Washington Post (The Volokh Conspiracy): Lawsuit Based on Alleged Government Targeting of Tea Party Group Organizer Can Go Forward, by Eugene Volokh (UCLA):
From Zherka v. Ryan, 2014 WL 4928956 (S.D.N.Y. Sept. 30, 2014):
Plaintiff Selim Zherka filed this … action claiming that employees of the Internal Revenue Service hindered his application for tax exempt status and initiated an investigation against him as part of a broader effort to penalize members of the Tea Party for their political activities….
Beginning in 2009, plaintiff published newspaper articles and held rallies criticizing government officials for political corruption and “confiscatory tax policies.” Plaintiff organized and supported the creation of the Tea Party, a political party that received extensive publicity in the news media. At some point, plaintiff sought tax-exempt status for an organization he and others used primarily for educational purposes. However, plaintiff claims that defendant Lois Lerner …, an IRS employee, subjected his application to an inordinately high level of scrutiny, forcing him to abandon his efforts to obtain tax-exempt status. [The case against Lois Lerner was dismissed because “Plaintiff has not satisfied its burden of showing that [he] served defendant Lerner with a copy of the summons and complaint.” — EV]
Plaintiff alleges that in 2011, agent Ryan of the Federal Bureau of Investigation … and agent Ashcroft … of the IRS began an investigation into his commercial real estate dealings. Plaintiff claims these defendants issued over 75 subpoenas to his business associates, threatening them with criminal prosecution should they withhold information incriminating plaintiff. Plaintiff alleges that as a result, many of these business associates terminated their relationship with him out of a fear of “running asunder of federal agencies.” He asserts that defendants’ conduct was part of a broader government strategy to penalize Tea Party members for their political speech.
Plaintiff claims to have lost business as a result of the ongoing investigation. Moreover, he claims that defendants’ actions have chilled his political activities, damaged his reputation, and caused emotional injuries….
Plaintiff alleges First Amendment retaliation …. To state a claim for First Amendment retaliation, a plaintiff must show: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.” …
[P]laintiff alleges that defendants intentionally targeted him for investigation because of his active membership in a new political party. The First Amended Complaint indicates that defendants initiated their broad investigation solely against plaintiff because of his political efforts, and did not pursue similar investigations against apolitical businesses and taxpayers. Plaintiff’s activities centered on advocating for a reduction in local, state, and federal tax levies. Plaintiff claims that as a result of his political activities, defendants issued over 75 subpoenas to his business associates, and contacted dozens of them individually in a search for incriminating information. Defendants’ alleged conduct appears to have significantly damaged plaintiff’s business prospects and “curtailed his public advocacy.”
Plaintiff has made a plausible showing on his First Amendment and equal protection claims. His speech, which is directed at reforming government spending, is clearly protected. He has alleged facts showing that defendants targeted him for a wide-ranging investigation because of this speech, and that he was treated differently than other taxpayers and businessmen who did not espouse anti-taxation beliefs. Thus, plaintiff has pleaded sufficient facts to state a plausible claim for relief on his First Amendment [claim] ….
Plaintiff [also] alleges that defendants’ conduct is so shocking as to amount to a violation of his substantive due process rights…. Only “the most egregious official conduct” meets this threshold.
The question of whether conduct is shocking in a constitutional sense is highly context specific. ...
Here, plaintiff alleges that he has been subjected to more than two years of investigation by defendants. He claims that defendants have threatened his business associates with criminal prosecution in order to secure their cooperation in the investigation. Moreover, he claims that defendants have inquired into his political activities and political affiliations, demonstrating a motivation to retaliate against him for his political speech. Plaintiff claims that defendants’ conduct has severely damaged his reputation and harmed his business relationships.
These allegations are disturbing and sufficiently shocking to allow plaintiff’s claim to go forward. While defendants did not subject plaintiff to forced-stomach pumping or other physical deprivations, they have allegedly investigated him for nearly two years based solely on his political message. Defendants’ alleged conduct appears to have jeopardized many if not most of plaintiff’s business relationships, causing him dramatic and permanent harm. Given plaintiff’s low burden at this stage in the litigation, he has alleged facts egregious enough to shock the conscience in a constitutional sense….
- The IRS Scandal, Day 516 (Oct. 7, 2014)
- The IRS Scandal, Day 515 (Oct. 6, 2014)
- The IRS Scandal, Day 514 (Oct. 5, 2014)
- The IRS Scandal, Day 513 (Oct. 4, 2014)
- The IRS Scandal, Day 512 (Oct. 3, 2014)
- The IRS Scandal, Day 511 (Oct. 2, 2014)
- The IRS Scandal, Day 510 (Oct. 1, 2014)
- The IRS Scandal, Day 509 (Sept. 30, 2014)
- The IRS Scandal, Day 508 (Sept. 29, 2014)
- The IRS Scandal, Day 507 (Sept. 28, 2014)
- The IRS Scandal, Day 506 (Sept. 27, 2014)
- The IRS Scandal, Day 505 (Sept. 26, 2014)
- The IRS Scandal, Day 504 (Sept. 25, 2014)
- The IRS Scandal, Day 503 (Sept. 24, 2014)
- The IRS Scandal, Day 502 (Sept. 23, 2014)
- The IRS Scandal, Day 501 (Sept. 22, 2014)
- The IRS Scandal, Days 401-500 (June 14, 2014 - Sept. 21,2014)
- The IRS Scandal, Days 301-400 (Mar. 6, 2014 - June 13, 2014)
- The IRS Scandal, Days 201-300 (Nov. 26, 2013 - Mar. 5, 2014)
- The IRS Scandal, Days 101-200 (Aug. 18, 2013 - Nov. 25, 2013)
- The IRS Scandal, Days 1-100 (May 10, 2013 - Aug. 17, 2013)