Catch-22, IRS style

This past Friday the D.C. Circuit Court of Appeals partly reinstated the lawsuits brought by two groups — True the Vote and Linchpins of Liberty — that had sued the IRS over its targeting of conservative or Tea Party-type organizations seeking 501(1)(c)(3) status. The court has resurrected the groups’ claims for relief enjoining the IRS against continued discriminatory treatment. The D.C. Circuit opinion is posted here and is worth reading. Walter Olson comments on it here. Our friend Cleta Mitchell comments briefly at the bottom of this post.

Together with the Department of Justice, the IRS is prominent among the federal agencies most degraded by the Obama administration. When the Department of Justice represents the IRS, as it does in these cases, one occasionally finds the sort of (warning: microaggression) black humor perfected in absurdist writers of the 1960’s.

The court noticed. It even cited a classic novel of the genre to make the point. The IRS supported dismissal of the claims for equitable relief in the True the Vote/Linchpin of Liberty cases on the ground that it had (almost) ceased the conduct in issue. Writing for the panel (at pages 17-18), Judge Sentelle was not amused (page citations omitted):

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. See Joseph Heller, Catch-22 [originally published in 1961]. “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.

Our friend Cleta Mitchell represents True the Vote. (Our friend John Eastman argued the case for True the Vote in the D.C. Circuit.) Cleta graciously responded last night to our request for a comment:

We are very glad the appellate court has recognized that a cause of action exists that must and can be prosecuted and pursued. We are watching the actions of the government in the next week, to see whether the Obama administration will continue its stonewalling by seeking en banc review by the full DC Circuit– trying yet again to thwart further action in the case. The DoJ has until Friday, August 12, to file that petition.

Assuming the case is ultimately remanded to the trial court, we would be able to commence discovery. And we believe that discovery in this case matters — to get to the truth that has eluded the American people for the last seven years. We are hopeful that with discovery we can finally get to that truth. And then to fashion a permanent, court-enforceable injunction to keep the IRS from ever engaging in the political persecution of American citizens again.

Judge Sentelle doesn’t quote one of the novel’s passages on Catch-22 that may be pertinent here: “That’s some catch, that Catch-22,” Yossarian observes. “It’s the best there is,” Doc Daneeka agrees.

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