Charlton C. Tooke, III

United States Tax Court

164 T.C. No. 2

CHARLTON C. TOOKE III,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

—————

Docket No. 398-21L. Filed January 29, 2025.

—————

P filed federal income tax returns for taxable years

2012 through 2017 but did not pay the tax. The Internal

Revenue Service (IRS) assessed the tax and separately

issued P a Notice of Federal Tax Lien Filing and a Final

Notice of Intent to Levy. P timely requested a collection due

process (CDP) hearing with the IRS Independent Office of

Appeals (Appeals). During the CDP hearing, P raised

constitutional arguments that Appeals, and the employees

who work therein, serve in violation of the constitutional

separation of powers, particularly the Appointments

Clause; these arguments were rejected. The Appeals

Officer prepared a draft Notice of Determination, which

was subsequently reviewed and approved by the Appeals

Team Manager.

Pursuant to I.R.C. § 6330(d)(1), P timely filed a

Petition with the Tax Court. During this proceeding, P filed

two Motions concerning the constitutional separation of

powers and the CDP hearing before Appeals: (1) an

Appointments Clause Motion, asserting that the Appeals

Officers who conducted the CDP hearing, the Appeals

Team Manager who reviewed and approved the Notice of

Determination, and the Chief of Appeals (Chief), who the

statutory scheme tasks with the “supervision and

direction” of Appeals, see I.R.C. § 7803(e)(2)(A), but did not

Served 01/29/25

2

participate in the CDP hearing, each serve in violation of

the Appointments Clause, see U.S. Const. art. II, § 2, cl. 2;

and (2) a Separation of Powers Motion (Removal Power

Motion), asserting that Appeals, codified by the Taxpayer

First Act, Pub. L. No. 116-25, § 1001(a), 133 Stat. 981, 983

(2019) (codified at I.R.C. § 7803(e)(1)), is a de facto

independent agency whose head, the Chief, a position also

codified by the Taxpayer First Act § 1001(a), 133 Stat. at

983 (codified at I.R.C. § 7803(e)(2)(a)), is subject to an

unlawful removal restriction.

Held: We reject P’s “root-to-branch” theory of

causation. P has not made the necessary showing that the

Chief’s tenure affected his hearing and prejudiced him in

some way. See, e.g., United States v. Smith, 962 F.3d 755

(4th Cir. 2020); United States v. Castillo, 772 F. App’x 11

(3d Cir. 2019).

Held, further, P has failed to establish each element

of standing regarding the Chief. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560–61 (1992). Therefore, P lacks

standing to challenge the appointment and removal of the

Chief.

Held, further, P’s Appointments Clause Motion will

be denied as to the Chief. P’s Removal Power Motion will

be denied.

Held, further, P has standing to challenge the

appointments, or lack thereof, of Appeals Officers and

Appeals Team Managers.

Held, further, following Tucker v. Commissioner, 135

T.C. 114 (2010), aff’d, 676 F.3d 1129 (D.C. Cir. 2012),

Appeals Officers and Appeals Team Managers are not

“Officers of the United States” and therefore do not need to

be appointed within the mandates of the Appointments

Clause. P’s Appointments Clause Motion will be denied as

to Appeals Officers and Appeals Team Managers.

—————

3

Joseph A. DiRuzzo III and Daniel M. Lader, for petitioner.

Kimberly A. Daigle, Lauren B. Epstein, Joshua P. Hershman,

Christopher W. Jones, and Martha Jane Weber, for respondent.

OPINION

JONES, Judge: In this collection due process (CDP) case,

petitioner, Charlton C. Tooke III, asks this Court to review a Notice of

Determination Concerning Collection Actions under IRC Sections 6320 1

or 6330 of the Internal Revenue Code (Notice of Determination), issued

by the Internal Revenue Service (IRS) Independent Office of Appeals

(Appeals) on January 5, 2021. The Notice of Determination sustained

the filing of a Notice of Federal Tax Lien and proposed levy action.

The proposed collection actions stem from Mr. Tooke’s self-

assessed but unpaid federal individual income tax liabilities for taxable

years 2012 through 2017. Mr. Tooke timely requested a section 6320

CDP lien hearing for taxable years 2013 through 2017 and a section

6330 CDP levy hearing for taxable years 2012 through 2017.

Currently before the Court, however, are two motions filed by Mr.

Tooke: (1) Petitioner’s Motion to Declare IRS Independent Office of

Appeals, Appeals Officer(s) an “Officer of the United States” & Remand

to the IRS Independent Office of Appeals (Appointments Clause

Motion); and (2) Motion to Declare IRS Independent Office of Appeals

Unconstitutional as Violating Separation of Powers & Set Aside IRS

Independent Office of Appeals Actions (Removal Power Motion).

The Court may eventually review the merits of the underlying

collection case, but the Motions currently pending before the Court

present questions about neither Mr. Tooke’s tax liabilities nor the

collection decisions set forth in his Notice of Determination. Rather, Mr.

Tooke presents questions about the constitutionality of the staffing of

Appeals—including Appeals Officers, Appeals Team Managers, and the

1 Unless otherwise indicated, statutory references are to the Internal Revenue

Code, Title 26 U.S.C. (Code), in effect at all relevant times, regulatory references are

to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times,

and Rule references are to the Tax Court Rules of Practice and Procedure.

4

Chief of Appeals (Chief)—as well as the structure of the office in which

they work.

In Mr. Tooke’s Appointments Clause Motion, he asserts that the

Appeals Officer who conducted his CDP hearing is an inferior “Officer of

the United States” who must be appointed in a manner specified by the

Appointments Clause. See U.S. Const. art. II, § 2, cl. 2. Further, Mr.

Tooke contends that the Appeals Team Manager who reviewed and

approved his Notice of Determination is a principal “Officer of the

United States,” as is the Chief who is responsible for supervising and

directing Appeals. Therefore, Mr. Tooke contends that Appeals Team

Managers and the Chief must be nominated by the President and

confirmed with the advice and consent of the Senate. See id.

This Court has held that the positions of Appeals Officer and

Appeals Team Manager are not statutorily created, and their occupants

need not be appointed in a manner prescribed by the Appointments

Clause. See Tucker v. Commissioner (Tucker I), 135 T.C. 114, 152–56,

165 (2010), aff’d, Tucker v. Commissioner (Tucker II), 676 F.3d 1129

(D.C. Cir. 2012). At present, Appeals Officers and Appeals Team

Managers are hired pursuant to the Commissioner’s general hiring

authority under section 7804(a), see Tucker I, 135 T.C. at 153, and the

Chief was appointed by the Commissioner pursuant to section

7803(e)(2)(B). Pursuant to his theory that Appeals Officers, Appeals

Team Managers, and the Chief are “Officers of the United States”

improperly appointed, Mr. Tooke asks the Court to “set aside all

action[s] taken by such unconstitutional actors as void ab initio” and to

remand his case to Appeals for a constitutionally compliant proceeding.

In Mr. Tooke’s Removal Power Motion, he contends that the Chief

is removable only for such cause as will promote the efficiency of the

service, see 5 U.S.C. § 7513, and argues that the removal restriction is

an unlawful restraint on the President’s removal authority that

“severely restricts executive oversight and accountability to the people.”

Mr. Tooke urges this Court to “set aside all agency actions as ultra

vires.”

For the reasons elaborated upon below, we find that Mr. Tooke

lacks standing to challenge the Chief’s appointment under the

Appointments Clause or his removal under separation of powers

principles. As to Appeals Officers and Appeals Team Managers, we find

that Mr. Tooke has standing to challenge their appointments. On the

5

merits, we follow Tucker I in its conclusion that such personnel are not

Officers of the United States. Accordingly, we will deny both Motions.

Background

The following background information is drawn from the parties’

pleadings and Motion papers, including the corresponding declarations

and Exhibits attached thereto. See Rule 121(c). 2 This background is

stated solely for the purpose of resolving the present Motions and not as

findings of fact in this case. See Sundstrand Corp. v. Commissioner, 98

T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). Mr. Tooke resided

in Florida when he filed his Petition.

I. Mr. Tooke’s Collection Due Process Hearing

Mr. Tooke is liable for self-assessed but unpaid federal individual

income tax for taxable years 2012 through 2017. On March 21, 2019, the

IRS issued Mr. Tooke a Final Notice of Intent to Levy that advised him

of his right to a hearing pursuant to section 6330. Mr. Tooke submitted

Form 12153, Request for a Collection Due Process or Equivalent

Hearing, dated April 20, 2019, which the IRS received on April 25, 2019.

Mr. Tooke timely requested a section 6330 CDP levy hearing for taxable

years 2012 through 2017. Therein, Mr. Tooke requested collection

alternatives to the proposed levy action.

The IRS also recorded a federal tax lien and issued a Notice of

Federal Tax Lien Filing, dated April 2, 2019, that advised Mr. Tooke of

his right to a hearing pursuant to section 6320. Mr. Tooke submitted

Form 12153, dated April 27, 2019, which the IRS received on April 29,

2019. Mr. Tooke timely requested a section 6320 CDP lien hearing for

taxable years 2013 through 2017. Therein, Mr. Tooke requested

collection alternatives to the federal tax lien.

Appeals Officer Kay Pollock (AO Pollock) was initially assigned

to consider Mr. Tooke’s requests for CDP hearings. AO Pollock was

assigned the task of conducting Mr. Tooke’s section 6330 CDP levy

hearing on or about July 16, 2019, and was subsequently assigned the

2 Mr. Tooke’s Appointments Clause Motion and Removal Power Motion are

styled as motions for judgment on the pleadings. However, Rule 120(b) provides that

if matters outside of the pleadings are presented, then a motion for judgment on the

pleadings shall be treated as a motion for summary judgment under Rule 121. The

Court has considered the declarations and accompanying Exhibits filed by respondent

in this case. Accordingly, we dispose of the instant Motions under Rule 121.

6

task of conducting his section 6320 CDP lien hearing on or about

September 26, 2019. 3 On or about July 1, 2020, Mr. Tooke’s CDP hearing

was transferred to Appeals Officer Nathan Herring (AO Herring), who

held several calls with Mr. Tooke’s representative to discuss the CDP

notices and to consider various collection alternatives. Mr. Tooke’s

proposed offer-in-compromise (OIC) was rejected, and the parties were

unable to come to terms on an installment agreement (IA).

Near the conclusion of his CDP hearing, Mr. Tooke raised

constitutional arguments regarding the separation of powers,

particularly the Appointments Clause. Mr. Tooke urged AO Herring to

stay the administrative proceeding until the alleged constitutional

defects were remedied. In response, AO Herring explained that he would

not consider any frivolous issues.

AO Herring prepared the draft Notice of Determination that was

subsequently reviewed and approved by Appeals Team Manager

Rhonda R. Warren (ATM Warren). On January 5, 2021, ATM Warren

issued Mr. Tooke the Notice of Determination that constitutes the basis

of the present action. The Notice of Determination sustained the federal

tax lien and the proposed levy action. There is no indication in the Notice

of Determination or the broader record before the Court that the Chief

participated in Mr. Tooke’s CDP hearing.

II. Instant Proceedings Before the Tax Court

On January 29, 2021, Mr. Tooke timely filed a Petition with this

Court, seeking review of the Notice of Determination. Mr. Tooke resided

in Florida when he timely filed the Petition. 4 Respondent filed an

Answer on March 12, 2021.

Thereafter, Mr. Tooke filed his Appointments Clause Motion.

Respondent filed an Objection to Mr. Tooke’s Appointments Clause

Motion and the Declaration of Michelle C. Haines in support of the

Objection. Mr. Tooke filed a Reply to respondent’s Objection.

3 Mr. Tooke’s requests for a section 6320 lien hearing and a section 6330 levy

hearing were combined, and one hearing was conducted. See Treas. Reg. §§ 301.6320-

1(d)(2), Q&A-D2 and D3, 301.6330-1(d)(2), Q&A-D2 and D3. Accordingly, we will refer

to the combined hearings as the CDP hearing.

4 Absent a stipulation to the contrary, this case is appealable to the U.S. Court

of Appeals for the Eleventh Circuit. See § 7482(b)(1)(G)(i), (2).

7

Further, Mr. Tooke filed his Removal Power Motion, and

respondent filed an Objection thereto. Subsequently, Mr. Tooke lodged

a Notice of Supplemental Authority, which was accepted for filing by

Order of the Court. Respondent then filed a Response to Notice of

Supplemental Authority.

Additionally, briefing ensued addressing whether Mr. Tooke has

standing to raise the issue of the appointment of the Chief, and if so, the

appropriate remedy. We subsequently held a hearing (oral argument)

on the Motions. 5

Discussion

The Motions currently before the Court ask us both to consider

issues of first impression and to reconsider issues that this Court has

previously addressed. See, e.g., Tucker I, 135 T.C. 114; Fonticiella v.

Commissioner, T.C. Memo. 2019-74. Therefore, we must consider Mr.

Tooke’s Motions—and the constitutional arguments presented therein—

in light of recent amendments to the law and recent jurisprudential

developments, including those occurring since we last considered similar

issues. First, we will discuss the history, function, and legal authorities

for Appeals. Then we will discuss the separation of powers doctrine,

including the appointment and removal of executive officers. Then we

will address standing, and finally we will consider classification under

the Appointments Clause.

I. IRS Independent Office of Appeals

The “Internal Revenue Service Independent Office of Appeals,” in

its current form, exists pursuant to the amendments to the law enacted

as part of the Taxpayer First Act, Pub. L. No. 116-25, § 1001, 133 Stat.

981, 983–85 (2019). However, Appeals has a long history and has

operated under many names, adopted various structures, and existed

pursuant to several authorities throughout the years. Tucker I, 135 T.C.

at 135–36.

A. A Brief History of the Independent Office of Appeals

Established by the Revenue Act of 1918, ch. 18, § 1301(d), 40 Stat.

1057, 1141, the Advisory Tax Board was the first iteration of the office

that we now know as Appeals. All decisions of the Advisory Tax Board

5 We will refer to the hearing we held, see Doc. 33, as the “oral argument” to

avoid any confusion with the administrative hearing conducted by Appeals.

8

were subject to review by the Commissioner. IRS Document 7225,

History of Appeals, 60th Anniversary Edition 3 (Nov. 1987). However,

the Advisory Tax Board was short lived, and it was quickly replaced by

the administratively created Committee on Appeals and Review. Id.

Soon thereafter, the Revenue Act of 1921, ch. 136, § 250(d), 42 Stat. 227,

265–66, augmented the authority of the Committee on Appeals and

Review by granting the committee the authority to hear administrative

appeals from taxpayers and to redetermine their deficiencies.

Relatively soon after its inception, the Committee on Appeals and

Review was replaced by the Board of Tax Appeals, the predecessor to

this Court. 6 Revenue Act of 1924, ch. 234, § 900(a), 43 Stat. 253, 336; see

also IRS Document 7225, supra, at 3. The Board of Tax Appeals was

created with the aim of providing a tribunal to resolve taxpayer disputes

and it was structured as an independent agency within the executive

branch. Revenue Act of 1924 § 900(k), 43 Stat. at 338; see also IRS

Document 7225, supra, at 3.

However, in the late 1920s, on account of the rapidly expanding

docket of the Board of Tax Appeals, a new dispute resolution forum was

created. IRS Document 7225, supra, at 3. In 1927, the Special Advisory

Committee was formed as part of the Commissioner’s Office to reprise

the role of the Committee on Appeals and Review. Id. The Special

Advisory Committee was the foundation for the Appeals office that

exists today. See Tucker I, 135 T.C. at 136 n.49. Since then, the Special

Advisory Committee has changed names several times and has been

known as the “Technical Staff,” the “Appellate Staff,” the “Appellate

Division,” the “Appeals Division,” and the “Office of Appeals.” IRS

Document 7225, supra, at 1–2; see also, e.g., Tucker I, 135 T.C. at 135–

36; Statement of Procedural Rules, 26 C.F.R. § 601.106(e)(1). However,

regardless of its name, structure, or authority, Appeals and its

predecessors have long had the same mission: to resolve tax

6 Under the Revenue Act of 1926, ch. 27, § 1000, 44 Stat. 9, 105–09, the Board

of Tax Appeals adopted a statutory structure similar to that of the Court today,

although the Board remained an independent agency within the executive branch. In

1942, while still retaining its status as an independent agency, the Board became

known as the Tax Court of the United States, and its members denominated judges.

Revenue Act of 1942, ch. 619, § 504(a), 56 Stat. 798, 957; see also Harold Dubroff &

Brant J. Hellwig, The United States Tax Court: An Historical Analysis 175, 186–95 (2d

ed. 2014).

In 1969, Congress established this Court under Article I as a court of public

record and renamed it the United States Tax Court. Tax Reform Act of 1969, Pub. L.

No. 91-172, § 951, 83 Stat. 487, 730.

9

controversies without litigation. See § 7803(e)(3); see also Tucker I, 135

T.C. at 136 (citing IRS Document 7225, supra, at 3–6).

Before the enactment of the CDP regime, Appeals operated

primarily pursuant to regulation. See Tucker I, 135 T.C. at 134–36, 153

n.69 (noting that Appeals was “originally a creature of regulation”);

Fonticiella, T.C. Memo. 2019-74, at *6 n.3 (same). However, in 1998

Congress passed the Internal Revenue Service Restructuring and

Reform Act of 1998 (RRA), Pub. L. No. 105-206, § 1001(a)(4), 112 Stat.

685, 689 (1998), which sought to “ensure an independent appeals

function within the Internal Revenue Service.” As this Court explained

in Tucker I, the predecessor to modern-day Appeals was a component of

the IRS within the Department of the Treasury. Tucker I, 135 T.C. at

134–35. Congress committed the prior-existing Office of Appeals to carry

out the new CDP function, but that office was not created by the CDP

provisions (i.e., sections 6320 and 6330), nor any other provisions

enacted as part of the RRA. Tucker I, 135 T.C. at 134–35. Although

certain provisions of the Code required independent administrative

review, the provisions of the RRA presumed the prior existence of the

Office of Appeals within the IRS. See, e.g., RRA § 1001(a)(4). The

President retained full oversight of the Commissioner pursuant to

section 7803(a), and the Commissioner, in turn, exercised his delegated

authority under section 7804 to accomplish the duties and mission of the

IRS, including the appeals function. Fonticiella, T.C. Memo. 2019-74,

at *11.

B. Modern-Day Independent Office of Appeals

1. Legal Basis for the Independent Office of Appeals

While the RRA presumed the prior existence of Appeals, the

amendments to the law enacted as part of the Taxpayer First Act,

§ 1001(a), 133 Stat. at 983–85 (codified at § 7803(e)), formally

established a statutory basis for the office. Therein, the Taxpayer First

Act provides that “[t]here is established in the Internal Revenue Service

an office to be known as the ‘Internal Revenue Service Independent

Office of Appeals’.” Id. at 983; see also § 7803(e)(1).

Section 7803(e)(3), reciting the purpose and duties of Appeals,

provides:

It shall be the function of the Internal Revenue Service

Independent Office of Appeals to resolve Federal tax

controversies without litigation on a basis which—

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(A) is fair and impartial to both the

Government and the taxpayer,

(B) promotes a consistent application and

interpretation of, and voluntary compliance with,

the Federal tax laws, and

(C) enhances public confidence in the

integrity and efficiency of the Internal Revenue

Service.

The Appeals resolution process shall be “generally available to all

taxpayers.” § 7803(e)(4). But see Rocky Branch Timberlands LLC v.

United States, No. 22-12646, 2023 WL 5746600, at *2 (11th Cir. Sept. 6,

2023) (per curiam) (rejecting a taxpayer’s claim that the IRS violated

section 7803(e)(4) when the IRS denied a taxpayer’s request for an

administrative appeal before issuing a Notice of Final Partnership

Administrative Adjustment). The Taxpayer First Act also codified the

position of the Chief, as discussed further infra Part I.B.2.c.

Appeals is unique as it derives its authority from multiple sources

within the IRS. Among other authorities, Appeals is delegated the

authority vested in the Commissioner to “[d]etermine liability,

qualification, exempt status, or foundation classification for any case not

docketed in the Tax Court where the taxpayer does not agree with the

determination made by the originating function, and the taxpayer

requests consideration by Appeals.” Internal Revenue Manual (IRM)

1.2.2.9.8(2)(b) (Mar. 29, 2017). 7 Appeals is also delegated the authority

to settle such cases. IRM 1.2.2.9.8(2)(a).

Further, the Commissioner and the Chief Counsel have each

delegated Appeals the “exclusive jurisdiction to settle in whole or part

. . . cases docketed in the Tax Court,” unless otherwise provided. IRM

1.2.2.9.1(2)(b) (May 5, 1994); see also Rev. Proc. 2016-22, § 3.01, 2016-15

I.R.B. 577, 578 (outlining when cases are sent to Appeals for settlement).

Further, for CDP cases, sections 6320(b)(1) and 6330(b)(1) grant Appeals

the authority to hold CDP hearings. See Organic Cannabis Found., LLC

v. Commissioner, 161 T.C. 13, 19 (2023) (“Section 6320(b)(1) provides the

7 “The IRM [does not] have the force of law or confer substantive rights on

taxpayers. It does, however, govern the internal affairs and administration of the IRS,

and reliably describes the functions delegated to the different offices within the IRS.”

DelPonte v. Commissioner, 158 T.C. 159, 161 n.4 (2022) (citing United States v. McKee,

192 F.3d 535, 540 (6th Cir. 1999)).

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procedural steps that the taxpayer must take to obtain a CDP hearing

and also grants authority to Appeals to hold a hearing.”).

For purposes of sections 6320 and 6330, “[a] CDP hearing may,

but is not required to, consist of a face-to-face meeting, one or more

written or oral communications between an Appeals officer or employee

and the taxpayer or the taxpayer’s representative, or some combination

thereof.” Treas. Reg. §§ 301.6320-1(d)(2), Q&A-D6, 301.6330-1(d)(2),

Q&A-D6. “If no face-to-face or telephonic conference is held, or other oral

communication takes place, review of the documents in the case file, as

described in A–F4 of paragraph (f)(2), will constitute the CDP hearing

. . . .” Treas. Reg. §§ 301.6320-1(d)(2), Q&A-D7, 301.6330-1(d)(2), Q&A-

D7.

2. Positions in the Independent Office of Appeals

In this context, we will examine three types of employees that

play a role in administering hearings before Appeals: Appeals Officers,

Appeals Team Managers, and the Chief.

a. Appeals Officer, Generally

The position of Appeals Officer was internally created by the IRS

and has existed within Appeals (or its predecessors) since 1978.

Tucker I, 135 T.C. at 136 (citing IRS Document 7225, supra, at 3–5).

Under current practices, Appeals Officers “conduct hearings by

considering issues and alternatives to collection action in CDP cases.

[Appeals Officers] are generally specialized to work either Examination

or Collection issues.” IRM 8.22.4.5.1(1) (Aug. 26, 2020). An Appeals

Officer “works cases with issues ranging from the simplest to the most

complex, and from few to millions of dollars.” IRM 8.1.3.4(1) (Oct. 23,

2007). 8

8 The Court notes that the IRM provision in effect at the time of Mr. Tooke’s

CDP hearing was IRM 8.1.3.4. See IRS Manual Transmittal 8.1.3 (Jan. 5, 2015). This

IRM provision was subsequently renumbered from IRM 8.1.3.4 to IRM 8.1.3.5. See IRS

Manual Transmittal 8.1.3 (Jan. 12, 2024). The version in effect at the time of Mr.

Tooke’s CDP hearing and the latest revision are substantively identical and bear the

same effective date of October 23, 2007. To avoid confusion, in this instance and

throughout the Opinion, we refer to the IRM and corresponding provision in effect at

the time of Mr. Tooke’s CDP hearing.

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b. Appeals Team Manager, Generally

An Appeals Team Manager “plans, organizes, leads, and

evaluates a team of [Appeals Technical Employees 9] and appropriately

supports personnel engaged in the hearing, negotiation, and settlement

of taxpayer appeals.” IRM 1.4.28.1.3(4) (Dec. 30, 2019). An Appeals

Team Manager has “supervisory responsibilities for Appeals Officers

and . . . review[s] cases for completeness, accuracy and decision quality.

[Appeals Team Managers] have approval authority in most CDP cases.”

IRM 8.22.4.5.3(1) (Sept. 25, 2014) (citing IRM Exhibit 8.22.4-1). Appeals

Team Managers are also “responsible for monitoring compliance with ex

parte communication requirements.” 10 IRM 8.22.4.5.3(2).

Appeals Team Managers have the authority to approve many

“case settlements . . . [while also] ensuring team member settlements

and team objectives comply with Appeals vision and values.” IRM

1.4.28.1.3(4). Appeals Team Managers report to Appeals Area Directors

and they have “full accountability for the overall team success in

delivering and balancing customer satisfaction, employee satisfaction,

and business results.” Id.

c. Chief of Appeals, Generally

In addition to providing a specific statutory basis for Appeals, the

Taxpayer First Act codified the position of the Chief. See Taxpayer First

Act § 1001(a). Subsection (e)(2)(A) of section 7803 provides:

The Internal Revenue Service Independent Office of

Appeals shall be under the supervision and direction of an

official to be known as the “Chief of Appeals”. The Chief of

Appeals shall report directly to the Commissioner of

Internal Revenue and shall be entitled to compensation at

the same rate as the highest rate of basic pay established

9 “Appeals Technical Employee is an umbrella term used to refer generally to

any Appeals employee who is assigned a case for settlement consideration (generally,

an Exam [Appeals Officer], Collection [Appeals Officer] or [Appeals Account Resolution

Specialist].” IRM Exhibit 8.22.4-3 (Aug. 26, 2020) (Common Terms and Acronyms Used

in Collection Due Process); see also IRM 8.22.4.1.5 (Aug. 26, 2020).

10 Appeals employees are generally prohibited from engaging in ex parte

communications with IRS employees working in functions other than Appeals. See

Rev. Proc. 2012-18, 2012-10 I.R.B. 455; see also IRM 8.1.10.1 (Sept. 28, 2017).

13

for the Senior Executive Service under section 5382 of title

5, United States Code.

The Chief “shall be appointed by the Commissioner of Internal Revenue

without regard to the provisions of title 5, United States Code, relating

to appointments in the competitive service or the Senior Executive

Service.” § 7803(e)(2)(B). Further, “[a]ll personnel in the Internal

Revenue Service Independent Office of Appeals shall report to the Chief

of Appeals.” § 7803(e)(6)(A).

We examine Mr. Tooke’s Motions against this background.

II. Separation of Powers—Appointment and Removal of Executive

Officers

The former British colonies had suffered “a long train of abuses

and usurpations” by the British monarch, including the erection of a

“multitude of New Offices” and the sending of “swarms of Officers to

harrass [sic] our People, and eat out their substance.” The Declaration

of Independence, para. 2 (U.S. 1776); see also Tucker I, 135 T.C. at 120.

Thereafter, the Framers of the United States Constitution saw it

necessary to protect the people against tyranny by providing for three

divided powers of the Federal Government: legislative, executive, and

judicial. See Tucker I, 135 T.C. at 120.

Among these structural safeguards in the Constitution is the

Appointments Clause. See, e.g., Freytag v. Commissioner, 501 U.S. 868,

873 (1991) (“We granted certiorari . . . to resolve the important questions

the litigation raises about the Constitution’s structural separation of

powers.”). “[T]he Appointments Clause of Article II is more than a

matter of ‘etiquette or protocol’; it is among the significant structural

safeguards of the constitutional scheme.” Edmond v. United States, 520

U.S. 651, 659 (1997) (quoting Buckley v. Valeo, 424 U.S. 1, 125 (1976)

(per curiam)). The Appointments Clause provides “the exclusive means

of appointing ‘Officers.’” Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018). “The

principle of separation of powers is embedded in the Appointments

Clause,” Freytag v. Commissioner, 501 U.S. at 882, which, among other

purposes, “prevents Congress from dispensing power too freely,” id. at

880; see also Tucker I, 135 T.C. at 120–22. The Appointments Clause

provides:

[The President] shall nominate, and by and with the Advice

and Consent of the Senate, shall appoint Ambassadors,

other public Ministers and Consuls, Judges of the

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[S]upreme Court, and all other Officers of the United

States, whose Appointments are not herein otherwise

provided for, and which shall be established by Law: but

the Congress may by Law vest the Appointment of such

inferior Officers, as they think proper, in the President

alone, in the Courts of Law, or in the Heads of

Departments.

U.S. Const. art. II, § 2, cl. 2.

Mr. Tooke asserts that the Appeals Officers who conducted his

CDP hearing, the Appeals Team Manager who reviewed and approved

his determination, and the Chief who supervised and directed Appeals

are all “Officers of the United States” who must be appointed in

accordance with the Appointments Clause. In examining this question,

“[t]he nature of each government position must be assessed on its own

merits.” Silver v. U.S. Postal Service, 951 F.2d 1033, 1040 (9th Cir.

1991).

In addition to his Appointments Clause challenges, Mr. Tooke

insists that the Chief’s position presents another separation of powers

problem. He alleges that the Chief is removable only for such cause as

will promote the efficiency of the service, see 5 U.S.C. § 7513, and

contends that this arrangement constitutes an unlawful restraint on the

President’s removal authority.

As the Supreme Court has explained:

The removal of executive officers was discussed

extensively in Congress when the first executive

departments were created. The view that “prevailed, as

most consonant to the text of the Constitution” and “to the

requisite responsibility and harmony in the Executive

Department,” was that the executive power included a

power to oversee executive officers through removal;

because that traditional executive power was not

“expressly taken away, it remained with the President.”

Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 492

(2010) (quoting Letter from James Madison to Thomas Jefferson (June

30, 1789), 16 Documentary History of the First Federal Congress 893

(2004)). Further, “[t]his Decision of 1789 provides contemporaneous and

weighty evidence of the Constitution’s meaning since many of the

Members of the First Congress had taken part in framing that

15

instrument.” Id. (quoting Bowsher v. Synar, 478 U.S. 714, 723–24

(1986)). Accordingly, it soon became the “settled and well understood

construction of the Constitution.” Id. (quoting Ex parte Hennen, 38 U.S.

(13 Pet.) 230 (1839)). To be sure, the separation of powers is deeply

rooted in our history and integral to our constitutional scheme.

To properly consider Mr. Tooke’s contentions, we will first

address the issue of standing. Finding that he lacks standing to

challenge the appointment and removal of the Chief, we will deny in

part Mr. Tooke’s Appointments Clause Motion and, in full, his Removal

Power Motion. Then, finding that Mr. Tooke has standing to challenge

the appointment of Appeals Officers and Appeals Team Managers, we

will discuss the general framework for classifying individuals under the

Appointments Clause. Next, we will provide an overview of the parties’

arguments regarding Appeals Officers and Appeals Team Managers.

Finally, we confirm the classification of these positions under the

Appointments Clause.

III. Standing

Before proceeding to the merits, we must address the issue of

standing. From Article III’s limitation of the judicial power to resolving

“Cases” and “Controversies,” and the separation of powers principles

underlying that limitation, the Supreme Court has deduced a set of

requirements that together make up the “irreducible constitutional

minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). “Typically, . . . the standing inquiry requires careful judicial

examination of a complaint’s allegations to ascertain whether the

particular plaintiff is entitled to an adjudication of the particular claims

asserted.” Allen v. Wright, 468 U.S. 737, 752 (1984).

Although the Tax Court is not an Article III Court, see, e.g.,

Freytag v. Commissioner, 501 U.S. at 887–88, the “cases” or

“controversies” requirement under Article III still presumptively

applies, Ruesch v. Commissioner, 25 F.4th 67, 70 (2d Cir. 2022), aff’g in

part, vacating in part and remanding per curiam 154 T.C. 289 (2020);

see also Battat v. Commissioner, 148 T.C. 32, 46 (2017) (collecting cases).

The application of that requirement is not a constitutional mandate, but

rather is one derived from caselaw. Battat, 148 T.C. at 46 (first citing

Baranowicz v. Commissioner, 432 F.3d 972, 975 (9th Cir. 2005); and

then citing Orum v. Commissioner, 412 F.3d 819, 821 (7th Cir. 2005),

aff’g 123 T.C. 1 (2004)).

16

The instant standing inquiry is not whether Mr. Tooke has the

right to challenge the CDP determination he received, which conferred

jurisdiction on this Court. The answer to that question is yes. See

§§ 6320(c), 6330(d)(1); see also, e.g., Luniw v. Commissioner, T.C. Memo.

2023-49, at *3 (citing Murphy v. Commissioner, 125 T.C. 301, 308 (2005),

aff’d, 469 F.3d 27 (1st Cir. 2006)). Rather, the question is whether Mr.

Tooke has standing to challenge the appointment of Appeals Officers

and Appeals Team Managers, and the appointment and removal of the

Chief.

As the petitioner, Mr. Tooke bears the burden of proving that he

has standing to raise the Appointments Clause challenges to Appeals

Officers, Appeals Team Managers, and the Chief. See, e.g., Summers v.

Earth Island Inst., 555 U.S. 488, 493 (2009). He also bears the burden

of demonstrating that he has standing to bring a removal power

challenge regarding the Chief. Id. A plaintiff must demonstrate

standing as to each claim and type of relief. See DaimlerChrysler Corp.

v. Cuno, 547 U.S. 332, 352 (2006). “[S]tanding principles do not permit

[p]laintiffs to challenge an unlawful appointment generally, or to

challenge future exercises of unlawful authority. Plaintiffs’ injuries

must be traceable to government action.” Braidwood Mgmt. Inc. v.

Becerra, 627 F. Supp. 3d 624, 641 (N.D. Tex. 2022), aff’d in part, rev’d in

part on other grounds and remanded, 104 F.4th 930 (5th Cir. 2024).

The Supreme Court has established that at an irreducible

constitutional minimum, standing requires three elements: (1) an

“injury in fact,” meaning an invasion of a legally protected interest that

is “concrete and particularized” and actual or imminent, not conjectural

or hypothetical; (2) causation, meaning that the injury is “fairly . . .

trace[able]” to the challenged action of the defendant; and

(3) redressability, meaning that the injury is “likely” to be “redressed by

a favorable decision” of this Court. Defenders of Wildlife, 504 U.S. at

560–61 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38,

41 (1976)); see also 13A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 3531.4, Westlaw (database updated June 2024)

(“Even as the concepts blend together, however, the central focus is fixed

on the injury requirement. The very notion of injury implies a causal

connection to the challenged activity; an injury caused by other events

is irrelevant to any purpose of standing doctrine. Causation in turn

bears on remedial benefit, since a remedy addressed to actions that have

not caused the injury will not alleviate the injury. It remains useful

nonetheless to separate the three elements, both for purposes of

exposition and for purposes of decision.”).

17

For the purpose of our standing inquiry, we assume that Appeals

Officers, Appeals Team Managers, and the Chief are Officers of the

United States. See Tanner-Brown v. Haaland, 105 F.4th 437, 445 (D.C.

Cir. 2024) (“The Supreme Court has made clear that when considering

whether a plaintiff has Article III standing, a federal court must assume

arguendo the merits of his or her legal claim.” (quoting Parker v. District

of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007) (citing Warth v. Seldin,

422 U.S. 490, 501–02 (1975)))).

The Supreme Court has not expressly addressed whether a

plaintiff has standing to bring a separation of powers challenge—such

as the Appointments Clause and Removal Power Motions by Mr.

Tooke—against an official who did not participate in the plaintiff’s case.

The record is clear that AO Herring and ATM Warren conducted Mr.

Tooke’s hearing and issued the Notice of Determination; there is no

question that they participated in the administrative proceeding.

But it is equally undisputed that the record evinces no

participation by the Chief. To be sure, it is possible for the Chief to

participate in a CDP case. See, e.g., IRM 8.22.8.14.4(1) and (2) (Aug. 26,

2020) (stating that the Chief holds sole approval authority over

settlement of certain tax shelter cases and related cases in which a

taxpayer who filed a joint return requests relief from joint and several

liability). This is not such a case.

Gleaning and extrapolating from the principles set forth in the

available guidance, the throughline is that a plaintiff’s standing to

challenge an official’s appointment or removal hinges on whether that

official participated in the plaintiff’s case. With this understanding, we

will address each standing requirement in turn.

A. Is There An “Actual or Imminent” and “Concrete and

Particularized” Injury?

We begin by identifying the injury, to the extent one exists.

Assuming arguendo that Mr. Tooke will succeed on the merits, see

Tanner-Brown, 105 F.4th at 445, we find that Mr. Tooke suffered an

injury in fact with respect to the hearing conducted by AO Herring and

ATM Warren, but that he has suffered no injury at the hands of the

Chief.

Mr. Tooke is the object of IRS collection actions; the IRS issued a

Final Notice of Intent to Levy and a Notice of Federal Tax Lien Filing.

Mr. Tooke requested an administrative CDP hearing, during which he

18

proposed an OIC that was rejected. Although AO Herring offered Mr.

Tooke an IA, the parties were unable to reach the terms of an agreement.

Ultimately, AO Herring drafted the Notice of Determination sustaining

the federal tax lien and the proposed levy action. The Notice of

Determination was subsequently reviewed and approved by ATM

Warren. The Chief did not participate and was not involved in Mr.

Tooke’s CDP hearing. With this background we will address injury as it

relates to Appeals Officers and Appeals Team Managers, and then we

will address the same with respect to the Chief.

1. Appeals Officers and Appeals Team Managers

When plaintiffs have brought appointments challenges against

the officials who adjudicated their cases, the Supreme Court has

indicated that the injury is the administrative proceeding conducted by

officials improperly appointed. Accordingly, the Supreme Court has

consistently resolved the merits with little or no mention of standing.

This track record counsels that the conduct of Mr. Tooke’s hearing by

Officers of the United States who were not appointed in conformity with

the Appointments Clause constitutes an actual, concrete, and

particularized injury to Mr. Tooke.

For example, in Lucia, 138 S. Ct. at 2049–50, the plaintiff

successfully challenged the appointment of the administrative law judge

(ALJ) who conducted his hearing. The Supreme Court noted that in such

cases “the ‘appropriate’ remedy for an adjudication tainted with an

appointments violation is a new ‘hearing before a properly appointed’

official.” Id. at 2055–56 (quoting Ryder v. United States, 515 U.S. 177,

183, 188 (1995)). Lucia’s comment on the remedy elucidates the injury.

If the “appropriate remedy” is a new hearing with a constitutionally

appointed officer, logic dictates that the injury being cured is the tainted

adjudication, the administrative proceeding conducted by the

improperly appointed officer.

In Ryder, 515 U.S. at 179, the plaintiff challenged the composition

of the three-judge panel that heard the appeal of his case in a military

court by arguing that the appointment of two of the judges violated the

Appointments Clause. The Supreme Court observed that “one who

makes a timely challenge to the constitutional validity of the

appointment of an officer who adjudicates his case is entitled to a

decision on the merits of the question and whatever relief may be

appropriate if a violation indeed occurred.” Id. at 182–83 (emphasis

added).

19

Similarly in Freytag v. Commissioner, 501 U.S. at 871–72,

plaintiffs challenged the appointment of the Special Trial Judge (STJ)

who served as their “evidentiary referee,” presided over their trial, and

prepared findings and an opinion. The Supreme Court concluded that

the STJ was an inferior officer before succinctly rejecting the

Commissioner’s challenge to plaintiffs’ standing. Id. at 881–82.

AO Herring’s and ATM Warren’s actions closely resemble those

of the ALJ in Lucia, the two military judges in Ryder, and the STJ in

Freytag. The ALJ in Lucia, 138 S. Ct. at 2050, conducted the hearing

before he issued an initial decision that imposed sanctions and a revised

decision, which included additional findings with the same sanctions. In

Ryder, 515 U.S. at 179, the judges heard the case and issued an opinion

that affirmed the conviction. Similarly, the STJ in Freytag v.

Commissioner, 501 U.S. at 871–72, resolved evidentiary disputes,

presided over the plaintiffs’ trial, and prepared findings and an opinion.

Like the ALJ in Lucia, the judges in Ryder, and the STJ in Freytag, AO

Herring conducted the hearing and drafted the decision document, the

Notice of Determination. ATM Warren’s review and approval completed

the hearing and facilitated issuance of the Notice of Determination in a

fashion similar to the issuance of the decision in Lucia and the opinions

in Ryder and Freytag. Given AO Herring’s and ATM Warren’s actions,

we find that they adjudicated Mr. Tooke’s case. See Ryder, 515 U.S. at

182–83; Freytag v. Commissioner, 501 U.S. at 871–72. Assuming

arguendo that Appeals Officers and Appeals Team Managers are

improperly appointed Officers of the United States, see Tanner-Brown,

105 F.4th at 445, it easily follows that Mr. Tooke suffered an actual

injury on account of their actions, see Lucia, 138 S. Ct. at 2055–56;

Ryder, 515 U.S. at 182–83. 11

11 It might be appropriate to stop the standing analysis as to Appeals Officers

and Appeals Team Managers here. For in Lucia, the Supreme Court said that “[t]he

only way to defeat [the plaintiff’s] position is to show that those ALJs are not officers

at all, but instead non-officer employees—part of the broad swath of ‘lesser

functionaries’ in the Government’s workforce.” Lucia, 138 S. Ct. at 2051 (quoting

Buckley, 424 U.S. at 126 n.162). If winning on the merits is “[t]he only way to defeat”

a timely Appointments Clause challenge, id., brought by a plaintiff who questions the

appointment of an officer who adjudicates his case, Ryder, 515 U.S. at 182–83, then

standing cannot resolve the matter. Nevertheless, in light of the comprehensive nature

of Mr. Tooke’s challenge—and for the sake of completeness, see Mukhi v.

Commissioner, No. 4329-22L, 163 T.C., slip op. at 13 (Nov. 18, 2024)—we think it

prudent to address the causation and redressability elements.

20

2. Chief of Appeals

Lucia, Ryder, and Freytag, which arose in the context of

Appointments Clause challenges, indicate that plaintiffs easily satisfy

the injury in fact requirement when challenging the appointments of the

officials who hear their cases. The same is true in the context of other

separation of powers challenges, such as those asserting that the

President’s removal authority has been unconstitutionally undermined.

Mr. Tooke challenges the constitutionality of both the appointment and

removal of the Chief.

On the appointment challenge, the instant case differs in

significant respects from Lucia, Ryder, and Freytag. Unlike the officials

in Lucia, Ryder, and Freytag, who conducted the proceedings, the Chief

did not participate in Mr. Tooke’s hearing. Given the Chief’s lack of

participation, we conclude that the Chief did not injure Mr. Tooke.

Countervailing sentiments from other courts do not countenance

a different result. For example, in Landry v. FDIC, 204 F.3d 1125, 1128

(D.C. Cir. 2000), the plaintiff brought an Appointments Clause

challenge against the ALJ who conducted his hearing and issued a

decision recommending an order of prohibition against him. 12 While not

explicitly ruling on standing or the actual injury requirement, the U.S.

Court of Appeals for the D.C. Circuit offered dictum that “judicial review

of an Appointments Clause claim will proceed even where any possible

injury is radically attenuated.” Id. at 1131. The court further suggested

that the Supreme Court’s treatment of separation of powers issues as

“structural” obviates the need for a direct injury in an Appointments

Clause challenge. Id. at 1130. While it might be argued that such dicta

in Landry warrants the finding of an injury in fact as to the Chief—or

the conclusion that no injury need be shown—we believe such reliance

would be misplaced.

The context in which the Appointments Clause challenge arose in

Landry was that of a plaintiff challenging the appointment of the ALJ

who adjudicated his case. Id. at 1128; see Ryder, 515 U.S. at 182–83. And

almost every case that the court cited in Landry in support of its injury-

related comments arose in the context of a plaintiff challenging the

constitutionality or legality of the official or tribunal that adjudicated

12 While we address Landry’s comments on standing, we note that Landry’s

merits decision has been undermined by recent jurisprudential developments. See, e.g.,

Lucia, 138 S. Ct. 2044; see also Burgess v. FDIC, 871 F.3d 297 (5th Cir. 2017).

21

his case. Landry, 204 F.3d at 1131–32; see Vasquez v. Hillery, 474 U.S.

254, 255–56 (1986) (holding that plaintiff was indicted by a grand jury

from which blacks were systematically excluded); Ballard v. United

States, 329 U.S. 187, 189–90 (1946) (holding that plaintiffs were

indicted, tried, and found guilty in a federal district in which women

were intentionally and systematically excluded from the panel of grand

and petit jurors); United States v. Mechanik, 475 U.S. 66, 70–71 & n.1

(1986) (holding that plaintiffs were indicted by a grand jury following

simultaneous testimony of two witnesses in violation of Federal Rule of

Criminal Procedure 6(d)); Freytag v. Commissioner, 501 U.S. at 871–72

(challenging the appointment of the STJ who served as plaintiffs’

“evidentiary referee,” presided over their trial, and prepared findings

and an opinion); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458

U.S. 50, 56–57 (1982) (challenging the authority of the Bankruptcy

Judge who denied the plaintiff’s motion to dismiss), superseded by

statute, Bankruptcy Amendments and Federal Judgeship Act of 1984,

Pub. L. No. 98-353, 98 Stat. 333; Palmore v. United States, 411 U.S. 389,

391–93 (1973) (challenging the authority of the District of Columbia

Superior Court judge who tried the plaintiff’s case and found him guilty);

Crowell v. Benson, 285 U.S. 22, 36–37 (1932) (challenging the authority

of the deputy commissioner-appellant who conducted the hearing and

made an award determination against the respondent-appellee and in

favor of the claimant under the Longshoremen’s and Harbor Workers’

Compensation Act); United States v. L.A. Tucker Truck Lines, Inc., 344

U.S. 33, 34 (1952) (deciding an intervenor’s challenge to the authority of

the Interstate Commerce Commission examiner who conducted the

hearing and recommended issuance of a certificate). 13

13 Suggesting that direct harm need not be shown in an Appointments Clause

challenge, Landry, 204 F.3d at 1131, quotes Plaut v. Spenthrift Farm, Inc., 514 U.S.

211, 239 (1995): “[S]eparation of powers is a structural safeguard rather than a remedy

to be applied only when specific harm, or risk of specific harm, can be identified.”

Unlike the other cases cited in Landry in support of its harm-related comments, Plaut

addressed neither standing nor a challenge to an official. Plaut, 514 U.S. at 213–16.

But the quoted language is dictum as it was neither necessary to nor part of the Plaut

majority’s reasoning that resolved the case; it appears in response to a concurrence.

Compare id. at 217–34, with id. at 240 (Breyer, J., concurring). As such, it cannot bear

the weight of the assertion that Mr. Tooke need not show any specific harm caused by

the Chief.

We similarly conclude that the reference in Landry, 204 F.3d at 1131, to Synar,

478 U.S. 714, cannot support the notion that harm need not be shown. In Synar, 478

U.S. at 721, the Supreme Court found that members of the National Treasury

Employees Union had standing to challenge the constitutionality of the Comptroller

22

Relying on Landry, the U.S. Court of Appeals for the Third Circuit

suggested in Cirko ex rel. Cirko v. Commissioner of Social Security, 948

F.3d 148, 154 (3d Cir. 2020), that “[a]n individual litigant need not show

direct harm or prejudice caused by an Appointments Clause violation.”

But Cirko, 948 F.3d at 152, like Landry, did not explicitly rule on

standing since the case arose in the context of plaintiffs challenging the

appointment of the ALJs who heard their cases. Context matters when

considering whether the sentiments expressed in Landry and Cirko

should be applied to the Chief.

Of course, separation of powers issues are structural. Freytag v.

Commissioner, 501 U.S. at 880 (describing the Appointments Clause as

a “structural protection”); Landry, 204 F.3d at 1131. Yet Landry’s

suggestion that a plaintiff’s harm can be “radically attenuated” to the

challenged official and its intimation that plaintiffs need not show harm

in separation of powers challenges—and practically every case cited in

support—arose in the context of a plaintiff challenging the official or

tribunal that heard his case. Landry, 204 F.3d at 1131; see supra pp. 20–

21. The same is true in Cirko. Because Mr. Tooke’s challenge to the

appointment of the Chief arises in a fundamentally different context, we

decline to extend Landry’s and Cirko’s assertions to the Chief.

As for the removal challenge, in Seila Law LLC v. Consumer

Financial Protection Bureau, 140 S. Ct. 2183, 2195 (2020), the plaintiff

challenged the statutory removal provision for the official who issued

the civil investigative demand in the plaintiff’s case, noting that the civil

investigative demand was “originally issued” by the former Director. 14

The Supreme Court found a concrete injury existed because the plaintiff

was compelled to comply with the demand and provide documents it

would have preferred to withhold. Id. at 2196.

At oral argument Mr. Tooke relied on Seila Law for the notion

that the Chief’s lack of participation in the hearing did not foreclose Mr.

Tooke’s standing to challenge the Chief’s appointment. But in Seila Law,

140 S. Ct. at 2196, the Supreme Court found a concrete injury existed in

General’s role under the Balanced Budget and Emergency Deficit Control Act of 1985

because they would sustain injury by not receiving a scheduled increase in benefits.

14 At oral argument, counsel for Mr. Tooke seemed to say that the official

challenged in Seila Law, the Director of the Consumer Financial Protection Bureau

(CFPB), did not issue the civil investigative demand. To the extent that is Mr. Tooke’s

reading of Seila Law, it is incorrect. The plaintiff challenged the removal provision for

the Director of the CFPB. Seila Law, 140 S. Ct. at 2194. The Supreme Court explicitly

stated that the demand was “originally issued by” the then Director. Id. at 2195.

23

part because the plaintiff was “compelled to comply with the civil

investigative demand,” which was “originally issued by” the challenged

official, id. at 2195. Here, the Notice of Determination was signed not by

the Chief but by ATM Warren. Given the Chief’s lack of participation in

the proceeding, including the issuance of the Notice of Determination,

we cannot conclude that he inflicted an injury in fact upon Mr. Tooke.

Mr. Tooke also relies on Free Enterprise Fund in the same way

that he relies on Seila Law. But it offers no help. In Free Enterprise

Fund, 561 U.S. at 487, the Supreme Court considered the plaintiff’s

argument that members of the Public Company Accounting Oversight

Board (PCAOB) were not adequately controlled by the president. Board

members could be removed only for good cause shown and only by the

Commissioners of the Securities and Exchange Commission, who

themselves can be removed only for cause by the president. Id. at

486–87.

The Supreme Court held that “the dual for-cause limitations on

the removal of Board members contravene the Constitution’s separation

of powers.” Id. at 492. In reaching this holding, the Supreme Court did

not address standing. Yet participation warranted mention. In

discussing the administrative proceeding, the Supreme Court noted that

“[t]he Board inspected the firm, released a report critical of its auditing

procedures, and began a formal investigation.” Id. at 487. We take

judicial notice of the report. See, e.g., Robinson v. Liberty Mut. Ins. Co.,

958 F.3d 1137, 1142 (11th Cir. 2020). We see nothing to indicate that it

was issued under any authority other than that of the Board’s members.

See Public Company Accounting Oversight Board, Inspection Report of

Beckstead & Watts, LLP, PCAOB No. 104-2005-082 (2005),

https://web.archive.org/web/20051214123354/http://www.pcaobus.org/

Inspections/Public_Reports/2005/Beckstead_and_Watts.pdf; 15 see also

15 U.S.C. § 7211(c), (e)(3). In contrast to the available information on

the PCAOB members in Free Enterprise Fund, the record in this case is

barren of any participation by the Chief. Given these distinctions, Mr.

Tooke’s reliance on these cases is unavailing.

B. Is the Injury “Fairly Traceable” to the Challenged Action?

We also find that Mr. Tooke’s injury is fairly traceable to the

conduct he seeks to challenge of Appeals Officers and Appeals Team

Managers, but not the Chief. See Defenders of Wildlife, 504 U.S. at 560.

15 A copy of the report is available in the docket record of this case.

24

First, we will address traceability as it relates to Appeals Officers and

Appeals Team Managers, and then we will discuss the same with respect

to the Chief.

1. Appeals Officers and Appeals Team Managers

We find that Mr. Tooke’s injury is fairly traceable to the

appointment (or lack thereof) of Appeals Officers and Appeals Team

Managers. Mr. Tooke’s CDP case was ultimately assigned to AO

Herring, who conducted the CDP hearing and prepared the initial

determination. Subsequently, ATM Warren reviewed and approved the

Notice of Determination, which constitutes the basis of the instant case.

Like other Appointments Clause challengers, Mr. Tooke disputes

the appointments of the individuals who participated in his CDP

hearing. See, e.g., United States v. Arthrex, Inc., 141 S. Ct. 1970 (2021)

(challenging the appointment of the putative officer who adjudicated the

proceeding); Lucia, 138 S. Ct. 2044 (same); Freytag v. Commissioner, 501

U.S. at 871–72 (same). In such situations, the Supreme Court has either

addressed only the merits or quickly resolved standing challenges in

favor of plaintiffs. See, e.g., Seila Law, 140 S. Ct. at 2196; Freytag v.

Commissioner, 501 U.S. at 872. Taking our direction from Supreme

Court precedent, we find that Mr. Tooke’s injury is fairly traceable to

the participation of Appeals Officers and Appeals Team Managers.

2. Chief of Appeals

Conceding that the Chief did not participate in his hearing, Mr.

Tooke argues that the standing requirement is nevertheless fulfilled

because the statutory scheme places Appeals “under the supervision and

direction” of the Chief. See § 7803(e)(2)(A). Given the Chief’s lack of

participation in Mr. Tooke’s administrative proceeding, we find that Mr.

Tooke’s injury is not fairly traceable to the appointment (or lack thereof)

of the Chief, despite the Chief’s responsibility for the “supervision and

direction” of Appeals and his being the official to whom all Appeals

personnel report. See § 7803(e)(2)(A), (6)(A). 16

16 Because a plaintiff must demonstrate all three elements of standing, see

Defenders of Wildlife, 504 U.S. at 560–61, our analysis as to the Chief could stop with

our conclusion that Mr. Tooke has not met the injury in fact requirement. But given

the statutory scheme, and for the sake of completeness, see Mukhi, 163 T.C., slip op.

at 13, we will address the elements of causation and redressability.

25

This case arises in the context of CDP, and the authority to

conduct a CDP hearing has been conferred generally on Appeals.

Specifically, sections 6320(b)(1) and 6330(b)(1) provide that if a taxpayer

“requests a hearing in writing under subsection (a)(3)(B) and states the

grounds for the requested hearing, such hearing shall be held by the

Internal Revenue Service Independent Office of Appeals.” See Organic

Cannabis Found., LLC, 161 T.C. at 19. Congress amended sections

6320(b)(1) and 6330(b)(1)—updating them in the Taxpayer First Act—

to specify that the hearings would continue to be held by the now-

codified Appeals. See Taxpayer First Act § 1001(b)(1)(B) and (C), 133

Stat. at 985. Congress also provided in the Taxpayer First Act that

Appeals is “under the supervision and direction” of the Chief. Id.

§ 1001(a). Thus, Congress placed the hearings described in sections

6320(b)(1) and 6330(b)(1)—such as Mr. Tooke’s—under the “supervision

and direction” of the Chief. See §§ 6320(b)(1), 6330(b)(1), 7803(e)(2)(A).

Congress declared that “[a]ll personnel” in Appeals shall report to

the Chief, § 7803(e)(6)(A), which means that the “officer[s] and

employee[s]” of Appeals, a term synonymous with the term “appeals

officers,” report to the Chief, see §§ 6320(b)(3) (“The hearing under this

subsection shall be conducted by an officer or employee . . . .”), 6330(b)(3)

(same); see also §§ 6330(c)(1) (“The appeals officer shall at the hearing

obtain verification from the Secretary that the requirements of any

applicable law or administrative procedure have been met.”), 6330(c)(3)

(providing that “[t]he determination by an appeals officer under” section

6330 shall take into consideration the verification requirement, issues

raised by the taxpayer, and the balancing analysis), 6320(c) (applying

section 6330(c) for the purposes of conducting hearings under section

6320); Tucker I, 135 T.C. at 154 (“[W]e conclude that section 6330 uses

the term ‘appeals officer’ interchangeably with the term ‘officer or

employee.’”). 17 Under the statutory scheme, the Chief’s oversight of

17 Nine years before enactment of the Taxpayer First Act, we observed in

Tucker I that “[t]he authority to conduct CDP hearings and make determinations

under sections 6320 and 6330 has been delegated to three positions within the Office

of Appeals: (i) ‘Appeals Officers’, (ii) ‘Settlement Officers’, and (iii) ‘Appeals Account

Resolution Specialists’. . . . The authority to review and approve those determinations

is delegated to team managers.” Tucker I, 135 T.C. at 139 (citing Delegation Order 8a,

IRM Exhibit 8.22.2-4 (Nov. 1, 2006)). The IRS subsequently revised the IRM. But we

do not understand the changes made to the relevant IRM provision and the associated

delegation order, see Delegation Order-Appeals-193-1, IRM Exhibit 8.22.4-1 (Aug. 26,

2020), to alter the point above.

26

Appeals is akin to that of a superintendent. We find that the Chief’s

superintendency of Appeals does not satisfy the causation requirement.

Our view aligns with decisions of other courts that have

addressed similar separation of powers challenges. Two courts of

appeals have rejected Appointments Clause challenges to an Assistant

Attorney General at the Department of Justice (DOJ), in part by

pointing out that the DOJ official “had no direct involvement in [the

defendant’s] case.” United States v. Castillo, 772 F. App’x 11, 14 (3d Cir.

2019); see also United States v. Smith, 962 F.3d 755, 765–66 (4th Cir.

2020) (“At bottom, [the defendant] has cited no authority—nor could

he—for his root-to-branch theory that as long as [the official’s] tenure as

Acting Attorney General was unlawful, then the integrity of his federal

prosecution . . . was necessarily marred.”). 18

In a district court case challenging the appointment of the same

DOJ official, the court held that the plaintiff lacked standing where, as

here, the plaintiff showed “utterly no influence by or role of” the

challenged official in his case. United States v. Peters, No. 17-CR-55-

HAI-2, 2018 WL 6313534, at *7 (E.D. Ky. Dec. 3, 2018). Like the plaintiff

in Peters, Mr. Tooke seeks to invalidate every ongoing CDP hearing as

proceeding under faulty leadership. See id. But the nexus between Mr.

Tooke and the Chief is, on this record, “purely a creature of statute.” Id.

at *6. Therefore, we are not persuaded that the scheme alone establishes

causation. See also Braidwood Mgmt. Inc., 627 F. Supp. 3d at 641

(“[S]tanding principles do not permit [p]laintiffs to challenge an

unlawful appointment generally, or to challenge future exercises of

unlawful authority. Plaintiffs’ injuries must be traceable to government

action.”); Braidwood Mgmt., Inc., 104 F.4th at 939 n.24, 957 (citing

Allen, 468 U.S. at 751) (“Based on an independent review of the record

and the plaintiffs’ allegations, we are satisfied that [the plaintiffs] have

alleged an injury in fact that is traceable to the defendants’ conduct and

redressable by a favorable judicial decision.”).

Because the record establishes that the Chief was “at most an

entirely indirect supervisor” of AO Herring and ATM Warren, see Peters,

2018 WL 6313534, at *6, we join the U.S. Courts of Appeals for the Third

and Fourth Circuits in noting the absence of authority for a “root-to-

branch theory” that the purported unlawful appointment of a remote

18 The Court notes that neither Castillo, 772 F. App’x 11, nor Smith, 962 F.3d

755, explicitly ruled on standing. But given the strongly analogous fact patterns and

relevant standing considerations, we find both cases helpful to the instant analysis.

27

official undermines the integrity of the proceeding, Smith, 962 F.3d at

765–66 (citing Castillo, 772 F. App’x at 14 n.6). Just as in Smith, Mr.

Tooke relies on a root-to-branch theory that because the Chief’s

appointment was purportedly unconstitutional, the integrity of Mr.

Tooke’s CDP hearing and the determination made thereon were

necessarily marred. We hold that Mr. Tooke must show that the Chief’s

tenure somehow affected his hearing and prejudiced him in some way.

See id. at 766. Mr. Tooke has made no such showing. Accordingly, we

find that Mr. Tooke’s injury is not fairly traceable to the appointment of

the Chief.

In the context of presidential removal power cases, plaintiffs have

had standing when the challenged official or board participated in the

plaintiff’s case. Seila Law, 140 S. Ct. at 2195 (noting that the demand to

the plaintiff was “originally issued” by the then Director); Free

Enterprise Fund, 561 U.S. at 487 (“The Board inspected the firm,

released a report critical of its auditing procedures, and began a formal

investigation.”). Unlike the challenged authorities in Seila Law and Free

Enterprise Fund, the record before us does not establish that the Chief

participated in Mr. Tooke’s case.

Mr. Tooke relies heavily on Collins v. Yellen, 141 S. Ct. 1761, 1779

(2021), in which the Supreme Court held that the shareholder-plaintiffs

satisfied the causation requirement. But the Chief’s lack of participation

distinguishes this case from Collins. In that case, the plaintiffs

challenged the removal restriction for the Director of the Federal

Housing Finance Agency (FHFA). Id. at 1770. The agreement (the third

amendment) between FHFA and the Treasury Department—which the

plaintiffs alleged caused a diminution in the value of their shares—was

signed by the then-Acting Director of FHFA. Id. at 1773 n.7.

In Collins, 141 S. Ct. at 1779, the Supreme Court found that the

relevant action was the third amendment and that because the

shareholders’ concrete injury flowed directly from that amendment, the

traceability requirement was satisfied. Assuming arguendo that AO

Herring and ATM Warren are improperly appointed Officers of the

United States, see Tanner-Brown, 105 F.4th at 445, Mr. Tooke’s injury

is the hearing; the adjudication tainted with an appointments violation,

see supra p. 18; see also Lucia, 138 S. Ct. at 2055. The Supreme Court

has repeated that a plaintiff must show “a causal connection between

the injury and the conduct complained of.” Collins, 141 S. Ct. at 1779

(quoting Defenders of Wildlife, 504 U.S. at 560). Because the record is

void of any indication that the Chief participated in Mr. Tooke’s CDP

28

hearing, we cannot conclude that the required connection exists. See also

Allen, 468 U.S. at 757 (finding the line of causation between the IRS

policy and plaintiffs’ harm too attenuated).

“In the specific context of the President’s removal power,” the

Supreme Court has found it sufficient that the challenger sustain an

injury from “an executive act that allegedly exceeds the official’s

authority.” Seila Law, 140 S. Ct. at 2196 (emphasis added) (citing Synar,

478 U.S. at 721). While we understand that the Chief supervises and

directs Appeals, § 7803(e)(2)(A), and that all its personnel report to him,

§ 7803(e)(6)(A), we do not understand such superintendency to

constitute “an executive act” or conduct specific to Mr. Tooke’s case, see

Collins, 141 S. Ct. at 1779 (“[F]or purposes of traceability, the relevant

inquiry is whether the plaintiffs’ injury can be traced to ‘allegedly

unlawful conduct’ of the defendant . . . .” (quoting Allen, 468 U.S. at 751

(“A plaintiff must allege personal injury fairly traceable to the

defendant’s allegedly unlawful conduct.” (citing Valley Forge Christian

Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S.

464, 472 (1982))))); see also id. (citing Seila Law, 140 S. Ct. at 2196);

Wright & Miller, supra, § 3531.4 (“The very notion of injury implies a

causal connection to the challenged activity; an injury caused by other

events is irrelevant to any purpose of standing doctrine.”). As we have

previously noted, see supra pp. 6, 17, nothing in the record indicates that

the Chief participated in Mr. Tooke’s case. As such, there is no

“executive act” or “conduct” traceable to the Chief, or that exceeds the

Chief’s authority.

C. Is the Injury Redressable?

We now consider the third element of standing: redressability.

For the redressability element to be satisfied, the Supreme Court has

said that it must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision. Defenders of Wildlife,

504 U.S. at 561; see also Baughcum v. Jackson, 92 F.4th 1024, 1031

(11th Cir. 2024) (“To have standing, an individual plaintiff must have

suffered an injury . . . that the court can redress with an order directed

at the defendant.”). As explained below, we conclude that Mr. Tooke’s

injury is redressable by an order of this Court directed to the Appeals

Officer and Appeals Team Manager who participated in his hearing. We

hold to the contrary with respect to the Chief.

Mr. Tooke argues that his injury is redressable by a favorable

decision of the Court which, at the very least, could remand the case for

29

a new hearing upon cure of the purported constitutional infirmity.

Respondent argues that Mr. Tooke is not entitled to any specific remedy.

The Tax Court is not an Article III Court, see, e.g., Freytag v.

Commissioner, 501 U.S. at 887–91, and therefore we do not have

“jurisdiction to exercise the broad common law concept of judicial power

invested in courts of general jurisdiction by Article III of the

Constitution,” Estate of Rosenberg v. Commissioner, 73 T.C. 1014, 1017

(1980). However, even in light of our jurisdictional constraints, the

Court could provide some of the relief that Mr. Tooke seeks.

The Court has the authority to remand a CDP case for further

consideration by Appeals when it would be “helpful,” “necessary,” or

“productive.” Gurule v. Commissioner, T.C. Memo. 2015-61, at *39 (first

citing Kelby v. Commissioner, 130 T.C. 79, 86 n.4 (2008); then citing

Lunsford v. Commissioner, 117 T.C. 183, 189 (2001); and then citing

Churchill v. Commissioner, T.C. Memo. 2011-182). Upon remand, this

Court retains jurisdiction of the proceeding to preserve the taxpayer’s

rights to judicial review of Appeals’ supplemental determination.

Pomeroy v. Commissioner, T.C. Memo. 2013-26, at *20 (citing Wadleigh

v. Commissioner, 134 T.C. 280, 299 (2010)). Although the supplemental

CDP hearing and corresponding supplemental determination are a

continuation of the taxpayer’s original CDP hearing, and not generally

a new hearing, the Court reviews the conclusions in Appeals’ latest

determination. See Kelby, 130 T.C. at 86.

The Supreme Court has instructed that “the ‘appropriate’ remedy

for an adjudication tainted with an appointments violation is a new

‘hearing before a properly appointed’ official.” Lucia, 138 S. Ct. at 2055

(quoting Ryder, 515 U.S. at 183, 188). The Supreme Court has likewise

directed that a new hearing cannot be conducted by the same official

who conducted the constitutionally deficient hearing, even if that official

has received a constitutional appointment. Id. This Court has the

authority to decide constitutional issues that arise in cases before us,

including questions related to the Appointments Clause. See Battat, 148

T.C. at 46–47 (collecting cases). Thus, we could remand this case for a

new adjudication by properly appointed officials.

On the other hand, the Supreme Court and lower courts have

consistently rejected theories of redressability that rest on speculation.

For example, in Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26, 30–32 (1976), the Supreme Court considered

a challenge to an IRS revenue ruling, which held that nonprofit

30

hospitals could qualify for tax-exempt status while limiting admission

to those who could pay. Indigent patients alleged that the IRS’s policy

encouraged tax-exempt hospitals to deny them services. Id. at 33. The

Supreme Court drew the corollary allegation that a grant of the

requested relief—resulting in a requirement that hospitals serve

indigents as a condition for tax-exempt status—would discourage the

hospitals from denying their services to indigents. Id. at 42. Concluding

that it was “purely speculative” that a court-ordered IRS policy

requiring tax-exempt hospitals to serve indigents would result in the

indigent plaintiffs’ receiving the care they sought, the Supreme Court

held that they lacked standing. Id. at 42–46.

Further, drawing on the available sources of guidance, we note

that the Fourth Circuit similarly declined to find a remedy in Smith, in

which a criminal defendant challenged the appointment of an Acting

Assistant Attorney General at DOJ. Smith, 962 F.3d at 765–66; see

supra p. 26. The Fourth Circuit found that even if the defendant’s

constitutional argument was right, he still would not be entitled to the

relief sought because he “failed to show in any discernible fashion how

[the official’s] designation affected the validity of [the defendant’s]

proceeding or prejudiced him in any way.” Smith, 962 F.3d at 763. The

Fourth Circuit continued, noting that it was “mystified as to exactly

what the connection [was] between the appointment of which [the

defendant] complain[ed] and his right to a fair trial,” and held that the

defendant was not entitled to the relief he sought. Id. at 765. 19

1. Appeals Officers and Appeals Team Managers

In a situation in which a plaintiff successfully challenges “an

adjudication tainted with an [A]ppointments [Clause] violation,” the

“‘appropriate’ remedy” is a new hearing before a properly appointed

official. Lucia, 138 S. Ct. at 2055 (quoting Ryder, 515 U.S. at 183). With

respect to AO Herring and ATM Warren, it is not speculative to conclude

that a favorable decision by this Court would lead to a new hearing for

Mr. Tooke before properly appointed officials. Even if AO Herring and

ATM Warren receive constitutional appointments, neither could

conduct the new hearing. See id. A new hearing before properly

appointed, new officials would cleanse the taint of the Appointments

19 As previously noted, each of the three elements of standing blends into the

others. For example, “[c]ausation in turn bears on remedial benefit, since a remedy

addressed to actions that have not caused the injury will not alleviate the injury.”

Wright & Miller, supra, § 3531.4.

31

Clause violation and prevent consideration by an official who “has

already both heard [the] case and issued an initial decision on the

merits.” Id. In light of this guidance, we conclude that Mr. Tooke’s injury

is redressable by a favorable decision of this Court as to Appeals Officers

and Appeals Team Managers.

2. Chief of Appeals

With respect to the Chief, however, redressability requires

conjecture. Though a favorable decision of this Court could lead to a

properly appointed Chief, the Chief’s only relation to Mr. Tooke’s

hearing was that of a remote official. See Smith, 962 F.3d at 765–66. It

is speculative to conclude that replacing the Chief with one who is

properly appointed would cure the injury caused by the presumed

constitutional defect in the hearing, which stems from the appointment,

or lack thereof, of Appeals Officers and Team Managers. See Wright &

Miller, supra, § 3531.4 (“[A] remedy addressed to actions that have not

caused the injury will not alleviate the injury.”).

In Eastern Kentucky Welfare Rights Organization, 426 U.S. at 42–

43, the Supreme Court considered the plaintiff’s argument that the

requested redress—a court-ordered IRS policy conditioning tax-exempt

status on service to indigents—would discourage denials of hospital

admissions. The Supreme Court found it “purely speculative” that

denials of hospital service could be traced to the IRS’s policy. Id.

So too here. The Chief is too distant from the case for any court

order pointed to him to redress Mr. Tooke’s harm. Because the Chief was

a remote official in this case, see Smith, 962 F.3d at 765–66, and because

Mr. Tooke has not shown that the Chief’s tenure prejudiced him in any

way, mere speculation supports the notion that a properly appointed

and removable Chief would cleanse from Mr. Tooke’s hearing the taint

of the injury, which was caused by presumed Appointments Clause

violations at the hands of an Appeals Officer and an Appeals Team

Manager.

Accordingly, Mr. Tooke has standing to raise the Appointments

Clause challenge as to AO Herring and ATM Warren. He lacks standing

to challenge the appointment or removal of the Chief. 20 What’s the Chief

20 For the sake of completeness, we have fully addressed Mr. Tooke’s standing

to challenge the Chief. See supra notes 11, 16. However, we need not reach the merits

of his argument that Appeals is a “de facto independent agency.” It is part-and-parcel

of his removability challenge, which he lacks standing to raise.

32

got to do with it? Nothing, on this record. That being the case, we will

address the Chief no further.

We now turn to the merits of Mr. Tooke’s challenges to Appeals

Officers and Appeals Team Managers.

IV. Classification Under the Appointments Clause, Generally

Having resolved the issue of standing, we will now turn to the

merits of Mr. Tooke’s Appointments Clause arguments. First, we will

discuss the method of classifying Officers of the United States, including

the distinction between “Officers” and “non-officer employees” and

“principal Officers” and “inferior Officers.” Next, we will survey the

arguments presented by the parties. Finally, we will analyze the status

of Appeals Officers and Appeals Team Managers under the

Appointments Clause.

A. Method of Classifying Officers of the United States

1. “Officers” vs. Nonofficer Employees

The Appointments Clause applies to all “Officers,” see Lucia, 138

S. Ct. at 2051, and therefore there is little doubt that all persons who

can be said to occupy an office were intended to be appointed within one

of the modes of appointment provided therein, see United States v.

Germaine, 99 U.S. 508, 510 (1878). Implicit within the Appointments

Clause is the distinction between “Officers of the United States,” who

must be appointed in accordance with the mandates of the

Appointments Clause, and nonofficer employees or “lesser

functionaries,” whom the “Appointments Clause cares not a whit about

who named them.” Lucia, 138 S. Ct. at 2051; see also Freytag v.

Commissioner, 501 U.S. at 880–81 (stating that nonofficer employees

are lesser functionaries who “need not be selected in compliance with

the strict requirements of Article II”); Buckley, 424 U.S. at 126 n.162. If

an individual is an “Officer of the United States” with respect to some

duties but not to others, they are still nonetheless an “Officer of the

United States.” Freytag v. Commissioner, 501 U.S. at 882.

However, two Supreme Court cases set out the basic framework

for distinguishing between officers and nonofficer employees, and that

will guide our analysis. See Lucia, 138 S. Ct. at 2051. We will discuss

each case in turn.

33

a. United States v. Germaine

First, in Germaine, 99 U.S. at 506, the Supreme Court examined

the nature of employment of a “civil surgeon.” Reflecting on the

understanding of the nature and purpose of appointments at the time of

ratification, the Supreme Court stated “[t]hat all persons who can be

said to hold an office under the government about to be established

under the Constitution were intended to be included within one or the

other of these modes of appointment there can be but little doubt.” Id.

at 510. The Court continued, stating that “the term [Officer of the

United States] embraces the ideas of tenure, duration, emolument, and

duties, and that the latter were continuing and permanent, not

occasional or temporary.” Id. at 511–12. Because the surgeon’s duties

were “occasional and intermittent,” he was not an “Officer of the United

States.” Id. at 512.

b. Buckley v. Valeo

Second, in Buckley, 424 U.S. at 118, the Supreme Court examined

the powers of the Federal Election Commission (FEC). Therein, the

Supreme Court held that a position invested with “significant

authority” 21 is an “Office,” stating:

We think that the term “Officers of the United States” as

used in Art. II, defined to include “all persons who can be

said to hold an office under the government” in United

States v. Germaine . . . is a term intended to have

substantive meaning. We think its fair import is that any

appointee exercising significant authority pursuant to the

laws of the United States is an “Officer of the United

States,” and must, therefore, be appointed in the manner

prescribed by [the Appointments Clause].

Id. at 125–26. The Supreme Court continued, stating that “the term

‘Officers of the United States,’ . . . since it had first appeared in Art. X

[of the Constitution during the constitutional convention] had been

taken by all concerned to embrace all appointed officials exercising

responsibility under the public laws of the Nation.” Id. at 131.

21 The Supreme Court has acknowledged that Buckley’s significant authority

test remains amorphous and that “[t]he standard is no doubt framed in general terms.”

See Lucia, 138 S. Ct. at 2051.

34

In Buckley, the Supreme Court concluded that the FEC’s

Commissioners were not appointed in accordance with the

Appointments Clause, and thus none of them were permitted to exercise

“significant authority.” See generally id. at 126, 137. The Court classified

the FEC’s powers into groups to determine whether they were

“significant,” stating:

[T]he Commission’s powers fall generally into three

categories: functions relating to the flow of necessary

information—receipt, dissemination, and investigation;

functions with respect to the Commission’s task of fleshing

out the statute—rulemaking and advisory opinions; and

functions necessary to ensure compliance with the statute

and rules—informal procedures, administrative

determinations and hearings, and civil suits.

Id. The Supreme Court held that it was not permissible for the

unappointed commissioners to exercise their “more substantial

[enforcement and interpretive] powers.” Id. at 138. Specifically, only

“Officers of the United States” could exercise the “significant” power to

bring suit to enforce an act of Congress or to issue regulations, advisory

opinions, and determinations without supervision under an Act of

Congress. Id. at 138–41; see also Tucker I, 135 T.C. at 161–62.

In summary, an individual can be said to be an “Officer of the

United States” if (1) her “duties . . . [are] continuing and permanent, not

occasional or temporary,” Germaine, 99 U.S. at 511–12, and if those

duties are “established by Law,” U.S. Const. art. II, § 2, cl. 2; and (2) she

“exercis[es] significant authority pursuant to the laws of the United

States,” Buckley, 424 U.S. at 126.

c. Modern Application and Developments

The Supreme Court applied this two-part framework in Freytag

v. Commissioner, 501 U.S. at 881–82, and Lucia, 138 S. Ct. at 2051. In

Freytag v. Commissioner, 501 U.S. at 881–82, the Supreme Court

applied the framework to analyze whether Tax Court STJs were

“Officers of the United States.” First, the Court explained that “[t]he

office of special trial judge is ‘established by Law,’ Art. II, § 2, cl. 2, and

the duties, salary, and means of appointment for that office are specified

by statute.” Id. at 881. The Court found STJs were distinguishable from

special masters that were hired by Article III courts on a “temporary,

35

episodic basis, whose positions [were] not established by law, and whose

duties and functions [were] not delineated in a statute.” Id.

Then the Court applied the “significant authority” standard and

observed that STJs lacked the authority to render a final decision in

major cases. Id.; see also Lucia, 138 S. Ct. at 2052 n.4. However,

discounting the inability of STJs to enter a final decision, the Supreme

Court instead focused on the “significance of the duties and discretion

that special trial judges [did] possess.” Freytag v. Commissioner, 501

U.S. at 881. The Court stated that STJs “perform more than ministerial

tasks. They take testimony, conduct trials, rule on the admissibility of

evidence, and have the power to enforce compliance with discovery

orders. In the course of carrying out these important functions, the

special trial judges exercise significant discretion.” Id. at 881–82.

Because of their significant discretion, STJs “were officers, even when

their decisions were not final.” See Lucia, 138 S. Ct. at 2052.

In Freytag v. Commissioner, 501 U.S. at 882, the Supreme Court

also set forth an alternative basis for finding that the STJs were officers,

stating that “[e]ven if the duties of special trial judges [in major cases]

. . . were not as significant as we . . . have found them to be, our

conclusion would be unchanged.” This is because the Commissioner

conceded that in the minor cases where STJs could enter final decisions,

they exercised enough “independent authority” to be considered “inferior

officers.” Id.; see also Lucia, 138 S. Ct. at 2052 n.4.

More recently, in Lucia, 138 S. Ct. at 2049, the Supreme Court

examined whether ALJs for the SEC were “Officers of the United

States.” The Supreme Court observed that SEC ALJs were “near-carbon

copies” of Tax Court STJs, and therefore the Court’s “analysis [in

Freytag] (sans any more detailed legal criteria) necessarily decides this

case.” Id. at 2052. The Court stated that the SEC ALJs “exercise the

same ‘significant discretion’ when carrying out the same ‘important

functions’ as STJs do.” Id. at 2053 (quoting Freytag v. Commissioner,

501 U.S. at 882).

The Court observed that both STJs and ALJs “have all the

authority needed to ensure fair and orderly adversarial hearings—

indeed, nearly all the tools of federal trial judges.” Id. First, both STJs

and ALJs could take testimony, receive evidence, examine witnesses at

hearings, and take pre-hearing depositions. Id. Second, the Supreme

Court found that SEC ALJs, like Tax Court STJs, conduct trials,

administer oaths, rule on motions, and generally regulate the course of

36

a hearing, including the conduct of the parties and counsel. Id. Third,

the Supreme Court found that SEC ALJs, like Tax Court STJs, critically

shape the administrative record by ruling on the admissibility of

evidence or issuing document subpoenas. Id. And, fourth, the Supreme

Court found that SEC ALJs and Tax Court STJs enforce compliance

with discovery orders and punish contemptuous conduct. Id.

Furthermore, SEC ALJs—like STJs—issued factual findings,

legal conclusions, and appropriate remedies. Id. Nonetheless, the

positions were slightly distinguishable because the decisions of STJs in

major cases were always subject to review, whereas SEC ALJs played a

more autonomous role because their decisions would be deemed the

action of the SEC when the Commission declined to review them. Id. at

2053–54. Therefore, the Supreme Court concluded “[t]hat last-word

capacity makes this an a fortiori case: If the Tax Court’s STJs are

officers, as Freytag held, then the Commission’s ALJs must be too.” Id.

at 2054. In doing so, the Supreme Court clarified that one can be an

officer even when her decisions are not final, thereby rejecting the

theory that final decision-making authority is a sine qua non of officer

status. Id. at 2052 n.4.

2. “Principal” Officers vs. “Inferior” Officers

If an individual is properly classified as an “officer,” then the next

step is to determine which class of office they possess. The Appointments

Clause recognizes two classes of “Officers of the United States”:

“principal officers” and “inferior officers.” The Framers provided scant

guidance on where the line between principal officer and inferior officer

should be drawn. Tucker I, 135 T.C. at 122 (citing Morrison v. Olson, 487

U.S. 654, 671 (1988)). However, caselaw has helped develop this

distinction. See Arthrex, 141 S. Ct. at 1980 (citing Edmond, 520 U.S. at

662).

The primary class of officer is “principal officer.” See Germaine,

99 U.S. at 509–10, 511. The term “principal officer” does not appear in

the Appointments Clause, but rather it comes from the clause

immediately preceding the Appointments Clause, see U.S. Const. art. II,

§ 2, cl. 1, 22 and refers to those officers who must be nominated by the

22 Article II, Section 2, Clause 1 of the Constitution states that “[t]he President

. . . may require the Opinion, in writing, of the principal Officer in each of the executive

Departments, upon any Subject relating to the Duties of their respective Offices.”

37

President and confirmed with the advice and consent of the Senate, see

Tucker I, 135 T.C. at 122.

The other class of officer is “inferior officer.” See, e.g., Freytag v.

Commissioner, 501 U.S. at 882. “Generally speaking, the term ‘inferior

officer’ connotes a relationship with some higher ranking officer or

officers below the President: Whether one is an ‘inferior’ officer depends

on whether he has a superior.” Edmond, 520 U.S. at 662. “An inferior

officer must be ‘directed and supervised at some level by others who

were appointed by Presidential nomination with the advice and consent

of the Senate.’” Arthrex, 141 S. Ct. at 1980 (quoting Edmond, 520 U.S.

at 663). In the absence of a provision by Congress, the default method of

appointment for inferior officers is nomination by the President and

confirmation with the advice and consent of the Senate. See Edmond,

520 U.S. at 660. However, “Congress may by Law vest the Appointment

of such inferior Officers, as they think proper, in the President alone, in

the Courts of Law, or in the Heads of Departments.” U.S. Const. art. II,

§ 2, cl. 2.

B. Overview of Arguments

Mr. Tooke’s Appointments Clause motion is premised on the

belief that statutory amendments under the Taxpayer First Act, when

combined with interceding judicial holdings since this Court’s decision

in Tucker I, mandate the conclusion that the positions of Appeals

Officers and Appeals Team Managers are “Officers of the United States”

who must be appointed in accordance with the Appointments Clause.

See U.S. Const. art. II, § 2, cl. 2. Mr. Tooke highlights recent cases from

the Supreme Court and several Courts of Appeals, which he argues

make this Court’s decision in Tucker I “non-controlling.” See Arthrex,

141 S. Ct. 1970; Lucia, 138 S. Ct. 2044; Burgess, 871 F.3d 297; Helman

v. Dep’t of Veteran Affs., 856 F.3d 920 (Fed. Cir. 2017); Bandimere v.

SEC, 844 F.3d 1168 (10th Cir. 2016).

Mr. Tooke asserts two principal arguments: (1) Appeals Officers

are “inferior officers” because they occupy a continuing position, exercise

directives established by law, wield significant decision-making

authority, and have the power to bind the government in significant

matters; and (2) Appeals Team Managers are “principal officers”

because they review and approve or overrule determinations on behalf

of Appeals. Accordingly, Mr. Tooke believes that each individual must

be appointed in accordance with the mandates of the Appointments

38

Clause, and he asks the Court to remand his case to Appeals for a

constitutionally sufficient proceeding.

Respondent disagrees and argues that this Court’s decision in

Tucker I, which was subsequently affirmed by the D.C. Circuit, see

Tucker II, 676 F.3d 1129, should dictate the outcome of the case.

Respondent primarily contends that (1) Appeals Officers and Appeals

Team Managers do not occupy positions that are established by law, see

Tucker I, 135 T.C. at 155 (“The statute [section 6330] thus does not

create any positions for the personnel who would perform the CDP

function but rather refers to them in a most diffuse manner (‘conducted

by an officer or employee’).”), and (2) Appeals Officers and Appeals Team

Managers do not wield significant authority because they lack

significant discretion in their decision-making and, although not

conclusive, they lack the authority to make final decisions.

C. Classification Under the Appointments Clause

The constitutional questions presented in Mr. Tooke’s

Appointments Clause motion warrant our careful consideration. We are

asked to revisit our opinion in Tucker I and consider whether the

amendments enacted by the Taxpayer First Act, as well as any

intervening judicial decisions, warrant diverging from our finding in

Tucker I that Appeals Officers and Appeals Team Managers are not

Officers of the United States. Tucker I, 135 T.C. 114; see also Tucker II,

676 F.3d 1129; Fonticiella, T.C. Memo. 2019-74.

As to Appeals Officers and Appeals Team Managers, we

conclude—as did the D.C. Circuit in Tucker II—that such officers do not

wield significant authority. Tucker II, 676 F.3d at 1135. In Lucia, the

Supreme Court found that “point for point,” ALJs had duties and powers

equivalent to those held by the STJs in Freytag, including, inter alia, the

power to take testimony, receive evidence, examine witnesses at

hearings, take pre-hearing depositions, conduct trials (e.g., administer

oaths, rule on motions), rule on the admissibility of evidence, and enforce

compliance with discovery orders. Lucia, 138 S. Ct. at 2053; see also

Freytag v. Commissioner, 501 U.S. at 881–82.

Appeals Officers do not have authority to examine witnesses; Tax

Court STJs and SEC ALJs do. See Lucia, 138 S. Ct. at 2053. “Testimony

under oath is not taken” during an Appeals conference. Statement of

Procedural Rules, 26 C.F.R. § 601.106(c). And in fact, no position in

Appeals has been delegated the authority to take testimony under oath.

39

IRM 1.2.2.15.1 (July 19, 2016); cf. Treas. Reg. § 301.7602-1(b)(2). This is

in clear contrast to the authority of Tax Court STJs, see § 7456(a) (1991),

and SEC ALJs, see 17 C.F.R. § 201.111(a), both of whom have the power

to administer oaths and receive testimony under oath.

Further, Appeals Officers lack the power to, and neither “[t]he

taxpayer [n]or the taxpayer’s representative . . . [has] the right to[,]

subpoena and examine witnesses at a CDP hearing.” Treas. Reg.

§§ 301.6320-1(d)(2), Q&A-D6, 301.6330-1(d)(2), Q&A-D6; see also

Roberts v. Commissioner, 118 T.C. 365, 372 (2002) (first citing Nestor v.

Commissioner, 118 T.C. 162 (2002); and then citing Davis v.

Commissioner, 115 T.C. 35, 41–42 (2000)), aff’d per curiam, 329 F.3d

1224 (11th Cir. 2003). Appeals Officers also lack the power to issue,

serve, and enforce summonses through the IRS’s general power to

examine books and witnesses. See IRM 1.2.2.15.1; cf. Treas. Reg.

§ 301.7602-1(b)(2). Thus, an Appeals Officer is distinguishable from Tax

Court STJs, see § 7456(a) (1991), and SEC ALJs, see 17 C.F.R.

§ 201.111(b), both of whom have the power to issue subpoenas. Appeals

Officers lack these powers because discovery does not occur during these

informal hearings before Appeals. See, e.g., Lindberg v. Commissioner,

T.C. Memo. 2010-67, 2010 WL 1330343, at *11.

The greatest extent to which an Appeals Officer can exercise

anything remotely resembling powers over matters of discovery is to

request (but not compel) that matters alleged as fact be “submitted in

the form of affidavits, or declared to be true under the penalties of

perjury.” Statement of Procedural Rules, 26 C.F.R. § 601.106(c).

In sum, Appeals Officers cannot be said to have the same degree

of powers as Tax Court STJs or SEC ALJs, and they certainly cannot be

said to have “nearly all the tools of federal trial judges.” Lucia, 138 S.

Ct. at 2053. Appeals Officers wield significantly fewer procedural tools,

and they cannot be said to have the same broad powers as STJs or ALJs

to regulate the course of the proceedings that occur before them. See id.;

Freytag v. Commissioner, 501 U.S. at 881–82. While we recognize their

authority to compromise disputed tax liabilities, Tucker II, 676 F.3d at

1134, the D.C. Circuit found such authority “insufficient to rank

[Appeals employees] as inferior Officers,” id. at 1135. Notwithstanding

the Supreme Court’s observation that final decision-making authority is

not a sine qua non of an inferior officer, Lucia, 138 S. Ct. at 2052 n.4,

the Supreme Court subsequently found in Arthrex, 141 S. Ct. at 1981,

that it was “significant” that administrative patent judges had the

power to render a final decision on behalf of the United States without

40

review by their nominal superiors or any other principal officer in the

Executive Branch. For all the reasons discussed above, which are

underscored by the fact that an Appeals Officer’s decision is subject to

review by, among others, an Appeals Team Manager, we conclude that

Appeals Officers do not possess significant authority. Therefore, they

are not Officers of the United States.

With respect to Appeals Team Managers, we see no reason to

depart from the conclusion we reached in Tucker I, that they do not wield

significant authority. For starters, the D.C. Circuit affirmed that

judgment in Tucker II, 676 F.3d 1129, so we have no cause to revisit our

holding. See Valley Park Ranch, LLC v. Commissioner, No. 12384-20,

162 T.C., slip op. at 9–10 (Mar. 28, 2024) (reviewing circumstances in

which this Court has revisited its position following reversal by an

appellate court).

In Tucker I, we reasoned that Appeals Team Managers lack the

formal powers of ALJs under the Administrative Procedure Act (APA).

Tucker I, 135 T.C. at 165 (citing Treas. Reg. § 301.6330-1(d)(2), Q&A-

D6). That remains true. In the Taxpayer First Act, Congress could have

bestowed APA-ALJ powers upon employees of Appeals, including

Appeals Team Managers. But Congress did not do so. Additionally,

although Appeals Team Managers review and approve most CDP

determinations, those determinations are subject to review by, among

others, the Commissioner. See § 7804(a); cf. Arthrex, 141 S. Ct. at 1981.

Consequently, nothing in the record indicates that ATM Warren

exercised any of the adjudicatory powers of an inferior officer, much less

a principal officer. See Lucia, 138 S. Ct. at 2053; Freytag v.

Commissioner, 501 U.S. at 881–82. It follows that Appeals Team

Managers are not principal or inferior officers. Oversight of Appeals

Officers, who are not themselves inferior officers, does not transform

Appeals Team Managers into principal officers.

We appreciate Mr. Tooke’s arguments that certain provisions in

sections 6320 and 6330 designate the duties of the “officer[s] or

employee[s]” of Appeals. See §§ 6320(b)(1), (3), 6330(b)(1), (3), (c)(1), (3);

Tucker I, 135 T.C. at 152–56. But because the bottom line remains the

same—Appeals Officers and Appeals Team Managers are not “Officers

of the United States”—we need not revisit our holding in Tucker I that

these positions are not “established by Law.”

41

V. Conclusion

For the reasons discussed, we find that Mr. Tooke lacks standing

to challenge the appointment of the Chief under the Appointments

Clause and the removal of the Chief under the separation of powers

doctrine. As to Appeals Officers and Appeals Team Managers, we follow

Tucker I in its conclusion that such personnel are not Officers of the

United States.

The Court has considered all the other contentions of the parties

and, to the extent not discussed above, finds those arguments to be

irrelevant, moot, or without merit.

An appropriate order will be issued.