Paul L. Caron
Dean



Monday, March 9, 2015

The IRS Scandal, Day 669

IRS Logo 2Forbes, Lois Lerner Out From Under Freedom Path Lawsuit For Now, by Peter J. Reilly:

Lois Lerner might have had a bit of a breathing spell for a couple of days before the announcements about more e-mails being found.  It was so short that it has largely been missed, but since I am playing catch-up I noticed it.  Lerner’s brief reprieve was the work of Judge Sidney Fitzwater, a Reagan appointee, of the District Court for the Northern District of Texas.  Judge Fitzwater’s decision in Freedom Path Inc v Lois Lerner et al at least gets Lois Lerner out from under one lawsuit. Freedom Path was suing Lois Lerner, unnamed officials of the IRS, the IRS and the United States.  The suit was about targeting FP due to its conservative views as it was applying for exempt status, illegally releasing information about FP and the general use of a “facts and circumstances” test in the IRS evaluation of political activities. Freedom Path complained in its lawsuit about the slow pace of its application and additional intrusive questions.  Also a copy of its application (Form 1024) was released to ProPublica.  On the application FP had indicated that it would not be engaging in political activity.  ProPublica released a story Controversial Dark Money Group Among Five That Told IRS They Would Stay Out of Politics, Then Didn’t that mentioned Freedom Path as one of the five. In April 2013 Freedom Path was asked for further information, which it was hesitant to release because of the disclosure to ProPublica.  The IRS then offered FP the opportunity to enter into a new expedited process, but that did not work for them.

Under this process, Freedom Path could obtain approval of its pending application if it made certain representations regarding the organization’s past, current, and future spending on political activities. Freedom Path alleges that it declined to participate in this optional expedited process because it viewed the required representations as unconstitutionally broad and as an IRS attempt to force Freedom Path to relinquish some of its First Amendment rights.

Lois Lerner Not A Texan The reason that Lois Lerner was dismissed from the suit is one that her supporters, if there are any, might not find very satisfying.  Her detractors, who are legion, will probably find it infuriating.  She was dismissed, because she does not have enough connection with Texas which is where the suit was brought (although in a federal court).

https://taxprof.typepad.com/taxprof_blog/2015/03/the-irs-2.html

IRS News, IRS Scandal, Tax | Permalink

Comments

First, I don't think Ms. Lerner has to many supporters, in the IRS or elsewhere. But having said that, Freedom Path, Inc. sued LLerner in her personal capacity under a Bivens theory, for violation of FPI’s 1st Amendment rights. For personal capacity jurisdiction over Lerner, there had to be sufficient contacts to confer personal jurisdiction, which obviously didn’t exist, since LLerner lives in Maryland and worked in D.C. Moreover, under a Bivens theory, FPI would have to prove personal involvement by Lerner in the case–respondeat superior does not confer either personal jurisdiction or liability in a Bivens suit. It is highly unlikely that Lerner worked personally on FPI’s case and that her only "involvement" was managerial. As with most of the IRS “scandal,” this suit looks like it was filed for publicity and little else.

Posted by: Publius Novus | Mar 9, 2015 8:23:29 AM

"Under this process, Freedom Path could obtain approval of its pending application if it made certain representations"

So Obama's IRS has Jim Crow laws for non-Democrat groups. Nice to know Democrats haven't changed as much as they claim since the 50's and 60's.

Posted by: wodun | Mar 9, 2015 12:27:08 PM

"and that her only "involvement" was managerial."

Crazy when the person in charge isn't even responsible for the actions of the people they boss around.

Posted by: wodun | Mar 9, 2015 12:27:59 PM

As usual, you've missed the point Mr. wodun. In a Bivens action, a person's involvement in the case must be personal, not supervisory or managerial, in order to render the individual subject to personal jurisdiction and liability.

Posted by: Publius Novus | Mar 10, 2015 6:36:35 AM