En Banc Reminder: Even Self-Serving and Uncorroborated Affidavits Can Preclude Summary Judgment

On January 31, 2018, the full Eleventh Circuit held “that an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated.” United States v. Stein, 2018 WL 635960 (11th Cir. Jan 31, 2018) (en banc). The court treated the case as an opportunity to bring its tax precedent back into line, but the broader holding applies to all summary-judgment cases.

The Stein case involved federal tax assessments. The Government had obtained a summary judgment for back taxes, interest, and late penalties against a taxpayer—despite her “unwavering contention” in an opposing affidavit that the amounts owed had already been paid, “to the best of [her] recollection.” An Eleventh Circuit panel initially affirmed that judgment because under Mays v. United States, 763 F.2d 1295, 1297 (11th Cir. 1985), a taxpayer’s claim (in that case, for a refund) “must be substantiated by something other than . . . self-serving statements.” But two of the three panel members (Judge Adalberto Jordan and Judge William Pryor) concurred with an opinion calling for Mays to be overruled.

After taking the case en banc, the Eleventh Circuit did overrule Mays insofar as the case had suggested that a taxpayer’s self-serving and uncorroborated affidavit cannot create an issue of material fact with respect to the correctness of a tax assessment. Now writing for the full court, Judge Jordan explained that even though an affidavit “cannot be conclusory, . . . nothing in Rule 56 (or, for that matter, in the Federal Rules of Civil Procedure) prohibits an affidavit from being self-serving.” Regardless of whether the claims at issue concern federal taxes, “a litigant’s self-serving statements based on personal knowledge or observation can defeat summary judgment.” And any corroboration requirements “must come from a source other than Rule 56, such as the substantive law that governs the parties’ dispute or the Federal Rules of Evidence.”

Judge William Pryor (who was previously reported to have been considered as a potential Supreme Court nominee) joined the court’s opinion but also wrote separately “to highlight the irony of our earlier precedent when viewed in the light of the history of the Seventh Amendment” because “the denial of the right to a jury in tax cases [was] a chief complaint animating the American Revolution.”

Posted by Lee Peifer.

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