National Organization for Marriage v. US, Internal Revenue Service , 807 F.3d 592 ( 2015 )


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  •                                 PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-2363
    THE NATIONAL ORGANIZATION FOR MARRIAGE, INC.,
    Plaintiff - Appellant,
    v.
    THE UNITED STATES OF AMERICA, Internal Revenue Service,
    Defendant - Appellee.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria. James C. Cacheris, Senior
    District Judge. (1:13−cv−01225−JCC−IDD)
    Argued:   September 16, 2015                 Decided:   December 2, 2015
    Before GREGORY, AGEE, and DIAZ, Circuit Judges.
    Affirmed by published opinion. Judge Diaz wrote the opinion, in
    which Judge Gregory and Judge Agee joined.
    ARGUED: William Earl Davis, PUBLIC INTEREST LEGAL FOUNDATION,
    Plainfield, Indiana, for Appellant. Ivan C. Dale, UNITED STATES
    DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.         ON
    BRIEF:   Kaylan   L.   Phillips,  Noel   H.  Johnson,  Joseph  A.
    Vanderhulst, ACTRIGHT LEGAL FOUNDATION, Plainfield, Indiana;
    John C. Eastman, CENTER FOR CONSTITUTIONAL JURISPRUDENCE,
    Orange, California; Jason Torchinsky, Shawn Toomey Sheehy,
    HOLTZMAN   VOGEL   JOSEFIAK,   PLLC,   Warrenton,  Virginia,  for
    Appellant.     Caroline D. Ciraolo, Acting Assistant Attorney
    General, Richard Farber, Tax Division, UNITED STATES DEPARTMENT
    OF JUSTICE, Washington, D.C.; Dana J. Boente, United States
    Attorney, OFFICE OF THE   UNITED   STATES   ATTORNEY,   Alexandria,
    Virginia, for Appellee.
    2
    DIAZ, Circuit Judge:
    The National Organization for Marriage (“NOM”) appeals the
    district       court’s      denial    of     its     motion     under    
    26 U.S.C. § 7431
    (c)(3)       to    collect     attorneys’       fees    from    the     Internal
    Revenue Service.           NOM contends that the district court abused
    its discretion by determining that NOM was not a “prevailing
    party” under 
    26 U.S.C. § 7430
    (c)(4)(A) because (1) it did not
    “substantially prevail[] [in litigation against the IRS] with
    respect       to   the     amount    in     controversy,       or . . . the       most
    significant . . . issues presented,” and, alternatively, (2) the
    government’s       position     in    the        litigation    was   “substantially
    justified” under § 7430(c)(4)(B).                   We agree with the district
    court      that      the     government’s           litigation       position      was
    “substantially justified,” which, by itself, is sufficient to
    find that NOM was not a “prevailing party” under the statute.
    Consequently, we affirm.
    I.
    A.
    NOM is a tax-exempt, nonprofit organization whose mission
    is “to protect marriage and the faith communities that sustain
    it across the United States.”                   J.A. 11.      Each year, NOM must
    file    IRS   Form   990,    which   includes        the   names,    addresses,   and
    contribution amounts of donors who gave $5,000 or more during
    3
    the year.       
    26 U.S.C. § 6033
    (a)(1); 
    26 C.F.R. § 1.6033-2
    (a)(2).
    While federal law requires the IRS to make information in a tax-
    exempt organization’s return available to the public, the IRS
    must redact the names and addresses of donors listed in a Form
    990 filing.       
    26 U.S.C. § 6104
    (b); 
    26 C.F.R. § 301.6104
    (b)-1(b),
    (d).
    Despite these rules, an IRS clerk released NOM’s unredacted
    donor list from its 2008 filing after receiving a request in
    January 2011 for NOM’s publicly available tax information.                     The
    IRS destroyed the request after forty-five days per its standard
    policy.      Consequently, little is known about it other than that
    it was made by a Matthew Meisel, who identified himself as a
    member of the media.
    Meisel gave NOM’s Form 990 information to the Human Rights
    Campaign (the “HRC”)—an ideological opponent of NOM.                      The HRC
    then forwarded the information to the Huffington Post.                    Both the
    HRC and the Huffington Post published the donor list online.
    After    discovering    its    unredacted         donor     list   on   the
    Internet,      NOM   sought   to   mitigate       any    potential    harm.     It
    undertook its own investigation of the unauthorized disclosure
    and attempted to have its tax-return information removed from
    the HRC’s and the Huffington Post’s websites.                    Additionally, it
    urged the Treasury Inspector General for Tax Administration as
    well    as     certain   members     of       Congress    to   investigate     the
    4
    disclosure.       NOM    also       was    forced     to    mount    a   defense        to    a
    complaint     filed     with        California’s         Fair    Political        Practices
    Commission by a man named Fred Karger.                           The complaint, which
    alleged violations of California election law, referenced the
    unredacted information contained in NOM’s 2008 Form 990.
    B.
    NOM filed suit against the IRS “seeking damages pursuant to
    
    26 U.S.C. § 7431
         for        unlawful      inspection       and   disclosure          of
    confidential tax information by agents of the [IRS] in violation
    of 
    26 U.S.C. § 6103
    .”               J.A. 9.       NOM sought statutory damages,
    actual damages, punitive damages due to “willful and grossly
    negligent disclosures and inspections of NOM’s return and return
    information,”     and    costs       and    attorneys’      fees     under    § 7431(c).
    J.A. 31–32.
    In    its   answer,       the       government       admitted      that      on    one
    occasion—the      response          to     Meisel’s      request—it        inadvertently
    disclosed an unredacted copy of NOM’s Form 990 information.                              The
    government conceded this act entitled NOM to a single recovery
    of statutory damages.           It denied, however, that NOM was entitled
    to actual or punitive damages, costs, or attorneys’ fees.
    After   a   period       of     discovery,      the       government    moved      for
    summary     judgment.          It    argued       that     NOM    failed     to     present
    sufficient evidence that (1) the IRS conducted any unauthorized
    inspections, (2) NOM was entitled to punitive damages because
    5
    the IRS’s disclosure was willful or grossly negligent, and (3)
    NOM was entitled to actual damages. 1            With regard to this final
    contention,    the    government     maintained    that    the    unauthorized
    disclosure    was    neither   the   “but-for”    nor   proximate    cause   of
    NOM’s alleged damages.         Additionally, the government argued that
    NOM mitigated its claims for actual damages through aggressive
    and successful fundraising.
    The district court granted partial summary judgment to the
    government.    As to NOM’s punitive damages claim, the court found
    that NOM failed to present sufficient evidence showing that the
    IRS acted willfully or with gross negligence.                The court also
    ruled for the government on NOM’s claim of unlawful inspection
    because NOM failed to present sufficient evidence to carry its
    burden.
    The   district    court,    however,   denied      summary   judgment   on
    NOM’s claim for actual damages.             The court explained that it
    1 By this point in the litigation, NOM’s basis for actual
    damages, and consequently the amount it sought to recover, had
    changed.   NOM’s complaint sought “actual damages according to
    proof,” and specifically identified lost donations in the amount
    of $50,000 as well as damages based on defending the Karger
    complaint in California in the amount of $10,500.    J.A. 31–32.
    Later in the litigation, however, NOM elected to withdraw its
    claim for the $50,000 in lost donations. NOM then added $2,000
    to the damages it sought for defending the Karger complaint and
    $46,086.37 in additional legal expenses arising from NOM’s
    efforts to prevent the further dissemination of its donor
    information.   This brought the total revised amount of claimed
    actual damages to $58,586.37.
    6
    “ha[d]       little      trouble           concluding      that     the     unlawful
    disclosure . . . was           the     actual     cause     of    [NOM’s]       claimed
    damages.”      Nat'l Org. for Marriage, Inc. v. United States, 
    24 F. Supp. 3d 518
    , 529 (E.D. Va. 2014).                As for proximate cause, the
    court noted that the question was “a closer call” given that
    “proximate cause is a ‘flexible concept’ not easily defined or
    implemented.”         
    Id. at 530
     (quoting Paroline v. United States,
    
    134 S. Ct. 1710
    ,   1719     (2014)).          Nevertheless,     the     court
    explained, “[t]he independent actions of Meisel, the HRC, and
    others      cannot    immunize       the   IRS   from    responsibility     in    this
    case,” and therefore “[t]he fact that a third-party was involved
    in [the] chain of events does not foreclose finding proximate
    cause on the[] facts [presented].”                 Id. at 531.          Finally, the
    district     court     rejected      the    government’s     mitigation     argument
    because there was “a continuing factual dispute as to whether
    the cited contributions were caused by the disclosure, and if
    so, in what amount.”         Id. at 532.
    The parties subsequently entered into a consent judgment.
    The government agreed to pay NOM $50,000 to resolve its claims
    for actual damages and costs.                Additionally, the parties agreed
    that   the    court    would     retain      jurisdiction    so   NOM     could    seek
    attorneys’ fees under § 7431(c)(3).
    NOM moved for $691,025.05 in attorneys’ fees.                    The district
    court denied the motion.             This appeal followed.
    7
    II.
    Under § 7431(a)(1), a taxpayer may bring suit against the
    United States if an “employee of the United States knowingly, or
    by reason of negligence, inspects or discloses any return or
    return information with respect to a taxpayer in violation of
    any provision of section 6103.” 2             Reasonable attorneys’ fees are
    potentially available under § 7431(c)(3), but “if the defendant
    is the United States, reasonable attorneys fees may be awarded
    only if the plaintiff is the prevailing party (as determined
    under section 7430(c)(4)).”            Section 7430(c)(4)(B)(i) mandates
    that if the government is the defendant, the plaintiff “shall
    not   be   treated   as    the    prevailing      party . . . if    the    United
    States establishes that [its] position . . . in the proceeding
    was substantially justified.”
    The district court held that the government’s position was
    substantially      justified      under       § 7430(c)(4)(B).      The     court
    reasoned    that     the    government        “reasonably     contested     NOM’s
    unfounded     conspiracy         allegations,       and     unfounded     willful
    disclosure and inspection allegations that would have supported
    a claim for punitive damages if properly proven.”                   Nat'l Org.
    for   Marriage,    Inc.    v.    United   States,    No.    13cv1225,     
    2014 WL 2
     
    26 U.S.C. § 6103
     generally provides that tax-return
    information should be kept confidential. It is undisputed that
    by releasing NOM’s unredacted Form 990, the IRS violated § 6103.
    8
    5320170, at *6 (E.D. Va. Oct. 16, 2014).                       The court did not
    comment,     however,      on       whether       the   government’s         position
    respecting actual damages was substantially justified.
    NOM seizes on the district court’s silence on this issue,
    arguing that it amounts to an abuse of discretion. 3                         NOM also
    argues that once the government’s contention on actual damages
    is taken into account, it becomes clear that the government’s
    position was not substantially justified.                     We will assume the
    district     court      abused      its     discretion        as    NOM     contends.
    Therefore, we turn directly to whether the government’s position
    in this litigation was substantially justified in light of its
    arguments regarding actual damages.
    The     government’s       litigation         position    is    “substantially
    justified”    if   it   has     a   “reasonable      basis    in    law    and   fact,”
    United States v. 515 Granby, LLC, 
    736 F.3d 309
    , 315 (4th Cir.
    2013) (quoting Cody v. Caterisano, 
    631 F.3d 136
    , 141 (4th Cir.
    2011)), or if it is “justified to a degree that could satisfy a
    reasonable    person,”     Pierce      v.       Underwood,    
    487 U.S. 552
    ,   565
    (1988). 4    It is not necessarily enough that the government’s
    3 We review the district court’s denial of attorneys’ fees
    for abuse of discretion. Bowles v. United States, 
    947 F.2d 91
    ,
    94 (4th Cir. 1991).
    4 A number of the cases we cite in this opinion, including
    Granby and    Pierce,  deal  with   a  provision  analogous  to
    § 7430(c)(4)(B) in the Equal Access to Justice Act (“EAJA”), 28
    (Continued)
    9
    position    is     “more     than      merely     undeserving       of    sanctions     for
    frivolousness” to qualify as “substantially justified.”                            Granby,
    736 F.3d at 315 (quoting Pierce, 
    487 U.S. at 566
    ).                          On the other
    hand, the government’s position need not necessarily carry the
    day.    Pierce, 
    487 U.S. at 569
    .                The burden is on the government
    to   show—based      on    the    totality        of   the    circumstances—that        its
    position     was     substantially           justified.            § 7430(c)(4)(B)(i);
    Bowles,     
    947 F.2d at 94
        (noting        that   “‘all      the    facts   and
    circumstances surrounding the proceeding[]’ provide guidance to
    the court” (quoting In re Testimony of Arthur Andersen & Co.,
    
    832 F.2d 1057
    , 1060 (8th Cir. 1987))).
    To    assess        whether        the      government’s           position      was
    substantially       justified,          we   first       consider        “the    available
    ‘objective        indicia’       of    the      strength      of    the     Government’s
    position.”        United States v. Paisley, 
    957 F.2d 1161
    , 1166 (4th
    Cir. 1992) (citing Pierce, 
    487 U.S. at
    568–71).                            The pertinent
    indicia will change depending on the case, but as relevant here
    U.S.C. § 2412(d)(1)(A). We have said that the EAJA’s definition
    of “substantially justified” is “essentially the same” as in
    § 7430.   Bowles, 
    947 F.2d at 94
    ; see also Kenagy v. United
    States, 
    942 F.2d 459
    , 464 (8th Cir. 1991) (“The ‘not
    substantially justified’ standard was copied by Congress from
    the EAJA provisions.    Thus, where the wording is consistent,
    courts read the EAJA and § 7430 in harmony.”). Consequently, we
    rely on judicial interpretations of the EAJA’s “substantially
    justified” language.
    10
    they include “the terms of the settlement agreement that ended
    the underlying litigation, the stage at which the merits were
    thereby decided, and the views of other courts on the strength,
    hence     reasonableness,          of    the        Government’s         position.”          Id.
    (citing Pierce, 
    487 U.S. at
    568–71).
    The fact that the parties reached a settlement cannot alone
    establish    the     unreasonableness               of   the     government’s        position.
    Pierce,    
    487 U.S. at 568
    .         Additionally,        the    fact       that   the
    government’s       position        survives         or    dies    during       the     pleading
    stage—or even makes it all the way to the Supreme Court—does not
    conclusively establish the strength or weakness of the position.
    See 
    id. at 568-69
     (“At least where, as here, the dispute centers
    upon    questions       of   law    rather      than      fact,     summary      disposition
    proves only that the district judge was efficient.”); Paisley,
    
    957 F.2d at 1166
     (concluding that a final merits decision before
    the    Supreme     Court      could      not    establish         the    strength       of   the
    prevailing position because “unfounded claims sometimes, for a
    variety of reasons, survive beyond their just desserts”); see
    also Pierce, 
    487 U.S. at 569
     (“[The government] could take a
    position that is substantially justified, yet lose.”).
    If the “objective indicia” are inconclusive, we “turn[] to
    an    independent       assessment       of     the      merits    of    the    Government’s
    position.”         Paisley,        
    957 F.2d at 1166
    .         Here   too,     “merits
    decisions     in    a     litigation,          whether         intermediate       or     final,
    11
    cannot, standing alone, determine the substantial justification
    issue.”        
    Id. at 1167
    .       Nevertheless, “they—and more critically
    their rationales—are the most powerful available indicators” of
    whether the government’s position was “substantially justified.”
    
    Id.
    Moving to the first step of the analysis, we consider three
    indicia       bearing     on   the     reasonableness        of     the    government’s
    position.        The first two are (1) the fact that the parties
    ultimately settled the actual damages claim, and (2) the fact
    that     the     claim     survived      summary         judgment.              These    are
    insufficient to carry the day without more.                       The third objective
    factor    that      NOM    asks   us    to        consider   is     the    District        of
    Nebraska’s decision in Jones v. United States, 
    9 F. Supp. 2d 1119
     (D. Neb. 1998).            See Appellant’s Br. at 26.                 Specifically,
    NOM argues that Jones demonstrates that third parties abusing
    confidential tax-return information is a reasonably foreseeable
    consequence of an unauthorized disclosure.                    
    Id.
     at 33–34.
    We find NOM’s reliance on Jones unavailing.                              First, one
    other district court’s view is not enough to establish or refute
    the reasonableness of the government’s position.                             See Pierce,
    
    487 U.S. at 569
       (“Obviously,       the     fact    that    one    other       court
    agreed    or    disagreed      with    the    Government       does       not    establish
    whether its position was substantially justified.”); see also
    § 7430(c)(4)(B)(iii)           (directing         that   courts     “shall      take    into
    12
    account whether the United States has lost in courts of appeal
    for     other     circuits          on    substantially       similar     issues”       in
    undertaking       the    substantial         justification        inquiry    (emphasis
    added)).
    Second, Jones involves distinguishable facts, rendering it
    a weak objective indicator of the merits of the government’s
    position in this case.                   In Jones, an IRS agent investigating
    criminal    violations         unlawfully         disclosed      to   a   confidential
    informant       that    the    government         planned   to    execute    a    search
    warrant at the plaintiffs’ business.                    Jones, 
    9 F. Supp. 2d at 1123
    .    The confidential informant then told the media, resulting
    in videotaped news coverage of the day-long execution of the
    warrant.    
    Id.
     at 1124–25.
    The court held that the IRS agent’s disclosure proximately
    caused the damage resulting from the media’s coverage because
    (1) the IRS agent should have known that even “the suggestion of
    criminal    activity”         can    have    devastating      consequences       for   the
    person or business implicated, 
    id.
     at 1143–44 (quoting Diamond
    v. United States, 
    944 F.2d 431
    , 434 (8th Cir. 1991)), and (2)
    based on his personal knowledge regarding the informant and the
    plaintiffs,       the    IRS        agent    should    have      foreseen    that      the
    confidential       informant             “harbored    bad     feelings”      for       the
    plaintiffs and therefore might seek to harm them, 
    id.
    13
    In this case, in contrast, there is no evidence that the
    IRS knew whether Meisel held any ill will toward NOM.                   Nor did
    it have any reason to think that the disclosure of NOM’s tax-
    return information would implicate NOM criminally.                    In short,
    the IRS did not have as clear of a reason as in Jones to believe
    disclosure would cause NOM damage.               Consequently, we find the
    objective indicia inconclusive.
    We next conduct an independent assessment of the merits of
    the government’s position with respect to actual damages.                   Our
    analysis of proximate cause in this case leads us to conclude
    that the government’s position was substantially justified.                  As
    the Supreme Court recently noted, proximate cause “defies easy
    summary” and is a “flexible concept.”              Paroline, 
    134 S. Ct. at 1719
     (quoting Bridge v. Phoenix Bond & Indem. Co., 
    553 U.S. 639
    ,
    654 (2008)).     We think it reasonable for the government to have
    argued that the third-party intervening conduct of Meisel, the
    Huffington   Post,     and   the   HRC   broke    the   chain   of    proximate
    causation.     While this contention was not a winner at the end of
    the day, it need not be to qualify as “substantially justified.”
    See Pierce, 
    487 U.S. at 569
     (“[The government] could take a
    position that is substantially justified, yet lose.”); see also
    Kaffenberger v. United States, 
    314 F.3d 944
    , 960 (8th Cir. 2003)
    (“[D]isputes    that   preclude    summary   judgment     do    not   establish
    14
    that    the      moving           party’s     position       is        not   substantially
    justified.”).
    The    district           court’s    ruling    on    proximate        cause    further
    confirms       that        the     government’s       position         was   substantially
    justified.       While the court easily disposed of the government’s
    “but-for” causation argument regarding actual damages, it found
    the    question       of    proximate       causation       to    be    “a   closer    call.”
    Nat'l Org. for Marriage, 24 F. Supp. 3d at 529–30.                              Thus, like
    us, the district court identified this issue as a more difficult
    legal       question,       suggesting       that     the    government’s       litigation
    position was substantially justified.
    Finally, the context in which the government asserted its
    defense       respecting           actual        damages     further         bolsters      our
    conclusion.           Because        we     assess    the     reasonableness          of   the
    government’s          position        in     light     of    the       totality       of   the
    circumstances, we must take care not to view the government’s
    position on a single issue in a vacuum.
    In     this    litigation,          NOM    sought     statutory,       actual,      and
    punitive damages.                We conclude that the government adopted a
    reasonable       strategy           in     conceding        statutory        damages,      but
    challenging the existence and amount of both actual and punitive
    damages.       Conceding actual damages prematurely could have harmed
    the government’s position later if NOM had been able to submit
    15
    evidence enabling it to proceed on the punitive damages issue. 5
    In addition, prior to the district court’s ruling on summary
    judgment, NOM added and subtracted different categories and sums
    of actual damages to its calculation, thus keeping the type and
    extent of actual damages in flux.              See supra n.1.      Moreover, NOM
    bore the burden of proving any actual damages.                      In light of
    these considerations, we cannot say that the government acted
    unreasonably      prior   to     the    summary      judgment   stage    of    the
    litigation by waiting to see what NOM’s evidence was and then
    challenging its sufficiency.
    In    sum,   we   conclude    that       the   government’s   position    was
    substantially justified.          As a result, NOM is not a “prevailing
    party” and is therefore not entitled to attorneys’ fees.
    III.
    For    the   reasons      given,    we    affirm   the   judgment    of   the
    district court.
    AFFIRMED
    5 Of course, the government ultimately prevailed on NOM’s
    unfounded claim for punitive damages.
    16