Conservative Groups Appeal Dismissal of Claims Against IRS

The parties and amici appearing in the above-captioned matter are:

Plaintiffs-Appellants: Linchpins of Liberty; Patriots Educating Concerned Americans Now; Myrtle Beach Tea Party, Inc.; Greater Phoenix Tea Party; Unite in Action, Inc.; Allen Area Patriots; Laurens Co. Tea Party; North East Tarrant Tea Party, Inc.; Albuquerque Tea Party, Inc.; Colorado 9-12 Project; San Antonio Tea Party, Inc.; Wetumpka Tea Party, Inc.; OKC PIA Association; Richmond Tea Party, Inc.; Hawaii Tea Party, d/b/a Tea Party Maui; Shelby County Liberty; Manassas Tea Party; The Honolulu Tea Party; Waco Tea Party; Kentucky 9/12 Project, Inc.; San Fernando Valley Patriots, Inc.; Portage County Tea Party, Inc.; Chattanooga Tea Party; Mid-South Tea Party; Liberty Township Tea Party, Inc.; East Jersey Tea Party; Arlington Tea Party, Inc.; AMEN; Rochester Tea Party Patriots; Roane County Tea Party; American Patriots Against Government Excess; Tri-Cities Tea Party; Mississippi Tea Party, Inc.; Shenandoah Valley Tea Party Patriots; First Coast Tea Party, Inc.; Oregon Capitol Watch Foundation; First State Patriots, Inc.; and Acadiana Patriots.

Plaintiffs Appearing in District Court but Not on Appeal: Protecting American Values, Inc.; The Common Sense Campaign Corp.; and Greenwich Tea Party Patriots of South Jersey, LLC.

Defendants-Appellees: Defendants-Appellees include the United States of America, the Internal Revenue Service, Jacob Lew, in his official capacity as Secretary of the United States Department of Treasury, and John Koskinen, in his official capacity as Commissioner of the Internal Revenue Service.¹ Defendants-Appellees also include known and unknown IRS officials sued in their official and individual capacities. The known IRS officials are: William Wilkins; Douglas H. Shulman; Steven T. Miller; Lois G. Lerner; Sarah Hall Ingram; Joseph Grant; Nikole Flax; Judith E. Kindell; Holly Paz; Michael Seto; Steven Grodnitzky; and Carter Hull.

Amici (appearing in district court in support of Plaintiffs): State of Ohio; State of Alabama; and State of South Carolina.

B. Rulings Under Review

Plaintiffs-Appellants seek review of the Order of the United States District Court for the District of Columbia, District Judge Reggie B. Walton, entered on November 18, 2014 (DCT Doc. 100), and the Final Judgment of the United States District Court for the District of Columbia, District Judge Reggie B. Walton, entered on December 12, 2014 (DCT Doc. 102), based on the Memorandum Opinion of the United States District Court for the District of Columbia, District Judge Reggie B. Walton, entered on October 23, 2014 (DCT Doc. 96), and the accompanying Order of the United States District Court for the District of Columbia, District Judge Reggie B. Walton, entered on October 23, 2014 (DCT Doc. 95), in the matter of Linchpins of Liberty, et al., v. United States, et al., 71 F. Supp. 3d 236 (D.D.C. Oct. 23, 2014) (Walton, J.), in which the court granted defendants' motions to dismiss (DCT Docs. 65, 66, and 67).

C. Related Cases

This case originated in the United States District Court for the District of Columbia. Plaintiffs-Appellants' appeal has not been previously before this Court or any other court. Plaintiffs-Appellants are aware of the following related cases that present substantially similar issues and some of the same defendants-appellees as those in this appeal: Z Street, Inc. v. Koskinen, No. 1:12-cv-00401-KBJ (D.D.C. filed Mar. 14, 2012).; and True the Vote v. IRS, et al., No. 14-5316 (D.C. Circuit).

Dated: December 7, 2015

The issues presented are:

1. Whether the district court erred in holding that Plaintiffs-Appellants' claims against the Government under the First and Fifth Amendments and the APA (Counts IV-VII) are moot;

2. Whether the district court erred in holding that Plaintiffs-Appellants conceded that the Court could not compel the Defendants-Appellees to immediately issue a determination regarding the qualification of those Plaintiffs-Appellants seeking tax exemption pursuant to 26 U.S.C. § 501(c)(4);

3. Whether the district court erred in holding that Appellants' First and Fifth Amendment claims for monetary damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Counts I-III), are not cognizable against the individually named Defendants-Appellees in their individual capacities; and

4. Whether the district court erred in holding that Plaintiffs-Appellants failed to state a claim for relief under 26 U.S.C. § 7431 (Count IX).

On May 29, 2014, Plaintiffs-Appellants, forty-one organizations that applied for 501(c)(3) or 501(c)(4) tax-exempt status with the IRS between 2009 and 2012, filed suit against the United States of America, the IRS ("the Government") and several known and unknown IRS officials ("Individual Defendants"). DCT Doc. 1. Plaintiffs-Appellants amended their complaint on June 25, 2013, see DCT Doc. 27, and again on October 18, 2013. App. 6.

As the SAC details, as early as February 2010, the IRS began identifying for additional unconstitutional scrutiny the applications of organizations with "Tea Party"-related or other conservative-sounding names. Id. at 26, 30-32 (¶¶ 92-95, 99-105). The IRS's Targeting Scheme included, among other things, a multi-tier review process, id. at 38-39 (¶¶ 149-151), use of BOLO or other watch lists to identify potential targeting victims, id. at 34 (¶ 124); 42 (¶¶ 169-170), and the adoption of intrusive, harassing and unconstitutional questions and requests for information that often required applicants to disclose donor lists, communications with members, and internet passwords and usernames. Id. at 14-15 (¶¶ 2-4); 42 (¶¶ 174-75); 63 (¶ 298). See also id. at 32-56 (alleging Plaintiffs received intrusive questions and requests for information). The IRS's misconduct not only significantly delayed the processing of the applications of Plaintiffs-Appellants and other conservative organizations; it materially inhibited their constitutionally-protected freedoms of expression and association. At the time Plaintiffs-Appellants filed their SAC, four Plaintiffs still awaited a determination on their Section 501(c)(3) tax-exempt status, ten Plaintiffs still awaited a determination of their Section 501(c)(4) tax-exempt status, twenty-two Plaintiffs had received determinations only after significant delay and unconstitutional interference by the IRS, and five Plaintiffs had withdrawn their applications for tax-exempt status due to the IRS's unlawful conduct. App. 17-21.

Plaintiffs-Appellants' claims include: (1) Bivens claims against the individuals directly responsible for violations of Plaintiffs-Appellants' rights under the First and Fifth Amendments to the United States Constitution (Counts I-III), id. at 66-70; (2) claims against the Government under the APA, as well as the First and Fifth Amendments, for violations of Plaintiffs-Appellants' statutory and constitutional rights and challenging, facially and as-applied, 26 C.F.R. § 1.501(c)(4)-1 and Revenue Procedure 86-43 as unconstitutionally vague (Counts IV-VII), id. at 71-80; (3) claims under 26 U.S.C. § 7428 requesting that the court issue declaratory judgments with respect to the qualification for tax-exempt status of those Plaintiffs-Appellants whose 501(c)(3) applications had been pending for more than 270 days (Count VIII), id. at 80-81; and (4) claims under 26 U.S.C. § 7431 for violations of 26 U.S.C. § 6103 relating to the unauthorized inspection and handling of Plaintiffs-Appellants' tax return information (Count IX). Id. at 81-83.

On December 17, 2013, the Government and Individual Defendants (collectively, Defendants-Appellees) -- despite admission that the IRS, as one of the federal government's most powerful agencies, organized and carried out a massive scheme to suppress the constitutionally-protected speech of dissenting organizations -- moved to dismiss all of Plaintiffs-Appellants' constitutional claims and the vast majority of their statutory claims. DCT Doc. 65-67.

On October 23, 2014, the district court issued its Order and Memorandum Opinion granting Defendants-Appellees' motions to dismiss leaving Plaintiffs-Appellants with no effective remedy for an admitted multi-year campaign of targeting, delay, obstruction, discrimination and intrusion. App. 270-71. The court dismissed all of Plaintiffs-Appellants' claims in Counts IV-VII of the SAC under Federal Rule of Civil Procedure 12(b)(1) on mootness grounds and held that Plaintiffs-Appellants still awaiting determination on their 501(c)(4) applications had somehow waived their right to pursue relief by failing to respond to the Government's argument that it could delay a decision on Plaintiffs-Appellants' applications indefinitely without interference from the court. Id. at 282-86. The court dismissed Plaintiffs-Appellants' Bivens claims (Counts I-III) under Federal Rule of Civil Procedure 12(b)(6), concluding that such a result was required by precedent from this Court. Id. at 279-82. Finally, the court dismissed Count IX of the SAC for failure to state a claim under Rule 12(b)(6), concluding that Plaintiffs-Appellants failed sufficiently to allege the IRS's improper handling or disclosure of their information. Id. at. 287-92.

Nor did Plaintiffs-Appellants concede the court's lack of authority to require the Government to immediately issue a determination regarding the exempt status of the 501(c)(4) applicants. That the APA may not speak to this issue has no bearing on whether federal courts may fashion appropriate injunctive relief for direct constitutional violations, as Plaintiffs-Appellants both alleged and argued. Neither the AIA nor the DJA prohibits such an injunction, as it would dictate only that the Government issue a determination, not the nature of that determination.

The district court also improperly dismissed Plaintiffs-Appellants' Bivens claims. The constitutional harms alleged here -- violations of rights protected by the First Amendment and the Equal Protection component of the Fifth Amendment -- are remediable through a Bivens action. No decisional law from this Court dictates otherwise (even when the defendants are IRS officials), where there is no contemplation of the harm at issue within the IRC. Indeed, the legislative history of the damages provision of the IRC (26 U.S.C. § 7433) unequivocally demonstrates Congress's intention that Bivens remedies be preserved alongside those permitted by the IRC. Because there is no statutory remedy for the constitutional violations alleged by Plaintiffs-Appellants (and especially if any direct constitutional remedy is now moot), they must be allowed to pursue relief in the form of damages against the individuals responsible for applying the Targeting Scheme to them.

Lastly, the dismissal of Plaintiffs-Appellants claims under 26 U.S.C. § 7431 was wholly improper. The district court's focus on a dichotomy between the IRS's acquisition of taxpayer return information and its handling thereof is of nomoment, as the SAC alleges not only that the IRS acquired Plaintiffs-Appellants' return information through unlawful means but also that individual IRS agents and officials subsequently inspected that information in violation of 26 U.S.C. § 6103, because such inspection was clearly -- and by the Government's own admissions -- not for tax administration purposes. The cases on which the district court relied are also inapposite, as they address evidentiary rather than pleading standards, pre-date the amendment of § 7431 to include liability for unlawful inspection of information, dealing instead solely with improper disclosures, and address remedies for denial of tax-exempt status, not unlawful inspection of tax information.

It is on this mistaken premise -- that Plaintiffs had already obtained all the relief they sought for the unconstitutional delay and discriminatory targeting by Defendants -- that the district court dismissed Plaintiffs-Appellants' constitutional and statutory claims in Counts IV through VII of the SAC. Specifically, the district court prematurely, and thus erroneously, concluded that "the alleged unconstitutional governmental conduct, which had delayed the processing of the plaintiffs' tax-exempt applications and spawned this litigation, is no longer impacting the plaintiffs," App. 284, because the Government temporarily suspended its use of the Be on the Lookout ("BOLO") or watch list(s) of which Plaintiffs-Appellants complained. Id.

The district court's mootness decision rests on several factual and legal inaccuracies, any one of which, standing alone, requires reversal.

A. The District Court's Mootness Determination Disregards the SAC Allegations and Rests Improperly Upon Information Outside the Pleadings.

The district court's dismissal of Counts IV through VII of the SAC rests not on facts alleged by Plaintiffs-Appellants, but rather solely upon unsworn, out of court statements made by a now-former IRS Commissioner in the midst of the litigation. See App. 283-84 (citing IRS documents including IRS.GOV, IRS Charts a Path Forward [W]ith Immediate Actions, http://www.irs.gov/uac/Newsroom/IRS-Charts-a-Path-Forward-With-Immediate-Actions (last visited Oct. 23, 2014) [hereinafter "IRS Path Forward"]). Incredibly, however, according to the IRS's own admissions, as clearly stated in the IRS documents of which the district court took judicial notice, the information therein, including suspension of "BOLO" or watch lists, does not "purport to provide a complete and final set of answers," but only, "an initial set of conclusions and action steps." IRS Path Forward, at 5.

Federal Rule of Evidence 201 expressly provides that judicial notice of "adjudicative facts" is appropriate only where the fact "is not subject to reasonable dispute" and is "generally known within the trial court's territorial jurisdiction" or "accurately and readily determined from sources whose accuracy cannot reasonably be questioned." FED. R. EVID. 201(a)-(b); Add. 10. Further, "[w]hile the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction, the court must still 'accept all of the factual allegations in the complaint as true.'" Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) (citations omitted). Particularly relevant here is the guidance provided in San Miguel v. Kempthorne, 587 F. Supp. 2d 64 (D.D.C. 2008), in which the court reiterated that while a court may take judicial notice of facts outside a party's pleadings, those facts must not be subject to reasonable dispute, and certain reports, such as those prepared by the Inspector General, are "not the type of document about which there can be no reasonable dispute." Id. at 78 (refusing to take judicial notice of the Interior Inspector General's report).

The IRS's unsworn public statements, upon which the district court relied in dismissing Counts IV through VII as moot, create, at best, a dispute of fact and are insufficient to override the numerous allegations in Plaintiffs-Appellants' SAC (which must be taken as true) that regardless of whether use of BOLO or watch list(s) has been suspended, Defendants-Appellees' Targeting Scheme is ongoing. See App. 15 (¶ 4). See also id. at 42 (¶ 170) (alleging that the BOLO policy component of the scheme was in place until January 2013); id. at 55-56 (¶¶ 262,264, 268) (alleging continuation of the Targeting Scheme through the IRS's issuance of burdensome, intrusive and discriminatory information demands to Plaintiffs-Appellants in March -- May of 2013). Tellingly, the Government made no representation to the court that the allegedly unlawful conduct had ceased but instead argued that such conduct was "authorized . . . in connection with tax administration." DCT Doc. 65 at 21. The IRS's blatant discriminatory refusal to act on two remaining Plaintiff-Appellants' applications for tax exempt status under Section 501(c)(4) is also confirmed in their briefs, id. at 6-7; DCT Doc. 83 at 11, and the same treatment can be expected should those five Plaintiffs-Appellants who withdrew their Section 501(c)(4) applications in the face of burdensome, intrusive and discriminatory questions and document requests seek to resubmit them. See App. 21 (¶¶ 51-55). Under these circumstances, the district court had no basis for determining that the claims were moot.

B. The District Court's Mootness Determination Defies the Fed. R. Civ. P 12(b)(1) Standard of Review by Failing to Assume the Truth of Plaintiffs-Appellants' Allegations.

At the motion to dismiss stage a court must "assume the truth of all [the plaintiffs'] material factual allegations." Z St. v. Koskinen, 791 F.3d 24, 28 (D.C. Cir. 2015). The district court's decision was clearly contrary to this Rule 12(b)(1) standard of review, as it failed to assume the truth of Plaintiffs-Appellants' allegations regarding the existence and application of the entire IRS Targeting Scheme and to grant all reasonable inferences therefrom in favor of Plaintiffs-Appellants. Specifically, Plaintiffs-Appellants alleged that the IRS has in place a scheme for targeting Section 501(c)(3) and 501(c)(4) tax-exemption applicants that express a conservative political viewpoint (particularly Tea Party-related organizations) -- a scheme that includes (but, crucially, does not consist entirely of) application of a "BOLO" policy for identifying potential targeting victims. See App. 30 (¶¶ 92, 93) (alleging the IRS Targeting Scheme began as early as February 2010); 31-33 (¶¶ 99, 101, 105, 113) (alleging aspects of the overall scheme in place between April and July 2010); 34 (¶ 124) (alleging the "BOLO" policy was not implemented until August 2010); 38-39 (¶¶ 149-151) (alleging a "multi-tier review process" as a separate component of the overall scheme); 42 (¶¶ 174-75) (alleging adoption of a "template" of questions to be used as a separate component of the overall scheme); 42 (¶ 170) (alleging the BOLO policy was in place until January 2013); 55-56 (¶¶ 262, 264, 268) (alleging continuation of the Targeting Scheme through the IRS's issuance of burdensome, intrusive and discriminatory questions and document requests in March -- May of 2013). Plaintiffs also allege that despite Defendants-Appellees' admission and public apologies (and regardless of the suspension of the BOLO policy) the Targeting Scheme is ongoing. See App. 15 (¶ 4).

The district court's dismissal under 12(b)(1), which this Court reviews de novo, Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011), rested solely on its conclusion that the BOLO policy had been suspended. See App. 276, 283-84. Yet, assuming as true the allegations in the SAC, see supra, would still require acknowledgment of (1) the existence of the broader Targeting Scheme against conservative organizations, even if the single BOLO component had been suspended (or even affirmatively ceased), and (2) the application of the Targeting Scheme, including the BOLO policy between August 2010 and at least January 2013, see App. 34 (¶ 124), to all Plaintiffs-Appellants. Thus, even if the BOLO policy were subsequently suspended, it had already been used (as alleged throughout the SAC) to identify Plaintiffs-Appellants' applications, based on their conservative viewpoints, for inclusion within the overall Targeting Scheme, i.e., the process of undergoing heightened scrutiny and suffering unconstitutional delay. In other words, the mere suspension of the BOLO policy, after it was used to identify the applications of Plaintiffs-Appellants based on their viewpoints, did nothing to remove them from the rest of the Targeting Scheme and its consequent harms, including inappropriate inquiries, delays in processing, and interference with their constitutionally protected rights to freedom of expression and association. See App. 66 (¶¶ 312, 315).

The district court's dismissal also failed to assume the truth of -- and, in fact, utterly ignored -- the allegations in the SAC regarding the vagueness of 26 C.F.R. § 1.501(c)(4)-1 and Revenue Procedure 86-43 and the implications of that vagueness within the context of the overall IRS Targeting Scheme -- both as applied to each of the Plaintiffs-Appellants and (through the facial challenges) as those provisions might be applied to others similarly situated -- regardless of the status of the single BOLO component of the scheme.²See, e.g., App. 63-64, 76-79 (¶¶ 298-308; 385-88; 399-401).

Ignoring these numerous allegations -- and in direct contravention of this Court's instructions that where, as here, jurisdictional facts are intertwined with the merits of the case, the court should defer its jurisdictional decision until the merits are heard, see Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 198 (D.C. Cir. 1992) -- the district court went out of its way to create a dispute of fact, and then erroneously resolved that dispute against Plaintiffs-Appellants.

C. The District Court's Conclusion That Defendants-Appellees' Voluntary Cessation Mooted Plaintiffs-Appellants' Claims Is Unsupported Factually and Legally.

That a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued is not a novel proposition. See City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982) ("It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice."). If voluntary cessation of allegedly illegal conduct mooted a case, "courts would be compelled to leave [the] defendant free to return to its old ways." Friends of the Earth v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 189 (2000). Accord Qassim v. Bush, 466 F.3d 1073, 1075 (D.C. Cir. 2006).

Particularly relevant here, "[i]f a governmental practice is capable of repetition, yet evades review due to . . . its apparent suspension, a live controversy still exists." Sanchez v. Edgar, 710 F.2d 1292, 1294 (7th Cir. 1983) (citing Nader v. Volpe, 475 F.2d 916, 917 (D.C. Cir. 1973) (other citations omitted)). Thus,"[t]he defendant 'claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'" Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (citation omitted) (emphases added). "[A] party's voluntary cessation will be found to moot a case only when two factors are met: (1) 'there is no reasonable expectation that the alleged wrong(s) will be repeated,' and (2) 'interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.'" D.C. Prof'l Taxicab Drivers Ass'n v. District of Columbia, 880 F. Supp. 2d 67, 74 (D.D.C. 2012) (quoting Bender v. Jordan, 515F. Supp. 2d 10, 16 (D.D.C. 1982)) (other citations omitted) (emphases added). Accord Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (explaining these "two conditions must be satisfied if a federal court is to dismiss a case as moot"). While some courts accord the government "more leeway than private parties in the presumption that they are unlikely to resume illegal activities," Citizens for Responsibility & Ethics in Washington v. U.S. SEC, 858 F. Supp. 2d 51, 62(D.D.C. 2012), this Court has never held that such deference is automatic.

Nonetheless, and regardless of how stringent the burden, the Government has not borne -- and cannot satisfy -- this burden. Instead, in its Memorandum and Opinion, the district court swiftly deemed the Government's burden met based on the unsworn published statements by the IRS that "the use of watch lists to identify cases or issues requiring heightened awareness is suspended until further notice." App. 284 (concluding, based on the above statement, that "the allegedly unconstitutional governmental conduct, which had delayed the processing of the plaintiffs' tax-exempt applications and spawned this litigation, is no longer impacting the plaintiffs"). This statement, the court held, combined with the remedial measures allegedly taken by the Government (none of which were specifically identified by the court), was sufficient to satisfy the test for voluntary cessation. Id. at 284-85. The court's analysis, however, is fundamentally flawed.

First, the mere suspension of the BOLO list until further notice hardly qualifies as the permanent cessation of conduct necessary to satisfy the first mootness element. While a changed policy mooting a case "need not come in the form of a formal revocation of the previous policy," there must be no reasonable expectation that the unauthorized action(s) will resume. Citizens for Responsibility, 858 F. Supp. 2d at 62. The cases on which the district court relied involved the government's voluntary cessation through either a formal amendment of the challenged regulation, see Initiative & Referendum Inst. v. U.S. Postal Serv., 685 F.3d 1066, 1074 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 1802 (2013), implementation of a new policy, see Citizens for Responsibility, 858 F. Supp. 2d at 62-63, or a determination that the challenged conduct was illegal under newly enacted federal law. Coal. of Airline Pilots Assn's v. FAA, 370 F.3d 1184, 1191 (D.C. Cir. 2004).

In direct contrast to the permanency of the voluntary cessation evidenced in those cases, here, the challenged conduct has only been "suspended until further notice," with no indication that the cessation is permanent, and, thus, no elimination of the controversy. See City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (holding case was not moot where the city's issuance of a moratorium suspending the policy was not permanent and could be lifted at any time); Rothe Dev. Corp. v. DOD, 413 F.3d 1327, 1333 (Fed. Cir. 2005) (government's long-term suspension of a price evaluation adjustment was insufficient because there remained a possibility the adjustment could be applied in the future); Anderson v. Spear, 356 F.3d 651, 655-56 (6th Cir. 2004) (Kentucky legislature's suspension of challenged provisions of its campaign law did not moot the case); Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988, 999 (7th Cir. 2002) (suspended enforcement of challenged ordinance provisions did not constitute permanent action sufficient to moot plaintiffs' claims); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (voluntary cessation through implementation of new policy insufficient where the policy was "not implemented by statute or regulation and could be changed again . . ."); Roe v. Cheyenne Mt. Conf. Resort, 124 F.3d 1221, 1230-31 (10th Cir. 1997) (defendants' suspension of enforcement of challenged policy did not moot the case where defendants never formally revoked the offending provisions); Sanchez, 710 F.2d at 1295 ("[T]he continued existence of an agency's written authority to carry out a challenged policy, even if the agency has ceased to exercise it, saves the underlying challenge from mootness unless there is no reasonable likelihood that application of the policy will be resumed.").

Similar to the foregoing cases, the IRS's suspension of the use of BOLO list(s), even when coupled with the court's general reference to alleged "implemented changes to the tax-exempt review process," see App. 283-84, fails to support the conclusion that Defendants-Appellees' cessation of the allegedly unconstitutional conduct is sufficiently permanent. By the IRS's own admission, the statements relied upon by the district court were not intended to be "complete and final," see IRS Path Forward, at 5, but merely provide a set of action steps -- steps that, at the time of the district court's decision, had not been completed. Moreover, nothing in Plaintiffs-Appellants' SAC or the sources cited by the court demonstrates that Defendants-Appellees have formally revoked the challenged BOLO/watch list policy, addressed the facial challenges to 26 C.F.R. § 1.501(c)(4)-1 and Revenue Procedure 86-43 raised in Counts VI and VII of the SAC, or taken any other action sufficiently permanent to prevent their unconstitutional conduct from recurring and moot Plaintiffs-Appellants' claims.

Second, there has been no satisfaction of the second mootness element: that "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Qassim, 466 F.3d at 1075 (quotation omitted) (emphasis added). In fact, while the district court acknowledged this as a required element of the voluntary cessation standard, App. 284, conspicuously absent from its opinion is any analysis of this element. This oversight appears to be the result of two erroneous assumptions: (1) that the courts are without authority to remedy the continuing unconstitutional delay in the processing of the tax-exempt applications of some Plaintiffs-Appellants, App. 286, n. 16, and (2) that Plaintiffs-Appellants "could not challenge the continuing application of the [unlawful] IRS policy as they filed their complaint on the basis of alleged harm to themselves" and not on behalf of others similarly situated. Id. at 286, n. 15.

Once again, however, careful review of Plaintiffs-Appellants' SAC exposes the deficiencies in both assumptions. First, despite the temporary suspension of the BOLO list, several Plaintiffs-Appellants who applied for tax-exemption continue to suffer from the unconstitutional delay occasioned by the Targeting Scheme. Two Plaintiffs-Appellants are still awaiting determinations on their tax-exempt applications. App. 17-18 (¶¶ 21, 26). Other Plaintiffs-Appellants were forced to withdraw their applications because of the intrusive and unconstitutional information demands from the IRS. Id. at 21 (¶¶ 51-55). Thus, in accordance with this Court's recent decision in Z Street, and as explained in more detail below, see infra Part II, the court may certainly grant relief for those continuing to suffer harm from the IRS's unconstitutional process.

Second, the SAC specifically alleges that Treasury Regulation § 1.501(c)(4)-1 and Revenue Procedure 86-43 are facially vague, "invite[ ] government officials . . . to do exactly what they did in this case -- engage in arbitrary and discriminatory enforcement and application of the regulation." App. 64 (¶ 303), and might be improperly applied to others similarly situated. Id. at 63-65 (¶¶ 298-308); 76-79 (¶¶ 385-88 and ¶¶ 399-401). Defendants-Appellees' temporary suspension of the BOLO list does nothing to prevent similar practices from recurring. The district court clearly ignored these allegations, which amply demonstrate that a live controversy still exists as to Counts V and VI of the SAC. See Sanchez, 710 F.2d at 1294. In light of the ongoing harm and Plaintiffs-Appellants' clear allegations, it is simply beyond the pale to suggest that interim relief or events have completely and irrevocably eradicated the effects of Defendants-Appellees' alleged violations. More importantly, the district court's failure even to address this component renders its decision fatally flawed, necessitating reversal.

In short, the district court's mootness decision was wholly lacking in both factual and legal support. The mere suspension of the BOLO list, which serves as only one component of the IRS Targeting Scheme, falls woefully short of satisfying the voluntary cessation test. Use of the BOLO policy has not ceased with the requisite level of permanency for a finding of mootness; there has been no showing that any of the remaining components of the Targeting Scheme (e.g., delays in application processing and issuance of intrusive and unconstitutional demands for information) have ceased; the challenged regulation and revenue procedure have not been addressed; and several Plaintiffs-Appellants continue to suffer from the effects of Defendants-Appellees' wrongful conduct. As such, the district court unmistakably had jurisdiction to decide the live controversy regarding Plaintiffs-Appellants' claims in Counts IV through VII. See Z St., 791 F.3d at 31-32 (affirming district court's decision allowing claim to proceed to seek relief from harm resulting from unconstitutional tax-exempt application process).

The court's conclusion demonstrates its misunderstanding of Plaintiffs-Appellants' request, which was only that the court issue a mandatory injunction compelling the IRS (not the Court) to issue such determinations without further delay, and is reviewed under the abuse of discretion standard. Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014). The requested mandate would not have required that the IRS issue a favorable determination -- only that it take immediate action to end the delay occasioned by the Targeting Scheme. App. 73-75 (Count V); 85 (Prayer for Relief ¶ D(iii)); 263. Plaintiffs-Appellants' request in this regard, like that of the plaintiff in Z Street, was simply that the district court take the necessary action to put an end to the disparate treatment and delay in the processing of their applications. See Z St., 791 F.3d at 27 (noting that Z Street requested "an injunction . . . requiring that the IRS adjudicate the application expeditiously and fairly. . . .") (internal quotations and citation omitted). Neither the AIA nor the tax exception to the DJA prohibited the relief sought by Z Street because, as this Court recognized, "Z Street seeks to prevent the IRS from unconstitutionally delaying consideration of its application -- not to obtain tax exempt status. . . . Indeed, even if Z Street obtains all the relief it seeks, the IRS could . . . still deny its application for any number of reasons." Id. at 30 (internal quotations and citations omitted). The same is true as to Plaintiffs-Appellants, such that their requested injunction would not interfere with the assessment or collection of taxes.

Nonetheless, and putting aside for the moment the district court's misunderstanding of the requested relief, its holding that Plaintiffs-Appellants conceded the issue by failing to respond to the Government's argument -- that because Section 501(c)(4) does not impose any determination deadline on the IRS, and the APA does not expressly empower courts in this regard -- is wholly unsupported. See App. 286, n.16. Plaintiffs-Appellants made clear that their request for an injunction compelling the IRS to cease further delay in the processing of their applications, like that of Z Street, is based not only upon the APA but also upon the First and Fifth Amendments to the United States Constitution, and the APA simply waives sovereign immunity with respect to those constitutional claims. See App. 257 n.18; 265-68 (explaining that Counts IV through VII arise under the First and Fifth Amendments and seek thereunder to "enjoin[ ] the IRS from further employing the IRS Targeting Scheme," including the application processing delays). Plaintiffs-Appellants have never abandoned or withdrawn any of the factual allegations supporting their constitutional claims in Count V; nor have they anywhere conceded the inability of the court to provide, directly under the Constitution, the relief they requested.

This Court recently confronted facts substantially similar to those presented here in Z Street, 791 F.3d 24. After reviewing potentially relevant provisions of the IRC, the Z Street Court concluded that the applicant was "'unable to utilize any statutory procedure to contest the constitutionality' of the delay allegedly caused by the IRS's [targeting policy]," id. at 31-32 (quoting South Carolina v. Regan, 465 U.S. 367, 380 (1984)). In short, the court held, Z Street had "no other remedy for its alleged injury." Id. at 31.

Like Z Street, Plaintiffs-Appellants have alleged that the IRS targeted their tax-exempt applications for heightened scrutiny, issued intrusive demands requiring them to submit constitutionally protected information, and significantly delayed the processing of their applications, based solely on the Government's disagreement with the viewpoint of Plaintiffs-Appellants' speech supportive of, and association with, the Tea Party movement. See, e.g., App. 65-66 (¶¶ 309-16). Just as no provision of the IRC allowed for Z Street to contest the constitutionality of the IRS's alleged "Special Israel Policy," Plaintiffs-Appellants find themselves without any statutory procedure to challenge their similar treatment at the hands of specific IRS officials. These are precisely the circumstances in which a remedy is appropriate pursuant to the Supreme Court's holding in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the district court thus erred in dismissing the Bivens claims of Plaintiffs-Appellants.³ As under Rule 12(b)(1), a dismissal under Rule 12(b)(6) is reviewed de novo on appeal. Kim, 632 F.3d at 715.

B. The Kim Case Does Not Preclude a Bivens Remedy Here.

The district court erroneously concluded that "this Circuit does not permit the Court to create a Bivens remedy against the individual IRS defendants." App. 279-80. The case on which the court relied, however, Kim, 632 F.3d 713, is distinguishable from the instant case in a crucial manner: the alleged harm on which the Kim plaintiffs based their Bivens claims was directly addressed by provisions of the IRC.⁴ Indeed, when this Court's decision in Kim is "read in context with the district court's opinion," App. 280, it is clear that each of the Kim plaintiffs' Bivens claims "allege[d] misconduct under various provisions of the IRC and Code of Federal Regulations." Kim v. United States, 618 F. Supp. 2d 31,35 (D.D.C. 2009) (emphasis added). There, the district court concluded that a Bivens remedy is unavailable "to redress injuries alleged by . . . tax protesters . . . who allege due process violations stemming from purported violations of the IRC." Id. at 39 (emphases added).

This Court subsequently affirmed that reasoning. Kim, 632 F.3d at 717. In doing so, however, it cited for support a Tenth Circuit decision clarifying that the mere existence of the IRC does not preclude Bivens claims against IRS officials based on alleged injuries that are wholly outside the scope or contemplation of the Code. See id. at 717-18 (citing Nat'l Commodity & Barter Ass'n, Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1247-48 (10th Cir. 1989) (holding Bivens remedy unavailable where the IRC provided "meaningful safeguards or remedies for the rights of persons situated as [were the plaintiffs]" but expressly "recogniz[ing] that the NCBA may bring a Bivens action for violations of the first and fourth amendments") (internal citation omitted)).

The Tenth Circuit expressly held, in a decision cited with approval by this Court in Kim, that "while the comprehensive scheme of the Internal Revenue Code should not be indiscriminately disrupted by the creation of new remedies, certain values, such as those protected by the first and fourth amendments, may be superior to the need to protect the integrity of the internal revenue system." Gibbs, 886 F.2d at 1248. Such superior values, including the rights of citizens to speak and associate freely without governmental interference and disparate treatment (e.g., intentional targeting and delaying of applications for tax exemption) based on disagreement with the viewpoint of their message, are the very ones Plaintiffs-Appellants seek to protect here. Because Plaintiffs-Appellants find no protection for -- or even contemplation of -- the peculiar interests alleged here (or potential injury thereto) within the IRC,⁵ they should be permitted to seek redress, through claims for damages pursuant to Bivens, against the individual IRS officials responsible for the violations of their constitutional rights.

C. Prior Precedent From This Court and the Legislative History of the IRC Demonstrate the District Court's Error in Dismissing Appellants' Bivens Claims.

The D.C. Circuit has long recognized the availability of a Bivens action for constitutional claims similar to those raised by Plaintiffs. In Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977), cert. denied, 438 U.S. 916, 98 S. Ct. 31 (1978), the court affirmed the right of a group of Vietnam War protesters who had been arrested during a demonstration to seek damages from the arresting officers under Bivens. Id. at 195. While Plaintiffs' claims are not based on a demonstration on public property, the constitutional interest at stake here is precisely the one at issue in Dellums: suppression of the "opportunity to express . . . one's dissatisfaction with the laws and policies of the United States." Id. As the Dellums Court expressly recognized, in addition to "[t]he demonstration[ and] the picket line," id., there are "myriad other forms of protest which abound in our society," id., and "each offer[s] peculiarly important opportunities in which speakers may at once persuade, accuse, and seek sympathy or political support, all in a manner likely to be noticed." Id. "[L]oss of such an opportunity" -- or even the threat of such loss -- "is surely not insignificant." Id.

The allegations in the SAC unmistakably demonstrate that Defendants-Appellees' treatment of Plaintiffs-Appellants was, like the arrests in Dellums, a blatant attempt to muffle the voice of Plaintiffs-Appellants' "dissatisfaction with the laws and policies of the United States." Id. See also Haynesworth v. Miller, 820 F.2d 1245, 1255-57 (D.C. Cir. 1987) (holding that "retaliatory prosecution constitutes an actionable First Amendment wrong redressable under Bivens" because there is "no reason to retreat from the settled principle that it is 'patently unconstitutional' to 'penaliz[e] those who choose to exercise' constitutional rights") (citations omitted), overruled on other grounds by Hartman v. Moore, 547 U.S. 250 (2006). As the Hartman Court expressly recognized, "[o]fficial reprisal for protected speech 'offends the Constitution [because] it threatens to inhibit exercise of the protected right,' [and] . . . [w]hen the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens." 547 U.S. at 256 (citations omitted). See also Munsell, 509 F.3d at 589 (relying on the distinction in Wilkie v. Robbins, 551 U.S. 537, 555 (2007), between retaliation based on exercise of property rights, for which no Bivens remedy was recognized, and "a case in which a petitioner claims that 'the Government may not retaliate [against him] for exercising First Amendment speech rights'").⁶

Every D.C. Circuit case declining to extend Bivens based on the existence of a "comprehensive remedial scheme" does so against the backdrop of a statutory scheme that was clear in its intention to include or exclude the claims at issue. Yet, no such comprehensive scheme exists here. In Spagnola v. Mathis, 859 F.2d 223 (D.C. Cir. 1988), the court declined to recognize a Bivens remedy based on its identification of the CSRA as a comprehensive remedial scheme because both individuals' constitutional claims were "cognizable as 'prohibited personnel practices' within the CSRA system." Id. at 225. In this case, by contrast, there is no statutory mechanism for challenging Defendants-Appellees' admitted targeting campaign.

Similarly, in Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008), this Court held that the Privacy Act constituted a comprehensive remedial scheme precluding a Bivens remedy where the claims asserted were all "claims alleging harm from the improper disclosure of information subject to the Privacy Act's protections." Id. at 707. Thus, the court explained, "the Wilsons cannot contend that there is no possibility of relief at all under the statute for the disclosure of Privacy Act protected information." Id. at 709.

Most recently, in Davis v. Billington, 681 F.3d 377 (D.C. Cir. 2012), this Court expressly defined a "comprehensive remedial scheme" as one that "reflects a considered congressional judgment about which remedies should be available for claims that fall within its ambit." Id. at 383 (emphasis added). As the court explained there, "while the CSRA's remedial scheme does not provide Davis with procedural protections . . ., it does provide procedural protections and rights of appeal for the specific underlying actions he challenges." Id. at 387.

Given the sui generis nature of Appellees' misconduct here -- the nationwide targeting of conservative speech -- it is clear that Congress has not expressed its intention to limit Plaintiffs-Appellants' claims, as the IRC is wholly devoid of any provisions offering protection for "the specific underlying actions" Plaintiffs-Appellants are challenging. In fact, neither Defendants-Appellees nor the district court identified a single provision of the Code that even contemplates such conduct. This is, of course, unsurprising in light of the legislative history of 26 U.S.C. § 7433, the IRC provision allowing a damages remedy against the government for certain misconduct of IRS employees.

During consideration of Senate Bill 2238 (which became § 7433), Senator David Pryor, the primary sponsor of the entire Taxpayer Bill of Rights (which includes § 7433), introduced into the record a summary of the various provisions under consideration. 134 Cong. Rec. 28285, 29271-74 (Oct. 7, 1988). Specifically discussing "Suits Against the IRS," Senator Pryor explained, "[p]resently, the only avenue open for taxpayers to recover losses sustained from wrongful actions by the IRS is a cause of action against IRS employees under Bivens[ ]." Id. at 29273 (emphasis added). Summarizing existing Bivens jurisprudence, Senator Pryor expressly recognized that, with regard to "injury to a constitutionally protected interest[,] . . . [t]he courts have created a clear cause of action for injured taxpayers." Id. Specifically discussing the provision that would be codified at § 7433, he explained that "[a] taxpayer . . . does not have a specific right to recover damages from the IRS under present law," but this new provision would create "a civil cause of action against the IRS for damages. . . ." Id. (emphases added).

Thus, the legislative history clearly demonstrates that Congress understood Bivens actions to be fully available to taxpayers seeking to recover damages fromindividual IRS employees. The new provisions of the IRC were merely intended to supplement claims against individual agents and officials under Bivens bypermitting, in specified circumstances, damages claims against the IRS itself. In this regard, the legislative history of § 7433 is virtually indistinguishable from the legislative history of the Federal Tort Claims Act reviewed by the Supreme Court in Carlson v. Green, in which Congress explained its intention that claims against the government under the FTCA serve as "parallel, complementary causes of action" to claims against individual federal officers under Bivens. 446 U.S. 14, 20 (1980). In short, it is clear that Congress, in enacting § 7433, intended to "leave[ ] undisturbed whatever [damages] remedies [a taxpayer] might otherwise possess" against other defendants for other types of violations. Passman, 442 U.S. at 247.

The district court's conclusion that Plaintiffs-Appellants' "claims are not cognizable in a Bivens action" is legally incorrect and "ignores the simple fact that constitutional rights, if they are to be rights at all, must have some discernible remedy." Zherka v. Ryan, 52 F. Supp. 3d 571, 580-581 (S.D.N.Y. 2014). See id. at 575 (recognizing Bivens claim based on allegations that the IRS "hindered [plaintiff's] 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"). Because "[t]here is no reason to allow federal officials to act with impunity . . . the extension of the Bivens rule to violations of first amendment rights [such as these] . . . [is] both justifiable and logical." Paton v. La Prade, 524 F.2d 862, 870 (3d Cir. 1975).

A. The District Court Did Not Properly Apply the Rule 12(b)(6) Standard.

In dismissing Count IX for failure to state a claim under 26 U.S.C. § 7431 for violations of 26 U.S.C. § 6103, the district court mistakenly relied upon a line of cases beyond the pleadings stage and involving disclosure of taxpayer information in connection with allegedly unauthorized collection activities. App. 288-91 (relying upon Venen v. United States, 38 F. 3d 100 (3d Cir. 1994) and its progeny). The threshold for surviving a motion to dismiss under Rule 12(b)(6) is much lower than that for surviving a motion for summary judgment. Indeed, a "complaint should not be dismissed unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

In relying on cases in a summary judgment posture, the district court effectively denied Plaintiffs-Appellants their day in court, including the opportunity to prove their allegations through discovery. Indeed, government attempts to advance the summary judgement standard in a Rule 12(b)(6) motion challenging a § 7431 claim have already been expressly rejected by other courts because "[p]laintiffs must be allowed to complete discovery before its [sic] claim for wrongful disclosure can be dismissed," Gleason v. Cheskaty, 1995 U.S. Dist. LEXIS 9318, *18 (D. Idaho Jun. 22, 1995), and "[a]ny determination on the merits of the [ § 7431] claim or on the defenses is more appropriate at the summary judgment stage than at the pleadings stage." NorCal Tea Party Patriots v. IRS, 2014 U.S. Dist. LEXIS 97229, *43 (S.D. Ohio July 17, 2014).

The district court also insisted that a "clear dichotomy" exists between the acquisition of taxpayer information and the disclosure or inspection of such information, requiring dismissal of Plaintiffs-Appellants' claim at the Rule 12(b)(6) stage. App. 290-91. The court's conclusion, however, is couched in terms of proof rather than allegation: "[E]ven assuming that the defendants improperly acquired the plaintiffs' tax return information, that does not compel a finding that such information was improperly inspected." App. 289-90 (emphasis in original). It is immaterial at the motion to dismiss stage whether improper acquisition of tax return information compels a finding of improper inspection. Rather, as noted above, it is only necessary that, under some set of facts consistent with the allegations, improper inspection might have resulted from the improper acquisition.

B. The District Court Relied Largely on Outdated Case Law That is Inapplicable or Distinguishable Following Amendments to 26 U.S.C. § 7431.

The district court's reliance on Venen and its progeny was in error not only because those cases involve the wrong standard of review, but also because they involve allegations of improper disclosure of taxpayer information in connection with allegedly unauthorized tax collection activity, not of improper inspection or handling of taxpayer information. By contrast, Plaintiffs-Appellants have alleged not only that the IRS's demands for (i.e., means of obtaining) certain information were unconstitutional, see, e.g., App. 14, 66 (¶¶ 1-3; 312), but also that once obtained, that information was inspected by IRS officials in violation of the limited circumstances permitted by § 6103. See App. 39, 50, 54-55, 62, 66, 82-83 (¶¶ 152, 222, 252, 265, 296, 313, 416-23). Additionally, in all but one of the four cases on which the district court relied, the decision was rendered prior to the 1997 amendment to § 7431, which added "liability for unlawful inspection as well as the already existing unlawful disclosure." Gonser v. United States, 2001 U.S. Dist. LEXIS 12335, *21 (N.D. Ga. May 21, 2001) (emphasis added); see also Add. 7.

The lone post-1997 case relied upon by the district court, Mann v. United States, 204 F.3d 1012 (10th Cir. 2000), is readily distinguishable from the case at bar. First, Mann relied heavily upon the aforementioned pre-1997 Venen case, and dealt only with improper disclosure (rather than inspection) of tax return information. Id. at 1020. Second, the Mann plaintiffs contested the IRS's actions based on its failure to follow procedure, rather than engaging in inherently unlawful activity. Id. at 1020-21. Additionally, the Mann court determined that the relevant disclosure made by the IRS was protected by statute because it was disclosed in accordance with the IRS agent's "official duties" during the issuance of "liens and levies," an action specifically excepted under 26 U.S.C. § 6103(k)(6). Id. at 108.

Plaintiffs-Appellants have alleged that the IRS's collection and inspection of certain of their tax return information was inherently unconstitutional based on the Government's concessions, as confirmed by the TIGTA Report. App. 14, 57-58, 66 (¶¶ 1-3; 275; 312-13). In other words, the Government has already acknowledged the information was unlawfully obtained and, further, that at no point during the chain of custody of the information was the Government rightfully in possession of it. Thus, the information could not have been either obtained or inspected in the course of any agent's "official duties," or, as the statute requires for proper inspection activity, "for tax administration purposes." 26 U.S.C. § 6103(h)(1); Add. 6.

Lastly, the district court's reliance on another outdated case for the proposition that Plaintiffs-Appellants have an adequate remedy under § 7428 "for constitutional violations during the tax-exempt application process" fares no better. App. 292 (citing Church By Mail, 1988 WL 8271, at *3). Any remaining validity of such a proposition at the time it was advanced by the district court, has been definitively overruled by this court in Z Street. 791 F.3d at 31 (confirming that § 7428 does not provide a remedy for any and all harms suffered by an applicant during the tax-exempt application process).

In short, Plaintiffs-Appellants have asserted a valid cause of action under the amended version of § 7431, Add. 7, which was in effect at the time of Defendants-Appellees' unlawful actions, and they have alleged sufficient facts to support that claim.

¹ Daniel Werfel, who served as Acting Commissioner of the Internal Revenue Service, and Douglas H. Shulman, who served as Commissioner of the Internal Revenue Service, at various times during this litigation, were previously named as defendants in their official capacities. As they no longer hold those positions, John Koskinen replaces them in the litigation as the successor to the office of Internal Revenue Service Commissioner.

² The district court's dismissal of these claims seemingly hinges solely on its conclusion that the BOLO policy has been suspended and the single summary sentence (found not in the SAC but in Plaintiffs' Motion to Dismiss Opposition) that "[p]laintiffs' statutory and constitutional claims in [c]ounts [four] through [seven] are all based upon the adoption and implementation of the IRS '[t]argeting [s]cheme' or 'BOLO [p]olicy.'" App. 284 (emphasis in original) (italics added).By use of the word "or," however, this statement clearly delineates between the larger Targeting Scheme and the specific BOLO component of that scheme, as alleged in the SAC.

³ While both prospective relief and damages should be available here, a Bivens remedy is all the more appropriate if the district court's mootness decision is upheld, as "[t]he only viable relief for [Plaintiffs-Appellants based on] . . . the retaliatory actions of agency officials, would be backward-looking damages claims." Munsell v. Dep't of Agric., 509 F.3d 572, 591 (D.C. Cir. 2007).

⁴See also App. 281-82 (citing Church By Mail, Inc. v. United States, No. 87-cv-0754-LFO, 1988 WL 8271 (D.D.C. Jan. 22, 1988), in which plaintiff sought relief for "the denial of its tax-exempt status application," a harm directly addressed under 26 U.S.C. § 7428).

⁵ The district court's conclusion that the alleged constitutional injuries here "stem from violations of the Internal Revenue Code" because "if not for the Internal Revenue Code, the plaintiffs could not have even sought tax-exempt status in the first place," see App. 280 n.9, is fundamentally flawed. The mere fact that a provision of the IRC allows for the initiation of a relationship between a citizen and the IRS does not mean that any and all unlawful conduct by individual IRS officials toward that citizen constitutes a violation of the Code. To be sure, the plaintiffs in Gibbs, 886 F.2d 1240, would not have been subjected to allegedly unconstitutional levies or property seizures by the IRS "if not for the Internal Revenue Code," but this did not prevent the Tenth Circuit from recognizing the propriety of Bivens claims based on harm to the plaintiffs' First and Fourth Amendment rights that was not otherwise remediable by any provision of the IRC.

⁶ Plaintiffs-Appellants also brought a Bivens claim for violations of the equal protection component of the Due Process clause of the Fifth Amendment, a claim the Supreme Court expressly recognized in Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264 (1979).