True the Vote, Inc. v. Internal Revenue Service , 71 F. Supp. 3d 219 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
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TRUE THE VOTE, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 13-734 (RBW)
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INTERNAL REVENUE SERVICE, et al., )
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Defendants. )
__________________________________________)
MEMORANDUM OPINION
The plaintiff, True the Vote, Inc., filed this civil action against the Internal Revenue
Service (“IRS”), the United States of America, and several IRS officials in both their official and
individual capacities,1 alleging violations of the First Amendment, the Internal Revenue Code,
26 U.S.C. § 6103 (2012), the Administrative Procedure Act, 5 U.S.C. § 706 (2012), and seeking
declaratory and injunctive relief, as well as monetary damages. See First Amended Complaint
(“Am. Compl.”) ¶¶ 13, 139-214. Currently before the Court are the Defendants’ Motion to
Dismiss Counts I, II, IV[,] and V (“Defs.’ Mot.”) of the Complaint; the Individual Management
Defendants’ Motion to Dismiss [Count III of the Complaint] (“Mgmt. Mot.”); the Motion to
Dismiss [Count III of the Complaint] of Cincinnati Defendants Susan Maloney, Ronald Bell,
Janine L. Estes, and Faye Ng (“Cincinnati Mot.”); and the Plaintiff’s Motion to Stay Agency
1
The individual defendants are: David Fish, Steven Grodnitzky, Lois Lerner, Steven Miller, Holly Paz, Michael
Seto, Douglas Shulman, Cindy Thomas, William Wilkins, Susan Maloney, Ronald Bell, Janine L. Estes, and Faye
Ng. For purposes of resolving the several motions to dismiss, these individual defendants fall into two categories:
the Individual Management defendants (Steven Grodnitzky, Lois Lerner, Steven Miller, Holly Paz, Michael Seto,
Douglas Shulman, Cindy Thomas, and William Wilkins) and the Cincinnati defendants (Susan Maloney, Ronald
Bell, Janine L. Estes, and Faye Ng).
1
Action (“Pl.’s Mot.”).2 For the following reasons, the Court concludes that it must grant all of
the defendants’ motions to dismiss and deny the plaintiff’s motion to stay agency action.3
I. BACKGROUND
The plaintiff asserts that it “is a not-for-profit Texas corporation organized and operated
exclusively or primarily for a charitable purpose.” Am. Compl. ¶ 2. On July 15, 2010, the
plaintiff filed an application with the Internal Revenue Service (“IRS”) for tax-exempt status
pursuant to the Internal Revenue Code, 26 U.S.C. §§ 501(c)(3), 509(a)(1), 170(b)(1)(a)(vi). Id.
¶¶ 3-4; see also id. ¶ 53. After “receiv[ing] no further contact from the IRS [d]efendants during
[the] calendar year 2010,” id. ¶ 54, the plaintiff asked Texas Senator John Cornyn to “inquire[]
of the IRS as to the status of [the plaintiff]’s application for tax-exempt status,” id. ¶ 55. On
February 5, 2011, the plaintiff received a “letter sent from the Cincinnati, Ohio IRS office”
requesting “additional information from [the plaintiff] to complete the IRS’[s] consideration of
[the plaintiff]’s [a]pplication.” Id. ¶ 56.
2
In addition to the submissions already identified, the Court considered the following filings submitted by the
parties in rendering its decision: (1) True the Vote’s Opposition to the Government’s Motion to Dismiss Counts I, II,
IV, and V (“Opp’n to Defs.’ Mot.”); (2) the Reply in Support of Motion to Dismiss Counts I, II, IV[,] and V (“Defs.’
Reply”); (3) the Supplement to [the] Motion to Dismiss Counts I, II, IV[,] and V (“Defs.’ Supplement”); (4) the
Plaintiff’s Notice of Supplemental Authority [Regarding Counts I, II, IV, and V] (“Pl.’s Supp’l Authority I”); (5)
the Federal Defendants’ Response to [the] Plaintiff’s Notice of Supplemental Authority [Regarding Counts I, II, IV,
and V] (“Defs.’ Resp. to Pl.’s Supp’l Authority I”); (6) the Memorandum in Support of [the] Individual
Management Defendants’ Motion to Dismiss (“Mgmt. Mem.”); (7) the Memorandum of Points and Authorities in
Support of the Cincinnati Defendants’ Motion to Dismiss (“Cincinnati Mem.”); (8) True the Vote’s Opposition to
[the] Individual Defendants’ Motion to Dismiss (“Opp’n to Mgmt. and Cincinnati Mots.”); (9) the Reply Brief in
Support of Individual Management Defendants’ Motion to Dismiss (“Mgmt. Reply”); (10) the Reply in Support of
the Cincinnati Defendants’ Motion to Dismiss (“Cincinnati Reply”); (11) the Individual Defendants’ Joint Notice of
Supplemental Authority (“Joint Supp’l Authority”); (12) the Plaintiff’s Notice of Supplemental Authority
[Regarding Count III] (“Pl.’s Supp’l Authority II”); (13) the Federal Defendants’ Response to [the] Plaintiff[’s]
Notice of Supplemental Authority [Regarding Count III] (“Defs.’ Resp. to Pl.’s Supp’l Authority II”); (14) the
Opposition to [the] Plaintiff’s Motion to Stay Agency Action (“Opp’n to Pl.’s Mot.”); (15) the Plaintiff’s Reply to
[the] Federal Defendants’ Opposition to Motion to Stay Agency Action (“Pl.’s Reply”); (16) the Plaintiff’s Notice of
Supplemental Authority (“Pl.’s Supp’l Authority III”); and (17) the Individual Defendants’ Joint Response to [the]
Plaintiff’s Notice of Supplemental Authority (“Mgmt. and Cincinnati Resps. to Pl.’s Supp’l Authority III”).
3
The Court’s opinion should not be interpreted as an assessment of the propriety of the alleged conduct by the
defendants, as resolution of the motions does not require an assessment of the merits of the plaintiff’s claims.
2
On March 7 and March 8, 2011, that information was “furnished to the IRS.” Id. ¶ 57. Then, on
October 12, 2011, the plaintiff “contacted the IRS” to follow up on its application for tax-exempt
status. Id. ¶ 60. The plaintiff was allegedly told that “the Washington, [DC] office had assumed
primary approval responsibility” for the plaintiff’s application. Id. ¶ 60. On November 8, 2011,
the plaintiff “submitted to the IRS additional information” about itself, as well as “legal
precedent . . . that provided the IRS [d]efendants the legal basis” for approving the plaintiff’s
application. Id. ¶ 61.
The following year, on February 8, 2012, the plaintiff received another letter “from the
Cincinnati, Ohio IRS office” stating that “the IRS needed even more information” from the
plaintiff to complete its consideration of the plaintiff’s tax-exempt application. Id. ¶ 63. That
additional information was provided to the IRS on March 20, 2012. Id. ¶ 64. After providing
that information, the plaintiff received a third letter on October 9, 2012, from “the Cincinnati,
Ohio IRS office,” “request[ing] still more information.” Id. ¶ 66. The plaintiff complied with
that information request on November 30, 2012. Id. ¶ 67.
Based on its correspondence with the IRS, the plaintiff alleges that due to its “mission of
promoting election integrity and its perceived association with ‘Tea Party’ organizations, the IRS
[d]efendants systematically targeted [the plaintiff’s] application for unwarranted delay and
heightened review and scrutiny,” thereby subjecting the plaintiff “to numerous unnecessary,
burdensome, and unlawful requests for information about its operations, activities, leadership,
volunteers, associations, and affiliations.” Id. ¶ 5. As support for its position, the plaintiff cites a
May 10, 2013 “meeting of the Exempt Organizations Committee of the Tax Section of the
American Bar Association,” where one of the individual defendants “admitted . . . that the IRS
had selected applications for tax-exempt status for further review and scrutiny ‘simply because
3
the applications’ ‘used names like Tea Party . . .’” Id. ¶ 77 (citing reference). During that
meeting, the plaintiff contends that the IRS admitted it “sent some letters out that were far too
broad, asking questions of these organizations that were[ not] really necessary . . . .” Id. ¶ 78(internal quotations and citations omitted). As further support of the plaintiff’s allegation
concerning the IRS’s selective targeting, the plaintiff cites “a report entitled ‘Inappropriate
Criteria Were Used to Identify Tax-Exempt Applications for Review’ (the ‘[Report]’)” that was
issued “[o]n or around May 14, 2013,” by “the Treasury Inspector General for Tax
Administration.” Id.¶ 80. The plaintiff summarizes the Treasury Inspector General for Tax
Administration’s conclusion as follows:
The IRS used inappropriate criteria that identified for review Tea Party and other
organizations applying for tax-exempt status based upon their names or policy
positions instead of indications of potential political campaign intervention.
Ineffective management: 1) allowed inappropriate criteria to be developed and
stay in place for more than [eighteen] months, 2) resulted in substantial delays in
processing certain applications, and 3) allowed unnecessary information requests
to be issued.
Id. ¶ 81 (quoting the Report); see generally id. ¶¶ 82-118 (describing certain IRS actions).
Thus, according to the plaintiff, the IRS defendants engaged in an “unlawful scheme”
whereby the plaintiff was “forced to repeatedly furnish the IRS with information, materials, and
documents that were not necessary to determine whether [the plaintiff] was entitled to tax-
exempt status.” Id. ¶ 6. The plaintiff alleges that the “IRS [d]efendants knowingly developed,
implemented, and applied the IRS [t]argeting [s]cheme in violation of the United States
Constitution, the Internal Revenue Code governing tax-exempt organizations, procedures
historically followed by the IRS, and Treasury Regulations.” Id. ¶ 124; see also id. ¶ 135. In
the eyes of the plaintiff, the “mistreatment and mishandling of [the plaintiff]’s application for
tax-exempt status and the refusal of the IRS [d]efendants to issue a determination letter
4
recognizing [the plaintiff]’s tax-exempt status . . . has caused the organization substantial
damages and financial hardship,” id. ¶ 134, and “has substantially and materially interfered with
its ability to engage in free speech, free association, and activities in furtherance of its charitable
purpose,” id. ¶ 137.
The plaintiff filed this action on May 21, 2013, ECF No. 1, and amended its complaint on
July 22, 2013, Am. Compl. at 48. Count one seeks declaratory relief that the plaintiff is entitled
to enjoy tax-exempt status as a charitable organization described in 26 U.S.C. § 501(c)(3) (2012).
See Am. Compl. ¶¶ 140-41. Count two also seeks a declaratory judgment that the “IRS
[t]argeting [s]cheme” violated the plaintiff’s First Amendment rights, and injunctive relief to
prevent additional violations. See id. ¶¶ 150-52, 158. Count three seeks monetary damages
against certain defendants in their individual capacities for their alleged participation in the “IRS
[t]argeting [s]cheme.” See id. ¶¶ 164-65. Count four claims violations of 26 U.S.C. § 6103,
which relates to unauthorized disclosures and inspections of any tax return or tax return
information. See id. And count five asserts violations of the Administrative Procedure Act for
the alleged “IRS [t]argeting [s]cheme.” Id. ¶¶ 189-206.
After the plaintiff instituted this action, “an internal IRS memorandum released by the
IRS” found that “applications for tax-exempt status continued to be subjected to the . . . IRS
[t]argeting [s]cheme until June 20, 2013, when it was allegedly suspended.” Id. ¶ 136 (citing
Daniel Werfel, Charting a Path Forward at the IRS: Initial Assessment and Plan of Action,
Appendix (“App.”) C (June 24, 2013), www.irs.gov/PUP/newsroom/Initial%20Assessment%
20and%20Plan%20of%20Action.pdf (“IRS Action Plan”)). Since the defendants filed their
pending motions to dismiss, the IRS has “grant[ed] the [p]laintiff’s application for tax-exempt
5
status . . . and was in the process of issuing a favorable determination letter.”4 Defs.’
Supplement at 1. The plaintiff opposes all pending motions to dismiss.
II. STANDARDS OF REVIEW
A. Rule 12(b)(1) Motion to Dismiss
Rule 12(b)(1) allows a party to move to dismiss “for lack of subject-matter jurisdiction.”
Fed. R. Civ. P. 12(b)(1). When a defendant moves to dismiss under Rule 12(b)(1), “the
plaintiff[] bear[s] the burden of proving by a preponderance of the evidence that the Court has
subject[-]matter jurisdiction.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d
172, 176 (D.D.C. 2004); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A
court considering a Rule 12(b)(1) motion must “assume the truth of all material factual
allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff the
benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). But a “court must give [a] plaintiff’s factual allegations closer scrutiny when resolving a
Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a
claim.” Byrum v. Winter, 783 F. Supp. 2d 117, 122 (D.D.C. 2011) (citing Macharia v. United
States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003)). And “[a]lthough ‘the District Court may in
appropriate cases dispose of a motion to dismiss for lack of subject[-]matter jurisdiction under
Fed. R. Civ. P. 12(b)(1) on the complaint standing alone,’ ‘where necessary, the court may
consider the complaint supplemented by undisputed facts evidenced in the record, or the
4
The plaintiff has provided the Court with a “true and correct copy of the [d]etermination [l]etter[, which] is a self-
authenticating document . . . .” Opp’n to Defs.’ Mot. at 1 n.1; see also id., Exhibit (“Ex.”) A (September 26, 2013
Determination Letter Granting the Plaintiff’s Application for Tax-Exempt Status (“Determination Letter”)). And in
light of the parties’ representations, the Court takes judicial notice that the plaintiff’s application for tax-exempt
status has been approved by the IRS. Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not
subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”).
6
complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’”
Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting
Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). Finally, in determining
whether it has jurisdiction, the Court “may consider materials outside of the pleadings.” Jerome
Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
B. Rule 12(b)(6) Motion to Dismiss
A Rule 12(b)(6) motion tests whether the complaint “state[s] a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss [under Rule
12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In considering a Rule 12(b)(6) motion, the
Court affords the plaintiff the “benefit of all inferences that can be derived from the facts
alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal quotations
and citation omitted). But raising a “sheer possibility that a defendant has acted unlawfully” fails
to satisfy the facial plausibility requirement. Iqbal, 556 U.S. at 678. Rather, a claim is facially
plausible “when the plaintiff pleads factual content that allows the [C]ourt to draw [a] reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). While the Court must “assume [the] veracity” of any “well-pleaded factual allegations”
in the complaint, conclusory allegations “are not entitled to the assumption of truth.” Id. at 679.
“In determining whether a complaint states a claim, the [C]ourt may consider the facts alleged in
the complaint, documents attached thereto or incorporated therein, and matters of which it may
take judicial notice.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007)
(internal quotations omitted). And among the documents “subject to judicial notice on a motion
7
to dismiss” are “public records,” Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004), which
includes records from other court proceedings, Covad Commc’ns Co. v. Bell Atl. Corp., 407
F.3d 1220, 1222 (D.C. Cir. 2005).
III. ANALYSIS
A. Counts One, Two, and Five of the Plaintiff’s Complaint
The defendants contend that the Court does not have subject-matter jurisdiction over
counts one, two, and five of the plaintiff’s complaint because the IRS ultimately approved the
plaintiff’s application for tax-exempt status, and thus counts one, two, and five—all of which
seek “to correct [the] alleged targeting [of the IRS] and delay during its application process” for
tax-exempt status—are now moot as there is no longer any case or controversy for the Court to
resolve. Defs.’ Reply at 1; see also Defs.’ Mot. at 2-4. The plaintiff, on the other hand, insists
that there are “ongoing, live controversies” because “[t]his case is about declaring the
illegitimacy of the IRS [t]argeting [s]cheme in all its forms [and] enjoining its ongoing
implementation.” Opp’n to Defs.’ Mot. at 9 (emphasis in original). And the plaintiff argues that
without this “additional relief, the IRS can continue to employ its [t]argeting [s]cheme.” Id.As the outset, the Court notes that the plaintiff does not contest that count one of its
complaint is moot. See id. (“Counts [two] and [five] present, actual ongoing, live controversies”
(emphasis added)). Thus, the Court finds that the plaintiff has conceded the motion to dismiss
count one for lack of subject-matter jurisdiction. See Lewis v. District of Columbia, No. 10-
5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011) (per curiam) (“‘It is well understood in
this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only
certain arguments raised by the defendant, a court may treat those arguments that the plaintiff
failed to address as conceded.’” (quoting Hopkins v. Women’s Div., Gen. Bd. of Global
8
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003), aff’d, 98 F. App’x 8 (D.C. Cir. 2004))); Local
Civ. R. 7(b).
Unless an actual, ongoing controversy exists in this case, this Court is without power to
decide it. See Clarke v. United States, 915 F.2d 699, 700-01 (D.C. Cir. 1990). Even where a
case once posed “a live controversy when filed, the [mootness] doctrine requires” the Court “to
refrain from deciding it if ‘events have so transpired that the decision will neither presently affect
the parties’ rights nor have a more-than-speculative chance of affecting them in the future.’” Id.(quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990)). Here, after
the plaintiff initiated this case, its application to the IRS for tax-exempt status was approved by
the IRS. See Opp’n to Defs.’ Mot., Ex. A (Determination Letter) at 1.5 The allegedly
unconstitutional governmental conduct, which delayed the processing of the plaintiff’s tax-
exempt application and brought about this litigation, is no longer impacting the plaintiff. See
NorCal Tea Party Patriots v. IRS, No.1:13-cv-341, 2014 WL 3547369, at *9 n.11 (S.D. Ohio
July 17, 2014) (“The claim for declaratory and injunctive relief cannot be brought by other
Plaintiff Groups who have either had their applications for tax-exempt status ruled upon or have
withdrawn their applications.”). Counts two and five, therefore, are moot.
Notwithstanding the IRS’s favorable resolution of the plaintiff’s tax-exempt application,
the plaintiff wants to forge ahead with these counts of its complaint. The plaintiff attempts to
salvage these counts by invoking the “voluntary cessation” exception to the mootness doctrine.6
See Opp’n to Defs.’ Mot. at 11-15. As the District of Columbia Circuit has explained:
5
This critical fact renders Z St., Inc. v. Koskinen, _ F. Supp. 2d _, 12-cv-0401(KBJ), 2014 WL 2195492 (D.D.C.
May 27, 2014), inapplicable to the Court’s analysis.
6
By invoking an exception to the mootness doctrine, the plaintiff implicitly seems to concede that these claims are
moot.
9
The rationale supporting the defendant’s voluntary cessation as an exception to
mootness is that, while the defendant’s unilateral cessation of the challenged
conduct may grant the plaintiff relief, the defendant is free to return to its old
ways—thereby subjecting the plaintiff to the same harm but, at the same time,
avoiding judicial review. Accordingly, a case can be mooted by virtue of the
defendant’s cessation of its allegedly illegal conduct only if (1) there is no
reasonable expectation that the conduct will recur and (2) interim relief or events
have completely and irrevocably eradicated the effects of the alleged violation.
Qassim v. Bush, 466 F.3d 1073, 1075 (D.C. Cir. 2006) (internal alterations, quotations, and
citations omitted). “The defendant carries the burden of demonstrating ‘that there is no
reasonable expectation that the wrong will be repeated,’ and ‘the burden is a heavy one.’” Am.
Bar Ass’n v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011) (internal alteration omitted) (quoting
United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). But “‘where the defendant is a
government actor—and not a private litigant—there is less concern about the recurrence of
objectionable behavior.’” D.C. Prof’l Taxicab Drivers Ass’n v. District of Columbia, 880 F.
Supp. 2d 67, 75 (D.D.C. 2012) (quoting Citizens for Responsibility & Ethics in Wash. v. SEC,
858 F. Supp. 2d 51, 61 (D.D.C. 2012) (citing Circuit cases)).
The “voluntary cessation” exception does not rescue counts two and five of the plaintiff’s
complaint from dismissal on the ground of mootness. According to the plaintiff, the IRS
publicly “suspended” its “targeting scheme” on June 20, 2013.7 Am. Compl. ¶ 136 (emphasis
added); see also Initiative & Referendum Inst. v. U.S. Postal Serv., 685 F.3d 1066, 1074 (D.C.
Cir. 2012), cert. denied, _ U.S. _, 133 S. Ct. 1802 (2013) (“It is implausible that the [defendant]
would have gone through the cumbersome process of amending its regulation . . . only to
7
Although the complaint states that the IRS “allegedly suspended” the “targeting scheme,” Am. Compl. ¶ 136, the
Court takes judicial notice that the IRS has in fact suspended the alleged scheme and taken remedial steps to address
the alleged conduct, see IRS Action Plan at 7, 14, App. C; IRS Charts a Path Forward [W]ith Immediate Actions,
http://www.irs.gov/uac/Newsroom/IRS-Charts-a-Path-Forward-with-Immediate-Actions (last visited Oct. 23, 2014)
(“IRS Path Forward”), as it has publicly stated so on its website, see, e.g., Seifert v. Winter, 555 F. Supp. 2d 3, 11
n.5 (D.D.C. 2008) (Walton, J.) (citing cases that allow the taking of judicial notice of information published on
government websites).
10
[unconstitutionally] re-amend the regulation after this case is resolved”); Coal. of Airline Pilots
Ass’ns v. FAA, 370 F.3d 1184, 1191 (D.C. Cir. 2004) (mooting case where government
provided “unequivocal assurances” that application of challenged regulation was “effectively
dead”); Citizens for Responsibility, 858 F. Supp. 2d at 62-63 (finding that a submission by the
plaintiff reflecting defendant’s abandonment of challenged policy was enough to provide the
Court with “comfort that the [defendant] [wa]s taking seriously [the] [p]laintiff’s concerns with
the prior policy and [wa]s undertaking efforts to ensure” its “discontinu[ation]”); Mont. Shooting
Sports Ass’ns v. Norton, 355 F. Supp. 2d 19, 21 n.1, 23 (D.D.C. 2004) (mooting case where
government “rescinded” its challenged action), aff’d, No. 04-5434, 2005 WL 2810686 (D.C. Cir.
June 14, 2005); Jean v. Dep’t of Labor, No. 89-cv-0611-OG, 1990 WL 515163, at *4 (D.D.C.
Jan. 9, 1990) (rendering case moot by defendants’ actions and assurances of good faith as to
future behavior). And subsequent to that suspension, the plaintiff’s application for tax-exempt
status was granted. Opp’n to Defs.’ Mot., Ex. A (Determination Letter) (approving plaintiff’s
application on September 26, 2013). Now that the plaintiff has received tax-exempt status,
which has “completely and irrevocably eradicated the effects of the alleged violation[s]” by the
defendants, Qassim, 466 F.3d at 1075, there is no reasonable expectation that the defendants will
“return to [their allegedly] old ways,” i.e., utilizing an allegedly unlawful “targeting scheme” on
certain organizations seeking tax-exempt status during the tax-exempt application process, and
“subjecting the plaintiff to the same harm” again, id. Therefore, the defendants’ grant of tax-
exempt status to the plaintiff, and the defendants’ suspension of the alleged IRS targeting scheme
during the tax-exempt application process, including remedial steps to address the alleged
conduct, coupled with the reduced “concern about the recurrence of objectionable behavior” by
11
government actors, D.C. Prof’l Taxicab Drivers, 880 F. Supp. 2d at 75, convinces the Court that
the “voluntary cessation” exception is not applicable here.8
Endeavoring to prolong the life of counts two and five of the complaint, the plaintiff
hypothetically suggests that the IRS could audit the plaintiff at a later point in time and “be
singled out [again] for reasons unrelated to the provisions of the Internal Revenue Code.” Opp’n
to Defs.’ Mot. at 13. But not only is this prospect of future harm speculative, see Munsell v.
Dep’t of Agric., 509 F.3d 572, 581 (D.C. Cir. 2007) (“[E]ven if [the plaintiff] could establish that
agency officials violated his First Amendment rights . . . [the plaintiff could not] demonstrate[] a
real and immediate threat that [the plaintiff] would be subject to the same conduct in the
future.”); Don’t Tear it Down, Inc., v. Gen. Servs. Admin., 401 F. Supp. 1194 1199 (D.D.C.
1975) (mooting case where challenged governmental conduct “[s]o far as the Court [wa]s aware .
. . ha[d] not been duplicated in any other instance,” and “that it will be duplicated must be
deemed speculative”), it is also a harm that is different than the one identified in the complaint,
which is entirely focused on an alleged IRS “targeting scheme” during the plaintiff’s tax-exempt
application process,9 Qassim, 466 F.3d at 1075 (“voluntary cessation . . . exception” applicable
where plaintiff would be “subject[ed] . . . to the same harm” (emphasis added)). As such, counts
two and five no longer warrant the Court’s attention and further use of its resources.10 Newdow
8
The cases cited by the plaintiff invoking the “voluntary cessation” exception are thus inapposite.
9
This rationale applies equally to the plaintiff’s argument in its motion to stay agency action that the IRS may
potentially disclose the plaintiff’s confidential information at some point in the future pursuant to 26 U.S.C. § 6104.
See Opp’n to Defs.’ Mot. at 10-11.
10
The plaintiff urges the Court to allow it to maintain these counts because “there are indications that the IRS
[t]argeting [s]cheme has not ceased, that it has spread beyond the application process, and that it is likely to
continue.” Opp’n to Defs.’ Mot. at 13. This plea is rejected for several reasons. First, this projected harm is
contrary to what the plaintiff has alleged in its complaint, which is that the IRS targeting scheme is no longer
ongoing. Am. Compl. ¶ 136 (alleging that IRS targeting scheme was “suspended” on June 20, 2013 (emphasis
added)). Second, the Court will not allow the plaintiff to amend the already-amended complaint through an
opposition brief and recast its claims concerning the IRS’s alleged targeting scheme that stalled the approval of its
(continued . . .)
12
v. Roberts, 603 F.3d 1002, 1008 (D.C. Cir. 2010) (holding that while the constitutionality of
certain governmental conduct “may be an important question to [the] plaintiffs, . . . it is not a live
controversy that can avail itself of the judicial powers of the federal courts[, and the question] is
therefore moot”). Accordingly, counts two and five are dismissed for want of subject-matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).11
B. Count Three of the Plaintiff’s Complaint
The plaintiff seeks “money damages,” also commonly known as a Bivens remedy,12
against the individual IRS defendants in their individual capacities for their alleged constitutional
(. . . continued)
tax-exempt application, e.g., id. ¶ 73 (identifying IRS targeting scheme as limited to a “written and unwritten policy
for identifying and subjecting certain applicants for tax-exempt status to additional and heightened review and
scrutiny” (emphasis added)), as a broader challenge to a potentially unlawful ongoing scheme or policy at the IRS in
carrying out its responsibilities other than reviewing tax-exempt applications. Indeed, “it is a well-established
principle of law in this Circuit that [the plaintiff] may not amend [its] complaint by making new allegations in [the]
opposition brief.” Budik v. Ashley, _ F. Supp. 2d _, _, No. 12-cv-1949(RBW), 2014 WL 1423293, at *8 (D.D.C.
Apr. 14, 2014) (Walton, J.) (citing Larson v. Northrop Corp., 21 F.3d 1164, 1173-74 (D.C. Cir. 1994)). And third,
even assuming that the defendants continue to implement the IRS targeting scheme against other organizations like
the plaintiff in its review of their applications for tax-exempt status—which is contradicted by the plaintiff’s
complaint, Am. Compl. ¶ 136—the plaintiff filed its complaint on the basis of alleged harm to itself during its
application process for tax-exempt status and not on the behalf of others that may have been similarly situated to the
plaintiff, i.e., other organizations subjected to the same alleged conduct during their application processes for tax-
exempt status, see Qassim, 466 F.3d at 1076 (explaining that constitutional challenge to a government policy can
proceed if seeking “relief for individuals similarly situated”).
11
The plaintiff’s reliance on City of Hous. v. Dep’t of Hous. & Urban Dev., 24 F.3d 1421, 1428 (D.C. Cir. 1994), is
misplaced; and in fact, the Court’s conclusion is consistent with the case. The District of Columbia Circuit
enumerated three possible outcomes when a plaintiff’s claim for declaratory relief regarding agency action taken
against the plaintiff pursuant to an unlawful policy is moot: (1) the plaintiff can invoke the “capable of repetition,
yet evading review” or “voluntary cessation” exceptions to continue the litigation and challenge the policy; (2) the
plaintiff “lacks standing to attack future applications of that policy” and “the [C]ourt is unable to award relief”; or
(3) the plaintiff “has standing to challenge the future implementation of that policy” and “declaratory relief may be
granted if the claim is ripe for review.” Id. at 1429-30. Here, the Court has already determined that the “voluntary
cessation” exception is inapplicable. And the plaintiff has not properly pleaded imminent future harm in the
complaint, as the pleaded future harm is not only different than the one spelled out in the complaint, but the
defendants have also suspended the disputed policy, such that the Court could not find standing to challenge future
applications of the policy. See Lujan, 504 U.S. at 560-61 (explaining that there must be an injury-in-fact that is
“concrete and particularized” and “actual or imminent, not conjectural or hypothetical,” to maintain standing in a
suit).
12
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court
held that a plaintiff could recover monetary damages against federal officials who violated the constitutional rights
of the plaintiff while acting under the color of federal law.
13
violations alleged in count three of the complaint. Am. Compl. ¶ 164; see also Opp’n to Mgmt.
and Cincinnati Mots. at 24-42. In response, the individual IRS defendants generally argue that
count three should be dismissed because: (1) the Court does not have personal jurisdiction over
several defendants; (2) even if the Court has personal jurisdiction over all defendants, no Bivens
claim can be asserted against the individual IRS defendants; and (3) to the extent any Bivens
claim is allowed, the IRS defendants are entitled to qualified immunity. See, e.g., Mgmt. Mem.
at 1-2, 6-8; Cincinnati Mem. at 1-2. As explained below, because precedent does not permit the
Court to create a Bivens remedy for the plaintiff against the individual IRS defendants, the Court
need not address the personal jurisdiction and qualified immunity issues.
In Kim v. United States, 632 F.3d 713 (D.C. Cir. 2011), the Circuit dealt with aggrieved
taxpayers who alleged IRS wrongdoing, including unconstitutional conduct by individual IRS
employees, and sought Bivens relief as a result of the alleged harm. Id. at 714-15. The Circuit
affirmed the district court’s dismissal of the “Bivens claims against the [d]efendants in their
official capacities” pursuant to Fed. R. Civ. P. 12(b)(1), noting that it is “well established that
Bivens remedies do not exist against officials sued in their official capacities.” Id. at 715. The
Circuit also affirmed the district court’s dismissal of the “Bivens claims against the [d]efendants
in their individual capacities” pursuant to Fed. R. Civ. P. 12(b)(6) because “no Bivens remedy
was available in light of the comprehensive remedial scheme set forth by the Internal Revenue
Code.” Id. at 717.
The plaintiff here attempts to distinguish Kim by characterizing it as “materially
different” and suggesting that Kim’s holdings are limited to cases involving “Bivens claims
[against IRS employees] under [the] Due Process Clause.” Opp’n to Mgmt. and Cincinnati
Mots. at 40. But that suggestion relies on a strained reading of Kim. In affirming the rejection
14
of the Bivens claims against IRS officials in both their official and individual capacities, the
Circuit’s language did not limit the scope of its ruling. See Kim, 632 F.3d at 715, 717. And in
any event, the plaintiff has not distinguished—through the cases it cites or otherwise—any
legally cognizable distinction between Due Process Clause claims and First Amendment Claims
such that a Bivens remedy is appropriate in the former context, but not the latter context.13
The plaintiff attempts to blunt the force of Kim by complaining that the Circuit in Kim
“omit[ted] an entire[] inquiry into whether Congress ha[d] not inadvertently omitted damages
remedies for certain claimants, and ha[d] not plainly expressed an intention that the courts
preserve Bivens remedies.” Opp’n to Mgmt. and Cincinnati Mots. at 41 (certain internal
alterations and quotations omitted). Accordingly, the plaintiff urges the Court to engage in this
inquiry. See id. at 42-44. The alleged omission by the plaintiff, however, is belied by a closer
reading of the district court opinion as well as the Circuit’s opinion.
The district court in Kim undertook the very analysis that the plaintiff asks the Court to
conduct. In declining to extend a Bivens remedy to the plaintiffs against the IRS employees in
their individual capacities for alleged constitutional violations, the district court recognized that
the “existence of a comprehensive remedial scheme” was a “special factor” that counseled
against its extension. Kim v. United States, 618 F. Supp. 2d 31, 38 (D.D.C. 2009), aff’d in part,
rev’d in part and remanded, 632 F.3d 713 (D.C. Cir. 2011). “That is, when ‘Congress has put in
place a comprehensive system to administer public rights, has not inadvertently omitted damages
remedies for certain claimants, and has not plainly expressed an intention that the courts preserve
Bivens remedies,’ courts ‘must withhold their power to fashion damages remedies’ pursuant to
Bivens.” Id. (quoting Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (per curiam) (en
13
“The trend in other Circuits also has been to not recognize Bivens actions against IRS agents.” NorCal, 2014 WL
3547369, at *8 (citing Circuit cases, “follow[ing] the majority position,” and dismissing Bivens actions).
15
banc)). On appeal, the Circuit “agree[d] with the district court’s reasoning” that “no Bivens
remedy was available in light of the comprehensive remedial scheme set forth by the Internal
Revenue Code.” Kim, 632 F.3d at 718; see also NorCal, 2014 WL 3547369, at *5-8; Church By
Mail, Inc. v. United States, No. 87-cv-0754-LFO, 1988 WL 8271, at *3 (D.D.C. Jan. 22, 1988)
(explaining that declaratory relief for applicants seeking tax-exempt status under 26 U.S.C. §
7428 renders Bivens remedy improper for aggrieved applicants). In light of the Circuit’s
unequivocal endorsement of the district court’s Bivens analysis, the Court cannot take a different
approach.
Moreover, a former member of this Court was confronted with a nearly identical case to
the one before the Court and refrained from fashioning a Bivens remedy as well. In Church By
Mail, the plaintiff, a non-profit church seeking tax-exempt status, filed suit against the
defendants, the IRS and various individual IRS agents, for the denial of its tax-exempt status
application. 1988 WL 8271, at *1. The plaintiff claimed, inter alia, that the defendants violated
the Constitution, including the First Amendment, by “favoring traditional churches over more
unusual ones,” id., “demonstrat[ing] dislike and intolerance of [the] plaintiff’s religion,” id. at *2(internal quotations omitted), and “engag[ing] in invidious discrimination against [the] plaintiff
by singling it out for investigation and attack,” id. According to the plaintiff, in denying its tax-
exempt application, the defendants “exceeded the bounds of the authority given to [the]
defendants under existing law.” Id.In dismissing the plaintiff’s claims seeking Bivens damages for the constitutional
violations alleged against the defendants, the Court in Church By Mail reasoned that “a court-
created remedy” was unnecessary where “Congress has created a specific remedy for challenges
to rulings on tax exemption.” Id. at *3. Specifically, the Court recognized “that no Bivens-type
16
damages remedy against the individual IRS agents should be created by the Court . . . because
Congress has created a specific, meaningful declaratory judgment remedy under 26 U.S.C. [§]
7428 for cases . . . in which an application for tax[-]exempt status has been denied.” Id. Had it
created a Bivens remedy, the Court opined that it could have “‘wre[acked] havoc . . . [on] the
federal tax system.’” Id. (quoting Baddour, Inc. v. United States, 802 F.2d 801, 807 (5th Cir.
1986)). The Court reasoned 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.” Id. (internal quotations and alterations omitted). This Court agrees with
Judge Oberdorfer’s assessment, and therefore dismisses count three of the complaint with
prejudice for the failure to state a proper claim for relief under Federal Rule of Civil Procedure
12(b)(6).14
C. Count Four of the Plaintiff’s Complaint
In count four of the complaint, the plaintiff seeks relief from the defendants for their
alleged violations of 26 U.S.C. § 6103 because “[p]ursuant to the IRS [t]argeting [s]cheme, the
IRS [d]efendants knowingly requested information from [the plaintiff] in furtherance of the
IRS’[s] discriminatory and unconstitutional” conduct. Am. Compl. ¶ 175. So according to the
plaintiff, “the IRS [d]efendants knowingly inspected information provided to the IRS . . . [which
was] unnecessary.” Id. ¶ 179 (internal quotations and citations omitted). Because the
information provided by the plaintiff was unnecessary, the plaintiff claims that the defendants’
14
The plaintiff asserts that because the IRS pays for the individual defendants’ legal representation in a Bivens
action, it follows that permitting the plaintiff to proceed on a Bivens claim against the individual defendants is
appropriate. See Opp’n to Mgmt. and Cincinnati Mots. at 26. The Court fails to see how this is remotely relevant,
let alone a basis to rule contrary to this Circuit’s precedent. Moreover, the plaintiff argues that the declaratory relief
provided by 26 U.S.C. § 7428 is not an adequate alternative remedy for constitutional injuries. Opp’n to Mgmt. and
Cincinnati Mots. at 30-37. But the plaintiff’s dissatisfaction with the remedies available to it is not a legally
sufficient reason for the Court to create a Bivens remedy. See Spagnola, 859 F.2d at 227 (“[I]t is the
comprehensiveness of the statutory scheme involved, not the ‘adequacy’ of specific remedies extended thereunder,
that counsels judicial abstention.”).
17
inspection of that information was not “per se for tax administration purposes.” Id. ¶ 178
(internal quotations omitted). Consequently, the plaintiff argues that the defendants are liable
under 26 U.S.C. § 7431, which provides damages for violations of 26 U.S.C. § 6103. Am.
Compl. ¶¶ 170, 207; see also Opp’n to Defs.’ Mot. at 28-42. The defendants contend that the
underlying basis for the plaintiff’s fourth count is the “nature of the [IRS’s] requests for
information,” which is not actionable under 26 U.S.C. § 6103, as this provision only prohibits
“the improper inspection and disclosure” of the information which the plaintiff provided. Defs.’
Mot. at 10-11.
26 U.S.C. § 6103 protects the confidentiality of taxpayers’ tax “[r]eturns and [tax] return
information.” Id. § 6103(a). Tax “return information” is broadly defined to include:
[A] taxpayer’s identity, the nature, source, or amount of his income, payments,
receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability,
tax withheld, deficiencies, overassessments, or tax payments, whether the
taxpayer’s return was, is being, or will be examined or subject to other
investigation or processing, or any other data, received by, recorded by, prepared
by, furnished to, or collected by the Secretary with respect to a return or with
respect to the determination of the existence, or possible existence, of liability (or
the amount thereof) of any person under this title for any tax, penalty, interest,
fine, forfeiture, or other imposition, or offense[.]
Id. § 6103(b)(2)(A); see also id. § 6103(b)(2)(B)-(D). Section 6103 contains numerous
exceptions to the general prohibition against disclosure or inspection of tax returns and tax return
information, including that:
Returns and return information shall, without written request, be open to
inspection[15] by or disclosure to officers and employees of the Department of the
Treasury whose official duties require such inspection or disclosure for tax
administration purposes.
Id. § 6103(h)(1). And “[t]he term tax administration”
15
“The terms ‘inspected’ and ‘inspection’ mean any examination of a return or return information.” 26 U.S.C. §
6103(b)(7).
18
(A) means—
(i) the administration, management, conduct, direction, and supervision of the
execution and application of the internal revenue laws or related statutes (or
equivalent laws and statutes of a State) and tax conventions to which the United
States is a party, and
(ii) the development and formulation of Federal tax policy relating to existing or
proposed internal revenue laws, related statutes, and tax conventions, and
(B) includes assessment, collection, enforcement, litigation, publication, and
statistical gathering functions under such laws, statutes, or conventions.
Id. § 6103 (b)(4). In short, Section 6103 addresses “improper disclosure of tax return
information.” Mann v. United States, 204 F.3d 1012, 1020 (10th Cir. 2000); see also Venen v.
United States, 38 F.3d 100, 105 (3d Cir. 1994) (“The history of [S]ection 6103 indicates that
Congress enacted the provision to regulate a discrete sphere of IRS activity—information
handling.”).
Section 6103 does not provide a means for the plaintiff to avoid dismissal of count four
of its complaint. As just noted, Section 6103 concerns the disclosure or inspection, i.e., the
“handling,” of tax return information. Venen, 38 F.3d at 105. To the extent the plaintiff takes
issue with the defendants’ inspection of its tax return information, those allegations are
insufficiently pleaded in its amended complaint. See Iqbal, 556 U.S. at 679 (conclusory
allegations “are not entitled to the assumption of truth”). The insufficiency of the plaintiff’s
allegations is highlighted by the plaintiff’s admission that “[t]he number of unauthorized
inspections of [the plaintiff]’s return information and the identity of those who made the
inspections cannot be completely and accurately ascertained at this time . . . .”16 Am. Compl. ¶
182.
16
As the Court will explain, any alleged inspections of the plaintiff’s tax return information by the defendants
cannot support a claim for a violation of 26 U.S.C. § 6103, as the predicate for these allegedly unauthorized
inspections is the defendants’ requests for information that were allegedly “wholly unnecessary” to its application to
obtain tax-exempt status. Opp’n to Defs.’ Mot. at 35.
19
The plaintiff’s real bone of contention is that the defendants allegedly demanded
“information [that] was not necessary for determining [the plaintiff]’s [tax-]exempt status,” and
then inspected it. Opp’n to Defs.’ Mot. at 31-32. Although the plaintiff is upset about the
defendants’ inspection of its tax return information, it is actually the defendants’ alleged
unconstitutional conduct in acquiring that information that forms the basis of count four of the
complaint. But, unfortunately for the plaintiff, Section 6103 is silent as to how tax return
information can be acquired. Even assuming that the defendants improperly acquired the
plaintiff’s tax return information, that does not compel a finding that such information was
improperly inspected. In the Court’s view, there is a clear dichotomy between the means by
which tax return information is acquired and the disclosure or inspection of that information
thereafter. The plaintiff, however, attempts to have the Court disregard this dichotomy,17 which
conflicts with cases which have found that the propriety of certain conduct separate and apart
from the actual handling of tax return information is irrelevant and cannot be the predicate of a
Section 6103 violation. Cf. Mann, 204 F.3d at 1020 (“Sections 6103 and 7431 address improper
disclosure of tax return information and not improper collection activity. We therefore agree
with the district court that the validity of the means by which the return information was
disclosed is irrelevant to whether the disclosure of the information violated § 6103. We further
agree with the district court and the majority of courts which have considered the issue that there
is nothing in § 6103 which requires that the underlying means of disclosure be valid before [a
disclosure exception] applies.” (emphasis added)); Wilkerson v. United States, 67 F.3d 112, 117
(5th Cir. 1995) (holding that disclosures of tax return information “were not wrongful”
17
Again, the plaintiff attempts to amend its complaint through its opposition brief by contending that its “[S]ection
7431 claim is premised on the improper handling of its information.” Opp’n to Defs.’ Mot. at 32 n.9. The plaintiff
identifies nothing in its amended complaint that supports this position. Nor could it, as this is contrary to the
allegations in its complaint. See Am. Compl. ¶¶ 174-80.
20
notwithstanding “improper levying procedures”); Venen, 38 F.3d at 106 (“Section 6103 and its
attendant damages provision, [S]ection 7431, were meant to regulate only one sphere of
activity—information handling—and were not intended to interfere with collection actions.
Thus, the propriety of the underlying collection action, in this instance the validity of the levy, is
irrelevant to whether disclosure is authorized under [S]ection 6103 and the basis for liability
under [S]ection 7431.” (internal citations, quotations, and ellipses omitted)); Huff v. United
States, 10 F.3d 1440, 1447 (9th Cir. 1993) (finding no liability under Section 6103 “despite the
possible procedural lapses involving the actual levy”).
Further supporting the Court’s maintenance of the dichotomy between the IRS’s
acquisition of tax return information for assessing tax-exempt status and the IRS’s inspection of
that information thereafter,18 is the availability of judicial review and a separate and distinct
remedy for an applicant aggrieved during the tax-exempt application process. Cf. Wilkerson, 67
F.3d at 116 (“Congress enacted separate and distinct provisions concerning collection activities
and information handling.”); Venen, 38 F.3d at 105 (“In a claim such as the present one based on
an improper levy, the concern is not improper information handling but rather improper
collection activity. Collection activity is a separate sphere of IRS activity governed by a separate
body of law.”). Under 26 U.S.C. § 7428, an applicant requesting tax-exempt status under 26
U.S.C. § 501(c)(3) may seek a declaratory judgment that it indeed qualifies for tax-exempt status
if either the application has been denied by the IRS or the IRS has failed to act on the application
18
The plaintiff asserts that the defendants have violated 26 U.S.C. § 6103 because the defendants did not “per se”
inspect the plaintiff’s tax return information for “tax administration purposes.” Opp’n to Defs.’ Mot. at 33; see
also id. at 37; Am. Compl. ¶¶ 177-78. At first blush, this argument has appeal. The plaintiff appears to argue that
the request and inspection of information allegedly unnecessary to determine an applicant’s tax-exempt status is not
the result of “tax administration.” See Opp’n to Defs.’ Mot. at 39-42. However, there does not appear to be a
genuine dispute that “tax administration” encompasses the review of return information submitted in conjunction
with a tax-exempt application. Again, the basis for the plaintiff’s alleged violation of 26 U.S.C. § 6103 is not the
inspection of tax return information; rather, it is the defendants’ request for allegedly unnecessary information
during the tax-exempt application process.
21
in 270 days. 26 U.S.C. §§ 7428(a)-(b). If the application is denied, the applicant may file suit
within ninety days of the mailing of the rejection letter. Id. § 7428(b)(3). Alternatively, if the
IRS fails to act on the application within 270 days, the applicant is “deemed to have exhausted its
administrative remedies,” provided that it, “in a timely manner, [took] all reasonable steps to
secure . . . [a] determination” of its tax-exempt status. Id. § 7428(b)(2). In either case, the
applicant may file suit in the United States Tax Court, the United States Court of Federal Claims,
or the United States District Court for the District of Columbia. Id. §§ 7428(a), (b)(2). In light
of the remedies made available under 26 U.S.C. § 7428 for controversies arising out of the tax-
exempt application process,19 which would encompass plaintiff’s allegations against the
defendants, cf. Church By Mail, 1988 WL 8271, at *3 (holding that “plaintiff clearly has an
adequate remedy under 26 U.S.C. [§] 7428” for constitutional violations during the tax-exempt
application process), it must remain separate and distinct from the remedies available under 26
U.S.C. § 7431 for unauthorized inspections of tax return information that occur after the
application process has either stalled or concluded. Accordingly, count four of the complaint
fails to state a claim for relief and will be dismissed with prejudice pursuant to Fed. R. Civ. P.
12(b)(6).20
19
Other avenues of relief may be better candidates than 26 U.S.C. § 7431. For example, the plaintiff acknowledges
that the defendants’ conduct could potentially be governed by 26 U.S.C. § 7605(b), which generally ensures that
“[n]o taxpayer shall be subjected to unnecessary examination or investigations . . . .” Opp’n to Defs.’ Mot. at 37
n.14. And in NorCal, the Court identified 26 U.S.C. § 7433 as potentially providing adequate relief to aggrieved
applicants for tax-exempt status, as it “creates a damages remedy for the wrongful collection of federal tax.” 2014
WL 3547369, at *6. The Court declines to weigh in, however, on the merits of any potential argument under these
statutory provisions.
20
In light of the Court’s interpretation of the authority cited in this Memorandum Opinion, the Court must
respectfully disagree with that portion of the NorCal opinion, which permitted the plaintiffs to take discovery “to
establish with evidence that IRS officials inspected or disclosed the [plaintiffs]’ return information for improper
purposes,” 2014 WL 3547369, at *13, even though the plaintiffs’ complaint there apparently muddied the
dichotomy identified by the Court in this opinion, and thus did not sufficiently plead allegations concerning a
violation of 26 U.S.C. § 6103. See 2014 WL 3547369, at *13 (citing “PageID 1046” of the plaintiffs’ complaint);
Second Amended Class Action Complaint ¶ 247, NorCal, No.1:13-cv-341 (S.D. Ohio Jan. 23, 2014), ECF No. 71
(continued . . .)
22
IV. CONCLUSION
For the foregoing reasons, the Court grants the defendants’ motions to dismiss as to all
five counts of the plaintiff’s complaint and denies the plaintiff’s motion to stay agency action.21
SO ORDERED this 23rd day of October, 2014.
REGGIE B. WALTON
United States District Judge
(. . . continued)
(“Defendants inspected [p]laintiffs’ information and shared it amongst themselves even though they knew it was
unnecessary for making a decision on [p]laintiffs’ tax-exempt status, and even though they knew it had been sought
based on [p]laintiffs’ political viewpoint. Accordingly, the inspection, review, and disclosure was objectively
unnecessary, and subjectively not undertaken, ‘for tax administration purposes’ under 26 U.S.C. § [6103(h)].”).
Here, the Court will not allow the plaintiff to take discovery where it has not sufficiently pleaded a violation of 26
U.S.C. § 6103. See Am. Compl. ¶ 182 (asserting the need for discovery only because the “number of unauthorized
inspections” and “the identity of those who made the inspections cannot be completely and accurately ascertained at
this time.”).
Further, because the Order accompanying this opinion closes this case, the plaintiff’s motion for a stay of
agency action is moot.
21
An Order consistent with this Memorandum Opinion will be issued contemporaneously.
23