Unless an actual, ongoing controversy exists in this case, this court is without power to decide it.
That was the verdict today from U.S. District Court Judge Reggie Walton, dismissing the lawsuit brought by True the Vote, a not-for-profit Texas corporation, against the Internal Revenue Service (IRS), the U.S. government, and a number of IRS officials including former IRS director of tax exempt organizations, Lois Lerner; former acting IRS Commissioner Steven Miller; and former IRS Commissioner Douglas Shulman.
True the Vote was one of a number of organizations that was allegedly caught up in the tax exempt organization scandal. The organization applied for tax exempt status on July 15, 2010. By the end of the calendar year, the organization asked Senator John Cornyn (R-TX) to inquire on their behalf. A few months later, the IRS asked True the Vote to provide additional information about its application. After furnishing the information to IRS, True the Vote was asked for more information. And, the organization alleges, they received a third letter asking for even more information.
When the tax exempt organization scandal broke (you can view a timeline of events here) – and the IRS admitted using a BOLO (“Be on the lookout”) system to target applications – True the Vote filed suit, calling the scheme “unlawful.” In the time that passed since the filing of the lawsuit and today’s ruling, True the Vote was granted tax-exempt status and the IRS has discontinued use of the BOLO lists and other targeting measures. That essentially makes the lawsuit moot meaning that the underlying controversy which triggered the lawsuit is no longer an issue; True the Vote doesn’t disagree.
True the Vote, however, did want to continue with the lawsuit arguing, among other things, a sort of “What if?” line of questioning about potential future audits. Judge Walton called those arguments “speculative” and further noted that issues raised on audit are not necessarily related to the initial application for tax-exempt status. With respect to the idea that IRS could release confidential information to the public in the future, Judge Walton likewise stated that there was no immediate cause to think that might happen and pointed out that there were actions that could be taken if it did happen.
True the Vote also asked for damages as part of a “Bivens claim.” Bivens claims or Bivens remedies are linked to a 1971 Supreme Court case, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which allowed an individual to be compensated due to a violation of Fourth Amendment rights by federal drug agents when no other remedy was available. However, the court found that a remedy was already available to True the Vote; quoting Judge Oberdorfer in Church By Mail, Inc. v. United States, No. 87-cv-0754-LFO, 1988 WL 8271, the court agreed that “[i]t would make the collection of taxes chaotic if a taxpayer could bypass the remedies provided by Congress simply by bringing a damage action against [IRS] employees.”
With that reasoning, Judge Walton dismissed the complaint. And he wasn’t done yet: Judge Walton also dismissed a second lawsuit brought by Linchpins of Liberty on similar grounds, writing that “the allegedly unconstitutional governmental conduct, which had delayed the processing of the plaintiffs’ tax-exempt applications and spawned this litigation, is no longer impacting the plaintiffs. The Linchpins of Liberty suit involved 40 additional groups. Jay Sekulow of the American Center for Law and Justice, which represented the Linchpins plaintiffs has indicated that they will appeal.
It’s important to understand that Judge Walton, a Presidential Bush nominee to the court, did not rule on the merits of the case. He didn’t decide that the IRS conduct was okay or that no harm was done. He ruled, rather, that procedurally, the case had nowhere to go. Since the plaintiffs in both instances could not prove ongoing harm – nor could they prove that there were not other remedies available – Judge Walton dismissed these cases.
That said, there are cases pending, Judge Walton noted, specifically those involving Patriots Educating Concerned Americans Now and Cincinnati Liberty Township Tea Party, which may still be able to bring a suit because the facts in their matters are a bit different.
