True the Vote, Inc. v. Internal Revenue Service
831 F.3d 551
| D.C. Cir. | 2016Background
- Multiple conservative-leaning organizations (True the Vote; Linchpins of Liberty and co-plaintiffs) applied for IRS tax-exempt status under 26 U.S.C. § 501(c) and alleged discriminatory, viewpoint-based targeting (e.g., use of BOLO lists, prolonged delays, and intrusive information requests).
- Plaintiffs sued the United States, the IRS, and individual IRS employees seeking (a) Bivens damages against individuals, (b) statutory relief under 26 U.S.C. § 6103/§ 7431 for improper inspection/disclosure of return information, and (c) equitable relief (injunctive and declaratory) to stop viewpoint-based processing and challenge related regulations.
- The TIGTA (Treasury Inspector General for Tax Administration) report found the IRS used inappropriate criteria (e.g., "Tea Party," "patriots") and unnecessary information requests; it documented delays and BOLO lists.
- The district court dismissed Bivens claims (Rule 12(b)(6)) and § 6103 claims for failure to state a claim, and dismissed equitable claims as moot (Rule 12(b)(1)) based on the IRS’s announced suspension of BOLO use.
- On appeal the D.C. Circuit affirmed dismissal of Bivens and § 6103 counts but reversed the dismissal of equitable claims, holding the government failed to meet the heavy burden to show mootness under voluntary cessation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Bivens remedy is available against IRS employees for viewpoint-based targeting | Bivens damages lie for constitutional violations by individual IRS agents | No Bivens relief; Kim controls because the Internal Revenue Code provides a comprehensive remedial scheme | Dismissed: No Bivens remedy available (affirmed) |
| Whether plaintiffs pleaded actionable violations of § 6103 / § 7431 for improper inspection or disclosure of return information | Plaintiffs allege IRS employees inspected/disclosed return information beyond tax-administration needs (unconstitutional handling) | Complaints are conclusory and fail to allege that inspections/disclosures were not for tax-administration purposes; sovereign immunity requires strict construction | Dismissed: § 6103/§ 7431 claims fail at the pleadings stage (affirmed) |
| Whether equitable claims (injunctive/declaratory relief) are moot due to IRS voluntary cessation of BOLO and targeting practices | Equitable claims remain live; IRS admitted some applications remain unprocessed and BOLO suspension was "until further notice," so risk of recurrence persists | IRS suspended BOLO/watch-list use; thus controversy has ceased and claims are moot | Reversed: Not moot. Government failed to show no reasonable expectation of recurrence and eradication of effects; remand for further proceedings |
| Whether void-for-vagueness challenges to IRS regulations and revenue procedure are moot | Challenges remain live for organizations with pending applications and are sufficiently pleaded | Moot because IRS changed practices | Not moot: those challenges survive for plaintiffs with pending applications |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (establishes implied damages action for certain constitutional violations)
- Kim v. United States, 632 F.3d 713 (D.C. Cir. 2011) (no Bivens remedy against IRS employees given statutory remedial scheme)
- Z St. v. Koskinen, 791 F.3d 24 (D.C. Cir. 2015) (IRS may not discriminate in processing exemptions on the basis of viewpoint)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content- and viewpoint-based restrictions on speech are presumptively unconstitutional)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination is an egregious First Amendment violation)
- Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983) (limits on viewpoint discrimination in tax administration)
- Qassim v. Bush, 466 F.3d 1073 (D.C. Cir. 2006) (mootness and voluntary cessation doctrine standards)
- Motor & Equip. Mfrs. Ass'n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998) (voluntary cessation test elements for mootness)
- Snider v. United States, 468 F.3d 500 (8th Cir. 2006) (§ 7431 waiver of sovereign immunity must be construed strictly)
- Clarke v. United States, 915 F.2d 699 (D.C. Cir. 1990) (case-or-controversy/mootness principles)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (standard of review for factual findings)