True the Vote, Inc. v. Internal Revenue Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 14, 2016 Decided August 5, 2016
No. 14-5316
TRUE THE VOTE, INC.,
APPELLANT
v.
INTERNAL REVENUE SERVICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00734)
John C. Eastman argued the cause for appellant. With him
on the briefs were Kaylan L. Phillips, Noel H. Johnson, Cleta
Mitchell, Michael J. Lockerby, William E. Davis, and Mathew
D. Gutierrez.
Judith A. Hagley, Attorney, U.S. Department of Justice,
argued the cause for appellees United States of America and
Internal Revenue Service. With her on the brief were Gilbert S.
Rothenberg and Teresa E. McLaughlin, Attorneys.
Eric R. Nitz argued the cause for Individual Defendant-
Appellees. With him on the briefs were Jeffrey A. Lamken,
Brigida Benitez, and Catherine Cockerham.
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No. 15-5013
LINCHPINS OF LIBERTY, ET AL.,
APPELLANTS
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00777)
Carly F. Gammill argued the cause for appellants. With her
on the briefs were Jay Alan Sekulow, Stuart J. Roth, Jordan A.
Sekulow, Abigail A. Southerland, Miles L. Terry, Andrew J.
Ekonomou, and Julian A. Fortuna.
Judith A. Hagley, Attorney, U.S. Department of Justice,
argued the cause for appellees United States of America and
Internal Revenue Service. With her on the brief were Gilbert S.
Rothenberg and Teresa E. McLaughlin, Attorneys.
Brigida Benitez argued the cause for Individual Defendant-
Appellees. With her on the brief were Catherine Cockerham,
Jeffrey A. Lamken, and Eric R. Nitz.
Before: HENDERSON, Circuit Judge, and GINSBURG and
SENTELLE, Senior Circuit Judges.
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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: Although these cases are
not officially consolidated, they were separately argued before
the same panel on the same day and are governed by the same
legal principles on decision. We have therefore determined that
a single opinion is sufficient for the disposition of both.
Although there are differences in factual detail, those differences
are immaterial to our ultimate decision on all issues, and
therefore, all our statements of law hereinafter are applicable to
both.
I. BACKGROUND
Appellants appeal from judgments of the district court
dismissing some of their claims under Rule 12(b)(6) for failure
to state a claim for relief, and others under Rule 12(b)(1) for
lack of jurisdiction, by reason of mootness. See True the Vote,
Inc. v. IRS, 71 F. Supp. 3d 219 (D.D.C. 2014); Linchpins of
Liberty v. United States, 71 F. Supp. 3d 236 (D.D.C. 2014).
Each of the above-named appellants together with numerous co-
plaintiffs in the Linchpins of Liberty litigation, filed applications
with the Internal Revenue Service for recognition of tax
exemption as charitable or educational organizations pursuant to
26 U.S.C. § 501(c)(3), (4). As to what happened thereafter, we
construe the complaints in the light most favorable to the
plaintiffs, see Missel v. DHSS, 760 F.3d 1, 4 (D.C. Cir. 2014),
although there is very little factual dispute between the parties
as to the conduct committed by the IRS.
Instead of processing these applications in the normal
course of IRS business, as would have been the case with other
taxpayers, the IRS selected out these applicants for more
rigorous review on the basis of their names, which were in each
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instance indicative of a conservative or anti-Administration
orientation, as we will set out in more detail below, and as was
admitted by the Department of Treasury in the 2013 report of
the Treasury Inspector General for Tax Administration
(TIGTA).
The appellants before us, plaintiffs below, are applicants
who were afforded this unequal treatment. They brought the
present actions against the IRS and several of its individual
employees, seeking money damages by way of relief under
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), and equitable relief by way of
injunction and declaratory judgment. Additionally, the
complaints alleged that the IRS invaded the plaintiffs’ statutory
rights by violating 26 U.S.C. § 6103, by conducting
unauthorized inspection and/or disclosure of tax return
information from their applications and the other information
improperly obtained from them. The district court held that the
Bivens action would not lie against the individual defendants or
the Service, and granted a Rule 12(b)(6) motion for dismissal as
to that relief. See True the Vote, 71 F. Supp. 3d at 229-32;
Linchpins of Liberty, 71 F. Supp. 3d at 242-44. The district
court also dismissed the claims for violation of § 6103 under
Rule 12(b)(6) for failure to state a claim for relief. See True the
Vote, 71 F. Supp. 3d at 232-35; Linchpins of Liberty, 71 F. Supp.
3d at 247-50.
After the initiation of the suits, the Internal Revenue Service
took action to end some unconstitutional acts against at least a
portion of the plaintiffs. Based on these actions, the district
court dismissed the equitable claims as moot. See True the Vote,
71 F. Supp. 3d at 226-29; Linchpins of Liberty, 71 F. Supp. 3d
at 244-47. True the Vote and Linchpins of Liberty were decided
by the same district court judge on the same day and rely on the
same reasoning. Going forward, we will only cite to the
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Linchpins of Liberty decision.
We review the district court’s Rule 12(b)(6) dismissals
of the Bivens actions de novo, taking as true the allegations of
the complaint. See Layman v. Zuckerberg, 753 F.3d 1354, 1357
(D.C. Cir. 2014). However, our review of the district court’s
Rule 12(b)(1) dismissals for mootness depends on “[t]he posture
in which the motion[s] [were] presented to [the] trial court . . . .”
Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir.
1992). When a district court relies either “on the complaint
standing alone” or on “the complaint supplemented by
undisputed facts evidenced in the record,” our review is de novo.
Id. “If, however, the trial court rests not only upon undisputed
statements, but determines disputed factual issues, we will
review its findings as we would any other district court’s factual
determinations: accepting them unless they are clearly
erroneous.” Id. (citation and internal quotation marks omitted).
Accordingly, we affirm the district court’s decisions as to
the Bivens actions and statutory claims, but hold that the
equitable actions are not moot. Even if we accord deference to
the district court, the government has not carried its heavy
burden of showing mootness under the voluntary cessation
doctrine. We therefore vacate and remand for further
proceedings with respect to the equitable claims of the plaintiff-
appellants.
II. ANALYSIS
We once again consider the implications of the Internal
Revenue Service affording unequal treatment in the processing
of applications for tax exempt status by applicants whose names
might suggest certain political orientations. Cf. Z St. v.
Koskinen, 791 F.3d 24, 28 (D.C. Cir. 2015) (concerning
allegations that the IRS had an Israel-special policy “delay[ing]
6
the processing of section 501(c)(3) applications from
organizations whose views on Israel differ from the
administration’s”). This time, appellants allege that their
applications for tax exempt status were selected out on the basis
of an “IRS targeting scheme” that identified for enhanced
scrutiny the applications of applicants with names associated
with “conservative” causes, such as “Tea Party” and “patriot,”
and perhaps “liberty.” According to the complaint, this
enhanced examination involved, “among other things, a multi-
tier review process, . . . harassing and unconstitutional questions
and requests for information that often required applicants to
disclose donor lists, communications with members, and internet
passwords and usernames.” Linchpins of Liberty, Pl.-
Appellants’ Br. at 4 (citing Second Am. Compl. at 32-56).
Perhaps most tellingly, the Service sorted the “targeted” names
of organizations to be subjected to the allegedly unconstitutional
treatment through the use of a “Be-On-The-Lookout” list
referred to as BOLO. Because their applications were subjected
to extended delay and were not receiving the same processing as
those of other organizations, and as they learned from other
sources that the IRS might be employing improper and
unconstitutional criteria, several applicants brought the present
actions.
Also in May of 2013, the Department of the Treasury
received what is referred to by the government as the “TIGTA”
Report, for the Treasury Inspector General for Tax
Administration. See J.A. in Linchpins of Liberty, at 87-140.
That report, which we will often refer to as the Inspector
General’s Report, to avoid overburdening our opinion with
acronyms, from Michael E. McKenney, Acting Deputy
Inspector General for Audit, to the Acting Commissioner for
Tax-Exempt and Government Entities Division of the Internal
Revenue Service, bore the principal heading “Inappropriate
Criteria Were Used to Identify Tax-Exempt Applications for
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Review.”
The Inspector General’s Report was produced in response
to requests by members of Congress resulting from what had
become fairly high profile complaints against the apparently
improper failure to normally process exemption applications by
applicants like or including appellants. The district court
disposed of the action in a judgment supported by a reported
opinion, Linchpins of Liberty v. United States, 71 F. Supp. 3d
236 (D.D.C. 2014).
A. The Bivens Claims
The court first took up the government’s motion to dismiss
the Bivens actions under Rule 12(b)(6). As to those claims, the
district court rightly deemed itself bound by our decision in Kim
v. United States, 632 F.3d 713 (D.C. Cir. 2011). As we had held
in Kim that no action would lie against IRS employees in their
individual capacities because “no Bivens remedy [is] available
in light of the comprehensive remedial scheme set forth by the
Internal Revenue Code,” Kim, 632 F.3d at 717, the district court
dismissed the present action as required by circuit precedent,
Linchpins of Liberty, 71 F. Supp. 3d at 244. For this reason, as
more fully set out in the district court’s opinion, see id. at 241-
44, we affirm the dismissal of the Bivens actions.
B. The Claims Under 26 U.S.C. § 6103
As the district court viewed the statutory claims, the
plaintiffs were attempting to turn their grievances for the
discriminatory acquisition of information into a claim that the
information was improperly “inspected” by one or more IRS
employees who had no need to inspect it because the
information was not material to their applications for tax exempt
status. See Linchpins of Liberty, 71 F. Supp. 3d at 247. There
8
is no controlling appellate decision concerning the application
of § 6103 to a comparable situation, perhaps in part because
there is no factual history of such discriminatory acquisition of
taxpayer information prior to the events giving rise to these
cases and the Z Street decision, supra. However, there is one
unpublished district court decision which, while obviously not
controlling, is nonetheless instructive.
Both parties rely on the decision of the Southern District of
Ohio in NorCal Tea Party Patriots v. IRS, No. 1:13-cv-341,
2014 WL 3547369, at *11-14 (S.D. Ohio July 17, 2014). Both
parties are correct that the decision contains a careful analysis of
the governing law, though they come to opposite conclusions as
to its effects. In NorCal, the plaintiffs raised similar claims to
those we consider today. As in the cases before us, the IRS
moved to dismiss the statutory claims under Rule 12(b)(6). The
NorCal court considered the relevant sections of the IRS Code,
26 U.S.C. §§ 6103, 7431, and noted correctly that “Section
[6103] requires that tax ‘returns and return information shall be
confidential.’” 2014 WL 3547369, at *11.
The statute defines “return information” as including the
following:
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,
9
fine, forfeiture, or other imposition, or offense . . . .
26 U.S.C. § 6103(b)(2)(A). As the Ohio district court further
noted, 26 U.S.C. § 7431 creates a private cause of action for
violations of § 6103. That section provides:
If any officer or 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, such taxpayer may bring
a civil action for damages against the United States in a
district court of the United States.
26 U.S.C. § 7431(a)(1).
However, we further note, as did the Ohio district court, that
§§ 6103 and 7431 provide exceptions. Specifically,
§ 6103(h)(1) permits “inspection by or disclosure to officers and
employees of the Department of the Treasury as official duties
require such inspection or disclosure for tax administration
purposes.” The term “tax administration” is defined broadly as
“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 . . . .” Id. § 6103(b)(4).
The NorCal court denied the Rule 12(b)(6) motion, but did
so noting:
Plaintiff Groups will have to establish that the IRS officials
who inspected or disclosed the return information did so
knowing that the information was not necessary for tax
administration purposes, regardless of whether the IRS
officials who requested the information knew or believed it
10
was necessary for the § 501(c)(4) application.
NorCal, 2014 WL 3547369, at *13.
While the question may be a close one, review of the
complaints in the district court in this case does not reveal
allegations sufficient to support the statutory requirements
which were set forth, we believe correctly, by the NorCal court.
As the district court correctly noted, unlike in NorCal, the
complaint in this case makes only conclusory allegations and
“general averments” regarding the handling of tax return
information. See Linchpins of Liberty, 71 F. Supp. 3d at 248
n.18 (observing that “the plaintiffs admit that certain individual
defendants were using tax return information ‘to conduct official
IRS business,’” and paragraph 296 of the complaint “does not
allege that any of the defendants improperly inspected or
disclosed the plaintiffs' tax return information . . .”). Further,
“[b]ecause § 7431 represents a waiver of sovereign immunity,
it must be ‘strictly construed, in terms of its scope, in favor of
the sovereign.’” Snider v. United States, 468 F.3d 500, 509 (8th
Cir. 2006) (quoting Lane v. Pena, 518 U.S. 187, 192 (1996)).
Therefore, we affirm the dismissal of the section 6103
counts of the complaints by the district court.
C. The Other Equitable Claims
None of the above disposes of the other equitable claims of
appellants for violation of their constitutional rights by the
viewpoint based targeting of their applications by the IRS. The
district court concluded that those claims were moot, depriving
it of jurisdiction, and therefore dismissed the claims pursuant to
Rule 12(b)(1). We disagree with this conclusion and reverse the
district court’s judgments on those claims.
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As the district court rightly recognized, see Linchpins of
Liberty, 71 F. Supp. 3d at 244, the courts of the United States,
pursuant to Article III of the Constitution, have no jurisdiction
to act unless there is “a case or controversy.” See, e.g., Clarke
v. United States, 915 F.2d 699, 700-01 (D.C. Cir. 1990). The
IRS has not disputed that this litigation began with a case or
controversy. The government contends, however, and the
district court agreed, that the case has become moot and
therefore no longer comes within the jurisdiction of Article III
courts. As the district court properly noted, “[e]ven 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.’” 71 F. Supp. 3d at 244 (quoting
Clarke, 915 F.2d at 701) (second alteration the district court’s)
(additional citations and internal quotation marks omitted).
Here the IRS contended, and the district court agreed, that
plaintiffs’ claims have become moot because the IRS has
stopped using its admittedly improper discriminatory criteria
and handling of applications by taxpayers with politically
disfavored names. For a fuller understanding of the IRS’s claim
of mootness based on its putative voluntary cessation, we need
to make a rather full examination of the Inspector General’s
Report.
1. The Inspector General’s Report
At the outset, we note that the Inspector General’s Report
was properly before the district court in its consideration of the
motions to dismiss, and is properly before this court in our
consideration of the appeal. In both actions, the plaintiffs
attached and incorporated the full report with their complaints.
The IRS has, obviously, taken no action to disavow or discredit
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the report of investigation by its parent department.
On May 14, 2013, the Treasury Inspector General for Tax
Administration issued the audit report styled “Inappropriate
Criteria Were Used to Identify Tax-Exempt Applications for
Review,” and bearing the reference number: 2013-10-053
(citations to the report will be shown as “TIGTA”).
The gist of the Inspector General’s Report is clear from its
name. The first sentence of the 25-page “Results of Review”
states, “The Determinations Unit [of the IRS] developed and
used inappropriate criteria to identify applications from
organizations with the words Tea Party in their names.” TIGTA
at 5. Elucidating on that point, the audit determined that
“according to the IRS, a Determinations Unit specialist was
asked to search for applications with Tea Party, Patriots, or 9/12
in the organization’s name as well as other ‘political-sounding’
names.” Id. at 6.
Indeed, officials from the IRS function in charge of exempt
organizations stated to the Inspector General that
in May 2010, the Determinations Unit began developing a
spreadsheet that would become known as the “Be On the
Look Out” listing (hereafter referred to as the BOLO
listing), which included the emerging issue of Tea Party
applications. In June 2010, the Determinations Unit began
training its specialists on issues to be aware of, including
Tea Party cases. By July 2010, Determinations Unit
management stated that it had requested its specialists to be
on the lookout for Tea Party applications.
Id. (citation omitted).
 13
The report goes on to remind the IRS that its function is to
help American taxpayers to “understand and meet their tax
responsibilities and” to “apply[] the tax law with integrity and
fairness to all.” Id. In recognizing that the IRS’s handling of
exemption applications from persons of disfavored viewpoints
utterly failed that mission, the report states, “the criteria
developed by the Determinations Unit gives the appearance that
the IRS is not impartial in conducting its mission. The criteria
focused narrowly on the names and policy positions of
organizations instead of tax-exempt laws and Treasury
Regulations.” Id. at 6-7.
Although the TIGTA reports that some change was made in
the criteria in June of 2011, the report goes on to observe that by
January 2012, “criteria again focused on the policy positions of
organizations instead of tax-exempt laws and Treasury
Regulations.” Id. at 7. In the meantime, the employees using
these improper criteria delayed, denied, and generally
mishandled the applications of disfavored applicants. “As of
December 17, 2012, many organizations had not received an
approval or denial letter for more than two years after they
submitted their applications. Some cases ha[d] been open
during two election cycles (2010 and 2012).” Id. at 11.
The audit report is replete with details of discriminatory
processing and delay. For example, “[t]he Determinations Unit
sent requests for information that we later (in whole or in part)
determined to be unnecessary for 98 (58 percent) of 170
organizations that received additional information request
letters.” Id. at 18.
The TIGTA includes specific examples, e.g.:
1. The names of the donors, contributors, and grantors. If
the donor, contributor, or grantor has run or will run for
14
a public office, identify the office. If not, please
confirm by answering this question “No.”
2. The amounts of each of the donations, contributions,
and grants and the dates you received them.
3. How did you use these donations, contributions, and
grants? Provide the details.
Id. at 19.
The Inspector General went on to list “seven questions
identified as unnecessary by the [exempt organization]
function.”
1 Requests the names of donors.
2 Requests a list of all issues that are important to the
organization and asks that the organization indicate its
position regarding such issues.
3 Requests 1) the roles and activities of the audience and
participants other than members in the activity and 2)
the type of conversations and discussions members and
participants had during the activity.
4 Asks whether the officer, director, etc., has run or will
run for public office.
5 Requests the political affiliation of the officer, director,
speakers, candidates supported, etc., or otherwise refers
to the relationship with identified political
party–related organizations.
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6 Requests information regarding employment, other
than for the organization, including hours worked.
7 Requests information regarding activities of another
organization – not just the relationship of the other
organization to the applicant.
Id. at 20.
2. Viewpoint Discrimination
To place in context our discussion of TIGTA’s findings,
we recall that under the First Amendment, the government “has
no power to restrict expression because of its message, its ideas,
its subject matter, or its content.” Reed v. Town of Gilbert, Ariz.,
135 S. Ct. 2218, 2226 (2015) (quoting Police Dep’t of Chicago
v. Mosley, 408 U.S. 92, 95 (1972)). “Content-based laws—those
that target speech based on its communicative content—are
presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve
compelling state interests.” Reed, 135 S. Ct. at 2226. A “more
blatant” and “egregious form of content discrimination” is
viewpoint discrimination, which occurs when a government
regulation “targets not subject matter, but particular views taken
by speakers on a subject . . . .” Rosenberger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). Viewpoint
discrimination is based on “the specific motivating ideology or
the opinion or perspective of the speaker[,]” id., and, therefore,
“plainly offend[s]” the First Amendment, First Nat’l Bank of
Boston v. Belloti, 435 U.S. 765, 785-86 (1978).
Just last term, we stated directly that, “in administering
the tax code, the IRS may not discriminate on the basis of
viewpoint . . . .” Z St., 791 F.3d at 30. We went on to say that
“to process exemption applications pursuant to different
16
standards and at different rates depending upon the viewpoint of
the applicants” is “a blatant violation of the First Amendment.”
Id. at 32. The tax code may not “discriminate invidiously . . .
in such a way as to aim at the suppression of dangerous ideas.”
Regan v. Taxation with Representation of Wash., 461 U.S. 540,
548 (1983) (internal quotation marks and alteration omitted).
3. The Mootness Ruling
It being plain to the Inspector General, the district court,
and this court that the IRS cannot defend its discriminatory
conduct on the merits, the governing issue is now whether the
controversy is moot. The district court held that it was; we
conclude that it is not. The fundamental concept of mootness is
quite straightforward. As applied in the context of injunctive
litigation, if there remains no conduct to be enjoined, then
normally there is no relief that need be granted, the case or
controversy has ceased, and the jurisdiction of the court has
expired under Article III. However, there is a difference
between the controversy having gone away, and simply being in
a restive stage. This difference gives rise to the concept of
“voluntary cessation.” That concept governs the case in which
the defendant actor is not committing the controversial conduct
at the moment of the litigation, but “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.”
Qassim v. Bush, 466 F.3d 1073, 1075 (D.C. Cir. 2006) (quoting
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953))
(additional citations omitted). For a defendant to successfully
establish mootness by reason of its voluntary cessation of the
controversial conduct, the defendant must show that “(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.” Id. at 1075
(quoting Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449,
17
459 (D.C. Cir. 1998)). Both the district court and the
government acknowledge that the defendant has the burden of
establishing that these criteria have been met, and that it is a
“heavy burden.” 71 F. Supp. 3d at 245; Appellee United States
Br. in Linchpins of Liberty, at 13.
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. The Service’s brief further
illuminates this point with a footnote explaining that “[u]nder
long-standing procedures, administrative action on an
application for exemption is ordinarily suspended if the
applicant files suit in court.” Id. at 28 n.4. 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
18
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.”
Parallel to Joseph Heller’s catch, the IRS is telling the
applicants in these cases that “we have been violating your
rights and not properly processing your applications. You are
entitled to have your applications processed. But if you ask for
that processing by way of a lawsuit, then you can’t have it.” We
would advise the IRS: if you haven’t ceased to violate the rights
of the taxpayers, then there is no cessation. You have not
carried your burden, be it heavy or light.
The IRS’s only further attempt to justify the lack of
cessation as to some of the applicants is to refer to its Catch-22
litigation rule as a “longstanding policy.” To this we would
advise the IRS: if you haven’t ceased discriminatory conduct,
the fact that you have been failing to cease it for a long time
does not create cessation. You still have not carried your
burden.
The IRS further calls our attention to a later follow-up
report from the Treasury Inspector General for Tax
Administration. The IRS argues, with support in the text of the
document, that this report evidences further progress toward
alleviation of the past discriminatory actions in the processing
of the targeted applications. That second report, dated March
27, 2015, is not a part of the record before us. Indeed, it did not
exist until over five months after the issuance of the district
court opinion under review. While the IRS may be correct that
we could consider this extra-record evidence by granting judicial
notice to the official document, that does not in itself make the
document ripe for consideration in our review. As noted, it is
not part of the record. As further evident from the date of the
19
document and the date of the opinions under review, it was not
before the district court.
As we noted above, a dismissal under Rule 12(b)(1),
unlike a dismissal under Rule 12(b)(6), is not reviewed de novo
in its entirety, but only as to legal conclusions. Where, as here,
the jurisdictional question before the court is fact-dependent, the
first step of the review is a clear-error review regarding the
factual decision of the district court. It is hardly possible for
this court to determine whether a clear error occurred based on
evidence that the district court did not consider, and that indeed
did not exist at the time of the decision. Aside from that rather
obvious proposition, it is also true that judicially-noticed
evidence, like any other evidence, is subject to a trial court’s
determination as to its weight, effect, and consistency with other
evidence. That the evidence in question is documentary rather
than testimonial does not change the standard of review. See
Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
The 2015 report may be noticeable, see Fed. R. Evid. 201(b), but
its evidentiary use is not ripe. As we will be remanding this case
for further proceedings, the government is free to offer the
document in the district court.
Even if we assumed there was voluntary cessation, we
would still conclude that the government has not carried its
burden to establish mootness because it has not demonstrated
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.”
Qassim, 466 F.3d at 1075 (quoting Motor & Equip. Mfrs. Ass’n,
142 F.3d at 459). As to element 2, 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
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light of the IRS’s own language, which condemns it. As the
district court observed, the IRS relied upon its announcement
that “[w]e have suspended the use of ‘be-on-the-lookout,’ or
BOLO, lists in the application process for tax exempt status,” to
show “that there is no reasonable expectation that the alleged
conduct will recur . . . .” 71 F. Supp. 3d at 245 (emphasis
added).
The IRS’s response to the Inspector General’s Report
further caused the Service to announce that it “specifically . . .
has suspended the use of BOLO lists in the application process
for tax-exempt status . . . .” Id. (internal punctuation omitted)
(emphasis added). And 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. Rather, it has at most advised the
victim of the violation – “you’re alright for now, but there may
be another shoe falling.”
To this point, we, like the Inspector General, have
focused on the BOLO segment of the targeting scheme. We
note that the complaints alleged extensive discriminatory
conduct including “delayed processing . . . harassing, probing,
and unconstitutional requests for additional information that . . .
required applicants to disclose, among other things, donor lists,
direct and indirect communications with members of legislative
bodies, Internet passwords and user names, copies of social
media and other Internet postings, and even the political and
charitable activities of family members.” Linchpins Sec. Am.
Compl. at ¶ 2. While the Inspector General’s Report references
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many of these discriminatory actions, neither it nor anything else
presented by the government meets the heavy burden of
establishing that “interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation.”
Qassim, 466 F.3d at 1075 (citation omitted). While a court’s
inquiry into possible mootness in response to a Rule 12(b)(1)
violation has, as we have noted, a factual component,
nonetheless the norm is that at the Rule 12 stage, the allegations
of a complaint are taken as true, absent some reason for a
rejection. In these cases, as the government has not carried its
heavy burden of establishing mootness by voluntary cessation,
we apply that normal presumption. The allegations of the
complaint are quite sufficient to warrant a merits disposition
based on adjudication of substantive evidence, not simply a
dismissal at the pleadings stage.
Finally, although not addressed by the district court, the
void-for-vagueness challenges raised by appellants in Linchpins
of Liberty, to 26 C.F.R. § 1.501(c)(4)-1 and Revenue Procedure
86-43 are not moot for the same reasons as above—i.e, they
continue to affect those plaintiff-organizations with pending
applications and are amply supported by allegations in the
complaint. See Linchpins Sec. Am. Comp. ¶¶ 298-308, 385-88,
399-401.
In short, the district court correctly identified the nature
of this controversy and the nature of the government conduct
subject to equitable relief. However, the court erred in
concluding that the litigation over that conduct had been mooted
by the government’s putative voluntary cessation of the conduct.
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III. CONCLUSION
For the reasons set forth above, we affirm the district
court’s dismissal of appellants’ Bivens actions and statutory
claims, but reverse the district court’s dismissal of the actions
for injunctive and declaratory relief and remand for further
proceedings consistent with this opinion.
So ordered.