We just secured a major victory in federal appeals court against the Obama Administration’s IRS. The court unequivocally agreed with our position that the IRS’s targeting of conservatives has not ended and that our clients – numerous conservative, Tea Party, and pro-life groups – deserve to have their day in court.
Just hours ago, the U.S. Court of Appeals for the D.C. Circuit issued a decision in our IRS targeting scandal case, affirming in part and reversing in part the district court’s decision of dismissal, and remanding the case for further proceedings on all constitutional claims.
In its opinion, the appellate court agreed that the district court’s decision dismissing our clients’ – thirty-eight non-profit organizations from twenty-two states subjected to numerous violations of their First Amendment rights – claims was made in error on the unfounded position that the IRS had since ceased all allegedly illegal activity.
The court was quick to criticize the IRS’s absurd arguments that it had voluntarily ceased all illegal activity, stating unequivocally in the opinion that “voluntary cessation [by the IRS of the alleged illegal activity] has never occurred.” The court’s skepticism of the IRS’s weak arguments rung clear:
The IRS proudly boasts that “no more than ‘two’ applications for exemption remain pending with the IRS.” Further, they claim, “the vast majority of the plaintiffs lack a personal stake in the outcome of the lawsuit . . . .” 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.
Specifically addressing the two organizations who still await a determination from the IRS after more than five years after submitting their applications, the court stated:
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 . . . .” . . . 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.”
The court also noted 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 court further noted:
“ [I]t 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 . . . .”
Today’s result means that our case against the Obama Administration’s IRS for the deliberate and illegal targeting of groups for their political beliefs can move forward. They will have their day in court.
We have maintained from the outset of this case that the IRS engaged in unconstitutional targeting against our clients. Today, the court of appeals has cleared the way for our case to move forward.
We will continue pursuing justice for our clients. No American should be targeted for their beliefs. We will not stop fighting to ensure that the targeting ends, that justice is served, and that the Obama Administration’s IRS is held accountable for its illegal and unconstitutional actions.
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