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Reply Brief for Appellant

Posted on Jan. 6, 2021

Citations: Tax Analysts v. IRS et al.; No. 99-5284

SUMMARY BY TAX ANALYSTS

Reply Brief for Appellant, Tax Analysts v. IRS and Christian Broadcasting Network, D.C. Cir., 99-5284

Tax Analysts v. IRS et al.

TAX ANALYSTS,
Plaintiff-Appellant,
v.
INTERNAL REVENUE SERVICE
and
THE CHRISTIAN BROADCASTING NETWORK, INC.,
Defendants-Appellees.

ORAL ARGUMENT SCHEDULED FOR MARCH 20, 2000

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF FOR APPELLANT TAX ANALYSTS

William A. Dobrovir, P.C.
Suite 102
65 Culpeper Street
Warrenton, VA 20186
(540) 341-2183

Attorney for Appellant

SUMMARY OF ARGUMENT

Reply to Brief of Appellee IRS

The allegations of the complaint, construed favorably to Tax Analysts ("TA") as they must be, establish that the documents at issue here in this Freedom of Information Act ("FOIA") lawsuit are not exempt from disclosure. Pp. 3-4, 6-7 infra. TA alleged, and for purposes of the Internal Revenue Service's ("IRS") motion those allegations are taken as true, that documents at issue are either documents submitted by The Christian Broadcasting Network, Inc. ("CBN") in support of its 1998 application for tax exemption or documents issued by IRS with respect to that application. As such the documents must be disclosed under Internal Revenue Code ("I.R.C.") § 6104, notwithstanding I.R.C. § 6103. Pp.4-5 infra.

IRS relies on authorities that are not in point. In those cases the courts found that third party communications, communications concerning tax liability, not tax exemption, and documents recording an investigation into tax liability were not disclosable under I.R.C. § 6104. None of the cases involved documents submitted by an applicant or issued by IRS with respect to an application for tax exemption. Pp. 5-6 infra.

Reply to Brief of Appellees CBN

Established principles of law instruct the courts how to find Congress' intent to allow implication of a private claim for relief to enforce a federal statute. Those principles,, stated in a long line of U.S. Supreme Court opinions, confirm existence of a private cause of action to compel a charity to disclose the documents that I.R.C. § 6104 requires it to make public. Pp.9-13 infra.

The Federal Advisory Committee Act ("FACA") is a statute that, like I.R.C. § 6104, imposes disclosure requirements on private | organizations. This Circuit has held that a private cause of action to enforce its disclosure requirements can be implied from FACA. That holding supports existence of a private cause of action to enforce I.R.C.§ 6104. Pp. 13-14 infra.

The existence of financial penalties that IRS alone has power | to impose against charities that fail to comply with I.R.C. § 6104 does not support finding an intent of Congress not to permit a private cause of action to enforce § 6104, where the penalty remedy is not available to a private party and in a case like this where the private party seeks only specific relief and does not seek damages. Pp. 14-17 infra.

The Ethics in Government Act imposes no disclosure obligations on private parties and provides no benefits to members of the public. This court's decisions under the Ethics in Government Act are in apposite here. Pp. 17-18 infra.

ARGUMENT

Reply to Brief of Appellee IRS

IRS' brief would have this court reverse both the settled law of pleading and the presumption of disclosure that underpins the FOIA. Throughout, IRS construes the facts alleged in the complaint not in favor of TA, as doctrine dictates, but in its own favor. (See, e.g., IRS Br. at 21). Throughout, IRS fails to meet the burden of establishing that the documents TA seeks are exempt, a burden that the FOIA statute explicitly places on it, the agency. 5 U.S.C.§ 552(a)(4)(B).

1. Documents Within the Definition of I.R.C. § 6104 Must Be Disclosed Notwithstanding Claims of "Return Information" Content Under I.R.C. § 6103.

IRS concedes at the outset that § 6104 compels disclosure of "documents submitted in support . . . of an application for [exempt] status" and "documents issued by IRS with respect to the application." IRS Br. at 8). IRS then claims that it "released those documents." (Id.). The statement is incorrect; indeed, TA filed this case and this appeal is here precisely because IRS did not "release [ ] those documents."

IRS released only CBN's February 2, 1998, application for exemption and IRS' letter of March 13, 1998, granting the application (IRS Br.at 4-5; JA 10), which, IRS asserts, are the only documents "available to the public" under § 6104. (IRS Br. at 5, 14-16). IRS' position is that every other document in CBN's exemption application file, even though covered by § 6104, will not be disclosed because it is § 6103 "return information." (IRS Br. at 16-17).

IRS' position is incompatible with the statute. Its position is incompatible with its own regulation that defines disclosable “supporting documents" (IRS Br. at 15-16; TA Br. at 23), and its regulation that defines documents "issued" by IRS. (TA Br. at 25).

IRS position is in compatible even with its own concession that“ material that cores within the scope of I.R.C. § 6104 is disclosable to the public by the IRS, even though that material otherwise constitutes return information that is exempt from disclosure under I.R.C. § 6103."(IRS Br. at 14). Except for lip service, for IRS the provisions of § 6104 that require disclosure of documents submitted by the applicant in support of the application or issued by IRS with respect to the application are a dead letter.

2. TA's FOIA Requests to IRS Included Requests for Documents Within the Definition of § 6104.

IRS argues that the documents TA seeks are necessarily § 6103 return information because, as reflected in CBN's IRS-approved press release, some of them may be, or may be related to, a closing agreement that settled tax liability (IRS Br.at 17-18, 20-21) or to an audit of CBN (id. at 21-22). Such documents, if unrelated to an application for or a grant of exempt status, would be exempt under § 6103 and § 6104 would not come into play.

That is not this case, however. Here IRS and CBN chose to settle their disputes by CBN's filing and IRS' grant of a new application for tax exemption. Here TA alleges, and IRS denies, that the documents at issue, or some of them, are disclosable under in IRS' words — "the fundamental rule that disclosure [is] mandated . . . as to papers that were 'submitted in support of' or 'issued with respect to' an application for tax exempt status." (IRS Br. at 23).

3. Lehrfeld, Breuhaus and Belisle Are Inapposite to This Case.

IRS seeks to avoid that fundamental rule and its own concession, p.4 supra. by reference to cases involving documents that fall outside § 6104 and its implementing regulations. We already have explained why Lehrfeld v. Richardson, 132 F.3d 1463 (D.C. Cir. 1998)(IRS Br. at 23-24), is inapposite. (TA Br. at 11, 26). IRS' other citations (IRS Br. at 24-25) are no more in point.

In Breuhaus v. IRS, 609 F.2d 80 (2nd Cir.1979) (IRS Br. at 24-25), the plaintiff sought a letter in which the Commissioner explained to a member of Congress why IRS had determined that an exempt organization was not liable for termination tax under I.R.C. § 507. 609 F.2d at 81. The court held that "§ 6104(a)(1)(A) applies only to documents dealing with whether the organization is to be granted a tax exempt status and not whether it must pay a termination tax which is a different matter." Id. at 82. Here TA seeks" only . . . documents dealing with whether [CBN was] to be granted a tax exempt status," a status that IRS granted to CBN on February 13, 1998.

In Belisle v. Commissioner, 462 F. Supp. 460 (W.D. Okla. 1978) (IRS Br. at 25), the plaintiff sought "the results of an investigation by IRS into an alleged violation of [I.R.C.] § 501(c)(3)." 462 F. Supp. at 460-61. The court held that § 6104(a)(1)(A) "does not encompass IRS investigation files relating to such (tax exempt] organizations." Id. at 461. Such files are not made available for disclosure by § 6104" and were exempted from disclosure" under Exemption 3. Id. at 462.

There was no evidence in Belisle that the files contained documents related to an application for tax exemption or to IRS' grant of exemption. In contrast, here there is evidence of an application for exemption filed with IRS by CBN and IRS' grant of that application.

In this case TA seeks no third party communications (as in Lehrfeld), no investigation materials unrelated to CBN's application for and IRS' grant of tax exempt status (as in Belisle) and no determinations about specific taxes(as in Breuhaus). TA seeks only documents in IRS' CBN file that were "issued" by IRS "in respect of" CBN's application or were "submitted" by CBN itself "in support of(its]application."

4. Taking TA's Allegations as True, IRS' Denials as False and Drawing All Reasonable Inferences in Favor of TA Would Compel Denial of IRS' Motion for Judgment on the Pleadings and Reversal of the District Court's Order Granting IRS' Motion.

IRS' arguments break on the rocks of specific allegations of fact in the complaint that the documents sought are precisely within the classes of documents that § 6104 makes disclosable. (Joint Appendix
("JA") 10 (Compl. ¶ 13), 11 (id.  16)). IRS has denied these allegations (JA35,36). Here, at the pleadings stage, IRS' denials must be taken as false and TA's allegations must be accepted as true. (TA Br. at 4-5, 17-18, 21-22).

One example is enough to illustrate the flaw in IRS' position. IRS' own § 6104 regulation points to a "legal brief" from an applicant for exempt status as a document that must be disclosed. (TA Br. at 23; IRS Br. at 27). The correspondence between IRS and CBN that led up to CBN's February 1998 application and to IRS' March 1998 grant of it may have — very likely did — include such a Legal brief. TA was entitled to an inference that it did. (TA Br. at 23-24).

What IRS ignores is that TA could have proved facts that would satisfy the mandatory disclosure standards of § 6104. Where the district court erred was in denying TA the opportunity to prove such facts.(See TA Br.at 21-25).

5. TA Has Refuted IRS' Closing Agreement and segregability Arguments.

IRS concentrates its fire on one of TA's requests, for any "closing agreement" between CBN and IRS. (IRS Br. at 17, 19-20, 26-31). We refer the court to our main brier on that point. (TA Br. at 26-28). We also refer to our main brief (TA Br. at 28-31) in response to IRS' argument that it need not, despite the command of FOIA, segregate and disclose § 6104 documents from otherwise exempt § 6103 documents.

Reply to Brief of Appellee CBN

1. TA Pleaded the Facts of CBN's Violations of Internal Revenue Code Prohibitions on Political Campaign Activities By Charities in Its Complaint, and Those Facts Are Accepted as True for Purposes of IRS' and CBN's Motions.

Contrary to CBN's insinuations (CBN Br. at 4-5) the facts about CBN's egregious violations of the statutory prohibitions against political campaign activities by charities are in the record here. (JA 11-12). That those allegations were made on information and belief does not reduce their force against motions to dismiss or for judgment on the pleadings. See 2 Moore's Federal Practice § 8.04(4) (3d ed. 1999). That is especially true where, as here, the facts are peculiarly within IRS' anal CRN's knowledge. See Moore, id. n. 20 and cases there cited. In this case, despite their possessing such knowledge, both CBN and IRS chose either to admit or not to deny TA's allegations. (JA 30, 36, 41; cf. TA Br. at 4-5 and id. n.1, citing Fed. R. Civ. P. 8(d)). Similarly, the extraordinarily short time — 39 days1 — in which IRS reviewed CBN's 1998 application for tax exempt status (of close to 275 pages, see IRS Br. at 4-5) and granted it is in the record, alleged by TA in its complaint and admitted in part by IRS (JA 7-8, 29, 35; cf. CBN Br. at 4-5).

A fair inference from these facts, especially the speed of IRS' response, can be drawn in TA's favor that the deal was cooked in advance (TA Br. at 7-8) and was intended to keep the public in the dark. Whether this arrangement was "nefarious" (CBN's word, not ours, CBN Br. at 5) is for the court to decide.

2. Under Longstanding Principles of Statutory Construction, Oft-Repeated By the Supreme Court, TA Has a Cause of Action Implied From I.R.C. § 6104 to Sue CBN to Compel It to Release Documents That the Statute Requires CBN to Release.

There is no dispute between TA and CBN that Congress' intent is the touchstone for implication of a private cause of action to enforce a federal regulatory statute. (Compare TA Br. at 31-37 with CBN Br. at 8-17). We differ about whether the four-part analysis of Cort v. Ash, 42 U.S. 66 (1975), has continued vitality as a way of ascertaining that intent. TA has argued that application here of the four Cort factors demonstrates Congress' intent to approve a private cause of action to enforce § 6104 against a delinquent exempt organization.(TA Br. at 31-37).

CBN would consign Cort to the ash-heap of history. In doing so CBN commits grievous misstatements and omissions.

a.

CBR states that "(t)he Supreme Court in Suter (v. Artist M, 503 U.S. 347 (1992)), did not even enumerate the four Cort factors." CBN is incorrect. The Court's opinion in Suter, 503 U.S. at 364 n. 16, does not merely" enumerate" but quotes the Cort four part analysis — as TA pointed out. (TA Br.at 34).

b.

CRN's reliance on Central Bank of Denver v. First Interstate Bank, 511 U.S. 164, 123 L.Ed.2d 119 (1994),2 as a "prime example" of the death of Cort v. Ash (CBN Br. at 11) is badly misplaced. In Central Bank the Supreme Court indeed "found no private cause of action under § 10(b) of the Securities Exchange Act for aiding and abetting liability" as CBN points out (CBN Br. at 11). It did not reach that conclusion because Congress intended no private right to sue under § 10(b). It did so because § 10(b)"does not itself reach those who aid and abet a §10(b)violation."511 U.S. at 177. As the Court concluded, liability under a private cause of action will not "extend . . . beyond the scope of conduct prohibited by the statutory text." Id.

Nor did Central Bank reach that conclusion" without citing  Cort." (CBN Br. at 11). The opinion in Central Bank cited Cort v. Ash, See 511 U.S. at 190. It also cited such Cort v. Ash progeny as Touche Roes & Co. v. Redington, 442 U.S.560 (1979), see 511 U.S. at 184,190, Merrill Lynch v. Curran, 456 U.S. 353 (1982), see 511 U.S. at 187, and Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11 (1979), see 511 U.S. at 191.

c.

CBN asserts that the Supreme Court relied on or applied Cort in only three "subsequent cases."(CBN Br. at 9 and id. n. 13). That too is incorrect.

(1) CBN concedes that in Cannon v. University of Chicago, 441 U.S. 677 (1979),the Court conducted a Cort analysis “as the means through which congressional content would be discerned." (CBN Br. at 9). Indeed, that analysis was extensive. See Cannon. 441 U.S. at 689-708. Cannon confirmed that use of the Cort factors as aids in finding Congress' intent still was the law.

(2) In Touche Ross3 (see CBN Br. at 9, 10-16), the Court confirmed that "the first three factors discussed in Cort . . . are ones traditionally relied upon in determining legislative intent." 442 U.S.at 575-76.4

(3) In Transamerica Mortgage Advisers,5 444 U.S. at 23 (see CBN Br. at 10, 11-15), the Court quoted the passage from Touche quoted above on the way to finding a private cause of action for specific relief while rejecting one for damages.

(4) In California v. Sierra Club, 451 U.S. 287 (1981) (see CBN Br. at 11), the Court again held that "the four factors specified in Cort remain the criteria through which [Congress'] intent (to create a private right of action] could be discerned." 451 U.S.at 293 (citation and internal quotation marks omitted). The Court rejected implication of a private cause of action because "the statute states no more than a general proscription of certain activities; it does not unmistakably focus on any particular class of beneficiaries whose welfare Congress intended to further." 451 U.S. at 294.

(5) In Merrill Lynch v. Curran,6 456 U.S. 353 (1982), the Court again quoted Cort's four factors, id. at 373 n. 51, and reaffirmed their applicability in deciding the validity of an implied cause of action, id. at 393 and id. nn. 97, 98.7

(6) The Court applied the "four-factor analysis employed by the Court in Cort v. Ash" once again in Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 145-48 (1985) (see CBN Br. at. 11).

(7) While quoting Justice Scalia's concurring opinion in Thompson v. Thompson, 484 U.S. 174 (1988)8 (CBN Br. at 10), CBN ignores the majority's holding:

In determining whether to infer a private cause of action from a federal statute, our focal point is Congress' intent in enacting the statute. As guides to discerning that intent, we have relied on the four factors set out in Cort v. Ash. . . .

484 U.S. 179 (emphasis added).

(8) In Karahalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527 (1989)9 (see CBN Br. at 2112), the Court pointed out that it was Cort v. Ash itself that began the movement toward resolving whether "an implied statutory cause of action should be recognized" by an "inquiry into whether Congress intended to provide a private cause of action." 489 U.S. at 536.

(9) CBN is correct in one instance. The Court did not cite Cort v. Ash in Meghrig v. KFC Western, Inc., 516 U.S. 479 (1996) (see CBN Br. at 10-11). We already have pointed out (TA Br. at 38 n.18) that Meghrig held that no private cause of action for damages10 for past costs for cleaning up toxic waste could be implied from the RCRA, 42 U.S.C. § 6972. 516 U.S. at 488. But, like in Transamerica Mortgage (see TA Br. at 37-39), the Court in Meghrig indicated approval of private causes of action for specific relief, including mandatory injunctions for cleanup of toxic waste and prohibitory injunctions to prevent deposit of toxic waste. 516 U.S. at 484. See also 516 U.S. at 488 (leaving for another day the propriety of a suit for injunction to compel payment of future cleanup costs).

3. This Circuit's Precedents Construing FACA to Imply a Private Cause of Action to Enforce FACA's Disclosure Provisions Should Be Followed in This Case.

CBN would minimize the force of Cummock v. Gore, 180 F.3d 282 (D.C. Cir. 1999), in which this court interpreted FACA a disclosure statute not unlike § 6104, to permit implication of & private cause of action to compel disclosure. CBN does so by arguing that this court's holding was compelled because FACA was enacted before Cort was decided. (CBN Br. at 22-27). Neither logic nor doctrine supports CBN's argument.

First, the statute construed in Cort v. Ash itself,18 U.S.C. § 610 was necessarily also pre-Cort v. Ash, Second, it is undeniable that Cort and its progeny establish the rules of decision for interpreting all statutes, those enacted noth pre- and post-Cort. For example, Central Bank of Denver, p. 10 supra, and the other post-Cort v. Ash cases in which the Supreme Court implied or declined to imply private causes of action from the depression-era securities regulation statutes, pp. 10-13 supra, apply Cort and its principles despite the pre-Cort enactment of those statutes.

4. Existence of Provisions Available Only to IRS to Enforce I.R.C. § 6104 Against Defaulting Charities By Imposition of Financial Penalties Does Not Support Congress' Intent to Disapprove Implication of a Private Cause of Action to Compel CBN to Comply with § 6104 in the Absence of Any Administrative or Other Statutory Remedy That May Be Pursued By Those Who § 6104 Was Intended to Benefit.

CBN argues that the penalty provisions of § 6104 create an exclusive remedy to enforce the statute and preclude suits like this one. (CBN Br. at 13-16, 19-22). CBN fails to note an important qualifier in many of the cases it cites. Those courts found a congressional intent to deny a private judicial remedy only where Congress provided an alternative remedy to the same plaintiff or those in his or her class.11 For example:

a. In Karahalios v. National Federation of Federal Employees, 489 U.S. 527, 531-33 (1989) (CBN Br. at 11-16), the Court held that Congress intended to deny a private judicial remedy because it had provided the plaintiff with an administrative remedy in the Civil Service Reform Act ("CSRA"). The CSRA had created an elaborate regulatory scheme, modeled on the National Labor Relations Act and enforceable via the Federal Labor Relations Authority, an agency modeled on the N.L.R.B.

b. In Middlesex County Sewerage Authority v. National Sea Clampers Ass'n, 453 U.S. 1 (1981) (CBN Br. at 15), the Court declined to imply a remedy for "nuisance" damages from federal water pollution statutes. The statutes gave to "both . . . government officials and private citizens" specific remedies to sue for their enforcement, 453 U.S. at 13-14, see also id. at 17-18, but the plaintiffs had failed to preserve those remedies. 453 U.S. at 6-8.12

c. In Switchmens Union of North America v. National Mediation Board, 320 U.S. 297 (1943) (CBN Br. at 15), the union sought judicial review of proceedings before the Board in which a rival union had been designated as bargaining representative. The Board had statutory authority to resolve such disputes, and the plaintiff union had the right to participate and had participated in the proceedings. Id. at 298-301. The Court held judicial review of Board actions precluded. Congress had afforded the union an administrative remedy that the union had in fact pursued.

d. In Assassination Archives and Resource Center v. United States Dep't of Justice, 43 F.2d 1542 (D.C. Cir. 1995) (CBN Br. at 17), the court found that the governing statute, the President John F. Kennedy Assassination Records Collection Act, 44 U.S.C. § 2107 Note, precluded a direct private judicial remedy to challenge withholding of Kennedy assassination records. The Act provided for review of agency document release decisions by the Assassination Records Review Board("ARRB"). It expressly provided a remedy to plaintiffs like Assassination Archives; judicial review under the Administrative Procedure Act of decisions of the ARRB. See 44 U.S.C. § 2107 Note. § 11(c).

e. In Government of Guam v. American President Lines, 28 F.3d 142 (D.C. Cir. 1994) (CBN Br. at 11 n. 14), the court found that the plaintiff shippers had an adequate administrative remedy before the Federal Maritime Commission to obtain reparations (refunds) of excessive carrier rates.13 Shippers also had a remedy in the district courts, but only after conclusion of Commission proceedings. 28 F.3d at 146.

f. In Danielson v. Byrneside-Ott, Aviation Training Center, Inc., 941 F.2d 1220 (D.C. Cir. 1991) (CBN Br. at 11 n. 14. 16), the court found that the Service Contracts Act provided the plaintiffs with a comprehensive administrative remedy. 941 F.2d at 1223, 1227-28.

g. In Council of the Blind of Delaware County Valley v. Regan, 709 F.2d 1521 (D.C. Cir. 1983) (en banc) (CBN Br. at 12, 13), plaintiffs sued for a wide-ranging remedy against alleged wholesale race, sex, color and national origin discrimination in the federal revenue sharing program. The court declined to permit those suits because Congress had provided other adequate private remedies. Id. at 1525.

Unlike the statutes at issue in those cases, § 6104 gives no alternative remedy to members of the public to enforce the rights the statute gives them. The penalty provisions that CBN cites are not an adequate substitute for the judicial remedy TA invokes — especially here. The agency with power to penalize, IRS, itself asserts that the documents TA seeks are not covered by § 6104 at all and plainly is not inclined to pursue penalties against CBN. The only remedy available to enforce CBN's disclosure duties is a suit, like this one, against CBN.

5. Precedents Construing the Ethics in Government Act, a Statute That Established Procedures for Investigation and Prosecution of Crimes by High Federal Government Officials and Which Contained No Disclosure Provisions. Are Inapposite Here.

CBN's reliance on in Re Madison Guaranty Savings & Loan Ass'n, 173 F.3d 866 (D.C. Cir.1999), construing the Ethics in Government Act, 28 U.S.C. §§ 591 et seq., also is misplaced. There the Landmark Legal Foundation, "a self described' national public interest law firm,'" 173 F.3d at 868, petitioned the Independent Counsel Division of this court to issue a writ of prohibition to terminate the Department of Justice's investigation of then Independent Counsel Kenneth Starr. The court held that Landmark had no standing because it had suffered no injury, a holding "underscored" by the absence of a private cause of action to enforce the Ethics in Government Act. 173 F.3d at 868-69.

The Ethics in Government Act was not a disclosure statute like § 6104 or FACA. It provided no rights to members of the public, but created procedures for the investigation and prosecution of crimes. The courts had "consistently found no congressional intent to create [a private cause of action] and have therefore dismissed creative attempts to fashion one," 173 F.3d at 868, including private parties' attempts to request the court to appoint an independent counsel, to compel a preliminary investigation by the Attorney General and to compel the Attorney General to appoint an Independent Counsel. 173 F.3d at 868-69.

6. TA Has Refuted the Applicability of Schuloff to This Case.

In response to CBN's arguments about Schuloff v. Queens College Foundation, 994 F.Supp. 425 (E.D.N.Y. 1996), aff'd 165 F.3d 183 (2nd Cir.1999) (CBN Br. at 6, 8,17-19), we refer the court to TA Br. at 37-39.

CONCLUSION

The judgment of the district court should be reversed and the case remanded for discovery and trial.

Respectfully submitted,

WILLIAM A. DOBROVIR
D.C. Bar No. 030148
Suite 102
65 Culpeper Street
Warrenton, VA 20186
(540) 341-2183

Attorney for Plaintiff

January 27, 2000

FOOTNOTES

1Run-of-the-mill applicants for tax exempt status can expect to wait up to 270 days. IRS Publ. 557. Tax Exempt Status For Your Organization, at 5, Administrative Remedies. IRS did not act on CBN's first, February 1961, application for at least 297 days. (TA Br. at 5).

2Starred in CBN's Table of Authorities as "principally relied on."

3See p.10 n. 2 supra.

4Also in Touche the Court distinguished "cases finding such implied private remedies, [where] the statute in question . . . created federal rights in favor of private parties." 442 U.S. at 569 (citation to seven earlier Supreme Court cases omitted). Section 6104 is such a statute. It expressly creates rights in favor of private parties, i.e., members of the public to whom exempt organizations like CBN are "accountabl[e]," and who "should have ready access to current information about the activities of these organizations." H.R. Rep. 100-391 (TA Br. at 32-33).

5See p.10 n. 2 supra.

6See p. 10 n. 2 supra.

7In Merrill Lynch the Court approved implication of a private remedy, holding that "the private cause of action enhances the [agency] enforcement mechanism." 456 U.S. at 386. Congress enacted § 6104(e)(2) because the prior regime of disclosure by IRS alone "ha[d] not proved effective" to "facilitate accountability of such organizations to the public." H.R. Rep. 100-391, p. 9 n. 4 supra. The enhancement the Court wrote about in Merrill Lynch is needed here where the agency, IRS, and CBN make common cause to resist disclosure.

8* * * p. 10 n. 2 supra.

9See p. 10 n. 2 supra.

10A distinction that CBN ignores. (CBN Br. at 19).

11Or, as in National R.R. Passenger Corp. v. National Ass'n of Railroad Passengers, 414 U.S., 453 (1974) (CBN Br. at 15), where the legislative history showed that Congress had considered but had expressly declined, to include in the Act remedies like that the plaintiffs sought. Id. at 459-65.

12Middlesex cited and applied a Cort v. Ash analysis. 453 U.S. at 17-18.

13Indead, in that case the shippers already had filed under the Maritime Commission procedures. Their claim in the district court was "virtually identical" to their administrative claim, and the Commission proceeding was still "ongoing" at the time the D.C. Circuit decided the shippers' appeal. 28 F.3d at 143-44.

END FOOTNOTES

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