Catch-22, mootness, and the IRS's targeting of conservative nonprofits

|The Volokh Conspiracy |

True the Vote, Inc. v. IRS, decided today by a D.C. Circuit panel, comes out of the IRS political targeting scandal:

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 [True the Vote, Inc. and Linchpins of Liberty] for more rigorous review on the basis of their names, which were in each instance indicative of a conservative or anti-Administration orientation[…. This] was admitted by the Department of Treasury in the 2013 report of the Treasury Inspector General for Tax Administration (TIGTA).

The applicants sued, asking in part for an injunction ordering the IRS not to do this again; but the district court concluded that this claim was "moot," because the IRS had stopped its practice. To quote the Court of Appeals, "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."

But the question is whether the practice had really permanently stopped, or was just suspended, free to resume when the defendant wants (some paragraph breaks added):

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."

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." 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."

And in this instance, the Court of Appeals concluded,

[V]oluntary 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." 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.

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 …." 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."

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. "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….

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."

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
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 …."

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 …." 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 …."

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." …

[T]he 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." While the Inspector General's Report references 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."

Sounds quite right to me.