CINCINNATI (Legal Newsline) - Lois Lerner, formerly of the Internal Revenue Service when it discriminated against applicants for tax exemptions based on their viewpoints, claims Americans have no right to read statements she made under oath about why she did it.
Lerner, the former director of the IRS’s Exempt Organizations Division, wants U. S. District Judge Michael Barrett to maintain under seal a deposition she gave in June for a civil suit that victims brought in 2013. Unsealing it would place her safety in jeopardy, she says.
Her former IRS colleague, Holly Paz, seeks the same after they targeted groups with “tea party” names and groups that didn’t like how the government was run.
Among those opposed are the very plaintiffs who sued the IRS in Barrett’s Ohio court. Attorney Edward Greim, who represents the Norcal Tea Party Patriots, says a pending settlement in their case shouldn’t create a reason for the depositions to stay secret.
“Class members must know the content of their testimony to consider the fairness of the settlement, and the public must have access to help ensure that similar conduct never occurs again,” he wrote in November.
He wrote that the district court must explain why the tradeoff in the settlement is fair to unnamed members of the class.
He added that testimony of Lerner and Paz “will undoubtedly be considered by the court in whether to approve the settlement.”
He’s not alone. It was the Cincinnati Enquirer that moved to unseal the depositions on Oct. 25, the same day a proposed settlement was announced to the court.
The state of Ohio and the Judicial Watch group in Washington have also moved for leave to argue for unsealing as friends of the court.
On Nov. 30, Ohio Attorney General Mike DeWine wrote that the state has a very real interest in ensuring that bureaucracies don’t evolve into “masked actors dispensing favors and imposing costs on the basis of a regnant ideology.”
He wrote that Lerner and Paz “were among those IRS defendants who made the extraordinary ‘who would have known it was unconstitutional?’ immunity defense.”
He wrote that they didn’t ask to shield their identities or locations.
He wrote that to the contrary, they asked that their official conduct, rationales and motivations be placed off limits to the public that paid their salaries.
On Dec. 14, for Judicial Watch, Mark Chumley of Cincinnati connected the depositions to Judicial Watch’s continuing litigation over targeting.
He wrote that while IRS has apologized, it continues to withhold email of Lerner and Paz on the ground of deliberative process privilege.
Lerner and Paz have asked Barrett to deny leave for Ohio and Judicial Watch to argue as friends of the court.
He hadn’t decided as of Jan. 3, and he hadn’t set a hearing on the depositions.
Lerner and Paz have said the release of their depositions “would expose them and their families to harassment and threat of serious bodily injury or even death.”
They moved for a protective order in April, before testifying, but Barrett ruled that he couldn’t decide the motion until afterward.
Government lawyers initially didn’t oppose confidentiality, but their position changed at about the same time they settled three targeting suits.
The suit in Barrett’s court and one in district court at Washington have nearly ended, with settlements in progress.
Another suit in Washington ended on Dec. 8, when District Judge Reggie Walton signed a consent order that included an apology from IRS.
The order stated that Lerner, as director of the Exempt Organization Division, first became aware of applications from tea party groups in April or May 2010.
It stated, “For the next two years, Lerner failed to adequately manage the EO division employees who processed these applications.”
It stated, “Moreover, Lerner failed to inform upper level IRS management of the serious delays in processing applications for tax exempt status from tea party and other politically sensitive groups.”
It stated, “Consequently, it was a year before the IRS office of chief counsel became involved, and nearly two years before superiors in the IRS management chain were aware of the mismanagement of tea party and other sensitive advocacy applications.”
Applicants reported to Congress that IRS treatment affected their contributions, the willingness of individuals to associate with them, and their ability to engage in the full range of activities they would otherwise have undertaken.
The IRS admitted its treatment of the plaintiffs was wrong.
“For such treatment, the IRS expresses its sincere apology,” the order says.
By way of apology for feeding stories to news outlets, IRS identified ten kinds of information it could not lawfully disseminate, directly or indirectly.
The consent order ended with declaratory judgment that it is wrong to apply U. S. tax laws to any entity based on its name, any lawful positions it espouses on any issues, or its associations or perceived associations with a particular viewpoint.
All three suits against IRS started in 2013, after an inspector general issued a report on targeting. Plaintiffs in Cincinnati proposed a class action.
True the Vote pursued an individual action in Washington, while Linchpins of Liberty led a group action there. Plaintiffs in both Washington actions sought money damages, injunctions, and declaratory judgment.
Walton dismissed their suits in 2014, rejecting money damages and finding other relief moot because IRS ceased its misconduct. He wrote, “Here, after the plaintiffs commenced this case, the defendants allegedly admitted their wrongful conduct.
“The defendants then publicly announced that they suspended the unconstitutional conduct complained of by the plaintiffs and implemented changes to the tax exempt review process to assure the public that the conduct will not recur.”
Appellate judges of the District of Columbia circuit affirmed Walton on money damages in 2016, but reversed his finding that the complaint had been mooted. Senior Circuit Justice David Sentelle stressed the difference between a controversy going away and simply being in a restive stage.
He wrote that a defendant free to return to its old ways could subject a plaintiff to the same harm while avoiding judicial review and that some applications had never been processed.
Once Walton began looking for evidence of reform at IRS, he didn’t find much.
At a hearing last April, Linchpins of Liberty counsel Carly Gammill of Brentwood, Tennessee, told him IRS refused to answer information requests.
She told him Paz said they would automatically review these cases in later years.
She said, “That is ongoing monitoring and targeting of these organizations based on nothing more than the fact they were initially targeted in the first place.”
Walton said, “How likely is it that you’ve got people working at the IRS, and even assuming they had the perspective to discriminate against your clients, that they would be inclined to do that with the current administration in office?”
Gammill said, “The very policies and provisions that allowed this to happen in the first place are still on the books, so unless and until those things change it can happen again.”
She said there was no prohibition against viewpoint-based decisions in the application process.
She said, “There was media and Congressional attention to the tea party movement, so the same thing that happened here can happen again.”
She said, “Like your honor, I would hope that with this administration there would be assurances, but it’s the IRS.”
Walton invited response from IRS counsel Laura Beckerman, trial attorney in the tax division of the Department of Justice. He asked her, “Why shouldn’t there be something that says you can’t discriminate based on viewpoint?”
She said it wasn’t true and that a law enacted in 2015 made it a firing offense if an IRS employee engages in conduct that is discriminatory or for personal reasons.
Walton said, “What about the rules and regulations within the agency itself?”
Beckerman referred him to a declaration of Tamera Ripperda, as the person who oversaw the changes.
Walton asked if that was all in writing as a mandate and if not, why not.
She said, “Your honor, “I’m not certain that they are written as a policy but I believe that Ms. Ripperda’s declaration gives us that policy.”
He asked if there would be future reassessment of the exempt status.
She said any assurance that IRS would never look at returns or potentially have them subject to audit would be an abdication of its obligations.
In summary, Beckerman said no one disputes that what the IRS did was wrong.
She said, “But at the same time, that still does not answer whether that arose to a level of a constitutional violation.”
By the time of the next discovery dispute hearing, in August, Beckerman no longer worked at the Department of Justice.
Laura Conner argued for IRS that plaintiffs sought discovery beyond the limits of their complaint. She said the United States produced more than 29,000 pages of material.
Walton said, “And if there’s nothing else, there’s nothing else.”
He said if something indicates targeting, “lay it on the line, put it out there.”
He said, “Why hide the ball? I’m not saying you are hiding the ball, but if there’s nothing there, it’s nothing there.”
He said, “If there is, I think it should be produced.”
Meanwhile, in the Ohio action, Barrett certified lead plaintiff Norcal Tea Party Patriots to represent a class of applicants in 2016.
He disagreed with IRS’s argument that plaintiffs couldn’t prove irreparable harm.
He wrote, “The loss of First Amendment freedoms causes irreparable injury.”