Kafkaesque

IRS baloney meets Sixth Circuit grinder

Posted: 23 Mar 2016 07:06 AM PDT

(Scott Johnson) 

Yesterday the United States Court of Appeals for the Sixth Circuit (the Circuit that includes Ohio and thus the IRS’s Cincinnati office) released its decision in United States v. NorCal Tea Party Patriots. In the court’s published decision, rejecting the IRS’s petition for extraordinary relief in a pending class action by the NorCal Tea Party and others mistreated by the IRS, the baloney meets the grinder. Judge Kethledge introduces the court’s opinion with these striking paragraphs:

Among the most serious allegations a federal court can address are that an Executive agency has targeted citizens for mistreatment based on their political views. No citizen—Republican or Democrat, socialist or libertarian—should be targeted or even have to fear being targeted on those grounds. Yet those are the grounds on which the plaintiffs allege they were mistreated by the IRS here. The allegations are substantial: most are drawn from findings made by the Treasury Department’s own Inspector General for Tax Administration. Those findings include that the IRS used political criteria to round up applications for tax-exempt status filed by so-called tea-party groups; that the IRS often took four times as long to process tea-party applications as other applications; and that the IRS served tea-party applicants with crushing demands for what the Inspector General called “unnecessary information.”

Yet in this lawsuit the IRS has only compounded the conduct that gave rise to it. The plaintiffs seek damages on behalf of themselves and other groups whose applications the IRS treated in the manner described by the Inspector General. The lawsuit has progressed as slowly as the underlying applications themselves: at every turn the IRS has resisted the plaintiffs’ requests for information regarding the IRS’s treatment of the plaintiff class, eventually to the open frustration of the district court. At issue here are IRS “Be On the Lookout” lists of organizations allegedly targeted for unfavorable treatment because of their political beliefs. Those organizations in turn make up the plaintiff class. The district court ordered production of those lists, and did so again over an IRS motion to reconsider. Yet, almost a year later, the IRS still has not complied with the court’s orders. Instead the IRS now seeks from this court a writ of mandamus, an extraordinary remedy reserved to correct only the clearest abuses of power by a district court. We deny the petition.

Judge Kethledge quotes the comments of the district court judge handling the case at a discovery conference:

My impression is the government probably did something wrong in this case. Whether there’s liability or not is a legal question. However, I feel like the government is doing everything it possibly can to make this as complicated as it possibly can, to last as long as it possibly can, so that by the time there is a result, nobody is going to care except the plaintiffs. . . . I question whether or not the Department of Justice is doing justice. 

As one can infer from the district court judge’s comments, behind the IRS’s foot-dragging and stonewalling is Obama’s Department of Justice. Judge Kethledge therefore reserves a few choice words for the Department of Justice:

The lawyers in the Department of Justice have a long and storied tradition of defending the nation’s interests and enforcing its laws—all of them, not just selective ones—in a manner worthy of the Department’s name. The conduct of the IRS’s attorneys in the district court falls outside that tradition. We expect that the IRS will do better going forward. And we order that the IRS comply with the district court’s discovery orders of April 1 and June 16, 2015—without redactions, and without further delay.

Stephen Dinan reports for the Washington Times: “Justice Department officials declined to comment on the judicial drubbing, and the IRS didn’t respond to a request for comment on the unusually strong language Judge Kethledge used.” The decision deserves much more comment, but it won’t be coming from the IRS or the Department of Justice any time soon.

Here I will just elaborate the obvious. The Sixth Circuit decision represents a disgrace that goes to the top of the Obama administration.

 

Kafkaesque