[00:00:02] Speaker 03:
Case number 26, 5006, Center for Taxpayer Rights et al. v. Internal Revenue Service et al. Appellants. Mr. Christensen for the appellants. Isn't there any gentleman for the appellants?

[00:00:17] Speaker 01:
Good morning. Thank you. Jacob Christensen for the federal appellants. And I would like to reserve two minutes for rebuttal. May it please the court. This court recently held in Centro that IRS is obligated to disclose taxpayer address information to ICE upon receipt of a valid request.

[00:00:36] Speaker 01:
And this court upheld IRS's policy of sharing address information with ICE, which is reflected in a memorandum of understanding between those agencies, holding that the address sharing policy was unreviewable under the Administrative Procedures Act.

[00:00:53] Speaker 01:
Yet the district court in this case has wrongly enjoined IRS from implementing its address sharing policy based on the court's conclusion that IRS has adopted some other address sharing policy that allegedly exists separate and apart from the memorandum of understanding at issue in Centro.

[00:01:14] Speaker 01:
No such separate policy exists. And the district court lacked authority to enter the preliminary injunction here because plaintiffs lack Article III standing, because they have not challenged final agency action under the APA, and as this court already held in Centro with respect to the memorandum of understanding, and because plaintiffs have not otherwise demonstrated that an injunction is warranted. And if I may.

[00:01:42] Speaker 06:
Can I just? Yeah.

[00:01:47] Speaker 06:
You've said that the other side can address and the court can consider the Romo Declaration as part of this appeal.

[00:01:58] Speaker 06:
Right. If plaintiffs wish to discuss the Romo Declaration and their appellate brief, they are free to do so. I assume that means that we're allowed to read it.

[00:02:04] Speaker 01:
Your Honor, I think the court is allowed to read it. I don't think that it properly figures into this or should figure into the court's decision because it was... Well, that's a different... I just want to understand here.

[00:02:15] Speaker 06:
You said they're free to brief it, which means we're free to read it.

[00:02:19] Speaker 06:
Otherwise, I would expect the government to say otherwise. No argument that we couldn't do that. We could take judicial notice of it because it was filed with us in the Ocentro case. It's filed with the district court in this case.

[00:02:31] Speaker 01:
I agree with that, Your Honor, but it was not part of the record before the district court at the time the injunction was issued. So technically, it's not on the record on review of the preliminary injunction at issue.

[00:02:45] Speaker 06:
So we can supplement the record under FRAP 10.2.

[00:02:51] Speaker 06:
And given that the government has had no objection to its use in this proceeding, its consideration by us, is that, so there is also, as you know, a question about an indicative ruling, whether we have to remand for the district court to make it part of the record, or do we, can we just make it part of the record ourselves under 10E2?

[00:03:08] Speaker 01:
The government wouldn't have an objection to making it part of the record, Your Honor. We don't think that the Romo Declaration changes the outcome in this case, as we've explained in our opposition to the remand and in our briefing.

[00:03:21] Speaker 01:
The Romo declarations reflects an error in the way the IRS's address sharing policy was implemented.

[00:03:29] Speaker 06:
It essentially describes the DHS ICE data exchange program, which is in the record, starts at JA 462.

[00:03:41] Speaker 06:
Written document. It's an exchange process established presumably to implement the MOU.

[00:03:51] Speaker 06:
So this is sort of, we had a facial challenge to the MOU and Ocentro. And now we got, as applied, what is the government doing?

[00:04:01] Speaker 06:
And that's what the data exchange program tells us. And that tells us you are not complying with the law.

[00:04:13] Speaker 06:
You are not complying with requirements of the statute. Romo Declaration says that's right. The government says...

[00:04:21] Speaker 06:
Well, we weren't doing that. But we've got a document here.

[00:04:26] Speaker 07:
Your Honor.

[00:04:26] Speaker 06:
Government explaining, implementing the MOU.

[00:04:30] Speaker 01:
If I may.

[00:04:31] Speaker 06:
I'm just going to finish the setup here. Clearly in violation of the statutory requirements. And happens to be, I think the district court used other words, but exactly what the district court was saying is the problem here. This is the as applied problem. And the problem is in writing and documented.

[00:04:50] Speaker 01:
If I may, Your Honor, that's right. What this was was an error in the implementation of the IRS's address sharing policy. The plaintiffs in this case do not challenge the August 2025 disclosure by IRS. For reasons of their own, they have not challenged the implementation in August 2025. Their argument in this case is that IRS has adopted some address-sharing policy apart from the memorandum of understanding that they argue is unlawful.

[00:05:24] Speaker 01:
That's what this is. Well, what this document is, this data exchange overview reflects how IRS implemented its address-sharing policy. That's what it is.

[00:05:34] Speaker 06:
That's the applied aspect of this, yes.

[00:05:36] Speaker 01:
But that's not what they're challenging. They're not challenging the way... Excuse me. I'm sorry. Pardon me. No, no.

[00:05:44] Speaker 06:
I mean, they'll tell me if this is not, I mean, this is documentation of the very, we call it a policy, a program that should challenge you. This is exhibit A, this is it. Here it is, don't tell us this policy doesn't exist. Here it is.

[00:06:01] Speaker 01:
I would disagree, Your Honor. The policy is reflected in the memorandum of understanding, which this court recognized in- You just said there has to be as applied.

[00:06:12] Speaker 06:
I mean, can we agree that this data exchange program does not comply with 6103?

[00:06:21] Speaker 01:
I would agree that the implementation in August 2025... No, no, no.

[00:06:25] Speaker 06:
That's not the question I asked you.

[00:06:27] Speaker 04:
I'd like to hear the answer. The implementation in August, which is not challenged here, was in violation. The Romo Declaration says there were disclosures made where ICE had not submitted addresses.

[00:06:40] Speaker 01:
Yes, with respect to a small percentage of the individuals whose information was disclosed.

[00:06:46] Speaker 04:
implementation, and your point is, yes, conceitedly unlawful.

[00:06:51] Speaker 01:
Right.

[00:06:52] Speaker 04:
But not just. OK, go ahead.

[00:06:54] Speaker 01:
Right. But again, plaintiffs are challenging that implementation. Do you agree this is unlawful? I agree that the way that it was implemented did not comply with the statute because. OK, let's try this. But the policy, IRS's policy.

[00:07:10] Speaker 06:
Let's try this in smaller steps, OK?

[00:07:15] Speaker 06:
Did this data exchange program that's in the record here, was this in place in August?

[00:07:25] Speaker 06:
Yes, it was. And this is, in fact, there were lots of emails in the record back and forth. This is how we're going to make this disclosure that occurred in August, correct? Yes.

[00:07:35] Speaker 01:
This is a way that they plan to implement the policy reflected in the Memorandum of Understanding.

[00:07:42] Speaker 06:
IRS and DHS and this, and then this is the product of it. And there was lots of discussion about this.

[00:07:49] Speaker 01:
I don't know that there was discussion about this specific overview document in the appendix at page 462.

[00:07:55] Speaker 06:
This is the DHS ICE data exchange overview document.

[00:08:00] Speaker 01:
Yeah, I think this was internally created by IRS to implement its policy that's reflected in the MOU.

[00:08:07] Speaker 06:
No, no, no.

[00:08:10] Speaker 06:
This is the IRS policy that was used in August.

[00:08:16] Speaker 06:
We don't know if it was used otherwise, but it resulted in the turning over of information in August.

[00:08:25] Speaker 01:
It was the way that the policy was implemented. It was the process for implementing the policy.

[00:08:29] Speaker 06:
And on its face, step after step after step does not comply with 6103. So the policy that was adopted to implement the MOU does not, in fact, implement the MOU, unless we got it all wrong in Ocentro on thinking the MOU facially complied with the statute.

[00:08:48] Speaker 01:
You know, the IRS's policy is reflected in the MOU was to require a name and address.

[00:08:54] Speaker 06:
I think that was reflected in that may have been their policy at the time they were arguing that case to us.

[00:09:02] Speaker 06:
But that case was still pending here when the August release occurred. But more importantly, that case was still pending here when this data exchange overview was adopted by IRS.

[00:09:19] Speaker 01:
Again, I agree that in implementing its policy, IRS made a mistake.

[00:09:28] Speaker 06:
But the emails back... You wanted to say there is no policy. I'm looking at this program right here.

[00:09:36] Speaker 01:
Well, if you look at the entire record, you'll see emails back and forth between Treasury and IRS where Treasury officials insisted adamantly that any ICE request must include a name and address.

[00:09:48] Speaker 01:
And that, excuse me, that's consistent with what was in the memorandum of understanding.

[00:09:52] Speaker 06:
And address, what this tells us is address just means fill in the zip code box.

[00:09:59] Speaker 06:
And by the way, it doesn't have to be a real zip code. Just put five numbers in the zip code box. So now this is the rubber meets the road document. This is the implementation. This is the as-applied challenge.

[00:10:13] Speaker 01:
Again, but, Your Honor, they are not challenging the as-applied disclosure in August 2025.

[00:10:19] Speaker 06:
Their argument is that there's— The challenge, I understand it, is how you are implementing the MOU. And that's what the district court was very troubled by, is what you're actually doing in practice. And it's in writing, right?

[00:10:36] Speaker 01:
Well, I would push back on that. IRS's policy has never been to respond to requests that did not include an address.

[00:10:45] Speaker 06:
The intent has always been to require the address. We don't have mind readers as part of this APA challenge here. So what we have is IRS saying in this document, right, We're going to check and make sure. Sorry, did you need to get your? Okay.

[00:11:08] Speaker 06:
Sorry if I've made you drive. No, it's all right. Is that for the address, all we need is something in the zip code box.

[00:11:25] Speaker 06:
And it just has to be five numbers.

[00:11:28] Speaker 01:
So, Your Honor, it's an error.

[00:11:29] Speaker 06:
And presumably you're going to have the, and I forget, are we calling it the EIN or the TIN or whatever we're calling it, but we have, if you have that number, then we'll just go ahead and match it with that.

[00:11:38] Speaker 01:
It's an error in implementation, but in order to challenge this as a policy.

[00:11:42] Speaker 06:
Is it an error or is it the implementation?

[00:11:46] Speaker 01:
it's an error in the way the policy was implemented. In order to challenge a policy, there must be a rule under the APA. And a rule is defined as an agency statement that is designed to implement or interpret or prescribe the policy or the law.

[00:12:05] Speaker 06:
Yes, and that's exactly what this is. Here's how we are going to implement. I mean, this is step by step one. Step one, IRS receives input file from DHS. Step two, pre-processing tasks. Make sure certain things are filled in, one of which doesn't have to be an address as long as there's five numbers. Give me any five random numbers in the zip code box. Step three, find the last known address process. Step four, either SSN lookup or we're doing the SSN here being the TIN or TIN lookup.

[00:12:39] Speaker 06:
You got that and something in the zip code box. We're going to match it. We're going to give it to you. That doesn't comply with 6103. Step three B, if you're only doing on name and address. Three C, I mean, these are the steps, by steps. This is...

[00:12:52] Speaker 06:
This is the implementation. This is how. And if you say this is an error because it's doing it unlawfully, we're agreed. But this is the policy. This is the practice. This is the program for implementing the MOU.

[00:13:09] Speaker 01:
Well, and with respect, Your Honor, if...

[00:13:12] Speaker 01:
Any such policy would be directly contrary to the policy that has been adopted explicitly and signed by the heads of the agencies reflected in the Memorandum of Understanding. So I disagree that there's some policy to... Is this a false document? This is a document that implements the policy imperfectly. I acknowledge that.

[00:13:34] Speaker 06:
Okay, imperfectly as in unlawfully.

[00:13:37] Speaker 01:
With respect to the extent it doesn't require an address, it's an error in implementing the policy. Can I try?

[00:13:48] Speaker 02:
Your position in the Centro case, which was successful, was that the MOU wasn't a policy.

[00:14:00] Speaker 02:
Right. Was not, did you say? Was not a policy. It wasn't final agency action.

[00:14:04] Speaker 01:
It was a policy, unbinding policy statement.

[00:14:10] Speaker 02:
But it was a final agency action. That's how you won, or one of the grounds for how you won.

[00:14:18] Speaker 02:
Now you're saying, in this case, that...

[00:14:26] Speaker 02:
this data exchange at Appendix 462, that that's not final agency action either. Correct. Because it can't override the memorandum of understanding? Is that why it's not final agency action? I just want to make sure I understand your theory why this isn't final agency action.

[00:14:55] Speaker 01:
This document would not be final agency action for the same reason that the memorandum of understanding itself was not final agency action. It's because it's a non-binding policy statement. which has no actual legal effect or legal consequences on anyone. It simply reflects what IRS views, IRS's own views of what the law allows it to do in providing address information to ICE, as this court explained in Centro.

[00:15:28] Speaker 01:
A policy statement that simply reflects the agency's views of what it is allowed to do under the law does not have binding legal effect on anybody. And in this case, that's all the more important because the information that's being shared is address information, which plaintiffs and their members, or the members of the plaintiffs in this case, were already required under federal law to provide to DHS.

[00:15:52] Speaker 02:
So even if this address sharing policy, well, that means that the address sharing policy couldn't have... Where is the... So you're not disputing that an action by an official to disclose addresses is a final agency action, right?

[00:16:14] Speaker 01:
That would be a more difficult question, but plaintiffs have not challenged that. Just answer the question.

[00:16:21] Speaker 01:
We've not raised that argument, but they have also not challenged the actual implementation or the actual disclosure.

[00:16:27] Speaker 02:
I'd like you to answer the question. I don't care whether you've raised the argument.

[00:16:33] Speaker 02:
When an official says, we have a request, give them this information in response to the request.

[00:16:44] Speaker 02:
Is that a final agency action?

[00:16:47] Speaker 01:
In general, I would agree that that would be, Your Honor. In this context, I would disagree. And the reason is there's no binding effect.

[00:16:58] Speaker 01:
There's no legal consequences from that action because the address information is already required under federal law to be provided. Aliens are already required to provide that information to DHS.

[00:17:12] Speaker 04:
So there's really two arguments in the MOU context, where one, it wasn't saying anything different from what the law required.

[00:17:23] Speaker 04:
And I mean, it was, and you say it was only guidance. I mean, it was binding, but it wasn't doing anything new binding.

[00:17:35] Speaker 01:
Well, this court said that it was a non-binding, non-final policy statement as opposed to a binding rule. It was not a binding rule.

[00:17:46] Speaker 04:
So let me get at this a little bit differently. This process, whether it's as... The process of responding to the August request was approved at a pretty high level.

[00:18:03] Speaker 04:
Assume that...

[00:18:05] Speaker 04:
the injunction were lifted, the district court's injunction were lifted.

[00:18:09] Speaker 04:
And ICE came back with an identical request with a new list, a new spreadsheet.

[00:18:21] Speaker 04:
Could a lower level official approve the request based on the determinations reflected in the August decision?

[00:18:32] Speaker 01:
No, I think the lower level official would be guided by the memorandum of understanding, which is what reflects IRS's policy and by the statute.

[00:18:40] Speaker 04:
So put a lower level official look at it and refuse the request saying, well, there isn't really a specific justification offer here.

[00:18:50] Speaker 04:
Certainly.

[00:18:51] Speaker 01:
I would think certainly, yes. They could.

[00:18:55] Speaker 04:
Is there any situation before where the IRS has accepted a single high-level request letter and spreadsheet like this as a justification adequate under Section 6103? I can only speculate.

[00:19:10] Speaker 01:
Multiple requests. I don't know the answer. But what I can say is this is the first time IRS has had...

[00:19:18] Speaker 01:
had implemented the policy reflected in the Memorandum of Understanding. And as we've said, it didn't do so perfectly. There were problems with its implementation, but it was the first time IRS had ever implemented that policy that's reflected in the Memorandum of Understanding. And the intent has always been to require a name and address. And that's pretty clear from the communications between the Treasury officials back and forth with ICE officials.

[00:19:44] Speaker 04:
So when you say a low-level official could make a determination that a submission saying the same kinds of things that was said here in the long letter was insufficiently specific, they wouldn't need some higher-level person to pass on that?

[00:20:08] Speaker 01:
I don't believe so, Your Honor.

[00:20:10] Speaker 04:
So how does it go within the IRS? Who ordinarily decides whether a request satisfies the requirements of 6103?

[00:20:19] Speaker 01:
I do not know the answer to that. I apologize. I'm not sure who has final decision-making authority here. What I can say is that the disclosure in August 2025 here was approved by the IRS commissioner. I don't think that the requests were generally elevated that high, but I actually don't know the answer to that. I'd be happy to look into it.

[00:20:41] Speaker 04:
Do you have any reason to think if a request of similar scale came in that it would not also go to the commissioner?

[00:20:49] Speaker 01:
I think a request of this scale probably went to the commissioner because of its size and the novelty of it.

[00:20:57] Speaker 04:
So that's a little bit in tension with your answer that if somebody got a similar request, a lower level official, that they could deny it because it doesn't, in their view, it didn't give the specificity or it didn't explain direct involvement in the law enforcement action as required by the commissioner. Well, I think my answer is that the lower level official could say this isn't specific.

[00:21:21] Speaker 01:
Well, they wouldn't be bound by the previous disclosure.

[00:21:23] Speaker 04:
But they could decide it themselves.

[00:21:25] Speaker 01:
Right. It would be a new request that would need to be reevaluated to decide whether it complied with the requirements set forth in the Memorandum of Understanding and the statute.

[00:21:36] Speaker 01:
But there wouldn't be any binding effect to the prior August 2025 disclosure.

[00:21:44] Speaker 06:
That's a data exchange overview.

[00:21:47] Speaker 06:
Isn't that the process for dealing with requests?

[00:21:52] Speaker 01:
I guess I disagree on that point. The data exchange overview was IRS's attempt to implement the policy reflected in the memorandum of understanding.

[00:22:02] Speaker 06:
Was this something that was, I had read the record, but tell me if I'm wrong, that IRS and DHS, they had some back, because the plan was that there were going to be requests that were large mass requests how are we going to process these and obviously computer programming was undertaken yes and that as far as i'm aware the record doesn't know your honor not that i'm the record doesn't show that that is my understanding okay so this they didn't have any they didn't sorry excuse me they didn't have any idea what dhs was going to send over when they designed this they didn't really talk to anybody at dhs about that I would think you would want to know what information we're getting in what format before you design a computer program and a processing process.

[00:22:54] Speaker 06:
Forgive my redundancy.

[00:22:56] Speaker 01:
There was back and forth as to what information DHS needed to provide, and specifically information that would comply with the statute. And the administrative record contains some of that communication.

[00:23:12] Speaker 06:
Yeah, what's the minimum to comply with the statute? And minimum compliance is still compliance if it is actually in fact compliance. And then this, I mean, this wasn't an oops, it's our first one. We got to work out some kinks. Right? This is a formal program. Obviously, there's computer coding going on here. There's things that will be rejected as errors or things that are required for processing, things that are not. All of this was very calculated.

[00:23:39] Speaker 01:
And I'm not aware that this document, Appendix 462...

[00:23:45] Speaker 01:
I'm not sure the record even shows us who reviewed it, who approved it, whether there was any sort of approval process. It just exists. It's a document that someone created in an effort to implement the policy reflected in the MOU.

[00:23:57] Speaker 06:
It's a pretty detailed process. And in fact, there's another document where they do some checking, some quality control, That's at 466, 67.

[00:24:12] Speaker 06:
So this was a pretty, this wasn't somebody just sitting in their cubicle on their own. This is computer programming, right? What has to be in, what's going to throw up an error, what's not. All this stuff here, it's multiple pages of programming and steps are going to be taken, what information is required, right? So this isn't just a, whoops, the computer did something wrong.

[00:24:36] Speaker 06:
Someone decided that when the statute says address, we think just having five digits in the zip code boxes and an EIN, TIN number. Well, I think the thinking was... And then, by the way, those can be any old numbers. We didn't even program it to verify whether that was an actual zip code.

[00:24:55] Speaker 01:
Well, I think the thinking was is that that would serve as an accurate proxy, and obviously we've learned that's not the case in hindsight, Your Honor, but... I'm just saying, you've got something here was done within the agency.

[00:25:06] Speaker 06:
It looks like a very formalized process. There's architecture overviews of this. This was not... Whoops.

[00:25:15] Speaker 06:
someone put some wrong information in the first time and suddenly hundreds, tens of thousands of addresses are disclosed. This is a very formalized process and document that was, the Roman Declaration tells us, it tells us this is what we used.

[00:25:35] Speaker 01:
I mean, I think we'd have to speculate a lot to really know what process this went through. Council, council.

[00:25:44] Speaker 02:
your client produced this document right yes your honor it produced it in response to either a document request or the i'm not sure exactly how the district court organized the hearing but your client produced it because it was relevant right Yes, and it certainly is part of it. Don't come in here and tell us that you don't really know what significance this document has.

[00:26:15] Speaker 02:
If it didn't have any significance, then your client wouldn't have produced it.

[00:26:19] Speaker 01:
Well, what I'm trying to say, Your Honor, is I don't know what sort of review or vetting or if there would have been approval of this specific process.

[00:26:27] Speaker 02:
It obviously had adequate vetting because it was relied upon and your client produced it to have a court consider it.

[00:26:37] Speaker 02:
I agree it was relied upon. I agree. You have a document that has different information that was vetted better that you can show us that's relevant.

[00:26:47] Speaker 01:
Point taken, Your Honor. Point taken. I agree. I guess my response still would be, though, even taking this, even if we were to assume that this document accurately reflects a policy of the IRS, Again, for the same reasons the Memorandum of Understanding is not a final agency action, this document and the policy reflected therein also would not be a final agency action because aliens are already required to provide their address information to DHS.

[00:27:19] Speaker 01:
So tell me this.

[00:27:22] Speaker 02:
Is there a document anywhere that reflects the current policy of the Department of Treasury with respect to address sharing?

[00:27:35] Speaker 01:
Yes, and that would be the memorandum of understanding. That is the IRS's policy.

[00:27:44] Speaker 02:
So, I'm trying to understand how you are defending this case, and I have some questions for the appellees about how they're litigating this case, because a lot of it doesn't make sense to me, but...

[00:28:03] Speaker 02:
It seems to me that you're litigating this case kind of the way that the government litigates cases where maybe there's like, you know, allegation of police misconduct, a bad search or something. And there's a civil suit where you say, well, police officer might have made a mistake in, you know, searching this residence.

[00:28:27] Speaker 02:
But the government isn't liable because they didn't follow their training. They didn't follow the policy. So we as a government aren't liable. Maybe the individual officer is liable for violating someone's rights because our policy is different and our training is different than what was implemented and executed by this one official.

[00:28:57] Speaker 02:
It sounds like your defense here as to why there's like no final agency action is a little similar, where you're saying, well, to the extent that there is a policy, it's in an MOU, and this document at A462 can't really countermand the MOU, and the MOU is consistent with the statute.

[00:29:25] Speaker 02:
And so the only kind of action that can be challenged is the particular implementation that may have been flawed, but they aren't challenging that. They're challenging a policy, but the policy either doesn't exist or to the extent that it exists, it's the MOU. Am I understanding your position correctly?

[00:29:55] Speaker 01:
Yes, Your Honor. To the extent plaintiffs wanted to challenge the August 2025 disclosure, the government would readily admit that there were mistakes made, that some information was disclosed not in compliance with the statute, but that's not what's happening here. The plaintiffs are arguing that IRS has some broader policy to make disclosures even when an address is not provided.

[00:30:20] Speaker 02:
I think that what they're saying is that the policy is to do what you did. The MOU may say one thing, but, you know, the real policy is is to do something broader than what the MOU says. We know that because that's what they did, and it was signed by the commissioner of the IRS, no less.

[00:30:52] Speaker 01:
I think that may hold sway if this had been something that had reoccurred time and time again.

[00:30:59] Speaker 01:
This happened once in August 25, 2025. IRS admits that there was error in implementing that. Who admits it? Did the commissioner admit it?

[00:31:12] Speaker 01:
No, the government, the Justice Department.

[00:31:14] Speaker 02:
Well, I guess all I'm saying is that the plaintiffs are saying that the agency maybe have written down one thing in the MOU, but the agency is really doing something else.

[00:31:33] Speaker 02:
And we can see that because of what they did.

[00:31:38] Speaker 02:
And there's no reason to believe that they're going to do anything differently in the future. So saying that, well, the Justice Department said in some papers that's not going to happen again, doesn't really answer the question of whether the agency is going to do it again. When we think that the agency, there would be a declaration from someone in the agency saying, no, that wasn't right, and we're not going to do that anymore.

[00:32:08] Speaker 02:
Well, and I think that's the Romo Declaration.

[00:32:10] Speaker 01:
I think that's exactly what that is.

[00:32:13] Speaker 01:
So I agree.

[00:32:14] Speaker 02:
So if this were to ever happen again, you're saying then that a district court would have a basis to hold someone in contempt for...

[00:32:31] Speaker 02:
essentially acting in accordance with a declaration that was filed with the court to get a court to either vacate an injunction or to reverse an injunction?

[00:32:48] Speaker 01:
Yes, Your Honor. I think the district court in that situation, there are consequences for failing to comply with Section 6103.

[00:33:00] Speaker 01:
and a district court could bring those to bear in a case of a wrongful disclosure. So I think that's correct.

[00:33:09] Speaker 04:
Can you tell me, Mr. Christensen, what role does ICE play in investigating or prosecuting criminal violations of 1253A? I know it has civil enforcement authority. What role does it play in the criminal enforcement of AUSC 1253A?

[00:33:28] Speaker 01:
Yes, ICE has criminal enforcement authority, as we've explained in our opening brief on page six.

[00:33:37] Speaker 01:
AUSC 1103A authorizes the secretary of DHS or charges her with enforcement of the nation's immigration laws. Then ICE officers are immigration officers under AUSC 1101A18 and under applicable regulations, and they're empowered with law enforcement authority as set forth in USC 1357, which includes the authority to arrest aliens in violation of Section 1253A.

[00:34:09] Speaker 01:
And that's in our brief at page six.

[00:34:10] Speaker 04:
So it's just the arresting. That's the role they play?

[00:34:14] Speaker 01:
Well, arrest and investigate as well. Violations and enforce the statute.

[00:34:20] Speaker 04:
Do they make referrals to... Or they do the whole prosecution themselves? They make referrals to the Justice Department? I actually am not aware. Really?

[00:34:30] Speaker 01:
I'm not.

[00:34:30] Speaker 04:
And maybe more importantly... You don't know whether they make criminal referrals to the criminal division or...

[00:34:38] Speaker 01:
Any other part of the justice? Well, eventually, I think the U.S. attorneys from the Justice Department are involved when the prosecution, if a prosecution comes to court. That's my understanding.

[00:34:49] Speaker 04:
And is there any threshold or any policy or any standard for making criminal referrals?

[00:34:54] Speaker 04:
Again, Your Honor, I would not know, but more importantly... It's so strange to me that you don't know because the statute that we're looking at here has to do with investigating or prosecuting Doesn't it have to do with investigating a prosecution criminal?

[00:35:10] Speaker 01:
Your Honor, I wouldn't know, but more importantly, IRS would not know either. I mean, IRS's role under the statute is a very limited role. Congress has said that IRS shall disclose information upon receipt of a request that includes the specified information. And so IRS...

[00:35:29] Speaker 04:
is not given discretion under the statute to question or to second guess or to conduct its own inquiry as to whether the representations... But they have to be given a specific reason or reasons why disclosure of the requested information is or may be...

[00:35:47] Speaker 04:
relevant.

[00:35:48] Speaker 01:
And if that information is in the request, the statute says IRS shall disclose upon receipt of that request. So that strongly indicates that Congress didn't expect that IRS would substitute its own judgment for that of ICE in deciding what is or is not or may be relevant in a criminal investigation. The gatekeeping function under the statute is actually the requirement that any request must come from the head of the agency and it must be in writing.

[00:36:22] Speaker 01:
And that's the way that Congress ensured that requests under the statute would not be made inappropriately or with impunity.

[00:36:30] Speaker 04:
But if one is in the IRS and is assessing.

[00:36:34] Speaker 04:
Reasons given by ICE, why the information that they're requesting from the IRS is or may be relevant to a proceeding or investigation.

[00:36:48] Speaker 04:
Don't they have to have some understanding of what kind of proceeding or investigation is?

[00:36:53] Speaker 04:
is at issue. Your Honor, I would say... You're talking about disclosure... As I've just said, Your Honor... Use in criminal investigations.

[00:37:03] Speaker 01:
Yep.

[00:37:05] Speaker 01:
So if a request designates... The request merely has to set forth information as required in the statute, which includes the specific criminal statute, and it has to include a specific reason or reasons why the information is or may be relevant to the investigation.

[00:37:24] Speaker 04:
But here, the only reason, specific reason why the disclosure sought is relevant is just boilerplate. It's potentially at issue to prove a violation of a deportation order, AUSC 1253A1. And we're talking about criminal, though, criminal violation. So why does...

[00:37:51] Speaker 04:
ICE need it to prove that, and we don't have any understanding of ICE's involvement in a criminal prosecution.

[00:37:58] Speaker 01:
So my first response is IRS isn't the one making that call. It's the head of the agency who includes that information in the request. And once there's a complaint request... Head of ICE. Head of ICE, yes. And once there's a request that has that information, IRS is obligated to disclose upon receipt.

[00:38:17] Speaker 04:
But when you say has that information, the only information, there was no specific reason or reasons why disclosure of, you know, any individual on the spreadsheets.

[00:38:31] Speaker 04:
Address was relevant to a criminal. It just says it's potentially relevant. I disagree. Completely bootstrapping and circular. I do know information given like we need your address information. We have some address information. We need your address information for this standard case.

[00:38:51] Speaker 04:
time interval from 2022 to the present because, it doesn't say because we need to talk to people, because we have reasons to think our address is incorrect, because we plan to go arrest that person. I mean, there's just nothing explaining a specific reason or reasons.

[00:39:14] Speaker 01:
Well, in addition to that, so the request came in the form of a written letter which includes the language Your Honor has referenced. But also part of the request was a data request or the data file that was submitted along with the request. And the data file included also additional reason, which was to verify presence in the United States. And the excerpt of the data file is Appendix Page 434. So ICE was requesting address information from IRS in order to verify presence

[00:39:48] Speaker 04:
Tell me again the page you're directing me to.

[00:39:51] Speaker 01:
Yes, this is Appendix Page 434. Presence or unlawful presence? It just says to verify presence in the United States of America.

[00:40:00] Speaker 06:
Unlawful about being present in the U.S. if you're still going through, you don't have a final removal order.

[00:40:05] Speaker 01:
Well, all of these individuals did have a final removal order.

[00:40:09] Speaker 06:
Defined final. All the 7 million in the first...

[00:40:13] Speaker 01:
That's correct, Your Honor.

[00:40:15] Speaker 06:
In fact, the BIA, no court of appeals stay, would define final.

[00:40:22] Speaker 01:
I don't know. In the record, it's not defined.

[00:40:26] Speaker 06:
No, no, it is defined in the law. And it is.

[00:40:32] Speaker 06:
It's got to be signed off by BIA. Time to appeal is run. And obviously, it wouldn't include one if the court of appeals had given a stay.

[00:40:44] Speaker 01:
What the Memorandum of Understanding says is... It's not criminal until they've overstayed 90 days. Yeah, DHS, the Memorandum of Understanding explains that the aliens have been illegally present in the United States whom they have represented are under final orders to remove them from the United States.

[00:41:01] Speaker 06:
But it's not a crime unless they're here 90 days after. One, you have to have a final order of removal. You don't know if they actually had final ones. Two, you don't know if they were 90 days. Or are you representing that everybody in the file...

[00:41:12] Speaker 06:
I said calculated was here more than 90 days. Yes, in fact, the record- Yes, they were all here over 90 days?

[00:41:20] Speaker 01:
Well, those are the individuals who, no, no, there may have been some in the data file request that had not overstayed yet by 90 days. But the criminal statute 1253A1 includes additional violations. The 90-day period is not the only violation.

[00:41:38] Speaker 06:
An alien can also- What other one is cited in the request that was submitted?

[00:41:43] Speaker 01:
The statute, it's the statute that was, the statute cited is 1253A. Which is the oversight one, right?

[00:41:51] Speaker 01:
That's included, but also an alien can violate that statute by failing to timely apply for travel documents, or if the alien fails to present himself at the time and place that the attorney general has ordered pursuant to a final order of removal.

[00:42:06] Speaker 06:
And you're representing...

[00:42:09] Speaker 06:
that individualized determinations were made for all, I forget, was it 700,000?

[00:42:15] Speaker 01:
I'm representing that the purpose of this request was to verify whether individuals who are under and subject to a final order of removal- They saw travel documents isn't going to be affected by- If they were still present in the United States.

[00:42:28] Speaker 06:
And all that's needed is that the information- Okay, but if they're just prosecuting the unlawful presence, then they have to have overstayed by more than 90 days? I mean, there's a whole program line where the date must be more than 90 days from the removal.

[00:42:41] Speaker 01:
I agree. The final order of removal. And I think that's the emphasis, but you asked if there were individuals included that had not yet completed the 90 days.

[00:42:50] Speaker 06:
The reason they're on the list, there's individualized determinations.

[00:42:54] Speaker 06:
Are you telling me that's what it is?

[00:42:59] Speaker 01:
In the memorandum?

[00:42:59] Speaker 06:
It's the only thing programmed in here.

[00:43:03] Speaker 06:
is let's make sure there's a final order of removal. We don't know if it really was final. And that they've overstayed, add 90 days or 91 days.

[00:43:11] Speaker 01:
All we have to go, all the IRS has to go off here are the representations made by DHS.

[00:43:17] Speaker 01:
And those representations are included in the Memorandum of Understanding on the first page in the introduction, where DHS has identified numerous aliens illegally present who DHS has represented are under final orders to remove. This is A372 in the appendix.

[00:43:35] Speaker 06:
You have the paragraph from Todd Lyons. This is in order to fulfill our role as an agency in enforcing immigration laws. It's way too high level, nothing individualized. That should have alerted somebody. Why is the program set up to say, one of the things the computer has to check is, is there a final order of removal?

[00:44:04] Speaker 06:
You're not even really sure they were final, but let's assume they were on that.

[00:44:09] Speaker 06:
Make sure it's more than 90 days. And we know that at the time, we know from this record that at the time these were submitted, there were folks on there who had not yet hit the 90-day mark. You know how we know? Because the record shows that, oh, we ran it again yesterday and a few more people got added to the list because they weren't at 90 days when it was sent to us by ICE. And now they are.

[00:44:34] Speaker 01:
As I said, Your Honor, there is more than one way to violate the statute that's been designated.

[00:44:39] Speaker 06:
Are you representing that individualized determinations were made that add to those people that were not yet over 90 days at the time this massive file was sent? An individualized determination was made that, yes, but this one hadn't yet sought documents?

[00:44:57] Speaker 06:
This one hadn't yet appeared somewhere?

[00:44:59] Speaker 01:
All I can say is what DHS has represented, which is that those individuals...

[00:45:05] Speaker 01:
Excuse me. That's the problem. They're under investigation under the statute. And the statute includes more than one way to violate it, which is failure.

[00:45:12] Speaker 04:
It's just to make your case harder not to help you. The very fact that there's multiple different offenses, different ways factually to violate 1253, and therefore...

[00:45:28] Speaker 04:
different facts that would be needed to establish a violation. It seems like where there's a requirement in the statute, in the taxpayer information release statute, to give an individualized determination of the need for it, that it seems like it's the boilerplate recitation of of there's a need for this to comply with this statute, just really doesn't seem to give us anything.

[00:46:00] Speaker 04:
JOSHUA SHARFSTEIN.

[00:46:02] Speaker 01:
My response is that a person's continued and current presence in the United States is relevant to all of those potential violations under Section 1253 .

[00:46:13] Speaker 01:
If a person has a final order of removal, And they are still present in the United States. Or if they don't have a final order of removal. Even if some of them were just approaching the 90 days.

[00:46:26] Speaker 06:
Like I said.

[00:46:28] Speaker 04:
We don't know how long.

[00:46:29] Speaker 01:
Agreed. Do you know how long? Agreed. I don't.

[00:46:31] Speaker 04:
No. And the record doesn't tell us. A person's continued presence, a person who ICE claims to have a reason to know is here unlawfully.

[00:46:42] Speaker 04:
is still here unlawfully. That's what they're trying to tell. That's what they're trying to find out.

[00:46:46] Speaker 01:
That's what the ICE represented in the request, to verify presence in the United States. And if a person is still present, that is certainly at least relevant or probative to a potential violation under the statute.

[00:46:57] Speaker 04:
What's your theory about the point of contact in the data file? It's one person. For all these 1.2 million, or I guess it was like 50,000 or something that were actually produced, The same person is identified as personally and directly engaged in the criminal proceeding or criminal investigation.

[00:47:22] Speaker 04:
What is the theory of how that one person was personally and directly engaged in these tens of thousands of people's cases?

[00:47:32] Speaker 01:
Yes, and we've set this forth in our briefing, which was that this This initiative involved a large-scale investigation into potential violations by many individuals And it began with a high level review where this person, the assistant director of enforcement and removal operations, would have been the person making the decisions and leading and in charge of that broad scale investigation.

[00:48:05] Speaker 01:
There's evidence of that in the record on page 338 of the appendix.

[00:48:11] Speaker 01:
This is the initial contact when ICE reached out to IRS and explained there's an internal IRS email that says, hey, we've just been contacted by an ICE assistant director. Again, this is appendix page 338. We've just been contacted by an ICE assistant director regarding IRS assisting in an ICE-led effort. to locate approximately 700,000 individuals who are all under final orders of removal. This effort is being called a lead targeting cell and is being run out of the ICE headquarters in D.C.

[00:48:45] Speaker 01:
So this gives you a feel for the large scale of this investigation. And then appropriately so, it was being led up by an assistant director of enforcement and removal operations.

[00:48:59] Speaker 04:
So they're involved in a criminal investigation at an early stage in a kind of en masse. That's right. And how is there... Reason to think that people who don't have an order of deportation yet, I mean, criminal involves some knowledge on the part of the defendant, right? How is there reason to know that, for example, if it's a failure to appear documents, failure to present certain documents that the individual has knowledge? Like I had been really focusing on the component that is that they have an order of deportation.

[00:49:32] Speaker 04:
So you can get inferred knowledge from that because if they have the order, they know they should leave.

[00:49:37] Speaker 04:
Right, is that your question? Yeah, because these requests- The other offenses that you mentioned under 1253A1, the other ways of violating. How do we know that people have knowledge if they haven't been given an order of deportation?

[00:49:52] Speaker 01:
So all of them were under final orders of removal. So that's the baseline. All of the individuals in the request- No, they were all.

[00:50:00] Speaker 01:
The question was, were all of them already passed the nine days? And some of them weren't. Yeah, not all of them were passed, but every individual in the request was under a final order of removal. And so this was a large-scale initial high-level review investigation that later would have been delegated. An additional staff could have been appointed as appropriate in order to conduct individual investigations with respect to certain individuals, but it began as a high-level investigation.

[00:50:32] Speaker 06:
Can you tell me where in the Romo Declaration it says the stat exchange overview procedure has been dropped?

[00:50:47] Speaker 01:
Where it's been dropped?

[00:50:48] Speaker 06:
Was that the question?

[00:50:51] Speaker 06:
Or changed.

[00:50:54] Speaker 01:
What I glean from the Declaration is is that IRS is admitting an error in the implementation of the policy.

[00:51:06] Speaker 06:
Yes.

[00:51:09] Speaker 01:
What action IRS has since taken to remedy the error, I could only speculate. I'm not aware of what, if any, action IRS has done to correct the remedy.

[00:51:18] Speaker 06:
So as far as you know, there's nothing in the record that says this has been withdrawn or replaced?

[00:51:25] Speaker 01:
The data exchange overview?

[00:51:27] Speaker 01:
I'm not aware of how.

[00:51:28] Speaker 06:
Which is what you have to have to process these mass requests.

[00:51:34] Speaker 01:
Right. What the Romo Declaration says is that IRS is remediating, attempting to remediate the air. It reached out to DHS.

[00:51:42] Speaker 06:
Continue to work to make sure they comply with the law, which is what we were told in El Centro.

[00:51:48] Speaker 01:
IRS reached out to DHS and requested that they take steps to prevent the disclosure or dissemination and to ensure appropriate disposal of the data. So IRS is working to remediate that.

[00:52:00] Speaker 01:
As far as changing the computer process, I could only speculate what's happened.

[00:52:05] Speaker 06:
I mean, a computer process just like this is going to have to be adopted if you're going to run. Mm-hmm. These mass numbers based on these, they're just sort of computer inputs that you're getting from DHS.

[00:52:21] Speaker 06:
So as far as the record shows at this point, this is neither withdrawn, changed, or replaced.

[00:52:28] Speaker 01:
Well, I think IRS recognizes that it's problematic and would not, I would imagine, would, given the error...

[00:52:37] Speaker 01:
I think I can fairly say that IRS would not be using the same computer system in the future.

[00:52:42] Speaker 06:
Well, they've had plenty of time. They've had plenty of time.

[00:52:45] Speaker 01:
Well, they've been enjoined.

[00:52:46] Speaker 06:
They're enjoined from processing ICE requests. They're not enjoined from fixing their own internal errors, are they?

[00:52:54] Speaker 01:
Again, Your Honor, I don't know.

[00:52:55] Speaker 06:
Was the injunction anywhere from this or the one from the other court?

[00:52:59] Speaker 06:
prevents you from fixing your computer program so that if and when injunctions lift?

[00:53:05] Speaker 01:
I'm not aware what action IRS has taken in that regard.

[00:53:09] Speaker 06:
Any more questions? Sorry. All right.

[00:53:15] Speaker 05:
Thank you. Thank you very much for all your extra time. Thank you.

[00:53:25] Speaker 00:
Good morning, Your Honors, and may it please the court. My name is Madeline Jettomer on behalf of the plaintiff FLEs.

[00:53:31] Speaker 06:
And before we get into more nitty gritty, counsel for the government has said they have no objection to this court supplementing the record on appeal with the Romo Declaration under FRAP 10 .

[00:53:46] Speaker 06:
Yes, Your Honor. Do you agree, object, have a view on that?

[00:53:49] Speaker 00:
We have no objection and believe it should be added to the record.

[00:53:56] Speaker 05:
Please, sorry for the initial interruption.

[00:54:00] Speaker 00:
This court has repeatedly held that a policy need not be written in a formal statement to be agency action. And the district court committed no clear error in finding one that exists here. As your honor mentioned, this record is replete with evidence showing that the IRS has changed the way it evaluated requests under 6103.

[00:54:20] Speaker 00:
As this court mentioned, A462 is one piece of evidence that demonstrates that. In addition, the Internal Revenue Manual was changed shortly after the MOU was entered into to reflect a change in policy.

[00:54:39] Speaker 00:
The district court made a factual finding that there is uncontested record evidence that the IRS spent money developing the technical capability to conduct mass transfers, actually made those transfers, and that any IRS official that stood in the way of implementation of that policy was pushed out.

[00:54:59] Speaker 04:
The difficulty I have, Mr. Toner, with that analysis is that this was a major request for whatever 1.2 million or, you know, pieces of information. One would do some software building. You'd have to do some to respond to that request. So I'm not sure that creating new programming and new method means that it outlives the the response to that request.

[00:55:29] Speaker 04:
And that seems to be because you're here seeking future regarding relief, injunction, declaratory relief. And so the question is, is this legal analysis that was done for this request have an afterlife? What's the best evidence of that?

[00:55:47] Speaker 00:
I would put the court to A440. This is an email that where IRS acting counsel evaluated this request, which is actually 1.2 million requests. I think that the new policy has two parts. The first part is that the IRS has shifted from individual review of each request to make sure that that individual request meets the requirements set forth in I-2 to an evaluation of that request at the 1.2 million person level.

[00:56:29] Speaker 00:
So does that request include a data field? Does the letter and does the spreadsheet that Mr. Christensen mentioned have a field for addresses? Does it have a field for the relevant tax return years? If that's met, then the process moves to computer processing. That is contrasted by the process that was laid out in the manual pre-April 2025, where each individual request or each handful of requests, maybe five, were assigned to a disclosure manager.

[00:57:00] Speaker 00:
That individual at the IRS was required to ensure that the requirements in I-2 were met, communicate with the requesting AUSA to determine the specific reasons for which it would be used, and then submit a memo to determine whether that request should be effectuated.

[00:57:17] Speaker 04:
Again, right. We know that they did something different. They got a size of request that was dramatically different. They dealt with it in a very different way. All If we accept all that, we still have the question, are they continuing to process?

[00:57:39] Speaker 04:
They gave a pretty moderate response rate to what was sought. Do we have any reason to believe that the service is continuing to process the request with regard to the balance of that $1.2 million over what was it, the $700,000 that they did deal with? Or that there's any continued use with respect to this request?

[00:58:09] Speaker 00:
I would say two things, Your Honor. First, there is no evidence that they are not interested in continuing to process this or similar requests. And we know that because the Walker Declaration in the record says that it finished at that time, but makes no commitments as to future processing. And I think that's also evidenced by what Judge Millett said, which is that the IRS continued processing because it noted that more individuals were then pulled into the response because 90 days has expired.

[00:58:48] Speaker 00:
the IRS has made no representations at any point in the record that they are done continuing, done processing this request or any others. And I think there is significant record evidence, to your point, that they have changed the way they process information under I-2. I think that is sufficient.

[00:59:09] Speaker 04:
But what we don't know is, is it a bespoke change? You know, we get this unprecedented effort on the part of ICE to enrich its database. It's going to go and, you know, scrape what it can all around the government, and this is what they got from the IRS. We don't know...

[00:59:27] Speaker 04:
whether this is an ongoing system or whether it's just like, you know, we're going to throw the spaghetti at the wall, see what we get and move on. And you're right. They haven't foreclosed the notion that they could continue to abide by this legal advice. They could continue to do things according to the template that they effectively developed here. But we don't really have something affirmative saying that they will. And that's, or do we?

[01:00:00] Speaker 00:
I think the record taken as a whole shows that they didn't just throw spaghetti at the wall once. They've thrown it many times. And the IRS has worked hand in hand with ICE to ensure that it could process its requests under this new process. So I think the district court found that this technical capability was not built solely in response to this request. It was built in response to an effort which it calls, in the record, at a473 an on-demand process to provide address information to ice there's nothing in the record that shows that that's directly responsive to this request instead this this tracks back to february and then when the mou was entered in april an effort by the irs and ice to to create a new process under i2 to evaluate requests so that address information could be disclosed to

[01:00:59] Speaker 06:
the two ice i think j four seventy three through seventy seven whole table with contents ice exchange overview architecture overview internal output output and then discussion points include volume and frequency of the data we are expecting they're expecting this to keep coming i think that's correct your honor This is not a one-off.

[01:01:29] Speaker 06:
One doesn't create this very complicated architecture, computer architecture. Programming architecture, I guess, is what it is. One of the things that's discussed now that we've got that in place, the volume and frequency of the data we are expecting.

[01:01:46] Speaker 00:
I think that's exactly right. I'd like to make two other points, Your Honor, to add to your point there. The first is that I don't believe the changes to the Internal Revenue Manual would have been made in April in anticipation of one unknown mass request that came in June. I think there was, again, this mass request could not have been processed under the IRS's previous policy for how it was going to evaluate requests under I-2.

[01:02:19] Speaker 02:
What in the manual substantively was changed?

[01:02:24] Speaker 00:
There are two provisions in the manual that were changed. There was a process by which I-2 requests were evaluated, and then there was a checklist for processing requests under I-2. The checklist itself was just removed.

[01:02:43] Speaker 00:
That checklist included steps like the assignment of an IRS disclosure manager to each request, and a requirement that that disclosure manager discuss that request with the requesting officer. In the manual, it stated AUSA because that was typically who was requesting the information. In addition, it laid out a process by which that manager then sought approval through, for example, submission of a memo to determine whether the requirements of I-2 were met.

[01:03:16] Speaker 00:
I do want to address Mr. Christensen's point that the IRS needs to take at face value the information it receives. I don't think that's what 6103 requires. This court has said that 6103 of the Internal Revenue Code requires, regulates minutely the disclosures of tax information under 6103.

[01:03:43] Speaker 00:
And so the idea that the IRS must look at the headers in a spreadsheet and determine that if those headers include the required information in I-2, all of that data can be disclosed, I think that misreads the IRS's obligation to enforce its own statute.

[01:04:04] Speaker 02:
Say more about what? Go ahead. Can I just get your response to...

[01:04:13] Speaker 02:
the government's arguments, and I have some concerns myself about standing in irreparable harm.

[01:04:20] Speaker 00:
Absolutely, Your Honor. I'd like to start with the Center for Taxpayer Rights. The address sharing policy harms the center because it impacts its core activities.

[01:04:32] Speaker 00:
are its legal representation of clients, pro bono representation of clients, and its education and outreach. And the center has used its resources to counteract those harms. The district court made a factual finding that there's been a dramatic decline in the center's abilities to provide its services. So for example, in 2024, I should note that the center is required by statute to serve immigrant communities. And the statute uses as a proxy for immigrant communities ESL taxpayers, that's English as a Second Language, and ITIN taxpayers.

[01:05:13] Speaker 00:
individual tax identification number. And so the statute requires that any low-income tax clinic serve those taxpayers.

[01:05:24] Speaker 04:
In 2024, and in years before- I'm sorry, an individual taxpayer number is a taxpayer number for someone who doesn't have a social security number?

[01:05:30] Speaker 00:
That's correct.

[01:05:33] Speaker 00:
And in many cases, those are immigrants. In 2024, the center served 14 ITIN. I'm sorry, the center represented 14 ITIN clients in disputes against the IRS, 16 ESL taxpayers. That's collectively including the 14 in front of the IRS. In 2025, that number dropped to one. In 2024, the center held 10 events focused on the rights and responsibilities of ESL taxpayers.

[01:06:05] Speaker 00:
In 2025, they were only able to hold one.

[01:06:10] Speaker 00:
So this is not a case where the center spent its way into standing.

[01:06:16] Speaker 02:
My understanding is that the district court only evaluated standing with respect to the center and not with respect to any of the other plaintiffs. Do I have that wrong?

[01:06:26] Speaker 00:
The district court did also address associational standing.

[01:06:30] Speaker 02:
Associational standing with respect to the center. Okay.

[01:06:36] Speaker 00:
My understanding is that the district court determined that there was a substantial likelihood that the plaintiffs as a whole on behalf of their members, so the Main Street Alliance, who indicated that they have members that file with ITIN numbers, that there was a substantial likelihood that they would be able to show standing on behalf of their members.

[01:07:01] Speaker 02:
I mean, I read the footnote in the district court's opinion to acknowledge that the center doesn't have members, but that the district court was kind of proceeding kind of almost as if it really was a membership organization anyway.

[01:07:22] Speaker 00:
I read that footnote to say that the district court was not reaching the question of whether the center has members. What I will say is that the center does run an LITC network. That's a network of other clinics that it serves. At the district court level, the center did present third party and associational standing claims, but the district court did not rule on them.

[01:07:49] Speaker 00:
But I think that's not dispositive here. I think that it's very clear that the center has organizational standing because its core business activities are not ones that are related to its opposition to this policy or advocacy against this policy. These are its activities that it has been conducting for a long-standing period of time and are in accordance with its mission and its statutory obligation.

[01:08:13] Speaker 02:
So even if we accept all that, how is any of this irreparable harm?

[01:08:18] Speaker 00:
So I think the center's irreparable harm excuse me, is certain and great because it's not imminent. It's not about to occur. It has already begun occurring. We know because the center's clients have told the center that they are unable to engage with the tax system, they are fearful. It has chilled their engagement with the tax system.

[01:08:49] Speaker 00:
That's irreparable in a few ways. So first, as this court said in Alpine Security Corporation, where a business is destroyed in its current form, that commonly qualifies as irreparable harm. Here we have an organization that is unable to provide its core services because of the impact of a policy on its clients. That's very similar to what the Supreme Court found in Department of Commerce versus New York, where the court found that inclusion of a census question was an obvious cause of a chilling effect on individuals that affected states, right?

[01:09:33] Speaker 00:
So even where the Census Bureau was required to protect that information, the court found that third parties reacting in predictable ways or as the court said in Dominion Alternative Energy, in common sense and predictable ways, that is enough to infer causation where there's not direct regulation of the organization itself. And so to go back to your question on irreparable harm, I think there's the district court, I think, found four types of irreparable harm.

[01:10:07] Speaker 00:
First, that the trust engendered between the center for taxpayer rights and its clients is difficult to measure, but more importantly, difficult to replace. So where the clients have for years trusted the center, and where the center advises them on the protections that exist in the tax system and encourage them to participate in the tax system. I mean, many courts have identified that the tax system is the lifeblood of our government.

[01:10:39] Speaker 00:
So where they have encouraged participation in that tax system and then an unlawful act harms that trust in ways that can injure that individual, that's an irreparable harm to the center because it erodes the trust between the center and its clients. Like I mentioned, similar to an alpine, it threatens the existence of the pro bono legal services program and their education and outreach program with respect to ESL taxpayers.

[01:11:13] Speaker 00:
It also threatens federal funding. So another another basis on which the district court found standing and arable harm was because it found there was a substantial likelihood that the center was could lose its federal funding with respect to its low income tax center.

[01:11:34] Speaker 00:
Now, that funding is contingent on the center meeting its goals and showing substantial progress towards meeting its goals. Those goals are not ambiguous. Each year, the center needs to report to the IRS very specific metrics with respect to engagement with this set of taxpayers. So, for example, every year they need to report to the IRS the number of consultations they have with ESL taxpayers, the number of disputes in which they've represented clients in front of the IRS with respect to ESL taxpayers.

[01:12:12] Speaker 00:
There's a list of almost a dozen metrics with respect to ESL and ITIN taxpayers, and In every one but one of those metrics, the center is down compared to last year. And so as opposed to being able to show progress, it is showing that it is harmed, and it is actually reversing its progress as a result of this policy. And again, we know that this policy is the cause because that is what the center has, that is what the clients of the center have told the center. And we know that's at A186 and A317 in both of Ms.

[01:12:47] Speaker 00:
Olson's declarations.

[01:12:49] Speaker 00:
We also the only I'm sorry, the last point I would make is that the district court made a factual finding crediting the public reporting the significant public reporting on the policy and crediting the fact that immigrant taxpayers know about the policy and are chilled because of it.

[01:13:13] Speaker 06:
Thank you. So So we have a case called League of Women Voters, I think, versus Newby, in which we found standing where the League for the League, which its mission was to register voters, and the new requirements for citizenship documentation were driving down the number of people it could reach out to, people it could get to register, just driving people away from their registration events.

[01:13:47] Speaker 06:
Is that the theory you have here, sort of driving away the client base?

[01:13:49] Speaker 00:
LORETTA LYNCH, Yes, Your Honor. This case is on all fours with Newby. I appreciate you raising it because it also reminds me of the fourth type of irreparable harm we have here, which I failed to mention, which is that in Newby, the court said there was irreparable harm because there was an upcoming election. The harm with respect to that election could not be undone after the election had passed. And like that, here the IRS has deadlines in place.

[01:14:19] Speaker 00:
So we have clients who are walking away. I'm sorry, the center has clients who are walking away from tax credits and refunds to which they are entitled. And there are deadlines by which they must apply or to engage in a dispute. There are statutes of limitations and deadlines by which they must engage with the IRS.

[01:14:40] Speaker 00:
As time goes on, those deadlines pass, and they cannot be made whole. In addition, for these taxpayers, I want to make two points. The IRS...

[01:14:50] Speaker 00:
says repeatedly that everyone is required to pay taxes, and so this is not a voluntary tax system. But this court and others have reminded us time and time again that this is a voluntary system. Congress intended for 6103 to place stringent protections on this data because the voluntary participation in our tax system depends on it. And that's important here because the harm to not receiving a $500 credit is irreparable, for example, to someone who makes under $15,000 a year and thus is not required on an annual basis to file taxes.

[01:15:26] Speaker 00:
If they are below the refund limit that the IRS sets each year, there is no requirement that they that they file taxes but it's important to our voluntary taxpaying system that they do participate and in fact the district court made factual findings here that this year alone the policy would result in almost in in nearly 12 billion dollars of revenue loss as a result of the policy

[01:15:56] Speaker 02:
So I don't have one standing. Go ahead.

[01:16:00] Speaker 02:
So on the policy, you've heard your friend on the other side say there really isn't a policy other than the MOU and that your complaint doesn't challenge this specific disclosure.

[01:16:26] Speaker 02:
so um it's checkmate because we held in centro that the mou was not a final agency action and to the extent that a decision made by an official to make a disclosure could be finding agency action you're not challenged any challenging any specific decision made by Anne Fisher. So what's your response to that?

[01:16:58] Speaker 00:
I think that have a few responses this court has found that an agency cannot evade judicial review just because it has not written a policy down in one place and here we have there is this policy is written all over the record this is not an instance where in april the there was an mou entered into And then in late June, the IRS received a request and decided how to respond to it.

[01:17:35] Speaker 00:
The record shows that there is a concerted effort of development and then implementation of a policy, which includes A462, that built the capability to process these types of requests and then implemented that process with respect to not just this request, but others. The other requests never got to the second step, which is computerized processing. But as in Hispanic Affairs Project, where there are repeated practices, so where IRS counsel, for example, was pushed out because it said that the same 1.4 million requests that was approved at a high level by IRS counsel At A430, the IRS chief counsel declined to move that request to the computerized process stage because it said that same request didn't meet.

[01:18:32] Speaker 00:
So there was a clear effort here to create a policy, a new process by which this information would be disclosed. I think the numbers also speak for themselves.

[01:18:47] Speaker 00:
In our district court briefing at A96, we talk about how the IRS is required to disclose to the Joint Committee on Taxation the number of disclosures it makes under I-2 per year and to what agency. From 2018 to 2024, there were zero disclosures made under I-2 to DHS or ICE.

[01:19:14] Speaker 00:
And just two weeks ago, they submitted the report for 2025.

[01:19:20] Speaker 00:
And that report showed that under I-2, the IRS made more than 47 disclosures to DHS and ICE. That is more than half of the total disclosures last year from the IRS to ICE. And it's more than the total number of disclosures for almost every year from 2018 to 2024. What do you make of that?

[01:19:45] Speaker 04:
47 disclosures number, there's either tens of thousands or one.

[01:19:53] Speaker 04:
What are they referring to?

[01:19:55] Speaker 00:
Are they identified? Sorry, the 47,000 number. Oh, 47,000. I apologize if I didn't see. I thought you said 47 disclosures. I apologize if I didn't. They said 47,000. It was the exact number that are issued here.

[01:20:08] Speaker 04:
Of lines in the spreadsheet that were responded to.

[01:20:11] Speaker 00:
That's correct.

[01:20:13] Speaker 00:
One thing, sorry, if your honors don't have any other questions on that, I would like to quickly Yes, Your Honor.

[01:20:23] Speaker 04:
I just, I mean, still on this question about policy, you point to changes to the manual, but as I understand it, the manual is not binding and there's cases also holding. You refer to this, these sort of discussion points and draft workflow chart at A76, A77, you know, volume and frequency of the data we are expecting. This is by, I guess, the tech people, right?

[01:20:53] Speaker 04:
presented as a draft, as discussion points. I take it you're not saying this is the policy, you're saying this is evidence of an unwritten policy? And this and the manual?

[01:21:06] Speaker 00:
I think that's correct, Your Honor. I think that there is significant evidence in the record, but I would point to three places in the record that I think are most reflective of the policy.

[01:21:18] Speaker 00:
It is the Internal Revenue Manual. Those citations are discussed at A91 in our briefing. It is the DHS ICE Data Exchange Overview at 462, and it's emails like that at A440. Those represent a meaningful change in how the IRS process requests under I-2. I think the policy has two core features. First, it allows for disclosures under I-2 without any individual evaluation of whether each individual request meets the requirements set forth in I-2.

[01:21:58] Speaker 00:
And second, it abdicates the IRS's role in keeping tax information confidential as it is required to do by 6103. 6103 sets forth a general rule that tax information shall be kept confidential unless it meets all of the requirements in this case set forth in exception I-2. And in this case, the policy shift that is critical here is that the IRS no longer required that each individual request be evaluated to ensure that it fit each of the requirements set forth in that exception.

[01:22:37] Speaker 00:
I think that's what's notable here.

[01:22:40] Speaker 04:
They're saying each individual request is being examined by algorithm.

[01:22:50] Speaker 00:
And, Your Honor, I'd make two points. One, that algorithm is insufficient here. So for example, if an individual was reviewing individually, let's say, let's not do 1.2 million, let's say the 47,000, each of those requests, it would understand that 0, 0, 0, 0, 0 is not an address.

[01:23:20] Speaker 00:
And so, I would say, first, the computerized rules are insufficient here.

[01:23:25] Speaker 00:
And second, the rules, yeah, I mean, I think I would say the computerized rules are insufficient for two reasons. One, they don't actually require that each of the I2 requirements are met. And second, they don't involve the IRS in assessing each request. The IRS must do more than what Mr. Christensen contends. They must do more than rubber stamp these requests, particularly where these requests on their face are clearly beyond credibility.

[01:24:02] Speaker 00:
So, for example, I think the address example is the most straightforward. No one here thinks that the policy requires an actual address to be submitted for each taxpayer.

[01:24:14] Speaker 04:
As Mr. That this process that they used for the August submission, August disclosures.

[01:24:19] Speaker 00:
I would say the process that they developed for ICE requests under the MOU. The statute requires that.

[01:24:25] Speaker 04:
Correct. An actual address.

[01:24:27] Speaker 00:
Correct.

[01:24:28] Speaker 04:
You're saying the IRS's judgment isn't being brought to bear? Is that your second point?

[01:24:33] Speaker 00:
Yes, that is part of it. Yes. The IRS must do more than just rubber stamp. So for example, I'd also point the court towards the taxable periods of the return information.

[01:24:45] Speaker 00:
This is why the individual nature of this matters. For an individual who has a removal order from the end of 2024, an address from 2022 is going to do nothing to show that that individual has overstayed their removal order. But what the IRS has done here is said, well, collectively, for 1.2 million people, this range is sufficient. I'll add to that that the output that ICE is receiving, so the output of what the IRS is sending, does not attach a date or even a year to the address.

[01:25:22] Speaker 00:
So when ICE receives this information, they only know that this is the IRS's last known address. It provides no evidence as to when that address is from. It may be from 2022, two years before a removal order is even entered. It may be from 2025. But the ICE does not know. And so where a request is so... You said IRS doesn't attach dates to its address? That's correct. And...

[01:25:48] Speaker 02:
I don't understand that argument to have too much force. I mean, assuming that they are making a request for whatever information that the IRS has for somebody and it's 90 days past a final removal order, whether the address was given to the IRS last week or 10 years ago, it still could be relevant to an investigation of them going to that address and seeing if that person is still in the United States when they're supposed to be gone.

[01:26:32] Speaker 00:
So I would make two points in response to that, Your Honor. And first, Judge Pillard, I would just point you to A464 for the point I made before about what information is sent from the IRS to ICE, which does not include any year. But to your point, Your Honor, If the rationale for which they are giving this information is so that they can go out and locate the person, if that's the specific reason, it is then beyond credibility that one individual could do that not only for the 1.2 million individuals in this request, but the 7.5 where that individual was also listed as personally and directly engaged.

[01:27:15] Speaker 04:
But they could be engaged in the investigation and task that.

[01:27:19] Speaker 04:
You know, to groups of people that we have all these addresses and, you know, Iowa City, we're going to have paralegals in the U.S. attorney's office there go off and do it. I mean, you can be personally, whatever it is, and directly involved without the only person who's personally and directly involved. I think that's a difficulty.

[01:27:40] Speaker 04:
with that.

[01:27:42] Speaker 04:
And I think if this were a murder investigation, even if it's a stale address, you'd go there and find out, has anybody ever heard of this person? What do we know? I mean, it is a little extraordinary that there's going to be follow-up on all of these folks. It's a little unclear. I get that. But the relevance doesn't have to be that it's going to be more recent.

[01:28:05] Speaker 00:
I would make two points, Your Honor.

[01:28:08] Speaker 00:
First, I think you're right that there may be follow up on all of these people. Because what the White House spokesperson said is that this policy is part of the administration's goal to locate and deport these individuals. But what 6103 permits is disclosures for criminal investigations only. And that goes to my second point, which is that the IRS, in its brief, conceded that it does not have open criminal investigations for each of these individuals.

[01:28:38] Speaker 00:
They said that they are running an investigation. I would call it more of a dragnet or surveillance of vast amounts of what this government calls its most confidential data. to then determine, after the receipt and surveillance of that data, whether it wants to open individual investigations. Those are the investigations that I think this statute requires. Because this information, as this court said in Centro, 6103 does not authorize the freewheeling disclosure of sensitive tax information.

[01:29:11] Speaker 02:
I take your point, but if the government in its... Wisdom decides that rather than finding people who have overstayed the 90 days and have a final removal order, rather than use resources to prosecute them and put them in jails or whatever here in the U.S., it's just going to go ahead and remove them.

[01:29:39] Speaker 02:
How is that kind of abusing this statute?

[01:29:46] Speaker 02:
because it's still a crime that they're investigating, but maybe they've made a decision and maybe they can announce to the world, we're not actually gonna prosecute anyone who may have committed this crime. We just want to go ahead and effectuate their removal from the United States. How does that violate the statute?

[01:30:12] Speaker 00:
I think that betrays Congress's intent in creating, in 6103, in creating a statute that protects what it calls some of this country's most sensitive data.

[01:30:26] Speaker 00:
Congress said in passing 6103 that the privacy of that data should be equivalent to an individual's papers within their own home.

[01:30:34] Speaker 02:
So if there was a legitimate prosecution that could be had, that they could be using it to investigate, but they've said, look, we have a policy where we're just not going to to prosecute any of these people. We just want to remove them because they do have a final removal order. You're saying if that were announced and it's absolutely crystal clear that that were final agency action, it's written down, it's rulemaking, it could be whatever the bells and whistles are, that we should strike that down because that would be contrary to law.

[01:31:16] Speaker 00:
Here's what I would say, Your Honor.

[01:31:19] Speaker 00:
If ICE requested one address for about one individual. They conducted or were conducting a criminal investigation.

[01:31:27] Speaker 02:
I want you to answer my question, which is what I described, would that be contrary to law?

[01:31:37] Speaker 00:
With apologies, Your Honor, could you repeat the hypothetical?

[01:31:41] Speaker 02:
There's...

[01:31:44] Speaker 02:
Undisputable final agency action that we are going to make these requests. And let's just say they're going to be one by one requests. Okay. And it's for persons that we know have a final removal order and it's more than 90 days, but we want to find addresses.

[01:32:07] Speaker 02:
And yes, we could prosecute those people if we found them for overstaying it.

[01:32:14] Speaker 02:
But we don't intend to do that. We just want to investigate whether they're here and if they're here, remove them.

[01:32:21] Speaker 00:
I understand.

[01:32:22] Speaker 02:
Would that be contrary to law?

[01:32:24] Speaker 00:
That would be contrary to law because what the statute requires is that ICE provide the specific reason why it is relevant to a criminal investigation. And what you just stated is that the investigation is not criminal in nature. There may be a pending investigation.

[01:32:41] Speaker 02:
criminal matter with respect to that individual or group of individuals but what you just stated your honor is that if they say if they say that that rather than prosecute the person we're going to enter into you know some sort of deferred offer some sort of deferred prosecution agreement to them to where rather than prosecuting rather than going forward with a prosecution, they will essentially kind of get a deal where rather than a conviction and potentially a prison sentence, they can leave.

[01:33:20] Speaker 02:
Does that violate the, is that contrary to law?

[01:33:28] Speaker 00:
I think that is a closer call, but I don't think that's what's at issue here. I would go back to Judge Pillar's question to Mr. Christensen earlier, which is, is DOJ involved, and what typically is their involvement? To the extent that there are those agreements in place, I think there's a high likelihood that DOJ would be involved. Where the requests for 1.24 million addresses are on their face, clearly not pursuant to criminal investigations?

[01:33:58] Speaker 00:
I think that's a different question.

[01:33:59] Speaker 02:
I guess what I'm trying to get an answer to you from is like, why does one have to read the statute to say that there has to be, as it says, I'm looking at the language.

[01:34:31] Speaker 02:
The person has to, it talks about an investigation which may result in such a proceeding, but I guess what language in the statute would you say that these hypothetical policies I'm beating about the head and shoulders, what language in the statute would you say it's viable?

[01:34:56] Speaker 00:
I would say that in I-2B-4, the IRS must the IRS must receive the specific reason why such disclosure is or may be relevant to such investigation. The word investigation there refers back to I-1, where investigation refers to a criminal investigation. And so this country's promise has always been, and President Trump in his first term said, that this information will not be used for civil immigration enforcement.

[01:35:32] Speaker 00:
And what the record shows collectively is that ICE is working with the IRS to try to cram a significant amount of address disclosures into I-2 unlawfully.

[01:35:46] Speaker 04:
I would- So is it, and maybe this is oversimplified, but it seems like if you're ICE and you have issued an order of deportation, or whoever, the person has an order of deportation, you know the date of that order. and you know that 90 or more days has passed, you already know that the crime has been completed. There's no further investigation for that crime. So what they're using the information for is not for a criminal investigation.

[01:36:16] Speaker 04:
They're using it to round people up and deport them.

[01:36:22] Speaker 00:
That's correct, Your Honor. And I think the district court made significant factual findings with respect to the substantial likelihood that ICE is or will be using this information in order to conduct civil immigration enforcement. There's also information in the record where ICE says that it wants this data to enrich its own records. So I guess the question I'm just answering

[01:36:51] Speaker 04:
being devil's advocate on my own question, which is, okay, the crime of overstay is complete without the address information, but maybe not if they don't know whether the person is still in the United States. But then wouldn't they have to call the data they have and say, you know, we've checked whether these people are still here, here's the unknowns?

[01:37:10] Speaker 04:
Or...

[01:37:12] Speaker 00:
I mean, none of that is, that is one element of the crime that there's no evidence has been investigated. I think in addition, I believe it's about two-thirds of removal orders are delivered in absentia. And so willful overstay is the criminal term. And there's nothing to suggest that they're doing anything to investigate that. And again, I just want to go back to the prior policy.

[01:37:43] Speaker 00:
That could all be discussed between the IRS's disclosure manual manager and the AUSA or immigration official investigating a crime to ensure that the statutory requirements are being met. But that process has been eroded here and it's replaced by insufficient computerized rules.

[01:38:00] Speaker 04:
Do you have any information, and I'll try to remember to ask this of Mr. Christensen too, any information of how often an overstay is criminally prosecuted?

[01:38:09] Speaker 00:
Candidly, Your Honor, I did try to obtain that information and was unable to find it.

[01:38:19] Speaker 00:
But yeah, I don't have that information.

[01:38:24] Speaker 00:
Our belief is that it is a low number. And for example, there were not 47,000 prosecutions with respect to this last year.

[01:38:33] Speaker 04:
STEPHANIE DESMOND- Right. I guess what I'm sort of becoming clear to me is there has to be some nexus to a criminal investigation with the information that they're seeking. And the question is, what is that?

[01:38:45] Speaker 00:
LESLIE KENDRICK- I agree with that, Your Honor.

[01:38:49] Speaker 05:
One more question. I'm just gonna have one more question, I think, on 444, Appendix 444.

[01:38:58] Speaker 00:
Yes, Your Honor.

[01:39:00] Speaker 06:
This is I guess slash IRS.

[01:39:07] Speaker 06:
We understand that this letter, and that's the one from Todd Lyons with the spreadsheet of information. We understand that this letter coupled with the data file comply with requirements of the MOU and statute. And so IRS should begin processing.

[01:39:24] Speaker 06:
Sorry, there's so many emails and stuff in here. Where was the decision made that we understand that this letter complies? Do we know who made that decision that it complies?

[01:39:34] Speaker 00:
Yeah. So if I may, for one moment, just walk through the steps because it is hard to parse. So on June 25th, The spreadsheet that Mr. Christensen referenced was sent to the IRS. On June 25th at A430, at that point, Chief Counsel, I'll use his initials, A.D., determined that that spreadsheet did not meet the requirements.

[01:40:01] Speaker 00:
By June 27th, he was pushed out of the IRS. On June 27th at A440, there's an email from A.M., the Deputy Chief Counsel, saying, To IT June, which I'm sorry, it's on July 1st. I apologize. July 1st, a 440.

[01:40:22] Speaker 04:
So this Tyler email to.

[01:40:26] Speaker 04:
To cache it and personally identify it.

[01:40:29] Speaker 00:
It's from Morris on A440. That's what I have.

[01:40:35] Speaker 00:
And in the emails below that, a Treasury official says, IT says, I was told not to process this information until AD has signed off. And Treasury says, don't wait for that. Go to AM, which is Deputy Chief Counsel.

[01:40:56] Speaker 00:
This email is the one that says this has met the requirements and the IRS can begin processing the request.

[01:41:03] Speaker 00:
That request is the spreadsheet. And then on June 27, the IRS sent a letter which is at A449. So the request is the spreadsheet, which is partially redacted, coupled with the letter at A449. And I do want to just emphasize, I'm calling it a request. But we do need to be clear. It is 1.2 million requests rolled into one approval. And I think that is a clear evidence of the change in policy here.

[01:41:39] Speaker 06:
Okay, and then 445, you have the chief information officer, the staff officer saying, we met with, or staff council met with six, repeating the Audrey Morris, met with the 603 experts, and we're going to run it through our data exchange program. That's correct, Your Honor.

[01:41:56] Speaker 02:
So why is ICE not made a party to this proceeding?

[01:42:01] Speaker 00:
Okay.

[01:42:06] Speaker 00:
This case is about the IRS's treatment and protection of its data. And so at the time this case was brought, that is where this case focused and our clients wanted to focus. The Center for Taxpayer Rights' entire mission and statutory obligations are focused on the IRS's protection of data. And so regardless of what ICE has done, for example, if ICE wanted to send requests en masse, I don't think our clients would have objection to that if they were processed consistent with IRS policy.

[01:42:42] Speaker 00:
ICE can do what it wants just like any other agency can with respect to requests under 6103, but the obligation to protect tax data is that of the IRS, and that is why our clients have focused on the actions of the agency.

[01:42:54] Speaker 02:
And is it accurate for us to view your allegation of what is the final agency action as not the specific disclosure that was made in, was it June, whenever it was made? August of 2025. That's correct.

[01:43:27] Speaker 00:
The policy at issue is a policy that is written but scattered around the administrative record that allows for disclosures of confidential tax information to ICE under 6103 I-2 by evaluating requests in mass and never assessing that each individual request meets I-2 statutory requirements.

[01:43:52] Speaker 04:
So if it was in mass and the algorithm was fantastic and it required really detailed narrative descriptions and every one of them had to be different and had to really match the data, that would be a problem.

[01:44:08] Speaker 00:
I think that really depends on the facts. For example, if the algorithm had a way to confirm that, as this court said in Central, not any address will do, but confirm that it is an address to whom the information relates of the taxpayer, if they could confirm that the reason for which the information was disclosed is specific enough, I don't think that would necessarily violate the contrary to law claims, I do think it would still be arbitrary and capricious because there would be a meaningful change in which the agency processed these requests and interpreted I2 without explanation, without considering reliance interests.

[01:44:54] Speaker 00:
But I think that's very different than what we see here.

[01:44:56] Speaker 04:
STEPHANIE DESMOND- What would it be? If I had more confidence generally in the ability of an algorithm to do a great job, this one just was pretty blunt and careless, How would I analyze your claim? The policy is they used an algorithm that was inadequate to confirm addresses that didn't purport to require a reason that was specific to the circumstances of the case. Anything else?

[01:45:24] Speaker 00:
So I do think the IRS would have to do more.

[01:45:30] Speaker 00:
The 6103 regulates in minute detail disclosures and must keep information confidential. And so I think it requires perhaps, for example, Your Honor, a, apologies, an algorithm could put out an output of 47,000 addresses. And then an individual disclosure manager reviews the requests and the disclosures to confirm that it meets the statute.

[01:46:02] Speaker 00:
We know that didn't happen here.

[01:46:03] Speaker 04:
So maybe they could do the first cut, and that would help the processing, but someone would still have to inspect.

[01:46:08] Speaker 00:
Yeah, it would depend on the facts, but maybe. But we know here that the quality check that the IRS purports to do was, I think, 200 records of 1.2 million. I mean, what we're talking about is just a lack of... of IRS responsibility and involvement in ensuring that the statutory requirements are met. And that is a clear change in both its interpretation of what the statute requires and its policy with respect to these specific requests.

[01:46:37] Speaker 06:
No further questions?

[01:46:40] Speaker 06:
Thank you very much. Thank you, Your Honors. We ask you to affirm. Mr. Christensen?

[01:46:48] Speaker 06:
If I said that correctly, I apologize. I'll give you three minutes.

[01:46:54] Speaker 01:
I think it's important to keep in mind what is the alleged policy that the district court actually found. And that's on page 1868 of the appendix. The district court found that the IRS has made a final decision to adopt and implement a policy of disclosing the confidential address information of tens of thousands of taxpayers to ICE under Section 6103 of the Code, in reliance on representations from ICE that the addresses are relevant to and will be used for immigration-related criminal investigations and proceedings, even when ICE identifies only a single ICE employee or a small number of ICE employees as the employees personally and directly engage in each of the tens of thousands of relevant criminal investigations or proceedings.

[01:47:38] Speaker 01:
That's the policy as the district court found it. And frankly, it's simply a gloss on the policy that's actually reflected in the memorandum of understanding. All of the evidence in the record about an address sharing policy is simply evidence of the address sharing policy reflected in the memorandum of understanding.

[01:48:04] Speaker 01:
Whether IRS processes these requests in mass or in bulk really is the sort of day-to-day operation that courts don't get involved in and that are not reviewable under the APA.

[01:48:19] Speaker 01:
It's a common management of government programs that courts just don't get involved in. ICE doesn't have discretion to deny a request simply because it's made in bulk. IRS, you mean? Thank you so much.

[01:48:33] Speaker 01:
That is what I meant.

[01:48:34] Speaker 06:
I think if you had the computer algorithm that could, in fact, make sure every jot and tittle of 6103I2 was satisfied, the fact that it could do it for a thousand, I mean, the statute itself, it seems to anticipate that. individualized considerations, but it was written a long time ago.

[01:49:00] Speaker 06:
Not that long, but written at a previous time before all this computerization. And that wouldn't be, there's nothing in here that insists that it has to be done one at a time, as long as Congress's requirements are satisfied.

[01:49:17] Speaker 01:
Yeah, I agree, Your Honor.

[01:49:20] Speaker 01:
And also, if I may, just quickly, with respect to standing the center and organizational standing, the center argues and the district court found that taxpayers were less willing to gauge in its services. And those taxpayers included two specific groups, taxpayers with individual taxpayer identification numbers and taxpayers for whom English is a second language.

[01:49:46] Speaker 06:
And domestic violence victims.

[01:49:48] Speaker 01:
And that's in the statute, correct? I don't think the district court made that finding. Oh, it was in the record here. Okay, I don't recall for certain.

[01:49:58] Speaker 01:
The point I wanted to make is that those groups of taxpayers simply are not a proxy for the individuals implicated here under the IRS's address sharing policy, which implicates individuals who have overstayed a final removal order. The district court didn't make any findings. That the center's services provided to individuals who have overstayed a final removal order have decreased.

[01:50:23] Speaker 04:
No, no. But the point is a chill point. It's a point that as never before. I mean, in most countries, I think you wouldn't go to one government bureaucracy and think you could trust it not to share information with another. But we have a very strong trust. tradition with respect to the confidentiality of taxpayer information. So I think they're thinking, whoa, we thought there was kind of a wall here, but this is showing there isn't. Who knows what they're going to come after me about?

[01:50:49] Speaker 01:
I guess with respect then, if that's the case, if it's the chilling effect, then again, that's a speculative chain of causation.

[01:51:00] Speaker 04:
Given Department of Commerce, I think the notion that, I mean, people who are absolutely lawfully taken in the census, if they start upping the requirements, people are going to be deterred.

[01:51:19] Speaker 01:
The other point that I would make is, you would expect, or the predictable effect of the policy wouldn't be that taxpayers would be less inclined to seek services that are free, that are provided by the center. In fact, you would expect that the opposite would occur, that these immigrant taxpayers would actually be more interested and more inclined to seek out the center's services, which are provided for free, and where the center is dedicated to informing these taxpayers of their rights.

[01:51:49] Speaker 04:
I can't have anything to do with the IRS. Why would I bother to go find out information? I already know this is a bad deal.

[01:51:56] Speaker 01:
It's crazy policy, you have to admit. But that would be an irrational taxpayer to say, you know, I'm not going to file tax returns. I'm going to not comply with that without first going and seeking services from an organization like the center. So I... I think that it's a stretch or speculative to say that the address-sharing policy caused these taxpayers to be less willing to engage the center's services. And finally, just to point out that under the Supreme Court's decision in alliance, in order to establish standing under havens, the challenged action must, in the Supreme Court's words, must directly affect and interfere with the organization's core business activities.

[01:52:42] Speaker 01:
Under their own theory of injury, it's a remote theory of injury based on indirect causation, which if this court were to adopt that theory of injury, it would certainly be an expansion or it would be extending the havens holding, which Alliance tells us courts should not be doing. Understood. Thanks. Thank you, Your Honor.

[01:53:04] Speaker 06:
Thank you very much to both counsel for all your assistance with this case. It is now submitted.