Michael Gaynor
Judge Walton's no Judge Sirica, he dismissed True the Vote case, blocking discovery of whole truth about IRS scandal
By Michael Gaynor
October 27, 2014

If the IRS's belated approval "completely and irrevocably eradicated the effects of" its failure to approve years earlier, then the Emancipation Proclamation and the Thirteenth Amendment must have "completely and irrevocably eradicated the effects of" slavery!

In "Will Federal District Court Judge Reggie Walton Save or Shatter Obamaworld" (www.renewamerica.com/columns/gaynor/140811), posted on August 11, 2014, I reported that "Judge Walton denied True the Vote's motion for expedited discovery [in its case against the Internal Revenue Service] because the [IRS's] previously filed motion to dismiss was still pending before him and therefore discovery had not started" and I asserted that the IRS's motion to dismiss "already should have been denied and should be denied without further delay, so that the discovery the federal government doesn't want and True the Vote and People need can begin. No more discovery delay in True the Vote's IRS Scandal lawsuit!"

I elaborated:

"Now it is Judge Walton who has a chance to 'shock' the world and let discovery pursue the genesis of the idea that True the Vote's tax exempt status be delayed for years. After all, True the Vote was not considered insignificant when President Obama was running for reelection in 2012. In fact, the October 2012 Obama/Biden memorandum by former Obama White House Counsel Bob Bauer is readily available online at http://secure.assets.bostatic.com/pdfs/BauerMemo/BauerMemo.pdf and Bauer charged in that memorandum that there was a 'Republican assault on voting rights....with deep roots in the party's history and politics' led by the Republican National Committee 'aided by organizations closely associated with the party and its goals, such as True the Vote.' According to Bauer, True the Vote was 'assisting the effort [to disrupt] the voter registration process' by purporting to train and deploy to polling places around the country "poll watchers' on the watch for "fraud".... 'Section IV of Bauer's memorandum, devoted to True the Vote, begins, 'Since the 2010-midterm elections, Texas-based True the Vote (TTV) has been an outspoken member of the voter fraud community and is the social group focused on ending "vote fraud." It is the first group since the Karl Rove inspired American Center for Voting Rights was discovered to be a Republican front in 2007.'

"If that was true, then True the Vote should not have tax exempt status. But the Internal Revenue Service opted to give it tax exempt status in the hope of ending the lawsuit and thereby avoiding discovery. If people as high in the Obama Administration as Bauer believed what he was saying about True the Vote, did they seek to have the Internal Revenue Service delay the processing of True the Vote's application and make the process as onerous and expensive as possible?"

Judge John Sirica famously did what he could as a federal district court judge to get to the bottom of the Watergate scandal as quickly as possible.

Judge Walton opted for more than two months of additional discovery delay (even though in 2007 he had produced a 30-page expanded ruling the day after Scooter Libby appealed his decision to deny him (Libby) bail pending appeal and then ruled twelve days before Election Day 2014 that the case was moot and therefore there would be no discovery.

Martin Luther King, Jr., in his famous "Letter from Birmingham Jail," asserted that "justice too long delayed is justice denied."

The late Chief Justice Warren E. Burger agreed. In a 1970 address to the American Bar Association, Chief Justice Burger explained: "A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets."

The leaders of election integrity organization True the Vote agree and were stunned to learn last Thursday that Judge Walton (1) doesn't agree, or (2) thinks that the more than three years the IRS took to approve True the Vote's application for tax-exempt status wasn't "too long," or (3) thinks that a belated approval somehow remedies years of damages from unwarranted delay.

It was not unreasonable that True the Vote's application was not approved before Election Day 2010, but it surely should have been approved long before Election Day 2012 and was not approved until September 2013, four months after True the Vote sued the IRS to obtain approval.

On May 21, 2012, True the Vote sued the IRS and several IRS officials (including the now retired Lois Lerner) in both their official and individual capacities seeking declaratory relief, injunctive relief and money damages. True the Vote alleged substantial damages and financial hardship resulting from unconstitutional conduct that "substantially and materially interfered with its ability to engage in free speech, free association, and activities in furtherance of its charitable purpose."

On October 22, 2014, Judge Walton issued a 23-page decision dismissing True the Vote's lawsuit and denying its motion to stay agency action (www.scribd.com/doc/244148934/IRS).

Judge Walton's decision fixated on the IRS's eventual approval of True the Vote's application and apparently did not find any significance in the fact that the approval only came when the IRS had to respond in court to the complaint filed against it by True the Vote, the IRS chose not to answer and instead approved the application and moved to dismiss the case as moot, because it had finally approved.

Judge Walton addressed the "voluntary cessation" exception to the mootness doctrine under which the case should continue and discovery should commence and ruled that it did not apply, because "(1) there is no reasonable expectation that the conduct [complained of] will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." To support his ruling, in footnote 4 Judge Walton took "judicial notice that the IRS has in fact suspended the alleged scheme and taken remedial steps to address the alleged conduct" and ruled that True the Vote's receipt of tax exempt status "'completely and irrevocably eradicated the effects of the alleged violation[s]' by the defendants."

If the IRS's belated approval "completely and irrevocably eradicated the effects of" its failure to approve years earlier, then the Emancipation Proclamation and the Thirteenth Amendment must have "completely and irrevocably eradicated the effects of" slavery!

Count 3 of True the Vote's amended complaint sought money damages against individual defendants for participating in the "IRS Targeting Scheme." Judge Walton dismissed it because he ruled that the amended complaint lacked factual content that allowed him to draw a "reasonable inference that the defendant is liable for the misconduct alleged" and a "sheer possibility that a defendant has acted unlawfully" is not enough. He applied a very narrow construction of True the Vote's amended complaint instead of the "liberal" interpretation called for on a motion to dismiss. True the Vote's reference to wrongful discrimination in processing tax exemption applications should have been interpreted as illustrative, not exclusive, under the circumstance presented.

Also, Judge Walton, in a footnote, refused to allow True the Vote to amend to "recast its claims concerning the IRS's alleged targeting scheme that stalled the approval of its tax-exempt application."

Thanks to Judge Walton, the IRS delayed, at least, the discovery that could answer the question, "Why did the IRS target conservative organizations applying for tax exempt status after Barack Obama became President?"

The footnotes in Judge Walton's decision should not be overlooked, especially footnote 20, in which Judge Walton stated, "Here, the Court will not allow [True the Vote] to take discovery...." (Judge Walton surely appreciates the importance of discovery and attributed his refusal to permit it to his determination that True the Vote had "not sufficiently pleaded a violation of 26 U.S.C. § 6103.")

Although it certainly was not in the pleading reviewed on the motion to dismiss, Judge Walton found that the IRS had taken sufficient "remedial steps to address the alleged behavior" complained about by True the Vote and dismissed the case as moot, thereby sparing the IRS the need to respond to discovery requests and spawning pre-Election Day 2014 reports that True the Vote's complaint against the IRS really is moot. "Unless an actual, ongoing controversy exists in this case, this Court is without power to decide it," Judge Walton wrote.

Accordingly, for example, USA Today reported: "Walton said the IRS has assured the public that they're no longer screening applications for tax exemptions based on the name of the group, a practice that led to the dismissal of several top IRS officials when it was disclosed by Treasury inspectors last year."

Astonishingly, to Judge Walton, there does not seem to be "an actual, ongoing controversy" as to whether True the Vote suffered damages as a result of undue delay in approving its application.

True the Vote founder and president Catherine Engelbrecht stated: "We are stunned by today's judgment. The notion that the IRS can target Americans for years because of their political beliefs is reprehensible. The Court acknowledges in its opinion that the IRS did in fact target True the Vote for our perceived political beliefs, but then it holds that neither the agency nor the individual IRS agents or officers are responsible for this unconstitutional conduct. Right now, we are considering all legal options and will announce our next steps very soon."

Judge Walton's decision was so stunning that Engelbrecht did not realize that Judge Walton did NOT even acknowledge "that the IRS did in fact target True the Vote for [its] perceived political beliefs." Footnote 2 to Judge Walton's decision states: "The Court's opinion should not be interpreted as an assessment of the propriety of the alleged conduct by the defendants, as resolution of the motions does not require an assessment of the merits of [True the Vote's] claims."

Engelbrecht's confusion is readily understandable. since Judge Walton accepted as true for purposes of deciding the motions pending before him that "the IRS has assured the public that they're no longer screening applications for tax exemptions based on its political leanings."

Congressman Jim Jordan, Republican of Ohio, called Judge Walton's decision a "sad ruling for liberty," saying it "makes no sense" because True the Vote was targeted because of its political affiliation. "If that isn't unwarranted harassment, I don't know what is," Jordan,said. "If such grievances don't warrant redress by our federal courts, I don't know what does."

Congressman Pete Olson, Republican of Texas, lamented: "Our legal system is in place for injured parties to seek legal recourse, especially when the government is the accused party. It's wrong for a federal judge to summarily dismiss a lawsuit brought as the result of harassment by a government bully. True the Vote was formed to highlight instances of voter fraud. Voter fraud diminishes the sacred right all Americans have to determine who represents them in government. This organization deserves their day in court."

Engelbrecht and King Street Patriots, a tea party group with which Engelbrecht was affiliated, were subjected to invasive requests for records and information not only from the IRS, but also the FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosive and the Occupational Safety and Health Administration. See "The Catherine Engelbrecht story is the key to the IRS Scandal" (www.renewamerica.com/columns/gaynor/140630).

In May 2013, the IRS admitted to subjecting conservative organizations applying for 501(c)(3) status with "special scrutiny," and True the Vote filed its lawsuit later that month.

The IRS finally granted True the Vote's 501(c)(3) status more than three years after the application was made, in September 2013, in an obvious attempt to avoid discovery embarrassment, like Lois Lerner's "lost" email.

In July 2014, it was publicly reported that email from Lerner's computer had been "lost" in a computer crash. True the Vote promptly filed a motion seeking to begin discovery, arguing that the news meant that there was a real risk that relevant evidence could be lost or destroyed.

Judge Walton first denied that motion and finally dismissed the case, without having allowed any discovery, on the theory that because the IRS had finally granted True the Vote 501(c)(3) status, the case "no longer warrant[ed] the Court's attention and further use of its resources." (Judge Walton did not refer to the "resources" True the Vote needed to devote to obtaining the approval it should have received in due course, as though they were inconsequential.)

Good news for the Obama Administration's IRS and Lerner, to name one person.

Bad news for the United States of America, True the Vote, election integrity and public confidence in government.

Bottom line: (1) Judge Walton's dismissal and the timing of it (shortly before Election Day 2014) are very troubling, (2) the IRS's eventual approval of True the Vote's tax exempt status application may have averted future damages, but it did not undo damages already incurred, such as the need to return a $35,000 donation because the approval had not come through in time, and (3) the dismissal blocks discovery, which could reveal how high up the corruption went and pave the way to restore faith in government.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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