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Judicial Watch • NorCal Tea Party v IRS JW amicus 00341

NorCal Tea Party v IRS JW amicus 00341

NorCal Tea Party v IRS JW amicus 00341

Page 1: NorCal Tea Party v IRS JW amicus 00341


Number of Pages:9

Date Created:December 18, 2017

Date Uploaded to the Library:December 18, 2017

Tags:Shane, seeking, Chumley, Tea, 00341, NorCal, PAGEID, PARTY, press, Amicus, Lois Lerner, Lerner, release, Attorney, documents, justice, government, filed, Obama, records, FBI, DOJ, FOIA, district, IRS

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Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19128 THE UNITED STATES DISTRICT COURT FOR THE
The Internal Revenue Service, al.
Case No. 1:13-cv-00341
Judge Michael Barrett
Judicial Watch, Inc. Judicial Watch and through undersigned counsel, files this
amicus curiae brief support Plaintiffs request unseal the deposition testimony Ms.
Lois Lerner and Ms. Holly Paz and opposition the blanket seal requested Ms. Lerner and
Ms. Paz. The Court faced with multiple issues concerning the public right know what its
government and the right access material court records. After reviewing and
considering these concerns, the Court should order that Ms. Lerner and Ms. Paz deposition
testimony unsealed and made available for public review.1
Judicial Watch and the Public Interest
Judicial Watch not-for-profit, non-partisan, educational organization headquartered
Washington, D.C. Founded 1994, Judicial Watch seeks promote accountability,
transparency and integrity government, and fidelity the rule law. furtherance its
Judicial Watch, Inc. does not object specific redactions protect personal identifying
Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19129
goals Judicial Watch regularly requests records under the Freedom Information Act FOIA shed light the operations the federal government and educate the public about these
operations. Judicial Watch analyzes the agency records and disseminates the results its
analysis, well the records themselves, the public. part its mission Judicial Watch
also regularly files amicus curiae briefs and prosecutes lawsuits matters believes are
public importance. Judicial Watch has appeared amicus curiae multiple federal courts
numerous occasions.
Within days after the Treasury Inspector General for Tax Administration TIGTA
released its report May 14, 2013 confirming that IRS employees targeted organizations
applying for 501(c)(4) tax exempt status with conservative sounding names such patriot and
Tea Party their titles, Judicial Watch led the charge and initiated investigation into the
IRS conduct toward such organizations. part its investigation, Judicial Watch submitted
dozens FOIA requests and since has filed least nine FOIA lawsuits seeking relevant records
from implicated federal agencies.2
See e.g. Judicial Watch, Inc. IRS, Case No. 13-1559, D.D.C. (filed Oct. 2013)
(seeking records concerning communications between the IRS and any other government agency official the Executive Branch and the U.S. Congress about the review process for
organizations applying for tax exempt status under 501(c)(4), including Lois Lerner emails,
well records pertaining the questionnaires sent the organizations applying for the tax
exempt status, including the preparation thereof) (this matter still pending before The Hon.
Emmet Sullivan the U.S. District Court for the District Columbia and may also
referred herein Judicial Watch main IRS case
Judicial Watch, Inc. IRS, Case No. 13-1759, D.D.C. (filed Nov. 18, 2013) (seeking
records concerning the selection individuals for audit based information contained
501(c)(4) tax exempt applications);
Judicial Watch, Inc. IRS, Case No. 14-1956, D.D.C. (filed Nov. 19, 2014) (seeking
records about IRS release 12,000 returns tax organizations the FBI);
Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19130
The underlying basis for each Judicial Watch lawsuits and FOIA requests was that
the public has right know what its government officials are to. Judicial Watch
involvement the investigation and prosecution lawsuits seeking records related the IRS
targeting has not been insignificant.3 addition the revelation IRS employees conduct
Judicial Watch, Inc. IRS, Case No. 15-220, D.D.C. (filed Feb. 12, 2015) (seeking
records about IRS selection individuals for audit based information submitted taxexempt organizations);
Judicial Watch, Inc. IRS, Case No. 15-237, D.D.C. (filed Feb. 18, 2015) (seeking
records related removal and disposal procedures IRS employees hard drives);
Judicial Watch, Inc. IRS, Case. No. 17-17-0596, D.D.C. (filed April 2017) (seeking
records related IRS records retention policies, including electronic records and emails);
Judicial Watch, Inc. Dep Justice, Case No. 14-1024, D.D.C. (filed June 17, 2014)
(seeking records concerning the time expended Dep Justice Civil Rights Division
Attorney Barbara Bosserman investigating the IRS targeting conservative organizations
seeking tax exempt status);
Judicial Watch, Inc. Dep Justice, Case No. 14-1239, D.D.C. (filed July 21, 2014)
(seeking records communications between employees the Department Justice Public
Integrity Section and IRS officials and/or Members Congress and/or congressional staff
regarding 501(c)(4)s other tax exempt organizations from Jan. 2009 the present);
Judicial Watch, Inc. Dep Justice, Case No. 14-1957, D.D.C. (filed Nov. 19, 2014)
(seeking records about IRS granting the Federal Bureau Investigation FBI access
database containing taxpayer information tax exempt groups).
See e.g. Judicial Watch Press Release dated April 16, 2014, Obtains IRS Documents
Showing Lerner Contact with DOJ [in 2013] about Potential Prosecution Tax-Exempt
Groups, available online
(last accessed December 2017);
Judicial Watch Press Release dated July 2015, New Documents Reveal DOJ, IRS and
FBI plan seek criminal charges Obama Opponents [in 2010], available online https:// (last accessed Dec. 2017);
Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19131
the emails uncovered, the records obtained Judicial Watch also sparked investigations into
Lois Lerner emails and the IRS failure preserve thousands emails that were potentially
relevant the various investigations headed Judicial Watch and the U.S. Congress about the
IRS treatment conservative groups.4 While the federal government has now admitted that
the targeting was wrong and for such treatment, the IRS expresses its sincere apology, the
IRS continues withhold email communications from Ms. Lerner and/or Ms. Paz the
grounds that the information deliberative and privileged under FOIA Exemption 5(b). See
Order entered Dec. 11, 2017 Linchpins Liberty United States America, Case
No. 13-777 (D.D.C.) (RBW) (ECF No. 143). The exemption discretionary and Judicial Watch challenging its legality the case. The withheld communications are responsive the FOIA
request issue Judicial Watch main IRS case, Judicial Watch, Inc. Internal Revenue
Service, Case No. 13-1559 (EGS) (D. District Columbia).
Judicial Watch Press Release dated Nov. 16, 2016, New Documents Reveal Top Obama
IRS Official [Holly Paz] admitted Cincinnati Office Targeted Groups based Guilt
Association, available online
new-documents-reveal-top-obama-irs-official-admitted-cincinnati-office-targeted-officetargeted-groups-based-guilt-association/ (last accessed December 2017);
Judicial Watch Press Release dated Sep. 2014, New IRS Documents Show Lerner did
not need Conservative Group Donor List Emails mention Secret Research Project Top IRS
Official, available online (last accessed Dec. 2017).
See Minute Orders dated July 10, 2014 and Aug. 14, 2014 Judicial Watch, Inc. IRS,
Case No. 13-1559, D.D.C. (ordering the IRS submit sworn declarations concerning Lois
Lerner emails and the hard drive crashes); see also Congressional Testimonies the Inspector
General for TIGTA, Russell George and Deputy Inspector General for TIGTA, Timothy
Camus, submitted June 25, 2015 the Congressional Committee Oversight and Reform,
also available online (last accessed December 2017).
Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19132
The deposition testimony Ms. Lerner and Ms. Paz will not only shed light the
misconduct government officials, but also likely assist Judicial Watch overcoming the
IRS invocation the deliberative process privilege. When properly invoked, the deliberative
process privilege protects against the disclosure records that otherwise would reveal advisory
opinions, recommendations, and deliberations comprising part process which government
decisions and policies are formulated. National Labor Relations Board. Sears, Roebuck
Co., 421 U.S. 132, 150 (1975) (internal quotation and citation omitted). The privilege can
overcome, however, [w]here there reason believe the documents sought may shed light
government misconduct the grounds that shielding internal government deliberations
this context does not serve the public interest honest, effective government. Sealed
Case, 121 F.3d 729, 738 (D.C. Cir. 1997); Hall Assocs. U.S. Envtl. Prot. Agency,
Supp. (D.D.C. 2015); Convertino U.S. Dep Justice, 674 Supp. 104
(D.D.C. 2009). Judicial Watch interest unsealing and making Ms. Lerner and Ms. Paz
testimony public twofold. First, organization whose mission promote transparency
and accountability government, Judicial Watch believes release the testimony the
public interest. Second, litigant continuing battle the IRS for records about the agency
targeting organizations based their political views, the depositions may prove crucial
Judicial Watch ability challenge the IRS deliberative process exemption claims. The law
and the public interest demand that Ms. Lerner and Ms. Paz testimony unsealed.
The law commands that the testimonies Ms. Lerner and Ms. Paz court records must unsealed
The courts have long recognized, [], strong presumption favor openness
court records. The burden overcoming that presumption borne the party that seeks
seal them. The burden heavy one: Only the most compelling reasons can justify non5
Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19133
disclosure judicial records. Moreover, the greater the public interest the litigation
subject matter, the greater the showing necessary overcome the presumption access.
Shane Grp., Inc. Blue Cross Blue Shield, 825, F.3d 299, 305 (6th Cir. June 2016) (internal
citations omitted). The subject matter this case profound public interest. October 26, 2017, the U.S. Attorney General issued the following statement
announcing that the federal government had settled this case and another, Linchpins Liberty
United States, Case no. 13-777 (D.D.C.) (Oct. 27, 2017 Order granting Joint Motion Approve
Consent Judgment) (ECF Nos. 140 and 141):
Chief Justice John Marshall wrote that the power tax involves the power
destroy [is] not denied. And should also without question that our
First Amendment prohibits the federal government from treating groups
differently based solely their viewpoint ideology.
But now clear that during the last Administration, the IRS began using
inappropriate criteria screen applications for 501(c) status. These criteria
included names such Tea Party, Patriots, 9/12 policy positions
concerning government spending taxes, education the public make
America better place live, statements criticizing how the country was
being run. also clear that these criteria disproportionately impacted
conservative groups.
The IRS use those criteria basis for heightened scrutiny was wrong and
should never have occurred. improper for the IRS single out groups for
different treatment based their names ideological positions. Any entitlement tax exemption should based the activities the organization and whether
they fulfill requirements the law, not the policy positions adopted members the names chosen reflect those views.
Ms. Lerner and Ms. Paz allege that their requests for the deposition remain under seal
are based fear for their safety and the safety their family members. They not, however,
provide convincing evidence support their allegations. See Memorandum Law (1)
support Certain Former Individual Defendants Motion Seal and (2) Opposition the
Cincinnati Enquirer Motion Unseal, (ECF No. 392-1). The allegations threats and
harassment are from years ago and conclusory statements not give rise the level
compelling reasons recognized the courts justify non-disclosure court records. Shane
Grp., Inc. Blue Cross Blue Shield, 825 F.3d 299, 305-506 (6th Cir. 2016). They also certainly not present narrowly tailored approach required for consideration seal court records. Id.
Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19134
There excuse for this conduct
Dep Justice, Office Public Affairs, Attorney General Jeff Sessions Announces Department Justice Has Settled with Plaintiffs Groups Improperly Targeted IRS, (Oct. 26, 2017),
available online (last accessed December 2017). The abuse
power the IRS acknowledged the U.S. Attorney General statement lasted years and
harmed hundreds citizen groups.
The public interest lawsuit does not stop with the litigation result. the Sixth
Circuit has recognized, [T]he public interest focused not only the result, but also the
conduct giving rise the case. those cases, secrecy insulates the participants, masking
impropriety, obscuring incompetence, and concealing corruption. And any these cases, the
public entitled assess for itself the merits judicial decisions. Thus, [t]he public has
interest ascertaining what evidence and records the District Court and this Court have relied
upon reaching our decision. Shane Grp. Inc., 825 F.3d 305, quoting Brown Williamson
Tobacco Corp. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983).
The motion Ms. Lerner and Ms. Paz, and the IRS continued withholdings Judicial
Watch pending FOIA litigation, seek shield information from the public about the conduct
and thinking two officials central the IRS unlawful targeting organizations based
political ideology. The testimony Ms. Lerner and Ms. Paz part the court record this
case, not merely discovery material. the Sixth Court notes there stark difference
between so-called protective orders entered pursuant the discovery provisions Federal
Rule Civil Procedure 26, the one hand, and orders seal court records, the other.
Discovery concerns the parties exchange information that might might not relevant
Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19135
their case. Secrecy fine the discovery stage, before the material enters the judicial record.
Shane Grp. Inc., 825 F.3d 305, quoting Baxter Int Inc. Abbott Labs., 297 F3d 544, 545
(7th Cir. 2002). Once the material the court record, however, the considerations are very
different. The line between these two stages, discovery and adjudication, crossed when the
parties place material the court record. Id. (emphasis added). Ms. Lerner and Ms. Paz
testimony was placed the court record during the parties summary judgment briefing.
undisputed that their testimony part the court record regardless whether settlement was
reached before the motions were adjudicated. The testimony must made public because
part the court record.
For the foregoing reasons, Judicial Watch, Inc. respectfully requests that the Court deny
Ms. Lerner and Ms. Paz request seal the transcripts their depositions that are part the
court record this case. While Judicial Watch does not object specific redactions protect
personal identifying information, the blanket seal requested Ms. Lerner and Ms. Paz
contrary the public interest.
Case: 1:13-cv-00341-MRB Doc 407-1 Filed: 12/14/17 Page: PAGEID 19136
Dated: December 14, 2017
Respectfully submitted,
/s/ Mark Chumley
Mark Chumley
Keating Muething Klekamp PLL
One East Fourth Street, Suite 1400
Cincinnati, Ohio 45202
Tel: (513) 579-6400
Fax: (513) 579-6457 Counsel:
Ramona Cotca
D.C. Bar No. 501159
425 Third Street, SW, Suite 800
Washington, D.C. 20204
Tel: (202) 646-5172, ext. 328
Attorneys for Amicus Judicial Watch
CERTIFICATE SERVICE hereby certify that the 14th day December, 2017, electronically filed the
foregoing with the Clerk Court using the CM/ECF system. Notice this filing will sent
counsel record operation the Court electronic filing system. Parties may access this
filing through the Court system.
/s/ Mark Chumley
Mark Chumley