed proceeds regulation—including being the only com- menter that addressed the allocation of the value of proceeds at- tributable to future improvements by the donor—other commenters expressed criticism or urged caution as to the proposed extin- guishment regulations.

The Landmarks Preservation Council of Illinois, for example, “urge[d] caution in the treatment of the concept of ‘extinguishment’ in the regulations,” as “[t]he discussion in the regulations of the conditions under which that binding agreement may be abrogated lends an undesirable air of legitimacy to the concept of ‘extinguishment.’”

It also warned that the regulations could “create a potential disincentive to the donation of easements,” noting that “[t]he obligation imposed on the donor or sub- sequent owner to pay to the donee organization an amount at least equal to the original proportionate value of the easement” could place “the donor at risk for an amount of money” —e.g., payments to a third party lender— “for which he may not be compensated by the disposition of the proceeds of sale.”

The Land Trust Exchange stated that the proposed proceeds regulation “may result in donors or donees having to pay real estate transfer taxes” and that it was “unnecessary.”

The Trust for Public Land stated that it had “serious doubts whether the provision . . . could be enforced against anyone other than the original donor of the easement” and that “the tax benefit rule is a satisfactory means of meeting any concern the IRS may have that a donor might receive the double benefit of an easement deduction followed by later recovery of the value donated.”

The Brandywine Conservancy cautioned that the regulation “may unnecessarily restrict the amount, payable to the holder of an easement, if changes in surrounding territory have made the easement proportionately more valuable than the retained interest” and that “[t]he donee should be entitled to proceeds equal to the greater of its original proportionate value or its proportionate value at the time of the extinguishment.”

And the Nature Conservancy and the Maine Coast Heritage Trust both mentioned that the regulation should be “clear” that the original proportionate value is the minimum that a donee will receive in extinguishment proceeds.4

4 As to the comments from the Brandywine Conservancy, the Nature Conservancy, and the Maine Coast Heritage Trust, the Tax Court in Oakbrook presumed that Treasury responded to those organizations’ comments by changing the language of the regulation from the donee of the easement being vested with a property right having a fair market value “that is a minimum ascertainable proportion of the fair market value to the entire property” to a fair market value “that is at least equal to the proportionate value that the perpetual conservation restriction at the time of the gift, bears to the value of the property as a whole at that time.” 154 T.C. at 188 (first quoting 48 Fed. Reg. at 22,946, then quoting § 1.170A-14(g)(6)(ii)).

But Treasury did not specifically explain in the final regulation that its change in the language was in response to those organizations’ comments.

After a public hearing, Treasury adopted the proposed regulations with revisions. 51 Fed. Reg. at 1496. In the preamble to the final rulemaking, Treasury stated that “[t]hese regulations provide necessary guidance to the public for compliance with the law and affect donors and donees of qualified conservation contributions” and that it had “consider[ed] all comments regarding the proposed amendments.” Id.

In the subsequent “Summary of Comments” section, however, Treasury did not discuss or respond to the comments made by NYLC or the other six commenters concerning the extinguishment proceeds regulation.

See id. at 1497– 98; Oakbrook, 154 T.C. at 188 (“The ‘judicial extinguishment’ provision is not among the amendments specifically addressed in the ‘Summary of Comments.’”).

And Treasury stated that “[a]lthough a notice of proposed rulemaking which solicited public comments was issued, the Internal Revenue Service concluded when the notice was issued that the regulations are interpretative and that the notice and public comment procedure requirement of 5 U.S.C. [§] 553 [of the APA] did not apply.” 51 Fed. Reg. at 1498.

The Hewitts assert that these seven comments—in particular, NYLC’s comment—were significant such that they warranted a response from Treasury in promulgating the final extinguish- ment proceeds regulation.

In response, the Commissioner asserts that none of the thirteen comments were significant to require a response from Treasury because they did not raise any point casting doubt on the regulation’s reasonableness.

Thus, the issue before us is whether Treasury’s failure to re- spond to NYLC’s and the other commenters’ concerns about the extinguishment proceeds regulation was in violation of the proce- dural requirements of the APA.

Phrased differently, we must determine whether § 1.170A-14(g)(6)(ii), as interpreted by the Commissioner to prohibit the subtraction of any amount of proceeds attributable to post-donation improvements to the easement property in the event of judicial extinguishment, is procedurally valid under the APA where:

(1) one commenter—NYLC—made specific comments raising the improvements issue as it relates to extinguishment proceeds and recommended deletion of the provision;

(2) six other organizations submitted comments criticizing or urging caution as to the regulation;

and

(3) Treasury failed to specifically respond to any of those comments, instead simply stating that it had considered “all comments.”

Below, the Tax Court found that the regulation was procedurally valid under the APA, relying on its decision in Oakbrook.

In Oakbrook, the Tax Court considered the comments Treasury received as to “the fact that the ‘proportionate share’ formula [in § 1.170A-14(g)(6)(ii)] does not account for the possibility of donor improvements.” 154 T.C. at 192.

The Tax Court concluded that the proceeds regulation as to the post-donation improvements was procedurally valid under the APA. Id. at 195.

The court first noted that it had found the statement “[a]fter consideration of all com- ments,” coupled with an administrative record, to be “sufficient to find that Treasury had considered the relevant matter presented to it.” Id. at 191–92 (alteration in original) (citing Wing v. Comm’r, 81 T.C. 17, 31–32 (1983)).

The Tax Court stated that “[t]he APA ‘has never been interpreted to require the agency to respond to every comment, or to analy[z]e every issue or alternative raised by the comments, no matter how insubstantial.’” Id. at 192 (quoting Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984)).

The Tax Court further noted that “only one of the 90 commenters”— NYLC—“mentioned donor improvements, and it devoted exactly one paragraph to this subject.” Id.

The Tax Court stated that NYLC’s point that donors “are likely to be discouraged from making a donation” was “a supposition that Treasury may reasonably have discounted.” Id.

And it stated that, as to the improvements issue, “[t]he administrative record reflects that no substantive alter- natives to the final rules were presented for Treasury’s consideration.” Id. at 193 (alteration in original) (quoting SIH Partners LLLP v. Comm’r, 150 T.C. 28, 44 (2018)).

The Tax Court found that “NYLC offered no suggestion about how the subject of donor improvements might be handled; it simply recommended ‘deletion of the entire extinguishment provision.’” Id.

As to the final regulations’ preamble, the Tax Court rejected the argument that Treasury did not comply with the APA because the preamble “did not discuss the ‘basis and purpose’ of the judicial extinguishment provision specifically.” Id. at 193–94.

The court explained that “[e]ven where a regulation contains no statement of basis and purpose whatsoever, it may be upheld ‘where the basis and purpose . . . [are] considered obvious.’” Id. at 194 (quoting Cal- Almond, Inc. v. U.S. Dep’t of Agric., 14 F.3d 429, 443 (9th Cir. 1993)).

The court noted the final regulations’ preamble “explains that they were being promulgated to ‘provide necessary guidance to the public for compliance with the law,’ as recently amended by Congress, ‘relating to contributions of partial interests in property for conservation purposes,’” with the proposed regulations’ preamble stating, “the requirement that conservation easements ‘be perpetual in order to qualify for a deduction.’” Id. (first quoting 51 Fed. Reg. at 1496, then quoting 48 Fed. Reg. at 22,940).

And it found that “[t]he purpose of the ‘judicial extinguishment’ rule is plain on its face—to provide a mechanism to ensure that the conservation purpose can be deemed ‘protected in perpetuity’ not-withstanding the possibility that the easement might later be extinguished.” Id. (quoting § 1.170A-14(g)(6)(i)).

Finally, the Tax Court minimized the importance of the extinguishment proceeds provision in the context of the final regulations—“one subparagraph of a regulation project consisting of 10 paragraphs, 23 subparagraphs, 30 subdivisions, and 21 examples”—as the APA did not “mandate that an agency explain the basis and purpose of each individual component of a regulation separately.” Id.

Thus, the court concluded that “[t]he broad statements of purpose contained in the preambles to the final and proposed regulations, coupled with obvious inferences drawn from the regulations themselves, [were] more than adequate.” Id.

The Oakbrook decision was not unanimous. Judge Toro, in a concurring in result opinion, found that, if the proceeds regulation was read in the way proposed by the Commissioner, i.e., to bar subtraction of the value of post-donation improvements from the extinguishment proceeds, it failed to comply with the APA’s procedural requirements. See id. at 216 (Toro, J., concurring).

Judge Toro explained that the “Treasury received more than 700 pages of comments” during the comment period and that, in the final regulations, Treasury responded to those comments and other administrative matters in just two of the twelve pages—“six columns in the Federal Register”—consisting of the final regulations. Id. at 221.

In his view, it was likely that Treasury “was simply following its historical position that the APA’s procedural requirements did not apply to these types of regulations,” noting that the final regulations referenced Treasury’s belief that they did not require notice and comment and that this belief was mistaken. Id. at 222.

Judge Toro then found that the “Treasury failed to ‘respond to “significant points” and consider “all relevant factors” raised by the public comments.’” Id. at 223 (quoting Carlson v. Postal Regul. Comm’n, 938 F.3d 337, 334 (D.C. Cir. 2019)).

Pointing specifically to NYLC’s comment, Judge Toro explained that NYLC “made clear that, in its view, it would be inappropriate to condition the availability of the deduction for a conservation easement on the donor’s agreement to turn over to the donee proceeds attributable to improvements on the real property interest that the Code permitted the donor to retain.” Id. at 224.

He further noted that NYLC:

(1) “expressly tied its comments” to a specific rule and a specific fact pattern in the proposed regulations;

(2) explained that the proposed proceeds regulation would “thwart the purpose of the statute,” which NYLC stated was to “encourage the protection of our significant natural and built environment through the donation of conservation restrictions”;

and

(3) recommended the deletion of the provision “or, at the very least, ‘be revised to prevent . . . [the] inequities’ it had identified.” Id. (alterations in original).

As such, Judge Toro explained that the administrative record left “no doubt” that NYLC’s comment “‘can be thought to challenge a fundamental premise’ underlying the proposed agency decision.” Id. (quoting Carlson, 938 F.3d at 344).

The proposed regulations’ preamble explained that they reflected Congress’s “major policy decisions,” and NYLC “in effect countered that the proposed rule on future donor improvements was contrary to those policy decisions, would lead to inequitable results that were inconsistent with the statute, and would deter future contributions.” Id. at 225 (quoting 48 Fed. Reg. at 22,940).

In other words, Judge Toro found that NYLC “offered comments that, ‘if adopted, would require a change in an agency’s proposed rule,’” and that “were both ‘rele- vant and significant,’ [as to] require[e] a response.” Id. (first quoting Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir. 1977), then quoting Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 468 (D.C. Cir. 1998)).

Because Treasury did not provide a response to NYLC’s comments, Judge Toro concluded that its actions failed to provide “an explanation [that] is clear enough that its ‘path may reasonably be discerned’” or “provide any insight on ‘what major issues of policy were ventilated . . . and why the agency reacted to them as it did’ on this point.” Id. at 225–26 (alterations in original) (first quot- ing Encino Motorcars, 579 U.S. at 221, then quoting Carlson, 938 F.3d at 344).

And it was “not the role of the courts to speculate on reasons that might have supported” Treasury’s decision. Id. at 226 (quoting Encino Motorcars, 579 U.S. at 224).

Judge Toro also explained that the Oakbrook majority’s reasoning as to the issue was flawed for several reasons. He explained that courts were “not re- quired to ‘take the agency’s word that it considered all relevant matters,’” as the majority asserted. Id. at 226–27 (quoting PPG In- dus., Inc. v. Costle, 630 F.2d 462, 466 (6th Cir. 1980)).

He further noted that “[a] ‘relevant and significant comment’ requires a re- sponse, regardless of whether the point is made by many, a few, or even a single commenter,” and “a comment does not lose its significance because it is presented succinctly.” Id. at 227 (quoting Carlson, 938 F.3d at 347). And, if the scope of the project “was too large to permit an appropriate response to all ‘relevant and signifi- cant comments,’ then Treasury could have broken the project down into smaller parts.” Id.

In his dissenting opinion, Judge Holmes reached a similar conclusion to Judge Toro on the regulation’s procedural invalidity under the APA.

He concluded that comments from NYLC and other organizations “were significant and [were] entitled to an agency response.” See id. at 245 (Holmes, J., dissenting).

Judge Holmes explained that Treasury’s statement that it considered “all comments” was not sufficient under the APA, noting that the Federal Circuit, in Dominion Resources, Inc. v. United States, 681 F.3d 1313, 1319 (Fed. Cir. 2012), found a Treasury regulation procedurally invalid even though Treasury explicitly stated that “it rejected the commentators’ recommendation and brief explanation in general terms of how one of the provisions worked.”5 Oakbrook, 154 T.C. at 245–46 (Holmes, J., dissenting).

He further explained that the final regulations at issue provided even less explanation than those in Dominion Resources, as Treasury failed to “even acknowledge the relevant comments or expressly state its disagreement with them” such that there was not even “a minimal level of analysis.” Id. at 248 (quoting Encino Motorcars, 579 U.S. at 2120).

After careful consideration of the agency record before us, the several opinions in Oakbrook and precedent from the Supreme Court, and this Court’s interpretation of procedural validity under the APA, we conclude that § 1.170A-14(g)(6)(ii)—as read by the Commissioner to prohibit subtracting the value of post-donation improvements to the easement property from the proceeds allocated to the donor and donee in the event of judicial extinguishment—is arbitrary and capricious under the APA for failing to com- ply with the APA’s procedural requirements and is thus invalid. See §§ 553(c), 706(2)(A).

5 Specifically, the preamble to the regulation at issue in Dominion Resources provided that “commentators suggested that the regulations provide that property is taken out of service only if the property is taken out of service for depreciation purposes” and that “[t]he final regulations do not adopt the suggestion concerning when property should be considered taken out of service.”

See Dominion Res., Inc. v. United States, 97 Fed. Cl. 239, 256 (2011) (quoting 59 Fed. Reg. 67,187, 67,192–93 (Dec. 29, 1994)), rev’d, 681 F.3d 1313 (Fed. Cir. 2012).

Our decision in Lloyd Noland is instructive.

In that case, the plaintiffs challenged a malpractice insurance rule related to Medicare reimbursements that was promulgated by the Secretary of Health and Human Services. 762 F.2d at 1563.

In addressing the plaintiffs’ challenge, we concluded that the malpractice insurance rule was procedurally inadequate under the APA; specifically, it violated § 553(c), which we explained requires an agency “to incorporate into a new rule a concise general statement of its basis and purpose.” Id. at 1566.

The Secretary had failed to respond to com- ments that a study the agency relied on, which contained limited data that the authors cautioned against generalizing, was unreliable. Id.

While the Secretary asserted that the objections were ir- relevant, we concluded otherwise, such that those comments formed the basis of our holding that the malpractice insurance rule was arbitrary. Id. at 1566, 1568.

We also rejected the Secretary’s argument that she addressed certain hospitals’ comments based on the rule’s preamble, stating that “

[w]e are aware that insurance companies generally do not determine insurance rates for malpractice insurance based upon the financial status of the patients,” and that “premiums are ‘incurred primarily for the benefit of the total overall patient population and for the protection of facility assets.’” Id. at 1566.

While the Secretary suggested “that drawing a conclusion contrary to the comments does not mean they were not con- sidered,” we explained that “[b]asis and purpose statements must enable the reviewing court to see the objections and why the agency reacted to them as it did” and that agencies should rebut relevant comments. Id. at 1566–67.

Because the Secretary’s response to the rule’s comments were inadequate, we affirmed the district courts’ invalidation of the rule. Id. at 1567, 1569; cf. Encino Motorcars, 579 U.S. at 2126–27 (“The [agency] said that, in reach- ing its decision, it had ‘carefully considered all of the comments, analyses, and arguments made for and against the proposed changes.’

But when it came to explaining the ‘good reasons for the new policy,’ the [agency] said almost nothing [T]he[agency’s] conclusory statements do not suffice to explain its decision.” (first quoting 76 Fed. Reg. 18,832, 18,832 (Apr. 5, 2011), then quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009))).

The Commissioner argues that Lloyd Noland should be dis- tinguished because, in that case, we reviewed “a factual, evidence- based rule,” while the extinguishment proceeds regulation is based on Treasury’s interpretation of § 170(h)(5)’s statutory protected-in-perpetuity requirement.

But, in Lloyd Noland, we did not hold that the requirement that “[b]asis and purpose statements must enable the reviewing court to see the objections and why the agency reacted to them as it did”—including responding to significant comments—only applies when there is “erroneous data or fact finding” underlying the proposed regulation, as the Commissioner suggests, and we decline to do so here.

As in Lloyd Noland, in promulgating the final extinguish- ment proceeds regulation, Treasury failed to respond to the rele- vant and significant comment from NYLC as to the post-donation improvements issue.

In the proposed regulations’ preamble, Treasury stated that the “regulations reflect the major policy deci- sions made by the Congress and expressed in the[] committee re- ports” to the Tax Treatment Extension Act of 1980. 48 Fed. Reg. at 22,940.

One of the policy decisions reflected in those “committee reports,” expressly referenced by Treasury, provided that “the preservation of our country’s natural resources and cultural heritage is important,” that “conservation easements now play an important role in preservation efforts,” and that “provisions allowing deductions for conservation easements should be directed at the preservation of unique or otherwise significant land areas or structures.” S. Rep. No. 96-1007, at 9 (1980).

NYLC’s comment recognized as much, stating that “[t]he statute was enacted by Congress to encourage the protection of our significant natural and built en- vironment through the donation of conservation restrictions.”

As to the proposed regulation overall, NYLC stated that the proposed regulation “would thwart the purpose of the statute by deterring prospective donors” concerned about tying themselves to share proceeds of a sale with the donee “under circumstances which cannot possibly be foreseen.”

Additionally, NYLC specifi- cally commented that the regulation’s proceeds formula:
(1) “contemplates that a ratio of value of the conservation restriction to value of the fee will be fixed at the time of the donation and will remain in effect forever thereafter”;

and

(2) “fail[ed] to take into account that improvements may be made thereafter by the owner which should properly alter the ratio.”

And NYLC warned that this outcome “would obviously be undesirable to the prospective donor and would constitute a windfall to the donee organization” and “strongly recommend[ed] deletion of the entire extinguish- ment provision,” or at least revised “to prevent such inequities.”

In other words, NYLC challenged a fundamental premise underlying Treasury’s proposed regulations by “in effect counter[ing] that the proposed rule on future donor improvements was contrary to those policy decisions [mentioned in the proposed regulations], would lead to inequitable results that were inconsistent with the statute, and would deter future contributions.”

See Oakbrook, 154 T.C. at 225 (Toro, J., concurring).

Simply put, NYLC’s comment was significant and required a response by Treasury to satisfy the APA’s procedural requirements.

And the fact that Treasury stated that it had considered “all comments,” without more discussion, does not change our analysis, as it does not “enable [us] to see [NYLC’s] objections and why [Treasury] reacted to them as it did.” Lloyd Noland, 762 F.2d at 1566.

But the Commissioner contends that the APA only required Treasury “to respond to significant comments that cast doubt on the reasonableness of the rule” it adopted.

See Hussion, 950 F.2d at 1554 (quoting Balt. Gas, 817 F.2d at 116);

see also Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 553 (1978)

(“[C]omments must be significant enough to step over a threshold requirement of materiality before any lack of agency response or consideration becomes of concern.

The comment cannot merely state that a particular mistake was made . . . ; it must show why the mistake was of possible significance.” (alteration in original) (quoting Portland Cement Ass’n v. Ruckelhaus, 486 F.2d 375, 394 (D.C. Cir. 1973))).

And the Commissioner claims that Treasury’s “primary (if not exclusive) consideration in crafting the proceeds regulation was the meaning of the statutory perpetuity requirement” and that, as such, NYLC was required “to explain why the rule would not further the goal of ensuring that the con- servation purpose embodied in the perpetual use restriction would be protected in perpetuity as required by the statute.”

The Commissioner argues that NYLC’s comment as to post-donation im- provements did not address this consideration, and therefore was not a significant comment, because the comment was limited to

(1) the “observation that the regulation would require the donee to receive a proportionate amount of the full proceeds,” including any proceeds attributable to the donor’s improvements,

and

(2) NYLC’s belief that this situation would be “‘undesirable’ to the do- nor” and would result in a “windfall” for the donee.

While we agree with the Commissioner that Treasury was only required to respond to significant comments to comply with the APA’s procedural requirements, we disagree with the Commissioner’s argument that NYLC’s comment was not significant.

The Commissioner’s claim that the “primary (if not exclusive)” purpose in crafting the proceeds regulation was only to interpret § 170(h)(5)’s “protected-in-perpetuity” requirement is inconsistent with the committee reports Treasury purportedly relied on.

As identified by NYLC, one of the purported purposes set forth in the committee reports, was to allow deductions for the donation of conservation easements to encourage donation for such easements. See S. Rep. No. 96-1007, at 9.

And NYLC raised the post- donation improvements issue, as to extinguishment proceeds, and warned that its exclusion in the regulatory scheme would discourage prospective donors from donating conservation easements.

In other words, NYLC’s comment was specific to, and casted doubt on, the reasonableness of the proceeds regulation in light of one of Congress’s committee reports which, according to Treasury, was “reflected” in the final regulations. 48 Fed. Reg. at 22,940 (“The regulations reflect the major policy decisions made by the Con- gress and expressed in the[] committee reports.”).

Furthermore, the final regulations did not limit the purpose of the proceeds regulation in the way the Commissioner suggests.

We thus decline to classify NYLC’s comment as insignificant based on the Commissioner’s interpretation of Treasury’s primary purpose in crafting the proceeds regulation.6

6 The Commissioner also points to Treasury’s statements, in discussing dona- tions of mortgaged property in the final regulations, that § 170(h)(5) “provides that the conservation purposes of the donation must be protected in perpetuity” and that “[i]n response to comments received, . . . the mortgagee must subordinate its rights under the mortgage to the right of the qualified organization to enforce the conservation purposes of the gift in perpetuity.” 51 Fed. Reg. at 1498.

The Commissioner argues that these statements show that Treasury viewed “the protected-in-perpetuity requirement as requiring express protection of the full value of the donee’s interest in order to adequately protect the easement’s conservation purposes,” which is “the approach taken

See State Farm, 463 U.S. at 43, 50 (“‘[W]e may not supply a reasoned basis for the agency’s action that the agency itself has not given.’ [C]ourts may not accept appellate counsel’s post hoc rationalizations for agency action.” (quoting
Chenery, 332 U.S. at 196)).

The Commissioner additionally asserts that Treasury’s revi- sions to the proposed proceeds regulation in the final regulation support Treasury’s representation that it considered “all com- ments” in the final regulations’ preamble.

But, as the Commissioner concedes, the revisions were simply “clarifications” in response to other comments “expressing uncertainty” about the regulation’s meaning “rather than substantive changes.”

Indeed, the proceeds regulation was revised from vesting the donee with a property right having a fair market value “that is a minimum ascertainable proportion of the fair market value to the entire property” to a fair market value “that is at least equal to the proportionate value that the perpetual conservation restriction at the time of the gift, bears to the value of the property as a whole at that time.”

See Oakbrook, 154 T.C. at 188 (comparing the proposed and final proceeds regulations).

in the proceeds regulation.”

But Treasury’s discussion of donations of mortgaged property in the final regulations does not reference the proceeds regulation nor give any indication that Treasury considered the post-donation improvements issue raised by NYLC.

We thus find this argument, which speculates as to the reason of Treasury’s actions, without merit.

See State Farm, 463 U.S. at 43.

But this revision does not provide any indication that Treasury was responding to NYLC’s significant comment about the post-donation improvements issue.

See Lloyd Noland, 762 F.2d at 1567; Hussion, 950 F.2d at 1554. We therefore reject this argument.

IV. CONCLUSION

Because Treasury, in promulgating the extinguishment proceeds regulation, failed to respond to NYLC’s significant comment concerning the post-donation improvements issue as to proceeds, it violated the APA’s procedural requirements.

See Lloyd Noland, 762 F.2d at 1566; see also Oakbrook, 154 T.C. at 225–27 (Toro, J., concurring).

We thus conclude that the Commissioner’s interpretation of § 1.170A-14(g)(6)(ii), to disallow the subtraction of the value of post-donation improvements to the easement property in the extinguishment proceeds allocated to the done, is arbitrary and capricious and therefore invalid under the APA’s procedural requirements.

Accordingly, we reverse the Tax Court’s order disallowing the Hewitts’ carryover charitable deductions as to the donation of the conservation easement and remand for further proceedings.

REVERSED AND REMANDED.

Conservation Easement Deed Fails Perpetuity Requirement

David F. Hewitt et ux. v. Commissioner;
No. 23809-17; T.C. Memo. 2020-89

DAVID F. HEWITT AND TAMMY K. HEWITT, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

UNITED STATES TAX COURT

Filed June 17, 2020

Michelle A. Levin, David M. Wooldridge, Ronald A. Levitt, and Gregory P. Rhodes, for petitioners.

Edwin B. Cleverdon, Jerrika C. Anderson, and Horace Crump, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

GOEKE, Judge:

In 2012 petitioner David Hewitt granted a conservation easement to a qualified organization under section 170(h)(3) on rural farm land [*2] that has been in his family for nearly 60 years.1

Growing up, he worked on the farm with his father, and he has lived on the property throughout his life.

Petitioners claimed a charitable contribution deduction of approximately $2.8 million for the easement donation on their joint 2012 tax return and carried over portions of the contribution for 2013 and 2014.

Respondent has not challenged the deduction claimed on the 2012 return but has disallowed the carryover deductions for 2013 and 2014.

The primary issue for decision is whether petitioners are entitled to carryover of the charitable contribution deduction for the donation of the conservation easement; we hold they are not.2

The easement does not protect the conservation purposes of the contribution in perpetuity as required by section 170(h)(5) because the deed would not allocate to the donee a share of the proceeds in the event the property is sold following a judicial extinguishment of the easement, in violation of section 1.170A-14(g)(6)(ii), Income Tax Regs.3

[*3] Respondent determined 40% accuracy-related penalties against petitioners for gross valuation misstatements under section 6662(e) and (h) and 20% accuracy-related penalties for negligence or disregard of rules and regulations or substantial understatements of income tax under section 6662(a) and (b)(1) and (2) for 2013 and 2014. We find petitioners not liable for the penalties.

FINDINGS OF FACT

Petitioners resided in Alabama when they filed their petition. Mr. Hewitt was the sole owner of the easement property but filed joint returns with his wife for the years at issue.

Mr. Hewitt’s father moved to Alabama in the early 1950s and acquired land to raise cattle, farm, and harvest timber.4 When Mr. Hewitt was [*4] a child, his family lived on the land, and he grew up helping his father on the farm and continued to work on the farm while in college.

In the early 1990s Mr. Hewitt’s father transferred a large portion of his land to Mr. Hewitt’s sister.

In 1997 and 1998 the sister transferred a portion of the land, 232 acres, to Mr. Hewitt as a gift. In 2001 Mr. Hewitt purchased 25 more acres of adjacent land. He bought out the interests of two unrelated persons who co-owned a 400-acre parcel with his father.

He granted the conservation easement on a portion of the land he acquired in these transfers. In 2012 Mr. Hewitt and his sister owned approximately 1,325 acres in Randolph and Cleburne Counties, Alabama, near Alabama’s border with Georgia (Hewitt property).

The Hewitt property consisted of pastureland along a county road and wooded areas with steep topography, rough terrain, and limited road access. It is approximately a one-hour drive from Atlanta, Georgia, and a little more than one [*5] hour from Birmingham, Alabama. There were no zoning ordinances on the property when Mr. Hewitt granted the easement.

In 2012 the father’s health had begun to decline.

Mr. Hewitt saw that his father continued to enjoy the land as his health failed and he had difficulty communicating. Mr. Hewitt decided that he wanted to preserve the land because of his father. He also wanted his children and future generations to have the same opportunity that he had had to enjoy and live on the land.

He decided to place a conservation easement on the property.

A business acquaintance referred him to the accounting firm Large & Gilbert, P.C. (Large & Gilbert), because of its experience with the donation of conservation easements. Mr. Hewitt met with members of Large & Gilbert. He believed that Large & Gilbert was well respected in the tax community.

Large & Gilbert recommended that Mr. Hewitt grant the easement to Atlantic Coast Conservancy, Inc. (Conservancy), a qualified organization under section 170(h)(3). Mr. Hewitt met with Robert Keller, a conservation biologist and the Conservancy’s founder and chief executive officer, to discuss the possible donation of the easement.

Dr. Keller visited the Hewitt property to gather information about it. The Conservancy prepared baseline reports on the easement’s conservation goals.

[*6]

Mr. Hewitt decided to grant an easement on 257 acres of his property that contained pastureland and was accessible from paved roadways. He chose this area because he believed that it was the most likely to be developed and he wanted to protect it. He understood that development of the wooded, hilly area would be costly and believed it was less necessary to protect that portion of the Hewitt property.

In his opinion the pastureland was significantly more valuable than the wooded area. He intended to protect the easement property in perpetuity.

On December 28, 2012, Mr. Hewitt granted a conservation easement over 257 acres to Pelican Coast Conservancy, Inc., a wholly owned subsidiary of the Conservancy (collectively, Conservancy), through a deed of conservation easement.

According to the deed the easement’s purposes are to preserve and protect the scenic enjoyment of the land, agricultural land and production, and a creek within the Tallapoosa Basin watershed.

The deed states that the easement will maintain the amount and diversity of natural habitats, protect scenic views from the roads, and restrict the construction of buildings and other structures, the removal or destruction of native vegetation, changes to the habitat, and the exploration of minerals, oil, gas, or other materials.

It prohibits Mr. Hewitt from undertaking any activity that is inconsistent with the easement’s purposes and grants to the Conservancy the right to prevent any activity or use of the easement [*7] property that is inconsistent with the easement’s purposes or adversely affects its conservation values.

Notwithstanding the above restrictions, Mr. Hewitt reserved the right to locate five one-acre homesites with one dwelling on each homesite.

He intended the homesites to be used by his children if they wanted to live on the family property some day.

The deed does not designate the locations of the homesites and allows them to be located on a substantial portion of the 257-acre easement property.

The deed requires Mr. Hewitt to provide written notice to the Conservancy that he intends to exercise his right to designate a homesite.

The notice must describe the chosen location “in sufficient detail to permit [the] Conservancy to make an informed judgment as to its consistency with the purpose of this Easement”.

The Conservancy has the right to grant or withhold its approval within 60 days of receiving Mr. Hewitt’s written notice. It may withhold approval only if it reasonably determines that the proposed location is inconsistent with or impairs the easement’s purposes.

Mr. Hewitt and the Conservancy must set the homesite location 60 days before construction begins.

The Conservancy believed that the delay in designating the homesite locations would give it flexibility to take into account the natural changes to the land from wildlife [*8] migration and topography over the time before the homes are constructed and would better protect the easement’s conservation purposes.

The deed provides for the allocation of proceeds from an involuntary extinguishment as follows:

[T]his Easement shall have at the time of Extinguishment a fair market value determined by multiplying the then fair market value of the Property unencumbered by the Easement (minus any increase in value after the date of this grant attributable to improvements) by the ratio of the value of the Easement at the time of this grant to the value of the Property, without deduction for the value of the Easement, at the time of this grant. * * * [T]he ratio of the value of the Easement to the value of the Property unencumbered by the Easement shall remain constant.

The Conservancy drafted the deed relying on published guidance from Land Trust Alliance, a national land trust organization. Large & Gilbert reviewed the deed and advised Mr. Hewitt that it complied with the requirements of the Code and the accompanying regulations.

Mr. Hewitt did not grant an easement over all the property that he owned, and he and his sister continued to own 1,070 acres unencumbered and contiguous with the easement property (contiguous property).

After granting the easement Mr. Hewitt continued to live on the land and use it for cattle ranching.

On their 2012 joint tax return petitioners claimed a charitable contribution deduction for the easement donation of $2,788,000. Their deduction for 2012 was [*9] limited to $57,738 by section 170(b)(1)(A).5

They timely filed their joint tax returns for 2013 and 2014 and claimed carryover deductions from the 2012 easement donation of $1,868,782 and $861,480, respectively. Large & Gilbert prepared petitioners’ 2012, 2013, and 2014 returns. Petitioners attached Form 8283, Noncash Charitable Contributions, to their 2012 return but did not report the basis in the easement property on the form.

Mr. Hewitt attempted to determine his basis in the easement property, which was primarily a carryover basis from his father. He asked his father how much he had paid for the property and tried to find the original purchase documents. He was unable to obtain any cost basis information.

He provided Large & Gilbert with the deeds for his sister’s gifts of the land.

Large & Gilbert advised Mr. Hewitt that he could attach a statement to Form 8283 stating that basis information was not available and the deduction would not be disallowed on this basis. Petitioners attached the following statement prepared by Large & Gilbert to Form 8283:

A declaration of the taxpayer’s basis in the property is not included because of the fact that the basis of the property remains to be determined with accuracy; in addition, the basis [is] not taken into [*10] consideration when computing the amount of the deduction. Furthermore, the taxpayer has a holding period in the property in excess of 12 months and the property otherwise qualifies as capital gains property.

Petitioners attached an appraisal of the easement prepared by Jim Clower. Large & Gilbert had recommended Mr. Clower. Mr. Hewitt understood that Mr. Clower was competent and experienced. Mr. Clower used a before and after valuation method and determined that the easement property had a value of $3,214,000 unencumbered by the easement (before value) and a value of $420,000 encumbered by the easement (after value).

He determined that the value of the contiguous property increased by $6,500 as a result of the easement (enhancement value). He concluded that the easement had a fair market value of $2,787,500, the difference between the before and after values less the enhancement value.

Mr. Hewitt reviewed the appraisal report and believed that the appraised value was reasonable and consistent with his own opinion of the land’s value. Subsequently, he purchased 79 acres of nearby wooded land with steep topography and limited public access comparable to the contiguous property for $1,582 per acre and a.72-acre parcel adjacent to the easement property and with topography comparable to the easement property for $12,000.

Mr. Clower did not testify at trial, and his appraisal was not received into evidence for purposes of its [*11] valuation. The parties stipulated that Mr. Clower’s appraisal was a qualified appraisal by a qualified appraiser.

Respondent did not issue a notice of deficiency for 2012 and did not challenge petitioners’ use of $57,738 of the easement deduction for that year.

Respondent issued a notice of deficiency for 2013 and 2014, disallowing the carryover deductions on the basis of a lack of substantiation and determining section 6662(h) 40% penalties for a gross valuation misstatement and, alternatively, section 6662(a) 20% penalties for negligence or disregard of the rules and regulations or substantial understatements of income tax.

Respondent has not asserted or argued that the easement had no value.

After 2012 Mr. Hewitt continued his land purchases. He granted conservation easements on some of the land with the help of Large & Gilbert. He held that land through pass-through entities that would grant the easements. Petitioners recognized gain of over $3.5 million on the sale of interests in these entities to investors who could claim shares in the easement deductions.

Respondent alleges that these entities overvalued the conservation easements for purposes of the deductions. Individuals from Large & Gilbert invested in the entities and claimed easement deductions.

[*12] Both parties presented expert witnesses. Petitioners presented three expert witnesses, Beau Bevis, Grant McCaleb, and Raymond Veal. Mr. Bevis opined the highest and best use of the easement property was the development of a mobile home community.

Mr. McCaleb provided estimates of construction costs for the mobile home community. Mr. Veal is a valuation expert and opined that the easement’s fair market value was approximately $3.1 million.

Respondent presented George Petkovich as a valuation expert. He opined the easement’s fair market value was $190,000.

OPINION

Section 170(a)(1) allows taxpayers to deduct charitable contributions made within the taxable year. If the taxpayer makes a charitable contribution of property other than money, the amount of the contribution is generally equal to the donated property’s fair market value at the time of the donation. Sec. 1.170A-1(c)(1), Income Tax Regs.

Generally, a taxpayer is not entitled to deduct the donation of “an interest in property which consists of less than the taxpayer’s entire interest in such property”. Sec. 170(f)(3)(A).

An exception is made for a contribution of a partial interest in property that constitutes a “qualified conservation contribution”. Id. subpara. (B)(iii). The exception applies where: (1) the taxpayer donates a “qualified real property interest”, (2) the donee is “a [*13] qualified organization”, and (3) the contribution is “exclusively for conservation purposes.” Id. subsec. (h)(1). The donation must satisfy all three requirements. Irby v. Commissioner, 139 T.C. 371, 379 (2012).

Respondent argues that the contribution is not exclusively for conservation purposes. A contribution is “exclusively for conservation purposes” if its conservation purpose is “protected in perpetuity”. Sec. 170(h)(5)(A) (perpetuity requirement).

I. Perpetuity Requirement

The regulations interpreting the perpetuity requirement recognize that “a subsequent unexpected change in the conditions surrounding the property * * * can make impossible or impractical the continued use of the property for conservation purposes”. Sec. 1.170A-14(g)(6)(i), Income Tax Regs.

In such an event the easement would not be protected in perpetuity. However, the regulation (extinguishment regulation) provides a means that the perpetuity requirement may be deemed satisfied:

“[T]he conservation purpose can nonetheless be treated as protected in perpetuity if the restrictions are extinguished by judicial proceeding” and the donee uses “all of the donee’s proceeds * * * from a subsequent sale or exchange of the property * * * in a manner consistent with the conservation purposes of the original contribution.” Id.

[*14] Section 1.170A-14(g)(6)(ii), Income Tax Regs. (proceeds regulation), determines the donee’s share of the extinguishment proceeds as follows:

[A]t the time of the gift the donor must agree that the donation of the perpetual conservation restriction gives rise to a property right, immediately vested in the donee organization, with a fair market value that is at least equal to the proportionate value that the perpetual conservation restriction at the time of the gift, bears to the value of the property as a whole at that time. * * * [T]hat proportionate value of the donee’s property rights shall remain constant. Accordingly, when a change in conditions give rise to the extinguishment of a perpetual conservation restriction * * * the donee organization, on a subsequent sale, exchange, or involuntary conversion of the subject property, must be entitled to a portion of the proceeds at least equal to that proportionate value of the perpetual conservation restriction, unless state law provides that the donor is entitled to the full proceeds * * *

The deed subtracts the value of posteasement improvements before determining the Conservancy’s share of the extinguishment proceeds and fails to allocate the extinguishment proceeds in accordance with the proceeds regulation.

See Coal Prop. Holdings, LLC v. Commissioner, 153 T.C. 126, 138-139 (2019);

see also PBBM-Rose Hill, Ltd. v. Commissioner, 900 F.3d 193, 208 (5th Cir. 2018).

The proceeds regulation does not permit the value of posteasement improvements to be subtracted from the proceeds before determining the donee’s share.

Coal Prop. Holdings, LLC v. Commissioner, 153 T.C. at 138-139 (holding that a deed that subtracts the value of posteasement improvements fails the section [*15] 150(h)(5) perpetuity requirement); Oakbrook Land Holdings, LLC v. Commissioner, T.C. Memo. 2020-54, at *40-*41.

The proceeds regulation is not satisfied, and the easement’s conservation purposes are not protected in perpetuity.

Accordingly, petitioners are not entitled to the carryover deductions for 2013 and 2014 for the easement donation.

A. Petitioners’ Interpretation of the Regulation

Petitioners argue that our caselaw misinterprets the proceeds regulation.6 In making this argument, they maintain that we should liberally construe the proceeds regulation in the favor of taxpayers. Generally, we consider deductions a matter of legislative grace and strictly construe their provision.

INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992).

However, courts have liberally construed statutory provisions for charitable contribution deductions in the taxpayer’s favor or have interpreted them under the ordinary standard of statutory construction because such deductions are an expression of public policy rather than legislative grace.

See Helvering v. Bliss, 293 U.S. 144, 150-151 (1934); PBBM-Rose Hill, Ltd. v. Commissioner, 900 F.3d at 200 (applying ordinary standard of construction [*16] and agreeing with our interpretation); Green v. United States, 880 F.3d 519, 529 (10th Cir. 2018); BC Ranch II, L.P. v. Commissioner, 867 F.3d 547, 553-554 (5th Cir. 2017), vacating and remanding Bosque Canyon Ranch, L.P. v. Commissioner, T.C. Memo. 2015-130; Weingarden v. Commissioner, 825 F.2d 1027, 1030 (6th Cir. 1987) (interpreting “redundant, ambiguous, and opaque nature” of the statute in the taxpayer’s favor), rev’g 86 T.C. 669 (1986); Rockefeller v. Commissioner, 676 F.2d 35, 42 (2d Cir. 1982) (“Courts have consistently reaffirmed that public policy demands a broad and flexible interpretation of statutes governing charitable contributions.”), aff’g 76 T.C. 178 (1981).

We are interpreting a regulatory provision, not a statute.

The statute is silent as to the effect of a possible extinguishment of the conservation easement. In the event of an extinguishment the perpetuity requirement could not be met even if we liberally construed section 170(h)(5). Section 1.170A-14(g)(6), Income Tax Regs., provides a means by which the perpetuity requirement is deemed satisfied.

Coal Prop. Holdings, LLC v. Commissioner, 153 T.C. at 135-136.

We are interpreting a regulation that creates “a single — and exceedingly narrow — exception” to the statutory requirements for a conservation easement deduction.

Belk v. Commissioner, 774 F.3d 221, 225 (4th Cir. 2014), aff’g T.C. Memo. [*17] 2013-154, supplementing 140 T.C. 1 (2013). For this reason we strictly construe section 1.170A-14(g)(6), Income Tax Regs.7 Carroll v. Commissioner, 146 T.C. 196, 212 (2016).

Turning to petitioners’ interpretation of the regulation, they argue that references to “the property” and “the subject property” in subdivisions (i) and (ii), respectively, of section 1.170A-14(g)(6), Income Tax Regs., mean the donee’s right to any extinguishment proceeds is limited to the proceeds from the property as it existed at the time of the easement’s grant, which necessarily excludes posteasement improvements.

They argue that the donee has a property right only to the proceeds attributable to “a defined parcel” at the easement’s grant, borrowing a phrase used by the Court of Appeals for the Fourth Circuit in Belk v. Commissioner, 774 F.3d 221, to interpret section 170(h)(2), which requires a use restriction to be placed on the donated property in perpetuity.

See Pine Mountain Pres., LLLP v. Commissioner, 151 T.C. 247, 275 (2018) (adopting the “defined parcel” terminology), appeal filed (11th Cir. May 7, 2019). To further support their interpretation, they cite the statement in the proceeds regulation that the donee is to receive a “property right, immediately vested” and argue that a donee [*18] cannot receive an immediately vested property right in improvements that do not exist.

The extinguishment regulation requires the donee to use its “proceeds * * * from a subsequent sale or exchange of the property * * * in a manner consistent with the conservation purposes of the original contribution.” Sec. 1.170A-14(g)(6)(i), Income Tax Regs. Petitioners argue that “the original contribution” limits the donee’s share of the proceeds to the value of the property as it existed when the easement was granted.

The extinguishment regulation does not support petitioners’ argument. It refers to the original contribution to determine for what purpose the donee must use its share of the proceeds. It does not define the donee’s share of the proceeds.

Likewise, petitioners misinterpret “the subject property” in the proceeds regulation. The proceeds regulation provides the manner to determine the donee’s share of the proceeds “on a subsequent sale, exchange, or involuntary conversion of the subject property”. Section 1.170A-14(g)(6), Income Tax Regs., addresses two separate events: a judicial extinguishment of the easement followed by the sale of the property.

The subject property refers to the property that is sold that generates the proceeds after the easement is extinguished. It does not refer to the property that existed at the outset. Nor does it define the donee’s property right to [*19] the proceeds. The donee’s property right is the right to the perpetual conservation restriction; this is the right that is immediately vested.

That property right is defined as the proportionate value without any limitation to the property that existed at the outset. The proceeds regulation does not limit the donee’s share to the value of the real property as it existed when the easement was granted. We adhere to our caselaw.

The value of posteasement improvements may not be subtracted out of the proceeds before determining the donee’s proportionate share. See Coal Prop. Holdings, LLC v. Commissioner, 153 T.C. 126; Oakbrook Land Holdings, LLC v. Commissioner, T.C. Memo. 2020-54.

Finally, there is no defined parcel requirement for section 170(h)(5). Section 170(h)(2) and (5) sets forth separate and distinct but not “wholly unrelated” requirements. Carter v. Commissioner, T.C. Memo. 2020-21, at *19; see Belk v. Commissioner, 140 T.C. at 12. Section 170(h)(2)(C) requires a perpetual restriction “on the use which may be made of the real property.” Quite simply, there cannot be a perpetual use restriction if the property to which the restriction applies is not defined at the outset.

Section 170(h)(5) requires that the contribution be exclusively for conservation purposes; it does not concern a defined parcel.

In fact the regulations recognize that the donor’s right to make changes to the property. Sec. 1.170A-14(g)(1), Income Tax Regs.

The donee’s [*20] immediately vested property right is to the perpetual restrictive covenant, not a defined parcel of land. For purposes of the extinguishment provisions, the subject property may change, but the donee’s property right to the extinguishment proceeds may not.

B. Deference to Private Letter Ruling

Petitioners argue that respondent has improperly changed his interpretation of the proceeds regulation from that in a 2008 private letter ruling, to the detriment of taxpayers without any notice.

Priv. Ltr. Rul. 200836014 (June 3, 2008).

We have refused to give any weight to the 2008 private letter ruling, finding the proceeds regulation unambiguous.

Coal Prop. Holdings, LLC v. Commissioner, 153 T.C. at 143-144; see also PBBM-Rose Hill, Ltd. v. Commissioner, 900 F.3d at 208 (finding the proceeds regulation unambiguous in its use of the word “proceeds” does not permit subtracting the value of posteasement improvements when determining the donee’s share).

Petitioners argue that this refusal was in error because private letter rulings can be “significant” where the Internal Revenue Service (IRS) later reverses its position.

Hanover Bank v. Commissioner, 369 U.S. 672, 686-687 (1962); see Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 156 (2012) (“[A]gencies should provide regulated parties ‘fair warning of the conduct [a regulation] prohibits or requires.’” (alteration in original) [*21] (quoting Gates & Fox Co. v. Occupational Safety & Health Review Comm’n, 790 F.2d 154, 156 (D.C. Cir. 1986))).

Our caselaw has not addressed the impact of the IRS’ purported reversal of the position of a private letter ruling.

Petitioners further argue that we should consider the 2008 private letter ruling because the Court of Appeals for the Eleventh Circuit, to which this case is appealable, has recognized that while not binding precedent under section 6110(k)(3) courts may treat private letter rulings as “persuasive authority because they ‘do reveal the interpretation put upon the statute by the agency charged with the responsibility of administering the revenue laws.’”

Davis v. Commissioner, 716 F.3d 560, 569 n.26 (11th Cir. 2013) (quoting Hanover Bank v. Commissioner, 369 U.S. at 687), aff’g T.C. Memo. 2011-286; see sec. 6110(k)(3) (providing that written determinations such as private letter rulings cannot be cited as precedent).

The 2008 private letter ruling is neither persuasive nor relevant.

While it involves an easement deed that subtracted the value of posteasement improvements from the extinguishment proceeds, it makes no more than a passing reference to the deed’s proceeds provision and does not evaluate whether the subtraction violates the perpetuity requirement of section 170(h)(5).

There is no indication that its author analyzed the proceeds regulation or the deed’s proceeds provision.

To warrant deference the agency’s interpretation must reflect “the [*22] agency’s fair and considered judgment on the matter in question.”

Auer v. Robbins, 519 U.S. 452, 462 (1997).

The 2008 private letter ruling does not indicate that the author considered the text of the proceeds regulation or interpreted it to allow the subtraction of the value of posteasement improvements. Respondent’s current position is not a new or different interpretation.

We adhere to our prior position that the 2008 private letter ruling is not entitled to any weight.

C. State Law Exception

The proceeds regulation provides an exception to the proportionate share requirement if applicable State law allows the donor to receive “the full proceeds from the conversion without regard to the terms of the prior perpetual conservation restriction.” Sec. 1.170A-14(g)(6)(ii), Income Tax Regs. Petitioners argue that Alabama law allocates the full amount of any extinguishment proceeds to the donor, citing Burma Hills Dev. Co. v. Marr, 229 So. 2d 776 (Ala. 1969), making the proportionality formula irrelevant.

Burma Hills involved a mutually restrictive covenant applicable to all property within a residential subdivision. A neighboring landowner sued the condemning authority for violating the restrictive covenant on another person’s property.

The court refers to a mutually restrictive covenant as an equitable easement in favor of the property owners who have the right to enforce the covenant. Id. at 778.

However, such a covenant does not [*23] create a property right entitling the restricted property owners to compensation in a condemnation proceeding of the servient estate. Id. at 782.

The Conservancy has a property right granted by a deed of easement, not a mere covenant.

Under Alabama law a conservation easement is defined as “[a] nonpossessory interest of a holder in real property”. Ala. Code. sec. 35-18-1(1) (1997). Such an easement is a property right that entitles the easement holder to compensation for the taking of the easement.8

Portersville Bay Oyster Co. v. Blankenship, 275 So. 3d 124, 134 (Ala. 2018); see Ala. Code sec. 35-18-2(e) (1997) (“A conservation easement may be condemned * * * through eminent domain in the same manner as any other property interest.”).

Under Alabama law where property that is held in multiple estates is taken by eminent domain, each estate owner has a corresponding right to share in the condemnation award and the award is apportioned among the estate holders in accordance with their respective ownership interests.

Harco Drug, Inc. v. Notsla, Inc., 382 So. 2d 1, 3 (Ala. 1980) (holding a lessee and a lessor are both estate holders and entitled to damages in a condemnation proceeding).

[*24]

The donor would not be entitled to the full amount of the proceeds from a judicial extinguishment under Alabama law.

The State law exception of the proceeds regulation does not apply.

Accordingly, for the donor to qualify for the charitable contribution deduction for the conservation easement, the deed must satisfy the allocation of the extinguishment proceeds set forth in the proceeds regulation.

The deed did not properly allocate the extinguishment proceeds in accordance with the regulation, and the deduction is disallowed.

II. Accuracy-Related Penalties

Respondent determined that petitioners are liable for 40% penalties for gross valuation misstatements under section 6662(h) and, alternatively, 20% penalties under section 6662(a) and (b)(1) and (2) for negligence or disregard of rules or regulations and substantial understatements of income tax for 2013 and 2014.

A. Gross Valuation Misstatement Penalty

Taxpayers who meet the technical requirements for a charitable contribution of a conservation easement may deduct the easement’s fair market value. Sec. 170(c)(1). A gross valuation misstatement occurs when a taxpayer reports a value for the donated property that is 200% or more of the correct amount. Sec. 6662(h)(2).

On their 2012 return petitioners claimed an easement deduction of [*25] $2,788,000. If we find that the easement’s fair market value is $1,394,000 or less, there is a gross valuation misstatement as the claimed deduction is more than 200% of the correct amount. Respondent has the burden of production with respect to the penalties.

RERI Holdings I, LLC v. Commissioner, 149 T.C. 1, 37 (2017), aff’d sub nom. Blau v. Commissioner, 924 F.3d 1261 (D.C. Cir. 2019).

Reasonable cause is not available as a defense to the gross valuation misstatement penalty with respect to the deduction of a charitable contribution of property. Sec. 6664(c)(3).

When there is a substantial record of sales of the comparable easements, the donated easement’s fair market value is based on the sale prices of those comparable easements. Sec. 1.170A-14(h)(3)(i), Income Tax Regs. Because sales of conservation easements are rare, the regulations provide a “before and after” method to value the easement. Id. subdiv. (ii).

Under the before and after method, the easement’s fair market value is the difference between the fair market value of the property unencumbered by the easement (before value) and its fair market value after the easement’s grant (after value). Id.

When the donor owns additional unencumbered property contiguous with the easement property, the before and after method valuation must take into account any enhancement value of the contiguous property as a result of the easement. Id.

[*26]

When ascertaining the before and after values of easement property, an appraiser may use the comparable sales method or another accepted method. Hilborn v. Commissioner, 85 T.C. 677, 688-689 (1985).

The comparable sales method requires that the comparable properties be similar in nature to the donated property and that the sales be in arm’s-length transactions within a reasonable time of the donation. Wolfsen Land & Cattle Co. v. Commissioner, 72 T.C. 1, 19 (1979).

It may be appropriate to make adjustments to the sale prices of the comparable properties to account for differences in the time of the sale and the size or other features of the donated property. Id.

Fair market value is generally determined on the basis of the highest and best use of the donated property. Hilborn v. Commissioner, 85 T.C. at 689-690. The highest and best use is “[t]he highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future”. Olson v. United States, 292 U.S. 246, 255 (1934); Symington v. Commissioner, 87 T.C. 892, 897 (1986) (quoting Olson).

It does not depend on whether the owner has actually put the property to such use or whether he ever intends to do so. Stanley Works & Subs. v. Commissioner, 87 T.C. 389, 400 (1986). However, absent proof to the contrary the property’s current use is presumed its highest and best use. Estate of Pulling v. Commissioner, T.C. Memo. [*27] 2015-134, at *14.

Highest and best use is a question of fact. Stanley Works & Subs. v. Commissioner, 87 T.C. at 408. But it requires an objective assessment of the likelihood that the donated property would be put to its highest and best use. Sec. 1.170A-14(h)(3)(ii), Income Tax Regs.

The differences between the parties’ experts center on their opinions of the highest and best use of the easement property before the easement’s grant, in particular whether easement and noneasement portions of the Hewitt property had different highest and best uses.9

We consider expert opinions to assist us with understanding the evidence or determining facts in issue. Fed. R. Evid. 702. We evaluate expert opinions on the fair market value of property in the light of the experts’ demonstrated qualifications and all other evidence in the record. See Parker v. Commissioner, 86 T.C. 547, 561 (1986).

When experts offer competing estimates of fair market value, we decide how to weigh those estimates by examining the factors the experts considered in reaching their conclusions. See Casey v. Commissioner, 38 T.C. 357, 381 (1962).

We are not bound by the opinion of any expert witness and may accept or reject expert testimony in the exercise of sound judgment. [*28] Helvering v. Nat’l Grocery Co., 304 U.S. 282, 295 (1938); Estate of Newhouse v. Commissioner, 94 T.C. 193, 217 (1990).

Respondent’s expert, Mr. Petkovich, valued the easement on the basis of the highest and best use of the entire Hewitt property rather than the highest and best use of the easement property. He opined that the highest and best use before and after the easement’s grant were generally the same, agricultural and low-density residential use on the pastureland and timber cultivation, passive recreation, and hunting in the wooded areas.

He valued the entire Hewitt property (the contiguous and easement portions) at the same per-acre price of $1,850, or $2.6 million for the 1,325 acres, despite significant differences in the topography of the property and public access.

He determined that there was no change to the after value of the noneasement portion. For his after value of the easement portion, he used a comparable sales method of properties subject to restrictive easements.

He determined an after value for the easement portion of $1,100 per acre, or $282,920. He opined that the entire Hewitt property had an after value of $2.41 million, resulting in a $190,000 value for the easement.

Petitioners provided three expert witnesses. Mr. Bevis is the president of a local real estate company and has a master’s degree in real estate development. He has over 20 years of experience in the commercial and residential real estate [*29] business including experience in determining the highest and best use of land.

He opined that the highest and best use of the easement property before the easement’s grant was as a mobile home community, which could be sold to an investor once completed and leased. He opined its highest and best use after the easement’s grant was agriculture and recreation.

Mr. Bevis commissioned a market study and a proposed site plan for a mobile home community with 210 lots which he incorporated into his report. He testified that there was a need for affordable housing within 30 miles of the easement property. He testified that approximately 2,000 individuals commute to Randolph County daily.

He opined that the proposed community would be fully occupied within three years.

Mr. Bevis opined that the proposed mobile home community could charge a monthly rent of $235 to $285. We find this range reasonable. He considered the monthly rents in Randolph County, which ranged from $125 to $200.

He also considered the average monthly rents for mobile home communities in Birmingham and Atlanta of $267 and $379, respectively.

He adjusted these rents downward to account for the rural location of the easement property and upward to account for the newness and better quality of the proposed mobile homes and amenities offered as compared to existing housing.

Respondent objects to Mr. Bevis’ testimony because he did not provide a detailed analysis of housing needs [*30] or trends or provide supporting data for the three-year full occupancy assumption.

However, we find his testimony reliable and helpful as he testified on the basis of his significant experience and knowledge of the market in which he worked.

Mr. McCaleb estimated construction costs of approximately $1.6 million for the proposed mobile home community with a club house and a pool. His estimate did not include all amenities proposed in Mr. Bevis’ report. Respondent also objects to the site plan and cost estimate as vague and generalized.

However, we find Mr. McCaleb’s estimates sufficient for the limited purpose for which we rely on them, determining whether petitioners grossly misstated the easement’s fair market value.

Petitioners offered Mr. Veal as a valuation expert. Mr. Veal valued only the 257-acre easement property, which he opined had a per-acre value different from the remainder of the Hewitt property. He opined that the easement property’s highest and best use was as a mobile home community, relying, in part, on Mr. Bevis’ conclusions. Mr. Veal determined the easement property had a before value of $3.5 million, approximately $13,600 per acre, and an after value of $340,000, approximately $1,200 per acre plus $5,000 for each homesite. He [*31] determined an enhancement value of $55,000 for the Hewitt property not subject to the easement.

Mr. Veal used two valuation methods, income capitalization and comparable sales. For the income capitalization method, he used a monthly rent of $275 to project the net annual rental income for the proposed mobile home community for 2013 through 2015.

Although $275 is on the higher end of Mr. Bevis’ range for monthly rents, we find the amount reasonable. Mr. Veal also identified other sources of income such as wireless internet service fees that he included in his income computation.

He opined that the revenue stream from the mobile home community had a discounted present value of $5.1 million, then deducted the construction costs estimated by Mr. McCaleb, resulting in a before value of $3.5 million for the easement, which he later revised to $3.4 million.

See Trout Ranch, LLC v. Commissioner, T.C. Memo. 2010-283 (valuing real property by discounting the expected future cashflow from the property), aff’d, 493 F. App’x 944 (10th Cir. 2012).

Using the comparable sales method, Mr. Veal determined that the proposed mobile home community could be sold for at least $7 million within three years of its construction. He then deducted $3.6 million for estimated construction costs and profit to the developer for a before value of $3.4 million. Reconciling his two methods, he determined a before value of $3.5 [*32] million. He did not change this conclusion in his supplement to his report despite the reduction of the before value to $3.4 million under the income capitalization method.

Respondent identified issues with Mr. Veal’s assumptions in both his valuation methods, such as the occupancy rate, and the lack of supporting data for Mr. Bevis’ opinion on local housing needs. Respondent also argues that the mobile home parks in Mr. Veal’s comparable sales are not appropriate comparable properties because they had been in existence for 20 to 56 years.

We are convinced by respondent’s argument that such established communities would sell for more than a newly constructed one.

Respondent did not consider the age of the mobile homes themselves or the age in relation to the useful lives of the mobile homes, which could negatively affect the values of the comparable properties. Mr. Veal submitted a supplement to his report and admitted to errors in his analysis at trial.

At times he relied on incorrect or optimistic assumptions for the dates related to construction, leasing, and full occupancy of the mobile home community. We find the incorrect assumptions and errors are not sufficient to discredit Mr. Veal’s valuations in their entirety.

Furthermore, we find Mr. Petkovich’s valuation significantly flawed.

He applied the same per-acre value to all 1,325 acres of the Hewitt property despite [*33] significant differences in the topography of and public access to the easement and noneasement portions. We find this improper.

Mr. Bevis testified that only the easement portion with its pastureland and public access was suitable for development and development in noneasement portion was cost prohibitive because of its wooded, rougher terrain and limited public access.

At trial Mr. Petkovich acknowledged that the pastureland could have a different highest and best use from the timberland and is more valuable.

We find that Mr. Petkovich’s comparable sales were problematic.

He used sales of land similar in topography to the contiguous property and not significantly similar to the easement property, making his valuation unreliable. Each comparable property was wooded and lacked pastureland.

We find on the basis of Mr. Hewitt’s testimony and petitioners’ experts’ opinions that the pastureland differs significantly in value from the wooded land with steep or rough terrain where development is likely cost prohibitive.

None of the comparable properties appears suitable for residential development. Mr. Petkovich identified the principal use of the comparable properties as recreation. Furthermore, two comparable properties sold in foreclosure.

Mr. Petkovich made adjustments to the sale prices of the comparable properties to account for qualitative differences with the Hewitt property, for [*34] example, for location, shape, size, topography, and road and utility access.

However, we find that the adjustments were inappropriate or insufficient to compensate for the differences between the comparable properties and the easement property especially in the light of the fact that Mr. Petkovich valued the entire Hewitt property.

Moreover, while Mr. Petkovich listed over 10 characteristics of the properties for which he made price adjustments, he did not adequately explain the amount of the price adjustment for each characteristic or the method he used to determine the price adjustment.

Finally, some adjustments are clearly inappropriate because he compared the entire Hewitt property rather than only the easement property.

For example, he adjusted the sale prices of four comparable properties downward because of their relatively small sizes (approximately 200 acres) as compared to the 1,325-acre Hewitt property; but the easement property was only 257 acres.

As part of our analysis, we must consider the probability that the property would be developed as proposed and the market demand for the proposed community.

Respondent has raised some legitimate concerns in this regard. However, we do not need to determine the easement’s fair market value.

We are determining whether petitioners overstated the value by 200%.

We take into account the issues with Mr. Veal’s valuation. However, significant elements of [*35] his valuation and the proposed mobile home community were conservative. The proposed plan would place only 210 homes on 257 acres of land. This is a low-density residential use. Mr. Petkovich opined that the property was suitable for low-density residential use.

The county’s population of approximately 22,380 is stable, and the proposed community would add a small number of homes relative to the population. The median income in the county, approximately $35,000, would support the monthly rent that Mr. Veal used in the income capitalization method.

We find that petitioners did not grossly misstate the value of the easement by claiming a deduction of $2,788,000.

Mr. Petkovich was unduly pessimistic in his valuation and incorrectly applied a uniform value to the entire Hewitt property. Our decision not to impose the gross valuation misstatement penalty does not depend solely on expert valuations. Mr. Hewitt gave credible testimony that the easement property was the most valuable part of the Hewitt property, confirming Mr. Bevis’ and Mr. Veal’s opinions.

Mr. Hewitt believed that the easement property was the portion of his family’s land that most needed protection from development. He has lived in Randolph County his entire life and has experience in land acquisition. We find his testimony helpful and reliable. He believed that the easement property had a before value of $12,000 to $15,000 per acre, a value [*36] that would clearly make any penalty inapplicable.

Mr. Hewitt purchased 79 acres of nearby wooded land with steep topography and limited public access, comparable to the unencumbered Hewitt property, for $1,582 per acre. This sale price aligns with Mr. Veal’s valuation of the contiguous Hewitt property. In June 2014 Mr. Hewitt purchased a.72-acre parcel of land adjacent and comparable to the topography of the easement property for $12,000, which supports Mr. Veal’s before value.

We find Mr. Hewitt’s testimony regarding the value of his property persuasive.

“[A] landowner is competent to offer opinion testimony with respect to the value of his or her property.” Schmidt v. Commissioner, T.C. Memo. 2014-159, at *28. We have observed that a property owner “is qualified, by his ownership alone, to testify as to its value” and “the special knowledge accorded a property owner rests on a presumed familiarity with the property, knowledge or acquaintance with its uses and purposes, and experience in dealing with it.” Estate of McCampbell v. Commissioner, T.C. Memo. 1991-141, 1991 WL 40519; see also LaCombe v. A-T-O, Inc., 679 F.2d 431, 433 (5th Cir. 1982) (“[T]he owner of property is qualified by his ownership alone to testify as to its value.”).

We find that the correct value of the easement was at least $1.4 million and petitioners are not liable for the section 6662(h) penalties.

[*37]

B. 20% Accuracy-Related Penalties

Respondent determined that petitioners are liable under section 6662(a) and (b)(1) and (2) for 20% accuracy-related penalties for 2013 and 2014 for underpayments attributable to negligence or disregard of rules and regulations and substantial understatements of income tax.

Negligence is “any failure to make a reasonable attempt to comply with the provisions of the internal revenue laws or to exercise ordinary and reasonable care in the preparation of a tax return.” Sec. 1.6662-3(b)(1), Income Tax Regs.

A substantial understatement of income tax is defined as the greater of 10% of the tax required to be shown on a return for the year or $5,000. Sec. 6662(d)(1)(A).

Section 6662(a) accuracy-related penalties do not apply where the taxpayers establish that they acted with reasonable cause and in good faith. Sec. 6664(c)(1); Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43, 98 (2000), aff’d, 299 F.3d 221 (3d Cir. 2002).

We determine reasonable cause and good faith on a case-by-case basis taking into account all pertinent facts and circumstances. Sec. 1.6664-4(b)(1), Income Tax Regs.

The most important factor is the extent of the taxpayer’s effort to assess his proper tax liability. Id. The taxpayer’s education and business experience are also relevant. Id. para. (c)(1).

[*38]

Reliance on professional advice may constitute reasonable cause and good faith if the reliance was reasonable. Freytag v. Commissioner, 89 T.C. 849, 888 (1987), aff’d on another issue, 904 F.2d 1011 (5th Cir. 1990), aff’d, 501 U.S. 868 (1991); see sec. 1.6664-4(b)(1), (c)(1), Income Tax Regs. Reliance on professional advice is reasonable if (1) the professional was independent and had the expertise to justify reliance, (2) the taxpayers provided necessary and accurate information to the adviser, and (3) the taxpayers actually relied in good faith on the advice. Neonatology Assocs., P.A. v. Commissioner, 115 T.C. at 98-99.

Taxpayers cannot rely on professional advice as a defense if they knew or should have known that the adviser had a conflict of interest; such an adviser is not independent. Id. at 98; see Paschall v. Commissioner, 137 T.C. 8, 22 (2011).

An independent adviser follows his regular course of professional conduct in rendering advice, does not give unsolicited advice, and does not have a stake in the transaction besides his regular hourly rate. 106 Ltd. v. Commissioner, 136 T.C. 67, 80 (2011), aff’d, 684 F.3d 84 (D.C. Cir. 2012).

Mr. Hewitt first had the idea to protect his family’s land when his father’s health began to decline.

Mr. Hewitt began to appreciate the land in a new way. He had lived on the land his entire life and worked on the farm with his father.

He credibly testified that he wanted to protect the property so that his children could [*39] one day have the same opportunity.

An acquaintance recommended Large & Gilbert because of its experience with conservation easements.

Mr. Hewitt understood that Large & Gilbert had a good reputation in the tax community and had been in business for approximately 50 years.

He did not solicit or initiate a tax strategy. His motivation was to protect his family’s property, not to obtain a tax benefit.

Mr. Hewitt reasonably believed that his contacts at Large & Gilbert were competent tax professionals and their advice was in compliance with tax law. He provided Large & Gilbert with the necessary and accurate information to prepare the returns to the extent the information was available. He did not know or have reason to know that the easement deduction would be disallowed.

Mr. Hewitt also reasonably and in good faith relied on Mr. Clower’s qualified appraisal.

He reviewed Mr. Clower’s appraisal and found it consistent with his own opinion of the land’s value and his opinion that the pastureland was more valuable than the wooded areas. He credibly testified that he believed the easement property was worth between $12,000 and $15,000 per acre before the easement’s grant.

He also credibly testified that he tried to find out how much his father had paid for the property but could not. The land had been in his family for nearly 60 years.

We find that Mr. Hewitt’s reliance on Mr. Clower also supports a [*40] finding that petitioners acted with reasonable cause and in good faith in claiming the deduction. See Dunlap v. Commissioner, T.C. Memo. 2012-126, slip op. at 76 (finding that reasonable and good-faith reliance on a qualified appraiser is sufficient to establish reasonable cause).

Finally, we note that Mr. Hewitt also received conservation advice from Dr. Keller. Mr. Hewitt trusted Large & Gilbert’s recommendation of the Conversancy. Dr. Keller has a doctorate in conservation biology.

Mr. Hewitt credibly testified that he understood that Dr. Keller was knowledgeable and experienced in conservation issues.

We find that Mr. Hewitt reasonably believed that Dr. Keller was knowledgeable and experienced in advising on the preservation of land through conservation easements. Mr. Hewitt personally met with Dr. Keller to discuss his desire to protect the family’s land from development, and Dr. Keller visited the property.

The Conservancy drafted the easement deed. Dr. Keller’s involvement contributed to Mr. Hewitt’s belief that he could rely on Large & Gilbert’s advice. When Mr. Hewitt granted the easement in 2012, he did not understand Dr. Keller to be promoting a tax strategy.

We find Mr. Hewitt sincere in his testimony that he wanted to protect his family’s farm land.

We also note that he did not claim an excessive value for the deduction on the 2012 return.

However, after 2012 Mr. Hewitt began a troubling [*41] practice of purchasing rural, undeveloped land and selling interests in pass-through entities that he created to hold the land.

Numerous entities associated with Mr. Hewitt granted conservation easements on the recently purchased land, and the investors, including Mr. Hewitt, claimed charitable contribution deductions for the easement donations far in excess of the original purchase prices for the recently purchased, underlying properties.

Respondent asserts that Mr. Hewitt has realized over $3.5 million in gain from these transactions and the investors claimed millions of dollars of improper charitable contribution deductions.

Petitioners claimed the carryover deductions at issue here for years during which Mr. Hewitt was engaging in this activity.

Large & Gilbert assisted in these transactions, and individuals from Large & Gilbert invested in the entities and claimed easement deductions.

Respondent argues that Large & Gilbert is a promoter of conservation easement transactions.

Taxpayers cannot rely on the advice of a professional who has a conflict of interest or is a promoter of the investment.

Mortensen v. Commissioner, 440 F.3d 375, 387 (6th Cir. 2006), aff’g T.C. Memo. 2004-279.

We find that Large & Gilbert was not a promoter and did not have a conflict of interest with respect to the easement donation on Mr. Hewitt’s family farm.

Mr. Hewitt did not want to donate the easement on his family farm to obtain the tax benefits. He had a [*42] genuine desire to protect the land for future generations. Large & Gilbert did not promote the easement at issue.

Mr. Hewitt’s activities of land purchases and conservation easements after 2012 are problematic.

However, we find that under the circumstances of the easement donation of his family’s farm land Mr. Hewitt reasonably and in good faith relied on Large & Gilbert’s experienced advice.

We have weighed Mr. Hewitt’s post-2012 activities against his sincere intent to preserve his family’s farm land for his father and children. The reasonable cause defense depends on the particular facts and circumstances of each case.

Petitioners claimed a deduction for the easement that aligned with Mr. Hewitt’s opinion of the easement property’s fair market value.

We disallowed the easement deduction because the deed did not satisfy technical requirements for a conservation easement deduction.

We do not expect petitioners to understand these technical requirements.

They made a sufficient good-faith effort to assess their tax liability and reasonably relied on professional advice when claiming the easement deduction.

We have not addressed petitioners’ omission of cost basis information on Form 8283 and the attached statement as a basis to deny the easement deduction.

Omission of cost basis information is a failure to strictly or substantially comply [*43] with the regulatory reporting requirements.10 RERI Holdings I, LLC v. Commissioner, 149 T.C. at 16-17.

Failure to substantially comply with the reporting requirements generally precludes a charitable contribution deduction. Bond v. Commissioner, 100 T.C. 32, 41 (1993); see sec. 170(a)(1) (“A charitable contribution shall be allowable as a deduction only if verified under regulations prescribed by the Secretary.”).

Section 170(f)(11)(A)(ii)(II) provides a reasonable cause defense for a failure to comply with the reporting requirements if “the failure to meet such requirements is due to reasonable cause and not to willful neglect.” In such a case, the deduction will not be disallowed.

We find that the omission of the basis information does not preclude a reasonable cause defense to the section 6662(a) penalties.

Mr. Hewitt explained to Large & Gilbert the reason that he could not obtain the necessary basis information, and Large & Gilbert advised him that the deduction would not be disallowed for failing to provide basis information that is not reasonably obtainable.

Mr. Hewitt provided accurate information to Large & Gilbert to prepare the Form 8283.

We find that Mr. Hewitt’s efforts to determine his basis in [*44] the property were sufficient and the basis information was not reasonably obtainable.

However, the attachment does not sufficiently restate the explanation that Mr. Hewitt provided to Large & Gilbert or at trial.

It states that the basis “remains to be determined with accuracy”.

It also contains wording similar to that which we have previously identified as inadequate explanation, that the basis is not taken into consideration when computing the amount of the deduction and the donor had a holding period in excess of 12 months, qualifying the property as capital gains property.

See Belair Woods, LLC v. Commissioner, T.C. Memo. 2018-159, at *11-*12.

Despite the inadequacy of the explanation, we find that petitioners reasonably relied on Large & Gilbert to prepare the Form 8283 in a correct and sufficient manner to explain the omission of the basis information.

Petitioners’ failure to provide basis information and the inadequate explanation do not negate their reasonable cause and good faith in claiming the easement deduction.

Accordingly, we find petitioners not liable for the section 6662(a) accuracy-related penalties for 2013 and 2014.

In reaching our holdings herein, we have considered all arguments made, and, to the extent not mentioned above, we conclude they are moot, irrelevant, or without merit.

[*45] To reflect the foregoing,

Decision will be entered for respondent on the tax deficiencies and for petitioners on the penalties.

FOOTNOTES

1. Unless otherwise indicated, section references are to the Internal Revenue Code (Code) in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure. Some dollar and acreage amounts are rounded.

2. Petitioners concede to $31,771 in unreported long-term capital gain as determined in the notice of deficiency. Respondent has conceded any penalty related to this amount.

3. Respondent alternatively argues that the deed fails sec. 170(h)(5) because it allows a merger of the estates and fails sec. 170(h)(2) because it does not designate the location for five homesites reserved in the deed. Sec. 170(h)(2)(C) requires the deed to place “a restriction (granted in perpetuity) on the use” of the property. Mr. Hewitt intended the homesites for his children so that they may be able to live on the property one day. Petitioners contend that the delay in designating the homesite locations would better protect the easement’s conservation purposes. We have held that a reserved right to construct a residential subdivision without designating the location at the outset violates sec. 170(h)(2). Pine Mountain Pres., LLLP v. Commissioner, 151 T.C. 247 (2018), appeal filed (11th Cir. May 7, 2019); Carter v. Commissioner, T.C. Memo. 2020-21, at *19. Petitioners seek to distinguish Pine Mountain. However, for them to qualify for the deduction, the deed must satisfy both sec. 170(h)(2) and (5). Accordingly, we do not address the sec. 170(h)(2) issue.

4. Petitioners’ opening brief lists no proposed findings of fact in the form of numbered statements as required by Rule 151(e)(3) and includes some recital of testimony. Respondent argues that because of this noncompliance with our Rules we should adopt his proposed findings of fact as fully and fairly presenting all relevant facts. We have considered petitioners’ noncompliance but do not fully adopt respondent’s proposed findings. See Beane v. Commissioner, T.C. Memo. 2009-152, slip op. at 7 (adopting the Commissioner’s proposed findings because the taxpayer’s briefs did not comply with Rule 151(e) and “did not assist the Court in making sense of a voluminous and confusing record”).

5. An individual taxpayer’s charitable contribution deductions are limited to 50% of his adjusted gross income, and the taxpayer may carry over the excess contributions for five years. Sec. 170(b)(1)(A), (d).

6. Alternatively, petitioners challenge the regulation’s procedural and substantive validity. We upheld the procedural and substantive validity of the proceeds regulation in Oakbrook Land Holdings, LLC v. Commissioner, 154 T.C. __, __ (slip op. at 25, 28-31) (May 12, 2020).

7. The Court of Appeals for the Fifth Circuit disallowed the deduction under the ordinary standard of construction of the proceeds regulation. PBBM-Rose Hill, Ltd. v. Commissioner, 900 F.3d 193, 200 (5th Cir. 2018).

8. A conservation easement may be condemned through eminent domain. Ala. Code sec. 35-18-2(e) (1997). The statute does not expressly state that the easement holder is entitled to compensation.

9. Both valuation experts used incorrect acreage for the contiguous property, and they used different acreage. After the parties submitted the expert reports, the parties stipulated the size of the contiguous property. See Rule 91(a). We find the errors insignificant to our determination of whether petitioners are liable for the gross valuation misstatement penalty.

10. Respondent argues that petitioners are not entitled to deduct the easement donation because they did not satisfy the reporting requirements of sec. 1.170A-13(c), Income Tax Regs. We have not disallowed the easement on this basis but address the reporting requirements in our consideration of petitioners’ liability for sec. 6662(a) accuracy-related penalties.

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Acceleration

Rewind 2008: The Home Snatchers Stole Millions of Homes, Lives and Citizen’s Trust By Unimaginable Fraud

Wall Street and the Government decided, if they were to make it through the Greatest Depression, they’d have to spin their biggest lie in the history of the United States of America. It worked.

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Invasion of the Home Snatchers

How foreclosure courts are helping big banks screw over homeowners

NOV 10, 2010 | REPUBLISHED BY LIT: DEC 4, 2021

The foreclosure lawyers down in Jacksonville had warned me, but I was skeptical. They told me the state of Florida had created a special super-high-speed housing court with a specific mandate to rubber-stamp the legally dicey foreclosures by corporate mortgage pushers like Deutsche Bank and JP Morgan Chase.

This “rocket docket,” as it is called in town, is presided over by retired judges who seem to have no clue about the insanely complex financial instruments they are ruling on — securitized mortgages and laby­rinthine derivative deals of a type that didn’t even exist when most of them were active members of the bench.

Their stated mission isn’t to decide right and wrong, but to clear cases and blast human beings out of their homes with ultimate velocity. They certainly have no incentive to penetrate the profound criminal mysteries of the great American mortgage bubble of the 2000s, perhaps the most complex Ponzi scheme in human history — an epic mountain range of corporate fraud in which Wall Street megabanks conspired first to collect huge numbers of subprime mortgages, then to unload them on unsuspecting third parties like pensions, trade unions and insurance companies (and, ultimately, you and me, as taxpayers) in the guise of AAA-rated investments.

Selling lead as gold, shit as Chanel No. 5, was the essence of the booming international fraud scheme that created most all of these now-failing home mortgages.

Looting Main Street

The rocket docket wasn’t created to investigate any of that. It exists to launder the crime and bury the evidence by speeding thousands of fraudulent and predatory loans to the ends of their life cycles, so that the houses attached to them can be sold again with clean paperwork.

The judges, in fact, openly admit that their primary mission is not justice but speed.

One Jacksonville judge, the Honorable A.C. Soud, even told a local newspaper that his goal is to resolve 25 cases per hour.

Given the way the system is rigged, that means His Honor could well be throwing one ass on the street every 2.4 minutes.

Foreclosure lawyers told me one other thing about the rocket docket. The hearings, they said, aren’t exactly public.

“The judges might give you a hard time about watching,” one lawyer warned. “They’re not exactly anxious for people to know about this stuff.”

Inwardly, I laughed at this — it sounded like typical activist paranoia. The notion that a judge would try to prevent any citizen, much less a member of the media, from watching an open civil hearing sounded ridiculous.

Fucked-up as everyone knows the state of Florida is, it couldn’t be that bad. It isn’t Indonesia. Right?

Well, not quite.

When I went to sit in on Judge Soud’s courtroom in downtown Jacksonville, I was treated to an intimate, and at times breathtaking, education in the horror of the foreclosure crisis, which is rapidly emerging as the even scarier sequel to the financial meltdown of 2008:

Invasion of the Home Snatchers II.

In Las Vegas, one in 25 homes is now in foreclosure.

In Fort Myers, Florida, one in 35.

In September, lenders nationwide took over a rec­ord 102,134 properties; that same month, more than a third of all home sales were distressed properties.

All told, some 820,000 Americans have already lost their homes this year, and another 1 million currently face foreclosure.

Throughout the mounting catastrophe, however, many Americans have been slow to comprehend the true nature of the mortgage disaster. They seemed to have grasped just two things about the crisis:

One, a lot of people are getting their houses foreclosed on.

Two, some of the banks doing the foreclosing seem to have misplaced their paperwork.

For most people, the former bit about homeowners not paying their damn bills is the important part, while the latter, about the sudden and strange inability of the world’s biggest and wealthiest banks to keep proper records, is incidental.

Just a little office sloppiness, and who cares?

Those deadbeat homeowners still owe the money, right?

“They had it coming to them,” is how a bartender at the Jacksonville airport put it to me.

But in reality, it’s the unpaid bills that are incidental and the lost paperwork that matters.

It turns out that underneath that little iceberg tip of exposed evidence lies a fraud so gigantic that it literally cannot be contemplated by our leaders, for fear of admitting that our entire financial system is corrupted to its core — with our great banks and even our government coffers backed not by real wealth but by vast landfills of deceptively generated and essentially worthless mortgage-backed assets.

You’ve heard of Too Big to Fail — the foreclosure crisis is Too Big for Fraud.

Think of the Bernie Madoff scam, only replicated tens of thousands of times over, infecting every corner of the financial universe. The underlying crime is so pervasive, we simply can’t admit to it — and so we are working feverishly to rubber-stamp the problem away, in sordid little backrooms in cities like Jacksonville, behind doors that shouldn’t be, but often are, closed.

And that’s just the economic side of the story.

The moral angle to the foreclosure crisis — and, of course, in capitalism we’re not supposed to be concerned with the moral stuff, but let’s mention it anyway — shows a culture that is slowly giving in to a futuristic nightmare ideology of computerized greed and unchecked financial violence.

The monster in the foreclosure crisis has no face and no brain.

The mortgages that are being foreclosed upon have no real owners. The lawyers bringing the cases to evict the humans have no real clients. It is complete and absolute legal and economic chaos.

No single limb of this vast man-­eating thing knows what the other is doing, which makes it nearly impossible to combat — and scary as hell to watch.

What follows is an account of a single hour of Judge A.C. Soud’s rocket docket in Jacksonville.

Like everything else related to the modern economy, these foreclosure hearings are conducted in what is essentially a foreign language, heavy on jargon and impenetrable to the casual observer.

It took days of interviews with experts before and after this hearing to make sense of this single hour of courtroom drama. And though the permutations of small-time scammery and grift in the foreclosure world are virtually endless — your average foreclosure case involves homeowners or investors being screwed at least five or six creative ways — a single hour of court and a few cases is enough to tell the main story.

Because if you see one of these scams, you see them all.

It’s early on a sunny Tuesday morning when I arrive at the chambers of Judge Soud, one of four rotating judges who preside over the local rocket docket.

These special foreclosure courts were established in July of this year, after the state of Florida budgeted $9.6 million to create a new court with a specific mandate to clear 62 percent of the foreclosure cases that were clogging up the system.

Rather than forcing active judges to hear thousands of individual cases, this strategy relies on retired judges who take turns churning through dozens of cases every morning, with little time to pay much attention to the particulars.

What passes for a foreclosure court in Jacksonville is actually a small conference room at the end of a hall on the fifth floor of the drab brick Duval County Courthouse. The space would just about fit a fridge and a pingpong table.

At the head of a modest conference table this morning sits Judge Soud, a small and fussy-looking man who reminds me vaguely of the actor Ben Gazzara.

On one side of the table sits James Kowalski, a former homicide prosecutor who is now defending homeowners.

A stern man with a shaved head and a laconic manner of speaking, Kowalski has helped pioneer a whole new approach to the housing mess, slowing down the mindless eviction machine by deposing the scores of “robo-signers” being hired by the banks to sign phony foreclosure affidavits by the thousands.

For his work on behalf of the dispossessed, Kowalski was recently profiled in a preposterous Wall Street Journal article that blamed attorneys like him for causing the foreclosure mess with their nuisance defense claims.

The headline: “Niche Lawyers Spawned Housing Fracas.”

On the other side of the table are the plaintiff’s attorneys, the guys who represent the banks.

On this level of the game, these lawyers refer to themselves as “bench warmers” — volume stand-ins subcontracted by the big, hired-killer law firms that work for the banks.

One of the bench warmers present today is Mark Kessler, who works for a number of lenders and giant “foreclosure mills,” including the one run by David J. Stern, a gazillionaire attorney and all-Universe asshole who last year tried to foreclose on 70,382 homeowners.

Which is a nice way to make a living, considering that Stern and his wife, Jeanine, have bought nearly $60 million in property for themselves in recent years, including a 9,273-square-foot manse in Fort Lauderdale that is part of a Ritz-Carlton complex.

Kessler is a harried, middle-aged man in glasses who spends the morning perpetually fighting to organize a towering stack of folders, each one representing a soon-to-be-homeless human being. It quickly becomes apparent that Kessler is barely acquainted with the names in the files, much less the details of each case.

“A lot of these guys won’t even get the folders until right before the hearing,” says Kowalski.

When I arrive, Judge Soud and the lawyers are already arguing a foreclosure case; at a break in the action, I slip into the chamber with a legal-aid attorney who’s accompanying me and sit down. The judge eyes me anxiously, then proceeds.

He clears his throat, and then it’s ready, set, fraud!

Judge Soud seems to have no clue that the files he is processing at a breakneck pace are stuffed with fraudulent claims and outright lies.

“We have not encountered any fraud yet,” he recently told a local newspaper. “If we encountered fraud, it would go to [the state attorney], I can tell you that.”

But the very first case I see in his court is riddled with fraud.

Kowalski has seen hundreds of cases like the one he’s presenting this morning.

It started back in 2006, when he went to Pennsylvania to conduct what he thought would be a routine deposition of an official at the lending giant GMAC.

What he discovered was that the official — who had sworn to having personal knowledge of the case — was, in fact, just a “robo-signer” who had signed off on the file without knowing anything about the actual homeowner or his payment history.

(Kowalski’s clients, like most of the homeowners he represents, were actually making their payments on time; in this particular case, a check had been mistakenly refused by GMAC.)

Following the evidence, Kowalski discovered what has turned out to be a systemwide collapse of the process for documenting mortgages in this country.

If you’re foreclosing on somebody’s house, you are required by law to have a collection of paperwork showing the journey of that mortgage note from the moment of issuance to the present.

You should see the originating lender (a firm like Countrywide) selling the loan to the next entity in the chain (perhaps Goldman Sachs) to the next (maybe JP Morgan), with the actual note being transferred each time.

But in fact, almost no bank currently foreclosing on homeowners has a reliable record of who owns the loan; in some cases, they have even intentionally shredded the actual mortgage notes.

That’s where the robo-signers come in.

To create the appearance of paperwork where none exists, the banks drag in these pimply entry-level types — an infamous example is GMAC’s notorious robo-signer Jeffrey Stephan, who appears online looking like an age-advanced photo of Beavis or Butt-Head — and get them to sign thousands of documents a month attesting to the banks’ proper ownership of the mortgages.

This isn’t some rare goof-up by a low-level cubicle slave: Virtually every case of foreclosure in this country involves some form of screwed-up paperwork.

“I would say it’s pretty close to 100 percent,”

says Kowalski. An attorney for Jacksonville Area Legal Aid tells me that out of the hundreds of cases she has handled, fewer than five involved no phony paperwork.

“The fraud is the norm,” she says.

Kowalski’s current case before Judge Soud is a perfect example.

The Jacksonville couple he represents are being sued for delinquent payments, but the case against them has already been dismissed once before. The first time around, the plaintiff, Bank of New York Mellon, wrote in Paragraph 8 that “plaintiff owns and holds the note” on the house belonging to the couple.

But in Paragraph 3 of the same complaint, the bank reported that the note was “lost or destroyed,” while in Paragraph 4 it attests that “plaintiff cannot reasonably obtain possession of the promissory note because its whereabouts cannot be determined.”

The bank, in other words, tried to claim on paper, in court, that it both lost the note and had it, at the same time. Moreover, it claimed that it had included a copy of the note in the file, which it did — the only problem being that the note (a) was not properly endorsed, and (b) was payable not to Bank of New York but to someone else, a company called Novastar.

Now, months after its first pass at foreclosure was dismissed, the bank has refiled the case — and what do you know, it suddenly found the note. And this time, somehow, the note has the proper stamps.

“There’s a stamp that did not appear on the note that was originally filed,” Kowalski tells the judge. (This business about the stamps is hilarious. “You can get them very cheap online,” says Chip Parker, an attorney who defends homeowners in Jacksonville.)

The bank’s new set of papers also traces ownership of the loan from the original lender, Novastar, to JP Morgan and then to Bank of New York.

The bank, in other words, is trying to push through a completely new set of documents in its attempts to foreclose on Kowalski’s clients.

There’s only one problem: The dates of the transfers are completely fucked.

According to the documents, JP Morgan transferred the mortgage to Bank of New York on December 9th, 2008. But according to the same documents, JP Morgan didn’t even receive the mortgage from Novastar until February 2nd, 2009 — two months after it had supposedly passed the note along to Bank of New York.

Such rank incompetence at doctoring legal paperwork is typical of foreclosure actions, where the fraud is laid out in ink in ways that make it impossible for anyone but an overburdened, half-asleep judge to miss.

“That’s my point about all of this,”

Kowalski tells me later.

“If you’re going to lie to me, at least lie well.”

The dates aren’t the only thing screwy about the new documents submitted by Bank of New York.

Having failed in its earlier attempt to claim that it actually had the mortgage note, the bank now tries an all-of-the-above tactic.

“Plaintiff owns and holds the note,” it claims, “or is a person entitled to enforce the note.”

Soud sighs. For Kessler, the plaintiff’s lawyer, to come before him with such sloppy documents and make this preposterous argument — that his client either is or is not the note-holder — well, that puts His Honor in a tough spot.

The entire concept is a legal absurdity, and he can’t sign off on it.

With an expression of something very like regret, the judge tells Kessler,

“I’m going to have to go ahead and accept [Kowalski’s] argument.”

Now, one might think that after a bank makes multiple attempts to push phony documents through a courtroom, a judge might be pissed off enough to simply rule against that plaintiff for good.

As I witness in court all morning, the defense never gets more than one chance to screw up. But the banks get to keep filing their foreclosures over and over again, no matter how atrocious and deceitful their paperwork is.

Thus, when Soud tells Kessler that he’s dismissing the case, he hastens to add:

“Of course, I’m not going to dismiss with prejudice.” With an emphasis on the words “of course.”

Instead, Soud gives Kessler 25 days to come up with better paperwork.

Kowalski fully expects the bank to come back with new documents telling a whole new story of the note’s ownership.

“What they’re going to do, I would predict, is produce a note and say Bank of New York is not the original note-holder, but merely the servicer,” he says.

This is the dirty secret of the rocket docket

The whole system is set up to enable lenders to commit fraud over and over again, until they figure out a way to reduce the stink enough so some judge like Soud can sign off on the scam.

“If the court finds for the defendant, the plaintiffs just refile,” says Parker, the local attorney.

“The only way for the caseload to get reduced is to give it to the plaintiff. The entire process is designed with that result in mind.”

Now all of this — the obviously cooked-up documents, the magically appearing stamp and the rest of it — may just seem like nothing more than sloppy paperwork. After all, what does it matter if the bank has lost a few forms or mixed up the dates?

The homeowners still owe what they owe, and the deadbeats have no right to keep living in a house they haven’t paid for.

But what’s going on at the Jacksonville rocket docket, and in foreclosure courts all across the country, has nothing to do with sloppiness.

All this phony paperwork was actually an essential part of the mortgage bubble, an integral element of what has enabled the nation’s biggest lenders to pass off all that subprime lead as AAA gold.

In the old days, when you took out a mortgage, it was probably through a local bank or a credit union, and whoever gave you your loan held on to it for life.

If you lost your job or got too sick to work and suddenly had trouble making your payments, you could call a human being and work things out.

It was in the banker’s interest, as well as yours, to make a modified payment schedule.

From his point of view, it was better that you pay something than nothing at all.

But that all changed about a decade ago, thanks to the invention of new financial instruments that magically turned all these mortgages into high-grade investments.

Now when you took out a mortgage, your original lender — which might well have been a big mortgage mill like Countrywide or New Century — immediately sold off your loan to big banks like Deutsche and Goldman and JP Morgan.

The banks then dumped hundreds or thousands of home loans at a time into tax-exempt real estate trusts, where the loans were diced up into securities, examined and graded by the ratings agencies, and sold off to big pension funds and other institutional suckers.

Even at this stage of the game, the banks generally knew that the loans they were buying and reselling to investors were shady.

A company called Clayton Holdings, which analyzed nearly 1 million loans being prepared for sale in 2006 and 2007 by 23 banks, found that nearly half of the mortgages failed to meet the underwriting standards being promised to investors.

Citi­group, for instance, had 29 percent of its loans come up short, but it still sold a third of those mortgages to investors.

Goldman Sachs had 19 percent of its mortgages flunk the test, yet it knowingly hawked 34 percent of the risky deals to investors.

D. Keith Johnson, the head of Clayton Holdings, was so alarmed by the findings that he went to officials at three of the main ratings agencies — Moody’s, Standard and Poor’s, and Fitch’s — and tried to get them to properly evaluate the loans.

“Wouldn’t this information be great for you to have as you assign risk levels?” he asked them.

(Translation: Don’t you ratings agencies want to know that half these loans are crap before you give them a thumbs-up?)

But all three agencies rejected his advice, fearing they would lose business if they adopted tougher standards. In the end, the agencies gave large chunks of these mortgage-backed securities AAA ratings — which means “credit risk almost zero.”

Since these mortgage-backed securities paid much higher returns than other AAA investments like treasury notes or corporate bonds, the banks had no trouble attracting investors, foreign and domestic, from pension funds to insurance companies to trade unions.

The demand was so great, in fact, that they often sold mortgages they didn’t even have yet, prompting big warehouse lenders like Countrywide and New Century to rush out into the world to find more warm bodies to lend to.

In their extreme haste to get thousands and thousands of mortgages they could resell to the banks, the lenders committed an astonishing variety of fraud,

from falsifying income statements to making grossly inflated appraisals to misrepresenting properties to home buyers.

Most crucially, they gave tons and tons of credit to people who probably didn’t deserve it, and why not?

These fly-by-night mortgage companies weren’t going to hold on to these loans, not even for 10 minutes.

They were issuing this credit specifically to sell the loans off to the big banks right away, in furtherance of the larger scheme to dump fraudulent AAA-rated mortgage-backed securities on investors.

If you had a pulse, they had a house to sell you.

As bad as Countrywide and all those lenders were, the banks that had sent them out to collect these crap loans were a hundred times worse.

To sell the loans, the banks often dumped them into big tax-exempt buckets called REMICs, or Real Estate Mortgage Investment Conduits. Each one of these Enron-ish, offshore-like real estate trusts spelled out exactly what kinds of loans were supposed to be in the pool, when they were to be collected, and how they were to be managed.

In order to both preserve their tax-exempt status and deserve their AAA ratings, each of the loans in the pool had to have certain characteristics. The loans couldn’t already be in default or foreclosure at the time they were sold to investors.

If they were advertised as nice, safe, fixed-rate mortgages, they couldn’t turn out to be high-interest junk loans. And, on the most basic level, the loans had to actually exist.

In other words, if the trust stipulated that all the loans had to be collected by August 2005, the bank couldn’t still be sticking in mortgages months later.

Yet that’s exactly what the banks did. In one case handled by Jacksonville Area Legal Aid, a homeowner refinanced her house in 2005 but almost immediately got into trouble, going into default in December of that year.

Yet somehow, this woman’s loan was placed into a trust called Home Equity Loan Trust Series AE 2005-HE5 in January 2006 — five months after the deadline for that particular trust.

The loan was not only late, it was already in foreclosure — which means that, by definition, whoever the investors were in AE 2005-HE5 were getting shafted.

Why does stuff like this matter?

Because when the banks put these pools together, they were telling their investors that they were putting their money into tidy collections of real, performing home loans.

But frequently, the loans in the trust were complete shit. Or sometimes, the banks didn’t even have all the loans they said they had. But the banks sold the securities based on these pools of mortgages as AAA-rated gold anyway.

In short, all of this was a scam — and that’s why so many of these mortgages lack a true paper trail.

Had these transfers been done legally, the actual mortgage note and detailed information about all of these transactions would have been passed from entity to entity each time the mortgage was sold.

But in actual practice, the banks were often committing securities fraud (because many of the mortgages did not match the information in the prospectuses given to investors) and tax fraud (because the way the mortgages were collected and serviced often violated the strict procedures governing such investments).

Having unloaded this diseased cargo onto their unsuspecting customers, the banks had no incentive to waste money keeping “proper” documentation of all these dubious transactions.

“You’ve already committed fraud once,” says April Charney, an attorney with Jacksonville Area Legal Aid. “What do you have to lose?”

Sitting in the rocket docket, James Kowalski considers himself lucky to have won his first motion of the morning.

To get the usually intractable Judge Soud to forestall a foreclosure is considered a real victory, and I later hear Kowalski getting props and attaboys from other foreclosure lawyers.

In a great deal of these cases, in fact, the homeowners would have a pretty good chance of beating the rap, at least temporarily, if only they had lawyers fighting for them in court.

But most of them don’t.

In fact, more than 90 percent of the cases that go through Florida foreclosure courts are unopposed.

Either homeowners don’t know they can fight their foreclosures, or they simply can’t afford an attorney.

These unopposed cases are the ones the banks know they’ll win — which is why they don’t sweat it if they take the occasional whipping.

That’s why all these colorful descriptions of cases where foreclosure lawyers like Kowalski score in court are really just that — a little color.

The meat of the foreclosure crisis is the unopposed cases; that’s where the banks make their money. They almost always win those cases, no matter what’s in the files.

This becomes evident after Kowalski leaves the room.

“Who’s next?” Judge Soud says. He turns to Mark Kessler, the counsel for the big foreclosure mills. “Mark, you still got some?”

“I’ve got about three more, Judge,” says Kessler.

Kessler then drops three greenish-brown files in front of Judge Soud, who spends no more than a minute or two glancing through each one.

Then he closes the files and puts an end to the process by putting his official stamp on each foreclosure with an authoritative finality:

Kerchunk!
Kerchunk!
Kerchunk!

Each one of those kerchunks means another family on the street.

There are no faces involved here, just beat-the-clock legal machinery.

Watching Judge Soud plow through each foreclosure reminds me of the scene in Fargo where the villain played by Swedish character actor Peter Stormare pushes his victim’s leg through a wood chipper with that trademark bored look on his face.

Mechanized misery and brainless bureaucracy on the one hand, cash for the banks on the other.

What’s sad is that most Americans who have an opinion about the foreclosure crisis don’t give a shit about all the fraud involved. They don’t care that these mortgages wouldn’t have been available in the first place if the banks hadn’t found a way to sell oregano as weed to pension funds and insurance companies.

They don’t care that the Countrywides’ of the world pushed borrowers who qualified for safer fixed-­income loans into far more dangerous adjustable-rate loans, because their brokers got bigger commissions for doing so.

They don’t care that in the rush to produce loans, people were sold houses that turned out to have flood damage or worse, and they certainly don’t care that people were sold houses with inflated appraisals, which left them almost immediately underwater once housing prices started falling.

The way the banks tell it, it doesn’t matter if they defrauded homeowners and investors and taxpayers alike to get these loans.

All that matters is that a bunch of deadbeats aren’t paying their fucking bills.

“If you didn’t pay your mortgage, you shouldn’t be in your house — period,” is how Walter Todd, portfolio manager at Greenwood Capital Associates, puts it.

“People are getting upset about something that’s just procedural.”

Jamie Dimon, the CEO of JP Morgan, is even more succinct in dismissing the struggling homeowners that he and the other megabanks scammed before tossing out into the street.

“We’re not evicting people who deserve to stay in their house,” Dimon says.

There are two things wrong with this argument. (Well, more than two, actually, but let’s just stick to the two big ones.)

The first reason is: It simply isn’t true.

Many people who are being foreclosed on have actually paid their bills and followed all the instructions laid down by their banks. In some cases, a homeowner contacts the bank to say that he’s having trouble paying his bill, and the bank offers him loan modification. But the bank tells him that in order to qualify for modification, he must first be delinquent on his mortgage.

“They actually tell people to stop paying their bills for three months,” says Parker.

The authorization gets recorded in what’s known as the bank’s “contact data­base,” which records every phone call or other communication with a home­owner. But no mention of it is entered into the bank’s “number history,” which records only the payment record.

When the number history notes that the home­owner has missed three payments in a row, it has no way of knowing that the homeowner was given permission to stop making payments. “One computer generates a default letter,” says Kowalski. “Another computer contacts the credit bureaus.”

At no time is there a human being looking at the entire picture.

Which means that homeowners can be foreclosed on for all sorts of faulty reasons: misplaced checks, address errors, you name it. This inability of one limb of the foreclosure beast to know what the other limb is doing is responsible for many of the horrific stories befalling homeowners across the country.

Patti Parker, a local attorney in Jacksonville, tells of a woman whose home was seized by Deutsche Bank two days before Christmas. Months later, Deutsche came back and admitted that they had made a mistake: They had repossessed the wrong property.

In another case that made headlines in Orlando, an agent for JP Morgan mistakenly broke into a woman’s house that wasn’t even in foreclosure and tried to change the locks.

Terrified, the woman locked herself in her bathroom and called 911. But in a profound expression of the state’s reflexive willingness to side with the bad guys, the police made no arrest in the case. Breaking and entering is not a crime, apparently, when it’s authorized by a bank.

The second reason the whole they still owe the fucking money thing is bogus has to do with the changed incentives in the mortgage game.

In many cases, banks like JP Morgan are merely the servicers of all these home loans, charged with collecting your money every month and paying every penny of it into the trust, which is the real owner of your mortgage.

If you pay less than the whole amount, JP Morgan is now obligated to pay the trust the remainder out of its own pocket. When you fall behind, your bank falls behind, too. The only way it gets off the hook is if the house is foreclosed on and sold.

That’s what this foreclosure crisis is all about: fleeing the scene of the crime.

Add into the equation the fact that some of these big banks were simultaneously betting big money against these mortgages — Goldman Sachs being the prime example — and you can see that there were heavy incentives across the board to push anyone in trouble over the cliff.

Things used to be different.

Asked what percentage of struggling homeowners she used to be able to save from foreclosure in the days before securitization,

Charney is quick to answer.

“Most of them,” she says. “I seldom came across a mortgage I couldn’t work out.”

In Judge Soud’s court, I come across a shining example of this mindless rush to foreclosure when I meet Natasha Leonard, a single mother who bought a house in 2004 for $97,500.

Right after closing on the home, Leonard lost her job. But when she tried to get a modification on the loan, the bank’s offer was not helpful.

“They wanted me to pay $1,000,” she says. Which wasn’t exactly the kind of modification she was hoping for, given that her original monthly payment was $840.

“You’re paying $840, you ask for a break, and they ask you to pay $1,000?” I ask.

“Right,” she says.

Leonard now has a job and could make some kind of reduced payment. But instead of offering loan modification, the bank’s lawyers are in their fourth year of doggedly beating her brains out over minor technicalities in the foreclosure process.

That’s fine by the lawyers, who are collecting big fees.

And there appears to be no human being at the bank who’s involved enough to issue a sane decision to end the costly battle.

“If there was a real client on the other side, maybe they could work something out,” says Charney, who is representing Leonard.

In this lunatic bureaucratic jungle of securitized home loans issued by trans­national behemoths, the borrower-lender relationship can only go one of two ways: full payment, or total war.

The extreme randomness of the system is exemplified by the last case I see in the rocket docket.

While most foreclosures are unopposed, with homeowners not even bothering to show up in court to defend themselves, a few pro se defendants — people representing themselves — occasionally trickle in.

At one point during Judge Soud’s proceeding, a tallish blond woman named Shawnetta Cooper walks in with a confused look on her face.

A recent divorcee delinquent in her payments, she has come to court today fully expecting to be foreclosed on by Wells Fargo. She sits down and takes a quick look around at the lawyers who are here to kick her out of her home.

“The land has been in my family for four generations,” she tells me later. “I don’t want to be the one to lose it.”

Judge Soud pipes up and inquires if there’s a plaintiff lawyer present; someone has to lop off this woman’s head so the court can move on to the next case.

But then something unexpected happens: It turns out that Kessler is supposed to be foreclosing on her today, but he doesn’t have her folder.

The plaintiff, technically, has forgotten to show up to court.

Just minutes before, I had watched what happens when defendants don’t show up in court: kerchunk! The judge more or less automatically rules for the plaintiffs when the homeowner is a no-show.

But when the plaintiff doesn’t show, the judge is suddenly all mercy and forgiveness. Soud simply continues Cooper’s case, telling Kessler to get his shit together and come back for another whack at her in a few weeks.

Having done this, he dismisses everyone.

Stunned, Cooper wanders out of the courtroom looking like a person who has stepped up to the gallows expecting to be hanged, but has instead been handed a fruit basket and a new set of golf clubs.

I follow her out of the court, hoping to ask her about her case. But the sight of a journalist getting up to talk to a defendant in his kangaroo court clearly puts a charge into His Honor, and he immediately calls Cooper back into the conference room.

Then, to the amazement of everyone present, he issues the following speech:

“This young man,” he says, pointing at me, “is a reporter for Rolling Stone. It is your privilege to talk to him if you want.” He pauses. “It is also your privilege to not talk to him if you want.”

I stare at the judge, open-mouthed. Here’s a woman who still has to come back to this guy’s court to find out if she can keep her home, and the judge’s admonition suggests that she may run the risk of pissing him off if she talks to a reporter.

Worse, about an hour later, April Charney, the lawyer who accompanied me to court, receives an e-mail from the judge actually threatening her with contempt for bringing a stranger to his court.

Noting that “we ask that anyone other than a lawyer remain in the lobby,” Judge Soud admonishes Charney that “your unprofessional conduct and apparent authorization that the reporter could pursue a property owner immediately out of Chambers into the hallway for an interview, may very well be sited [sic] for possible contempt in the future.”

Let’s leave aside for a moment that Charney never said a word to me about speaking to Cooper.

And let’s overlook entirely the fact that the judge can’t spell the word cited.

The key here isn’t this individual judge — it’s the notion that these hearings are not and should not be entirely public. Quite clearly, foreclosure is meant to be neither seen nor heard.

After Soud’s outburst, Cooper quietly leaves the court.

Once out of sight of the judge, she shows me her file. It’s not hard to find the fraud in the case.

For starters, the assignment of mortgage is autographed by a notorious robo-signer — John Kennerty, who gave a deposition this summer admitting that he signed as many as 150 documents a day for Wells Fargo.

In Cooper’s case, the document with Kennerty’s signature on it places the date on which Wells Fargo obtained the mortgage as May 5th, 2010. The trouble is, the bank bought the loan from Wachovia — a bank that went out of business in 2008.

All of which is interesting, because in her file, it states that Wells Fargo sued Cooper for foreclosure on February 22nd, 2010.

In other words, the bank foreclosed on Cooper three months before it obtained her mortgage from a nonexistent company.

There are other types of grift and outright theft in the file.

As is typical in many foreclosure cases, Cooper is being charged by the bank for numerous attempts to serve her with papers.

But a booming industry has grown up around fraudulent process servers; companies will claim they made dozens of attempts to serve homeowners, when in fact they made just one or none at all. Who’s going to check?

The process servers cover up the crime using the same tactic as the lenders, saying they lost the original summons.

From 2000 to 2006, there was a total of 1,031 “affidavits of lost summons” here in Duval County; in the past two years, by contrast, more than 4,000 have been filed.

Cooper’s file contains a total of $371 in fees for process service, including one charge of $55 for an attempt to serve process on an “unknown tenant.”

But Cooper’s house is owner-occupied — she doesn’t even have a tenant, she tells me with a shrug.

If Mark Kessler had had his shit together in court today, Coop­er would not only be out on the street, she’d be paying for that attempt to serve papers to her nonexistent tenant.

Cooper’s case perfectly summarizes what the foreclosure crisis is all about.

Her original loan was made by Wachovia, a bank that blew itself up in 2008 speculating in the mortgage market. It was then transferred to Wells Fargo, a megabank that was handed some $50 billion in public assistance to help it acquire the corpse of Wachovia.

And who else benefited from that $50 billion in bailout money?

Billionaire Warren Buffett and his Berkshire Hathaway fund, which happens to be a major shareholder in Wells Fargo.

It was Buffett’s vice chairman, Charles Munger, who recently told America that it should “thank God” that the government bailed out banks like the one he invests in, while people who have fallen on hard times — that is, homeowners like Shawnetta Cooper — should “suck it in and cope.”

Look: It’s undeniable that many of the people facing foreclosure bear some responsibility for the crisis. Some borrowed beyond their means. Some even borrowed knowing they would never be able to pay off their debt, either hoping to flip their houses right away or taking on mortgages with low initial teaser rates without bothering to think of the future.

The culture of take-for-yourself-now, let-someone-else-pay-later wasn’t completely restricted to Wall Street. It penetrated all the way down to the individual consumer, who in some cases was a knowing accomplice in the bubble mess.

But many of these homeowners are just ordinary Joes who had no idea what they were getting into. Some were pushed into dangerous loans when they qualified for safe ones.

Others were told not to worry about future jumps in interest rates because they could just refinance down the road, or discovered that the value of their homes had been overinflated by brokers looking to pad their commissions.

And that’s not even accounting for the fact that most of this credit wouldn’t have been available in the first place without the Ponzi-like bubble scheme cooked up by Wall Street, about which the average home­owner knew nothing — hell, even the average U.S. senator didn’t know about it.

At worst, these ordinary homeowners were stupid or uninformed — while the banks that lent them the money are guilty of committing a baldfaced crime on a grand scale.

These banks robbed investors and conned homeowners, blew themselves up chasing the fraud, then begged the taxpayers to bail them out.

And bail them out we did:

We ponied up billions to help Wells Fargo buy Wachovia, paid Bank of America to buy Merrill Lynch, and watched as the Fed opened up special facilities to buy up the assets in defective mortgage trusts at inflated prices.

And after all that effort by the state to buy back these phony assets so the thieves could all stay in business and keep their bonuses, what did the banks do?

They put their foot on the foreclosure gas pedal and stepped up the effort to kick people out of their homes as fast as possible, before the world caught on to how these loans were made in the first place.

Why don’t the banks want us to see the paperwork on all these mortgages?

Because the documents represent a death sentence for them.

According to the rules of the mortgage trusts, a lender like Bank of America, which controls all the Countrywide loans, is required by law to buy back from investors every faulty loan the crooks at Countrywide ever issued.

Think about what that would do to Bank of America’s bottom line the next time you wonder why they’re trying so hard to rush these loans into someone else’s hands.

When you meet people who are losing their homes in this foreclosure crisis, they almost all have the same look of deep shame and anguish.

Nowhere else on the planet is it such a crime to be down on your luck, even if you were put there by some of the world’s richest banks, which continue to rake in record profits purely because they got a big fat handout from the government.

That’s why one banker CEO after another keeps going on TV to explain that despite their own deceptive loans and fraudulent paperwork, the real problem is these deadbeat homeowners who won’t pay their fucking bills.

And that’s why most people in this country are so ready to buy that explanation.

Because in America, it’s far more shameful to owe money than it is to steal it.

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Appellate Circuit

Don’t Show Us The Note, Give Us The Note

We hold that MTGLQ as assignee and substituted plaintiff is authorized to receive the original note and mortgage from the court file.

Published

on

MTGLQ Inv’rs, L. P. v. Merrill,

312 So. 3d 986 (Fla. Dist. Ct. App. 2021)

JAN 25, 2021 | REPUBLISHED BY LIT: DEC 3, 2021

Kelsey, J.

The issue before us is whether Appellant MTGLQ Investors can retrieve the original note and mortgage from the court file of a foreclosure action the trial court dismissed without a merits disposition.

MTGLQ was an assignee and substituted plaintiff in that action, and moved for release of the documents, but the trial court denied the motion.

We hold that on the facts presented, MTGLQ can retrieve the original note and mortgage.

I. Foreclosure Proceedings.

Appellee, the Borrower, entered into a $417,000 purchase-money mortgage and note in June 2007, securing his acquisition of a residential condominium in Pensacola. He defaulted on his payments less than two years later, failing to make the April 2009 payment or, as far as our record shows, any other payments in the nearly twelve years since.

The original lender sued for foreclosure in 2009, but dismissed that proceeding without resolution.

JPMorgan Chase Bank filed the present foreclosure action in 2013, alleging a default date of April 1, 2009 and ongoing default thereafter.

The complaint alleged that the Federal National Mortgage Association (FNMA) owned the note, and that JPMorgan as the loan servicer and holder was authorized to bring the foreclosure action.

JPMorgan filed the original note and mortgage in 2013. The original note had an allonge with a blank indorsement.

In 2014, JPMorgan filed a verified motion to substitute FNMA as plaintiff.

This motion asserted that JPMorgan had transferred to FNMA the right to enforce the subject loan, FNMA was the real party in interest, and no party would be prejudiced.

Borrower did not object, and the trial court granted the motion.

In 2016, FNMA assigned to MTGLQ the mortgage and “the certain note(s) described therein.”

FNMA recorded the assignment. FNMA also executed a power of attorney giving MTGLQ “full power and authority” to take any action that FNMA could take with respect to “mortgage loans, deeds of trust, promissory notes and allonges.”

In 2018, MTGLQ moved to substitute itself as plaintiff in the foreclosure action, attaching a copy of the recorded assignment from FNMA.

Again, Borrower did not object to the substitution of plaintiff, and the trial court granted this motion.

The trial court initially scheduled trial for August 13, 2018; then continued it to December 3, 2018.

MTGLQ amended its witness list five days before trial, asserting that the witnesses who would testify had changed (though the testimony would not).

Although Borrower had not deposed the earlier-named witnesses, the trial court dismissed the case with prejudice after the late amendment.

Early in 2019, MTGLQ filed a motion and then an amended motion to retrieve from the court file the original mortgage and the original note with its allonge, citing Florida Rule of Judicial Administration 2.430(h).

This rule provides that courts have ongoing authority “to release exhibits or other parts of court records that are the property of the person or party initially placing the items in the court records.”

MTGLQ argued that it was entitled to the original note and mortgage on two grounds.

The first was its status as substituted plaintiff in the foreclosure action.

The second was the September 8, 2016 assignment from FNMA reciting that it assigned the mortgage to MTGLQ “together with the certain note(s) described therein.”

Borrower argued that no right to enforce the note survived this Court’s dismissal of MTGLQ’s appeal from the trial court’s order dismissing the foreclosure action.

Borrower also argued that MTGLQ could not obtain the note in any event because it was not the original plaintiff and could not establish a chain of ownership.

Borrower argued that a substituted plaintiff does not necessarily own the note or have standing to enforce it.

The trial court held a telephonic hearing, and orally denied MTGLQ’s motion.

No court reporter recorded the hearing.

MTGLQ moved for reconsideration, noting the court’s oral denial.

The parties argued their positions at a second, transcribed hearing.

Borrower’s attorney asserted that he had located a public record in which FNMA rescinded a June 23, 2014 assignment of the mortgage (not the note) to JPMorgan. Borrower did not give MTGLQ prior notice or a copy of this document, and did not enter it into evidence—but he has included it in his appendix here.

Borrower argued that to remove the original note and mortgage from the court file and give MTGLQ physical possession of them would make MTGLQ a holder in possession, thus giving MTGLQ more rights than it had during the foreclosure suit.

Borrower claimed this would prejudice him.

Borrower also argued that it was not necessary to remove the original note and mortgage from the court file, because “someone” who might file another foreclosure action could simply reference the filed documents.

The trial court rendered the unelaborated order on appeal, stating “Plaintiff’s Motion to Return Original Loan Documents is DENIED.”

MTGLQ timely appealed.

1 Whether that dismissal was appropriate is academic.

MTGLQ filed an appeal, but did not pursue it. That does not preclude future foreclosure actions based on other dates of default.

See PNC Bank, N.A. v. Neal, 147 So. 3d 32, 32 (Fla. 1st DCA 2013) (holding that not even a dismissal with prejudice of a foreclosure action precludes a mortgagee “from instituting a new foreclosure action based on a different act or a new date of default not alleged in the dismissed action”);

Bartram v. U.S. Bank Nat’l Ass’n , 211 So. 3d 1009, 1019 (Fla. 2016) (holding a new cause of action arises with each default, starting a new five-year limitations period within which a new foreclosure action may be filed);

see also Nationstar Mortg., LLC v. Brown, 175 So. 3d 833, 834 (Fla. 1st DCA 2015) (“[A] note securing a mortgage creates liability for a total amount of principal and interest, and … the lender’s acceptance of payments in installments does not eliminate the borrower’s ongoing liability for the entire amount of the indebtedness.”) (quoted with approval in Bartram, 211 So. 3d at 1018 ).

II. Legal Analysis.
A. Jurisdiction and Standard of Review.

We have jurisdiction over the order denying MTGLQ’s motion to remove the original note and mortgage from the court file. Fla. R. App. P. 9.130(a)(3)(C)(ii) (recognizing jurisdiction to review non-final orders determining the right to immediate possession of property). The issues raised are questions of law, for which our review is de novo. See Wells Fargo Bank, N.A. v. Ousley , 212 So. 3d 1056, 1057 (Fla. 1st DCA 2016).

B. Rights of a Substituted Plaintiff.

On appeal, MTGLQ continues to argue it has the right to obtain the original documents, either as substituted plaintiff or as assignee of the note and mortgage. MTGLQ argues it need not prove previous physical possession of the documents.

Borrower acknowledges that the court can release the original documents to a substituted plaintiff that is a holder in possession, or a nonholder in possession that has the rights of a holder.

Borrower argues that MTGLQ is neither of those, and that MTGLQ’s status as substituted plaintiff is insufficient to authorize it to obtain the original documents from the court file.

Borrower further argues that giving MTGLQ the documents will prejudice him. We reject both arguments.

2 We reject Borrower’s three additional arguments, as explained before the conclusion of this opinion.

The core issue on appeal is whether an assignee that becomes a substituted plaintiff in a foreclosure action can retrieve an original note and mortgage from the court file after the court dismisses the case without entering a merits judgment.

Courts have general authority to “release exhibits or other parts of court records that are the property of the person or party initially placing the items in the court records.” Fla. R. Jud. Admin. 2.430(h).

We conclude that MTGLQ is entitled to receive the original loan documents from the court file for several reasons.

(1) Negotiability.

Significantly, notes are different from most documents in court files, because notes are negotiable instruments.

See § 673.2011, Fla. Stat. (defining negotiation of instruments).

Notes do not belong to the court, nor do they belong to the borrower.

See U.S. Bank Nat’l Ass’n v. Rodriguez , 256 So. 3d 882, 884–85 (Fla. 4th DCA 2018) (recognizing that original notes remain negotiable instruments after entering court file).

In Rodriguez , parties to a foreclosure action entered an agreed order to keep the note in the court file after a non-merits dismissal against the original foreclosure plaintiff. 256 So. 3d at 882.

Several years later, a substituted plaintiff sought to remove the loan documents.

The Fourth District held that because no judgment had cancelled the note or taken it out of the stream of commerce,

“it should be returned … if judgment is not entered in a foreclosure case, as it does not belong to the court and it remains negotiable and valuable to its holder.” 256 So. 3d at 884.

Here, Borrower’s argument against giving MTGLQ the documents would defeat the note’s negotiability, since there is no other party to the foreclosure action that could remove them for further negotiation.

Other courts also have held that foreclosure plaintiffs are entitled to remove original loan documents from the court file even without proving entitlement to foreclose.

See, e.g., Santiago v. U.S. Bank Nat’l Ass’n as Tr. for Banc of Am. Funding Corp. , 257 So. 3d 1145, 1147–48 (Fla. 5th DCA 2018) (“Whether a party is entitled to foreclose the note and mortgage is not relevant to its right to have the note released from the court records.”);

Kajaine Estates, LLC, v. U.S. Bank Nat’l Ass’n , 198 So. 3d 1010, 1011 (Fla. 5th DCA 2016) (requiring trial court to release original note to plaintiff that had failed to prove predecessor’s standing, and finding that proof of standing is “not relevant” to releasing the note).

The note is property, a valuable negotiable instrument, and MTGLQ as plaintiff is entitled to remove it from the court file.

(2) Transferability and Assignment.

Beyond the negotiability problem, Borrower’s arguments are contrary to settled principles of transferability and the rights of transferees.

The law allows assignment and transfer of both notes and mortgages. See § 701.01, Fla. Stat. (authorizing subsequent assignees and transferees of mortgages, as well as original mortgagees, to assign and transfer such mortgages, and providing that all such persons, assigns, and subsequent assignees have all lawful rights of the original mortgagee to foreclose and “for the recovery of the money secured thereby”).

MTGLQ filed the assignment and power of attorney documents from FNMA, which on their face gave MTGLQ all of FNMA’s rights in the mortgage and note.

The court properly substituted MTGLQ as plaintiff based on these documents.

See Fla. R. Civ. P. 1.260(c) (“In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.”).

3 See also § 673.1091(3), Fla. Stat. (providing that a negotiable instrument is

“payable to bearer if it is indorsed in blank pursuant to section 673.2051(2)”); § 673.2051(2), Fla. Stat.

(providing that a blank-indorsed instrument “becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed [by an indorsement to an identified person per section 673.2051(1) ]”)

Borrower as the debtor under a promissory note remains obligated to the party entitled to enforce the note. See § 673.4121(1), Fla. Stat. (obligating issuer of a note to pay according to its terms “at the time it first came into possession of a holder”).

On this record, MTGLQ is a “person entitled to enforce” the note under section 673.3011.

This section defines that status as including “[t]he holder of the instrument” and “[a] nonholder in possession of the instrument who has the rights of a holder.” § 673.3011(1), (2), Fla. Stat.

This section also states that a person may be entitled to enforce an instrument without being its owner. § 673.3011, Fla. Stat. Under section 673.2013, MTGLQ is a transferee of the note and mortgage because it received the right to enforce it, which “vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course,” absent fraud or illegality. § 673.2031(2), Fla. Stat.

MTGLQ as transferee would not have to prove previous physical possession of the note to have the rights of a holder. Constructive possession in the form of the authority to exercise control is sufficient.

Deutsche Bank Nat’l Tr. Co. v. Noll , 261 So. 3d 656, 658 (Fla. 2d DCA 2018).

MTGLQ therefore has the rights of a holder, and it is entitled to obtain the loan documents from the court file. See also Kajaine , 198 So. 3d at 1011 (holding court should release note to transferee under valid assignment).

(3) Standing in the shoes of original plaintiff.

In addition, once the court enters an order substituting a new party in the place of the earlier plaintiff, the substituted plaintiff stands in the shoes of the original plaintiff.

See Wilmington Tr. v. Moon , 238 So. 3d 425, 428 (Fla. 5th DCA 2018) (“In the case of a substituted plaintiff, the substituted plaintiff may rely on the standing (if any) of the original plaintiff at the time the case was filed. … Significantly, there is no requirement that a substituted plaintiff must prove its standing at the time of the substitution.”);

see also Wilmington Sav. Fund Soc’y, FSB v. Stevens , 290 So. 3d 115, 118 (Fla. 4th DCA 2020) (noting substituted plaintiff has the right to obtain the original note by moving for its release from the court file);

Spicer v. Ocwen Loan Servicing, LLC , 238 So. 3d 275 (Fla. 4th DCA 2018) (holding substituted plaintiff had constructive possession of the original note because it was in the court file of the case when the new plaintiff came in, and was necessary for proof of standing at trial).

(4) No prejudice.

Borrower nevertheless argues that he will be prejudiced if MTGLQ gets the original note. The Fifth District rejected an argument similar to Borrower’s in PMT NPL Financing 2015-1 v. Centurion Systems, LLC , 257 So. 3d 516 (Fla. 5th DCA 2018).

Recognizing the right of a substituted plaintiff to have physical possession of original loan documents the original plaintiff had filed, the court aptly observed that a substituted plaintiff inevitably must have physical possession to authenticate the loan documents and enter them into evidence at trial. See id. at 518–19.

Otherwise, the substituted plaintiff could never meet its obligation to prove standing at enforcement. At a minimum, and in addition to the reasoning already discussed, MTGLQ as substituted plaintiff has the right to possess the note to prove standing if it goes to trial.

It receives no greater right upon removing the loan documents from the court file.

It can then elect to foreclose again, or to transfer the negotiable instrument to another entity that may foreclose.

In either case, Borrower retains his defenses and procedural rights.

In sum, a substituted plaintiff becomes a holder entitled to receive payments under the note and entitled to pursue remedies for nonpayment, including foreclosure.

A substituted plaintiff is not required to prove that it previously had physical possession of the original note, in order to have holder status.

Thus, MTGLQ’s receipt of the original documents will not add to its rights or prejudice Borrower.

If MTGLQ or any other party files a new foreclosure action, or if more than one entity attempts to foreclose on the same note, Borrower’s defenses remain intact.

C. Rejecting Borrower’s Other Arguments.
(1) The Purported Rescission.

Borrower argues FNMA’s transfer to MTGLQ was ineffective because FNMA purportedly rescinded assignment of the mortgage to JPMorgan, making it impossible for JPMorgan to have assigned the mortgage back to FNMA before FNMA assigned both note and mortgage to MTGLQ.

We reject this argument because Borrower failed to prove it.

This case had been set for trial twice, but Borrower raised this argument only orally and for the first time at the reconsideration hearing.

He did not give MTGLQ advance notice, and he did not authenticate the document or enter it into evidence. This was improper.

A court cannot rely on unsworn argument of counsel and an unauthenticated document to determine the substantive rights of an opposing party—neither is competent evidence.

See, e.g. , Shaffer v. Deutsche Bank Nat’l Tr. , 235 So. 3d 943, 946 (Fla. 2d DCA 2017) (Villanti, C.J., concurring specially) (collecting cases holding that documents not authenticated or entered into evidence are “not properly before the court and cannot constitute evidence” as to a legal issue before the court);

Chase Home Loans LLC v. Sosa , 104 So. 3d 1240, 1241 (Fla. 3d DCA 2012) (“[U]nsworn representations of counsel about factual matters do not have any evidentiary weight in the absence of a stipulation.”).

(2) Lack of a Transcript.

We also reject Borrower’s argument that we must affirm without addressing the merits because MTGLQ did not get a transcript of the initial telephone hearing.

Borrower misplaces his reliance on Applegate v. Barnett Bank of Tallahassee, Inc. , 377 So. 2d 1150, 1152 (Fla. 1979).

Applegate holds that lack of a transcript can prevent meaningful appellate review. It does not mean that absence of a transcript is always fatal to an appeal.

Instead, the issue is whether the appeal turns on dispositive questions of fact that were, or could have been, established only in the proceedings not transcribed.

That is not the case here, where Borrower does not assert that any dispositive question of fact was resolved at the initial, untranscribed telephonic hearing. To the contrary, Borrower’s counsel stated at the transcribed hearing on MTGLQ’s motion for reconsideration that “there is not anything that’s been presented new from the prior hearing.”

While that comment referenced legal arguments, Borrower also did not identify then, and has not identified here, any relevant and dispositive evidence or question of fact presented solely at the earlier untranscribed hearing.

The absence of that transcript is irrelevant.

(3) Procedural Objections to Reconsideration.

We likewise reject Borrower’s argument that we must affirm because MTGLQ’s motion for reconsideration was untimely or improper.

Borrower did not raise these arguments below, and the trial court did not address them.

Without deciding that Borrower’s arguments would have had any merit, we find that his participation in the hearing without objection constituted a waiver.

See Correa v. U.S. Bank N.A ., 118 So. 3d 952, 954 (Fla. 2d DCA 2013) (finding waiver of procedural objections where party proceeds at hearing without objection).

4 Putting aside the fact that the rescinded assignment did not include the note, we also question the logic of thisargument.

FNMA owned the note, and JPMorgan sued as servicer for FNMA.

FNMA retained the right to assign the note, and assigned it to MTGLQ.

The mortgage follows the note.

See, e.g., Houk v. PennyMac Corp ., 210 So. 3d 726, 732 (Fla. 2d DCA 2017) (“The mortgage follows the assignment of the promissory note, but an assignment of the mortgage without an assignment of the debt creates no right in the assignee.” (quoting Tilus v. AS Michai LLC , 161 So. 3d 1284, 1286 (Fla. 4th DCA 2015) )).

Borrower did not object to substituting MTGLQ as plaintiff.

III. Conclusion.

We hold that MTGLQ as assignee and substituted plaintiff is authorized to receive the original note and mortgage from the court file. We therefore reverse the order on appeal, and remand with instructions that the clerk of the lower tribunal securely transmit those original documents to counsel of record for MTGLQ.

REVERSED and REMANDED with instructions.

Osterhaus and Nordby, JJ., concur.

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Rachel Nordby was appointed to the First District Court of Appeal on October 16, 2019 by Governor Ron DeSantis; she took office on October 23, 2019.

Before her appointment to the bench, Judge Nordby was a partner in the Tallahassee office of Shutts & Bowen LLP and served as Vice-Chair of the firm’s Appellate Practice Group. Before joining Shutts & Bowen, Judge Nordby served as the Senior Deputy Solicitor General for Florida Attorney General Pam Bondi. In this role, she represented the State, its agencies, and public officials in cases involving constitutional challenges and issues of statewide impact.

Before joining the Office of the Attorney General, Judge Nordby clerked for Judge Bradford L. Thomas on Florida’s First District Court of Appeal. Judge Nordby is a 2008 graduate of the Florida State University College of Law, where she served as Editor-in-Chief of The Florida State University Law Review and interned in the chambers of Florida Supreme Court Justice Harry Lee Anstead. She earned her undergraduate degree in Classical Studies, summa cum laude, from the University of Florida.

Degrees:

  • Juris Doctor, magna cum laude, Florida State University College of Law, 2008
  • Bachelor of Arts (Classical Studies), summa cum laude, University of Florida, 2003

Legal Offices & Positions:

  • Judge, First District Court of Appeal, October 2019 to present
  • Partner & Vice-Chair of Appellate Practice Group, Shutts & Bowen, September 2018–October 2019
  • Florida Department of Legal Affairs, Office of the Solicitor General
  • Senior Deputy Solicitor General, December 2017–September 2018
  • Deputy Solicitor General, March 2012–December 2017
  • Law Clerk, Judge Bradford Thomas, First District Court of Appeal, May 2008–October 2009

Honors & Awards

  • Recognized by Florida Super Lawyers in its Appellate category (2019)
  • Recognized by Florida Trend in Florida 500 (2019), an annual publication highlighting Florida’s 500 most influential business leaders
  • Recognized by Florida Trend in its Legal Elite Government and Non-Profit Attorneys category (2016, 2017 & 2018)
      Florida State University College of Law:
  • Order of the Coif (class rank: 3 out of 314)
  • Florida State University Law Review
    • Editor-In-Chief, Vol. 35
    • Notes & Comments Editor, Vol. 34
    • Citation of Honor (2008)
    • Best Overall Student Article (2008)
    • Meritorious Service Award (2007)
  • Journal of Land Use and Environmental Law
    • Outstanding Subciter (2007, 2008)
  • Florida Supreme Court Internship Program for Distinguished Florida Law Students
  • Book Awards:
    • (1) Florida, the Constitution & the Supreme Court
    • (2) Topics in Appellate Practice
    • (3) Legal Writing & Research II
    • (4) Worker’s Compensation
    • (5) Professional Responsibility
    • (6) Natural Resources Law
    • (7) Law & the Arts
  • Dean’s List (every semester)
  • Distinguished Pro Bono Service Award
  • Phi Delta Phi (Legal Honor Society)
      University of Florida:
  • Phi Beta Kappa
  • College of Liberal Arts & Sciences Hall of Fame
  • Dean’s List
  • Eta Sigma Phi (Classics Honor Society)
  • Florida Bright Futures Scholarship
  • Golden Key Honor Society
  • Anderson Scholar
  • Maria Marees Leadership Award
  • Nutter Scholar

Judicial & Bar Activities:

  • The Florida Bar, Member No. 56606
    • Appellate Court Rules Committee, 2016 to present
      • Parliamentarian 2018 to present
    • Second Judicial Circuit Grievance Committee A, 2018–2019
    • Continuing Legal Education Committee, 2013–2016
    • Appellate Practice Section
    • Government Lawyers Section
  • Judicial Management Council, Direct Appointment by Chief Justice Canady, March 2019–present
  • First District Appellate Inn of Court, 2013–present
    • Executive Committee, 2017–present
    • Treasurer, 2019–2020
    • Chair, Mentorship Committee, 2017–2019
  • William H. Stafford Inn of Court, 2019–present
  • Federalist Society for Law and Public Policy Studies, 2005 to present
  • Tallahassee Lawyers Chapter Steering Committee, 2012 to present
    • Vice President, FSU Student Chapter, 2006–2007
  • Tallahassee Women Lawyers (Chapter of Florida Association of Women Lawyers), 2013 to present
    •   Director, 2014 Judicial Reception
    •   Secretary, 2015–2016
    •   President-Elect, 2016–2017
    •   President, 2017–2018
    •   Immediate Past-President, 2018–2019
  • Statewide Nominating Commission for Judges of Compensation Claims, Direct Gubernatorial Appointee, March 2010–October 2019

Presentations:

  • Panelist, Reflections from Year One on the Bench, Jacksonville Women Lawyers Association, Lunchtime CLE Webinar, July 2020
  • Panelist, Judicial Perspective: Remote Oral Arguments, Appellate Practice Section, Lunchtime CLE Webinar, June 2020
  • Presenter, 2019 Appellate Practice Section Monthly Webinar CLE Series,
    Recurring Issues in Constitutional Litigation, April 2019
  • Panelist, 2018 Annual Education Program of Florida Conference of District Court of Appeal Judges, Emerging Trends in the Practice of Law, September 2018
  • Panelist, Practicing Before the Florida Supreme Court, Panel on Oral Argument, June 2018
  • Panelist, Institute for Justice’s Center for Judicial Engagement, Practitioner Perspectives on the Judicial Duty, February 2018
  • Panelist, First District Appellate Inn of Court, Florida’s Office of the Solicitor General: 20 Years, January 2018
  • Moderator Introduction, The Federalist Society, 2017 Annual Florida Chapters Conference, Combatting Federal Overreach, February 2017
  • Panelist, Appellate Practice Section Monthly Telephonic CLE, Reply Briefs, March 2016
  • Panelist, Appellate Practice Section Tallahassee Outreach CLE, Reply Briefs, March 2016
  • Guest Lecturer on Florida Supreme Court Review of Citizens Initiative Petitions, FSU Law School Course on Appellate Practice: The Florida Solicitor General’s Perspective, February 2016
  • Moderator, Practicing Before the Florida Supreme Court, Panel on Discretionary Review, June 2014
  • Panelist, Practicing Before the Florida Supreme Court, Panel Discussion on Briefs in Support and in Opposition to Requests for Discretionary Review; Ethics, June 2013
  • Panelist, Practicing With Professionalism, Young Lawyer Professionalism Panel, Fall 2014 & Fall 2013

Articles & Publications:

  • Florida’s Office of the Solicitor General: The First Ten Years, 37 Fla. St. U. L. Rev. 219 (2009)
  • Off of the Pedestal and Into the Fire: How Phillips Chips Away at the Rights of Site-Specific Artists, 35 Fla. St. U. L. Rev. 167 (2007) (awarded best overall student article by Florida State University Law Review)

Judge Timothy Osterhaus was appointed to the First District Court of Appeal by Governor Rick Scott on May 20, 2013.

Before his appointment Judge Osterhaus served as the Solicitor General of Florida. As Florida’s SG, and as Deputy SG before that, he handled appeals on behalf of the State and its agencies in Florida’s district courts of appeal and in the Florida Supreme Court, as well in the federal courts, including in the United States Supreme Court. He also worked as counsel at the Florida Department of Education; worked in private practice in Washington, D.C.; and served as a law clerk to U.S. District Court Judge Kenneth Ryskamp in West Palm Beach (with a co-clerk who later became his wife).

Judge Osterhaus spent his childhood in South Florida, where he attended Westminster Christian School. After moving away from Florida with his family, he attended high school at Charlotte Christian School in North Carolina, before moving again and graduating from Bristol Tennessee High School in 1989.

Judge Osterhaus received his bachelor’s degree with highest honors from King College (Bristol, Tenn.) in 1993, and his law degree from the University of Virginia in 1997.

Degrees:

J.D. 1988, University of Florida College of Law, Law Review Editor-in-Chief; B.A. Communications 1980, Freed-Hardeman University, Henderson, TN, magna cum laude.

Legal Offices & Positions:

Judge, First District Court of Appeal, April 2015 – present; Kelsey Appellate Law Firm, P.A., 2007 – 2015 (solo appellate practice); Anchors Smith Grimsley, P.L. Litigation Group, 2005 – 2007; Holland & Knight LLP, 1988 – 2005.

Honors & Awards:

Best Lawyers In America, 2013-14; Florida Super Lawyers, 2006-15; Florida Legal Elite, 2004-11, 2015; Bar Register of Preeminent Women Lawyers, 2013; Martindale-Hubbell AV rating, 2000-present; Pro Bono Award co-recipient, The Florida Bar Appellate Practice Section, 2004; Award for Outstanding Contribution by an Attorney to the Guardian Ad Litem program, Second Judicial Circuit, Leon County, Florida, 1990; Leadership Tallahassee Class 8 graduate, 1991.

Judicial & Bar Activities:

First District Appellate American Inn of Court: President and Master, 2009-10, and Executive Committee Officer and Master member, 2008-16; Member, The Florida Bar Appellate Practice Section and past member, The Florida Bar General Practice, Small Firm and Solo Practice Section; Vice Chair, The Florida Bar Appellate Rules Committee, 1999-2004, Subcommittees: Administrative Practice, Transition/Term Limits (chair); University of Florida Law Review Editor in Chief, summer & fall 1987; Title Standards Editor, spring 1987; Assistant Research Editor, 1986-87; UF College of Law Legal Research & Writing Instructor, 1987-88; Florida Blue Key 1987-88.

Articles & Publications:

Improving Appellate Oral Arguments Through Tentative Opinions and Focus Orders, The Florida Bar Journal (December 2014); Florida Appellate Practice, Jurisdiction and Review (The Florida Bar, 6thed. 2006); Florida Appellate Practice Guide, Jurisdiction (The Florida Bar, 2002/03 ed.) (rewritten); The New & Improved APA: Another Question Answered, The Florida Bar Admin. L. S. Newsletter (Dec. 2001); The New And Improved APA: Three Questions, Three Answers, The Florida Bar Admin. L. S. Newsletter (Mar. 2001); The Hidden Diversity, Florida Association of Women Lawyers’ Journal (Spring 2001); The Record on Appeal: The Foundation for Appellate Review, Florida Association of Women Lawyers’  Journal (Winter 2000); Revising the Role of the Florida Supreme Court in Constitutional Initiatives, The Florida Bar J. (April 1997).

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