September Term 2009 1:06-cv-00483 1:07-cv-00050-RMU 1:07-cv-00051 1:07-mc-00014-RMU… v. United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 08-5088 September Term 2009
1:06-cv-00483
1:07-cv-00050-RMU
1:07-cv-00051
1:07-mc-00014-RMU
Filed On: March 11, 2010
Neiland Cohen,
Appellant
v.
United States of America,
Appellee
------------------------------
Consolidated with 08-5093, 08-5174
BEFORE: Sentelle, Chief Judge, and Ginsburg, Henderson, Rogers, Tatel,
Garland, Brown, Griffith, and Kavanaugh, Circuit Judges
O R D E R
Upon consideration of appellee’s petition for rehearing en banc, the response
thereto, and the vote in favor of the petition by a majority of the judges eligible to
participate, it is
ORDERED that the petition be granted. The case will be reheard by the court
sitting en banc. It is
FURTHER ORDERED that the portion of the court’s August 7, 2009 judgment
reversing in part and remanding the cases for further proceedings be vacated. It is
FURTHER ORDERED that oral argument before the en banc court be heard at
9:30 a.m. on Wednesday, September 29, 2010. It is
FURTHER ORDERED that, in addition to filing briefs electronically, the parties
file 20 paper copies each of the briefs and the appendix, in accordance with the
following schedule:

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 08-5088 September Term 2009
Page 2
Brief for Appellants June 25, 2010
Appendix June 25, 2010
Brief for Appellee July 26, 2010
Reply Brief for Appellants August 9, 2010
The briefs are to be limited to the following issues:
(1) Whether the Administrative Procedure Act claims of the plaintiffs are barred at
this time under 28 U.S.C. § 2201(a) or 26 U.S.C. § 7421(a);
(2) Should D.C. Circuit precedent interpreting the Anti-Injunction Act and the
Declaratory Judgment Act as “coterminous” be overruled?
(3) If the Anti-Injunction Act or the Declaratory Judgment Act bars the court from
hearing plaintiffs’ APA claims, may plaintiffs still challenge IRS Notice 2006-50 in
a refund suit under 26 U.S.C. § 7422?
(4) Does APA section 702 waive sovereign immunity for plaintiffs’ APA claims?
Because the briefing schedule is keyed to the date of argument, the court will
grant requests for extension of time limits only for extraordinarily compelling reasons.
The briefs and appendix must contain the date that the case is scheduled for oral
argument at the top of the cover. See D.C. Cir. Rule 28(a)(8).
A separate order will issue regarding allocation of oral argument time.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk

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