The IRS has admitted to the Inspector General, to the district court, and to [U.S. Court of Appeals D.C. Circuit] that applications for exemption by some of appellant plaintiffs have never to this day been processed.
I have good news that we prevailed on one of our claims in the IRS case.
Friday afternoon [August 5] the U.S. Court of Appeals for the D.C. Circuit filed its opinion in Linchpins today. The court affirmed the district court’s decision on Bivens and the 6103 claims, but ruled in our favor regarding the district court’s flawed “mootness” decision finding that the IRS failed miserably to meet its burden to demonstrate that it had voluntarily ceased the allegedly discriminatory conduct and to demonstrate that “(1) there is no reasonable expectation that the conduct will recur or (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” The case is remanded for further proceedings on all constitutional claims dismissed on mootness grounds. More information at the links below will explain what this means and next steps. We will continue to provide additional information as it becomes available.
Here is an excerpt from the Court’s opinion regarding the IRS failure to demonstrate voluntary cessation:
Here, voluntary cessation has never occurred. The IRS has admitted to the Inspector General, to the district court, and to us that applications for exemption by some of appellant plaintiffs have never to this day been processed. The IRS proudly boasts that “no more than ‘two’ applications for exemption remain pending with the IRS.” Appellee United States Br. in Linchpins of Liberty, at 14. Further, they claim, “the vast majority of the plaintiffs lack a personal stake in the outcome of the lawsuit . . . .” Id. We would advise the IRS that a heavy burden of establishing mootness is not carried by proving that the case is nearly moot, or is moot as to a “vast majority” of the parties. Their heavy burden requires that they establish cessation, not near cessation.
The IRS offers a rather puzzling explanation for why the continued failure to afford proper processing to at least some of the victim applicants should not prevent a finding of cessation. That explanation is that the organizations whose applications were still pending “were involved in ‘litigation’ with the Justice Department . . . .” Id. at 27. . . It is not at all clear why the IRS proposes that not ceasing becomes cessation if the victim of the conduct is litigating against it. The IRS position is reminiscent of Catch-22 from the novel of the same name. Under that “catch,” World War II airmen were not required to fly if they were mentally ill. However, anyone who applied to stop flying was evidencing rationality and therefore was not mentally ill. See Joseph Heller, Catch-22 (1971). “You are entitled to an exemption from flying,” the government said, “but you can’t get it as long as you are asking for it.”
Here is an excerpt from the opinion regarding the IRS’s failure to establish mootness on other grounds:
As to element 2 [complete eradication of the effects of the alleged violation], it is absurd to suggest that the effect of the IRS’s unlawful conduct, which delayed the processing of appellant-plaintiffs’ applications, has been eradicated when two of the appellant-plaintiffs’ applications remain pending. Nor can the government satisfy element 1 in light of the IRS’s own language, which condemns it . . . most tellingly, the IRS announced that “[e]ffective immediately, the use of watch lists to identify cases or issues requiring heightened awareness is suspended until further notice . . . .” Id. (emphasis added).
A violation of right that is “suspended until further notice” has not become the subject of voluntary cessation, with no reasonable expectation of resumption, so as to moot litigation against the violation of rights.
A link to a video posted on Aug. 5 of Dr. Sekulow (ACLJ) explaining the victory and next steps is at the bottom of the blog post linked above and also available here.
We are pleased to report this victory and will keep moving forward with the case.
Allen Tharp is President of the San Antonio Tea Party.
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