Federal district court Judge Reggie Walton has dismissed two lawsuits filed against the IRS, Lois Lerner and other agency employees by True the Vote, Linchpins of Liberty and forty other conservative organizations that were targeted by the IRS.
They were subjected to long delays in receiving their tax-exempt status and were inappropriately forced to provide information on their members, donors and political beliefs that the IRS was not entitled to and that was irrelevant to their tax-exemption application.
In two essentially identical decisions on Oct. 23, Walton granted all of the motions to dismiss that had been filed by the Obama administration and the individual IRS employees. Walton concluded that any claim about the long delays these organizations experienced in receiving their tax exempt status from the IRS was now moot because they had finally received the exemption.
The organizations tried to argue that the IRS could repeat its bad behavior in the future, but Walton noted that the IRS had publicly “suspended” its “targeting scheme” and the organizations had not met the “heavy burden” of proving that the “wrong will be repeated.” Walton considered the “prospect of future harm speculative.”
The organizations had also made a Bivens claim for money damages against the individual employees responsible for the “inappropriate targeting” by the IRS. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics is a 1971 case in which the U.S. Supreme Court held that a plaintiff can recover monetary damages from federal officials who violate their constitutional rights. However, Walton concluded that a Bivens claim was not appropriate here because of prior case law holding that a Bivens claim cannot be asserted against IRS employees in light of the “comprehensive remedial scheme” in the IRS Code that allows an organization like True the Vote to seek a declaratory judgment from a federal court when its tax-exempt “status has been denied.”
Without congressional action, there is nothing to deter employees like Lois Lerner from engaging in the same type of misbehavior again.
Finally, Walton dismissed the claim alleging a violation of 26 U.S.C. §6103, which protects the confidentiality of taxpayer information and bans improper inspection of that information. The conservative organizations argued that the IRS violated this statute by asking for inappropriate and unnecessary information. Walton concluded that the “real bone of contention” of the organizations was the IRS’s conduct “in acquiring that information,” and that §6103 “is silent as to how tax return information can be acquired.” Walton stated that even if he assumed that the IRS “improperly acquired the plaintiff’s tax return information, that does not compel a finding that such information was improperly inspected.” Again, because the IRS Code allows applicants to file suit in federal court over controversies arising from the tax-exempt application process, there is no remedy under §6103, according to Walton.
Unfortunately for the American taxpayer, this decision and the prior case law cited by Walton really leaves taxpayers targeted by IRS officials without an effective remedy against those officials. Walton is certainly correct that there is a court remedy for organizations that have been improperly denied tax-exempt status or had their application delayed that allows a federal court to overrule the IRS.
Section 6103 ought to be amended by Congress to ban the improper “acquisition” of information by the IRS, and the law prohibiting Bivens actions for damages against individual IRS employees who engage in unconstitutional, partisan and biased behavior ought to be changed, too. Otherwise, there is nothing to deter employees like Lois Lerner from engaging in the same type of misbehavior again in this or a future administration.
While the IRS might correct such behavior by publicly renouncing it, the employees who engage in wrongdoing can retire and collect their pension or simply get transferred to another office or division within the IRS and keep getting their salary paid by the same American taxpayers they have wronged. And that is wrong.