MOTION FOR DISCOVERY UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(D)

Transcription

1 Case 1:13-cv RBW Document 120 Filed 01/19/17 Page 1 of 3 TRUE THE VOTE, INC., UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Plaintiff, v. INTERNAL REVENUE SERVICE, et al., Defendants. Civ. No. 13-cv RBW Oral Argument Scheduled for March 2, 2017 MOTION FOR DISCOVERY UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(D) The Government has filed a Motion for Summary Judgment as to Counts I, II, and V of True the Vote s Amended Complaint. (Doc. 112.) For the reasons stated in True the Vote s Opposition to the Government s Motion for Summary Judgment, filed contemporaneously with this motion, the Government s Motion for Summary Judgment should be denied. However, because True the Vote has not been permitted to conduct discovery, it is unable to fully present facts essential to its opposition to the Government s motion because those facts are in the exclusive custody and control of the Government. Accordingly, pursuant to Federal Rule of Civil Procedure 56(d), and for the reasons stated in the attached Declarations of Cleta Mitchell and Catherine Engelbrecht, True the Vote moves this Court to deny, or defer consideration of, the Government s motion for summary judgment to allow time to conduct discovery. 1

2 Case 1:13-cv RBW Document 120 Filed 01/19/17 Page 2 of 3 Respectfully submitted this 19th day of January, 2017, Michael J. Lockerby (D.C ) William E. Davis (D.C. Bar No ) Cleta Mitchell (D.C ) Mathew D. Gutierrez (Fla )* FOLEY & LARDNER, LLP FOLEY & LARDNER, LLP Washington Harbour One Biscayne Tower 3000 K Street NW Suite #600 2 South Biscayne Boulevard Washington, DC Suite 1900 (202) (telephone) Miami, FL (202) (fax) (305) (telephone) mlockerby@foley.com (305) (fax) cmitchell@foley.com wdavis@foley.com Lead Counsel for Plaintiff mgutierrez@foley.com Counsel for Plaintiff /s/ Noel H. Johnson Kaylan L. Phillips (D.C ) Noel H. Johnson (Wisc )* John C. Eastman (Cal )* Public Interest Legal Foundation Center for Constitutional Jurisprudence 32 E. Washington, Suite 1675 c/o Chapman University School of Law Indianapolis, IN One University Drive (317) (telephone) Orange, CA (888) (fax) (877) x2 (telephone) kphillips@publicinterestlegal.org (714) (fax) njohnson@publicinterestlegal.org jeastman@chapman.edu Counsel for Plaintiff Counsel for Plaintiff *Pro Hac Vice Motions granted 2

3 Case 1:13-cv RBW Document 120 Filed 01/19/17 Page 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on January 19, 2017, I caused the foregoing MOTION FOR DISCOVERY UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(D) to be filed with the United States District Court for the District of Columbia via the Court s CM/ECF system. Dated: January 19, 2017 /s/ Noel H. Johnson Noel H. Johnson njohnson@publicinterestlegal.org 3

4 Case 1:13-cv RBW Document Filed 01/19/17 Page 1 of 16 TRUE THE VOTE, INC., UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Plaintiff, v. INTERNAL REVENUE SERVICE, et al., Defendants. Civ. No. 13-cv RBW Oral Argument Scheduled for March 2, 2017 DECLARATION OF CLETA MITCHELL IN SUPPORT OF MOTION FOR DISCOVERY UNDER FEDERAL RULE OF CIVIL PROCEDURE 56(D). I, Cleta Mitchell, declare as follow: 1. I am a partner in the Washington D.C. office of Foley & Lardner LLP. I am lead counsel for Plaintiff True the Vote in connection with the above-captioned matter. 2. This Declaration is submitted pursuant to Federal Rule of Civil Procedure 56(d), which provides, (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. 3. Although True the Vote believes the Government s Motion for Summary Judgment (Doc. 112) should be denied outright for the reasons set forth in True the Vote s Memorandum of Law In Opposition to the Government s Motion for Summary Judgment ( TTV Opposition Memorandum ), True the Vote submits this Declaration to demonstrate that True the Vote cannot present all facts essential to support its opposition to the Government s Motion for 1

5 Case 1:13-cv RBW Document Filed 01/19/17 Page 2 of 16 Summary Judgment because it has never been allowed to discover the facts underlying the issues of this case. 4. True the Vote also cannot identify the specific types of evidence True the Vote intends to present to the Court, because such evidence is in the exclusive control and/or custody of the Government. See Am. Broad. Cos. v. United States Info. Agency, 599 F. Supp. 765, 770 (D.D.C. 1984) (defendant s exclusive control of discoverable information weighs in favor of granting a request for discovery under Rule 56(d)). 5. This litigation will enter its fourth year in May 2017, and it has now been almost seven years since True the Vote submitted its initial application to the IRS for recognition as a tax-exempt entity. Yet to date, True the Vote has been denied the opportunity to conduct any discovery to support its well-pleaded allegations, which are quite sufficient to warrant a merits disposition based on adjudication of substantive evidence, not simply a dismissal at the pleadings stage. True the Vote v. IRS, 831 F.3d 551, 563 (D.C. Cir. 2016). 6. The following discoverable information is essential to True the Vote s opposition to the Government s Motion, but is unavailable to True the Vote without discovery: a) Evidence regarding the processing of True the Vote s application for tax-exempt status. As explained further in True the Vote s Opposition Memorandum, the Government makes little to no mention of the IRS s treatment of True the Vote, specifically. Only with this information can the Court resolve whether such conduct is likely to recur or has permanently ceased. Accordingly, True the Vote is entitled to discovery of the following documents and electronically stored information, including deposition testimony, related to the Government s 2

6 Case 1:13-cv RBW Document Filed 01/19/17 Page 3 of 16 processing of True the Vote s application, including documents and all supporting and related information, to wit: i. the initial selection and segregation of True the Vote s application for further review and development under the IRS Targeting Scheme; ii. the subjecting of True the Vote s application to the multi-tier review process developed by the IRS; iii. communications between and among IRS employees assigned to True the Vote s application, in Cincinnati, Washington D.C. and elsewhere; iv. communications between and among IRS employees and any individual or entity outside the IRS regarding True the Vote s application; v. the names and titles of all individuals who took any part in the discussions about and/or the processing of True the Vote s application; vi. the creation and propounding of all development letters sent to True the Vote following the submission of its application for exempt status in 2010; vii. the creation of the intrusive, burdensome and unnecessary requests for information propounded to True the Vote and other exempt organizations in 2012; and viii. any other decisions, discussions, and communications regarding the handling or treatment of True the Vote s application for exempt status from 2010 through the present date. b) Evidence concerning the retention and disclosure True the Vote s application material. True the Vote alleged that the IRS made multiple, unnecessary, burdensome, and voluminous requests for information and documentation wholly 3

7 Case 1:13-cv RBW Document Filed 01/19/17 Page 4 of 16 unnecessary to the determination of True the Vote s tax-exempt status. (Doc ) The IRS remains in possession of this information and is required by law to publicly disclose it upon request. 26 U.S.C. 6104(a)(1)(A). The IRS s possession of this material is a direct consequence of the IRS Targeting Scheme and an effect that continues to persist. Yet the Government does not address this effect in its Motion. True the Vote is entitled to return of all information demanded in connection with the IRS Targeting Scheme. The scope of that information cannot be accurately ascertained because such information is in the possession and control of the IRS. Accordingly, True the Vote is entitled to discovery of the following documents and electronically stored information, including deposition testimony, concerning: i. the creation and development of all development letters propounded on True the Vote and other organizations targeted by the IRS. (See e.g., Docs ); ii. communications, both within and outside the IRS, concerning all development letters propounded on True the Vote (id.); and, iii. requests for and disclosure of True the Vote s application material, including the identity all individuals who have made such requests. c) Evidence concerning the dissemination and sharing of True the Vote s application material both within and outside the IRS. Evidence available to True the Vote indicates that True the Vote s application material was shared with government officials both within and outside the IRS for reasons not related to tax 4

8 Case 1:13-cv RBW Document Filed 01/19/17 Page 5 of 16 administration. For example, in January 2013, the Committee on Oversight and Government Reform discovered that Democratic staff of the House Oversight Committee asked the IRS for material relating to the tax-exempt application of True the Vote, a Tea Party-related organization. Holly Paz, director of Exempt Organizations Rulings and Agreements, authorized the IRS to release information to the Democratic staff, but it is unclear what information the IRS eventually provided. Staff Report, House of Representatives Committee on Oversight and Government Reform, The Internal Revenue Service s Targeting of Conservative Tax- Exempt Applicants: Report of Findings for the 113th Congress at 159, 113th Cong. (Dec. 23, 2014) (Exhibit D to TTV Opposition Memorandum, hereafter Oversight Findings ). The Government does not address the dissemination of True the Vote s application material nor confirm that any information shared with Democratic staff was returned, destroyed and not disseminated further. The conduct of the IRS and other federal agencies strongly suggests that True the Vote s application material was shared with other government officials both within and outside the IRS. In 2010, Catherine Engelbrecht founded True the Vote along with another non-profit group, King Street Patriots, and sought a taxexemption from the IRS for both organizations. (Declaration of Catherine Engelbrecht 1-4.) Shortly thereafter, Ms. Engelbrecht, her non-profit organizations, and her family business were subjected to repeated visits, audits, and investigations by three different federal agencies, as well as the IRS, which, for the first time ever, audited Ms. Engelbrecht, her husband and her family business. (Id ) Ms. Engelbrecht and True the Vote attempted to utilize the Freedom of Information Act to ascertain the circumstances surrounding the 5

9 Case 1:13-cv RBW Document Filed 01/19/17 Page 6 of 16 government s actions. Yet the recipient agencies of those requests withheld documents that would allow for such an understanding. (Id ) Accordingly, True the Vote is entitled to discovery of the following documents and electronically stored information, including deposition testimony, concerning: i. the request for and release of True the Vote s application material and/or tax return information to Democratic staff of the House Oversight Committee; ii. the names and titles of all Democratic staff members to whom True the Vote application material and/or tax return information was disseminated; iii. the dissemination of True the Vote s application material and/or tax return information to any other private individuals or government actors, including, but not limited to the IRS, Federal Bureau of Investigation, Occupational Safety and Health Administration, and the Bureau of Alcohol, Tobacco, and Firearms. iv. the visits, audits, and investigations of Catherine Engelbrecht, her husband, and her business interests by government agencies, as more thoroughly described in the Declaration of Catherine Engelbrecht filed contemporaneously with this declaration. d) Evidence concerning the use of viewpoint-based criteria in any aspect of tax administration. As described by this Court, the Government must present facts demonstrating why True the Vote will not experience any negative consequences resulting from the alleged discriminatory targeting scheme employed by the defendants throughout its tenure as a tax-exempt entity. (Doc. 109.) The Court of 6

10 Case 1:13-cv RBW Document Filed 01/19/17 Page 7 of 16 Appeals recognized this principle in its decision, stating that the Government must demonstrate two things: (1) there is no reasonable expectation that the conduct will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. True the Vote, Inc. v. IRS, 831 F.3d at 561 (internal quotations omitted). Accordingly, evidence concerning the presence and/or use of discriminatory criteria employed by the IRS to monitor and oversee True the Vote as a tax exempt organization are essential to support True the Vote s opposition to the Government s motion. However, such evidence is unavailable to True the Vote because it is in the possession and control of the IRS. Accordingly, True the Vote is entitled to discovery of the following documents and electronically stored information, including deposition testimony, concerning: i. the failure of the IRS to include True the Vote as a recognized public charity from and after the granting of True the Vote s exempt status in response to this litigation. ii. all discussions, communications, decisions regarding the segregation of True the Vote from other recognized exempt organizations even after receiving its letter of recognition as a tax-exempt entity; and iii. all communications and decisions regarding True the Vote following the granting of its exempt status. iv. the use of BOLO listings and any other method employed by the IRS to target organizations based on their names, viewpoints, policy positions, politics, officers, directors, volunteers, and/or associations; 7

11 Case 1:13-cv RBW Document Filed 01/19/17 Page 8 of 16 v. the suspension and alleged cessation of BOLO listings used inside and outside the tax-exempt application process; vi. the safeguards established by the IRS to govern the ongoing interactions between True the Vote and the IRS for the duration of True the Vote s existence and to ensure there is no viewpoint discrimination in the tax administration obligations of the IRS with respect to True the Vote; and, vii. the findings and conclusions of the report issued by the Government Accountability Office, which found that (1) control deficiencies... increase the risk that EO could select organizations for examination in an unfair manner for example, based on an organization s religious, educational, political, or other views. Government Accountability Office, Report to Congressional Requesters, IRS Examination Selection: Internal Controls for Exempt Organization Selection Should Be Strengthened (July 2015) (Exhibit B to TTV Opposition Memorandum). e) Evidence concerning the political interests and biases of IRS employees and officials. The Government adopts TIGTA s finding that the cause of the IRS Targeting Scheme was nothing more than ineffective management. (See Doc at Highlights.) True the Vote alleges that the IRS Targeting Scheme was the result of viewpoint-based discrimination and political bias harbored by officials within the Obama Administration. (See Doc )There are, therefore, questions of fact regarding the underlying issues, factors, and causes that resulted in the IRS Targeting Scheme, to which True the Vote must be privy 8

12 Case 1:13-cv RBW Document Filed 01/19/17 Page 9 of 16 in order to ascertain to what extent the issues, factors and causes have been permanently eradicated. There is more than sufficient evidence to presently support True the Vote s view that it was politics, not ineffective management, that caused the IRS to target groups like True the Vote. In June 2014, the U.S. House of Representatives Committee on Oversight and Government Reform released a report entitled How Politics Led the IRS to Target Conservative Tax-Exempt Applicants for their Political Beliefs, which, as the name suggests, concludes that groups like True the Vote were targeted because of their political beliefs, actual or perceived. Staff Report, House of Representatives Committee on Oversight and Government Reform, How Politics Led the IRS to Target Conservative Tax- Exempt Applicants for their Political Beliefs, 113th Cong. (June 16, 2014) (Exhibit C to TTV Opposition Memorandum). Later in 2014, the House Oversight Committee released a second report entitled The Internal Revenue Service s Targeting of Conservative Tax- Exempt Applicants: Report of Findings for the 113th Congress. Staff Report, House of Representatives Committee on Oversight and Government Reform, The Internal Revenue Service s Targeting of Conservative Tax- Exempt Applicants: Report of Findings for the 113th Congress, 113th Cong. (Dec. 23, 2014). The Report concluded that there developed a culture of bias against conservative organizations among certain IRS employees, id. at , which ultimately manifested itself as the IRS Targeting Scheme. The Report contains an entire 9

13 Case 1:13-cv RBW Document Filed 01/19/17 Page 10 of 16 section on the discriminatory treatment of True the Vote by the IRS and a highranking member of the Democratic Party. The Government concedes that the personal behavior of the individuals involved in the IRS Targeting Scheme is relevant to this Court s disposition: Within days of the issuance of the TIGTA Report, senior leadership and managers that permitted the activity were replaced and new leadership immediately began implementing changes. In light of evidence strongly indicating that political bias played a major role in the targeting of True the Vote and other groups, True the Vote is entitled to discover the following information, including all documents and electronically stored information, and deposition testimony concerning: i. a list of all individuals identified by the IRS to have permitted the activity about which True the Vote complains; ii. the current employment status of those individuals, including their present titles, job descriptions and responsibilities; iii. the replacement of those individuals, including the reasons for their replacement; and iv. a list of all individuals hired by the IRS to replace those individuals in the identified positions f) Evidence concerning the training of IRS employees and evidence concerning the effectiveness of the training. The Government asserts that it is undisputed that the IRS has implemented TIGTA s recommendations in such a way that it is absolutely clear the allegedly wrongful behavior could not reasonably be 10

14 Case 1:13-cv RBW Document Filed 01/19/17 Page 11 of 16 expected to recur. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000), and that all effects of the Targeting Scheme have been permanently eradicated. However, the TIGTA report on which the Government relies for this assertion reveals that over 20% of EO employees had not completed the training necessary to implement TIGTA s recommendations, leaving those employees without the knowledge needed to effectively and efficiently carry out their responsibilities. (Doc at ) The consequences of missed training were evident. TIGTA discovered that as many as 6.15 percent of employees do not know what information to consider when determining if there was potential political campaign intervention problems with a particular organization. (Id. at 25.) Moreover, even for those employees who had completed the necessary training, the IRS did not complete the process designed to evaluate the effectiveness of the training. (Doc at 15.) Thus, even assuming, arguendo, that a cause of the IRS Targeting Scheme was ineffective management, 1 (Doc at 2), the 2015 Report reveals that such ineffectiveness has not been eradicated, but continues to persist. Facts concerning training and managerial oversight designed to remedy the alleged harm are directly relevant to the ongoing effects of the IRS Targeting Scheme. Accordingly, True the Vote is entitled to discover the all documents and electronically stored information, and deposition testimony, concerning: 1 True the Vote denies that ineffective management was the sole cause of the IRS Targeting Scheme. 11

15 Case 1:13-cv RBW Document Filed 01/19/17 Page 12 of 16 i. the programs, materials, and content of the training identified in the 2015 TIGTA Report; ii. the identity of the presenters and trainers involved in the training identified in the 2015 TIGTA Report; iii. evaluation results of the training identified in the 2015 TIGTA Report and background of the evaluators; iv. any training designed to remedy the conduct of which True the Vote complains conducted outside the tax-exempt application process and the application of such training to other tax administration obligations and procedures impacting True the Vote during the life of its existence and interactions with the IRS; g) Evidence concerning ongoing oversight of True the Vote and any other effects of the alleged violations. The Government was ordered by the D.C. Circuit and this Court to address all effects of the IRS Targeting Scheme throughout True the Vote s tenure as a tax-exempt entity. Yet the Government provides only five paragraphs of evidence with respect to its ongoing oversight of True the Vote. Former EO Director Tamera L. Ripperda who left the position only days after submitting her affidavit filed by the Government and who further was not even in that position during the period during which True the Vote was subjected to the IRS Targeting Scheme with respect to its application for exempt status states as an undisputed factual matter that True the Vote is not more or less likely to be audited based on any additional scrutiny using inappropriate criteria that may have taken place during its application process because actions taken during the 12

16 Case 1:13-cv RBW Document Filed 01/19/17 Page 13 of 16 application process are not considered by the automated case selection models. (Doc ) As her statement plainly indicates, Ms. Ripperda s position is limited to those audit referrals made by the IRS s automated case selection models, and not to other audit referral sources. Ms. Ripperda acknowledges that audit referrals for an organization such as True the Vote also can come from individuals or groups outside the IRS or from other divisions within the IRS. (Doc ) Yet Ms. Ripperda gives no assurances about and in fact does not even discuss these other avenues through which True the Vote could face unfair treatment in the audit selection process. The evidence currently available to True the Vote regarding the audit selection process indicates that control deficiencies within the IRS that increase the risk that EO could select organizations for examination in an unfair manner for example, based on an organization s religious, educational, political, or other views. Government Accountability Office, Report to Congressional Requesters, IRS Examination Selection: Internal Controls for Exempt Organization Selection Should Be Strengthened, Highlights, July 2015 (Exhibit B to TTV Opposition Memorandum). The Government s limited assertions regarding oversight and monitoring of True the Vote and the ongoing effects of the IRS Targeting Scheme are questions of fact. True the Vote cannot sufficiently oppose the Government s facts without the opportunity to conduct discovery with respect to evidence that is in the exclusive possession and control of the IRS. Accordingly, True the Vote is 13

17 Case 1:13-cv RBW Document Filed 01/19/17 Page 14 of 16 entitled to discover the all documents and electronically stored information, and deposition testimony, concerning: i. communications within and outside the IRS regarding referral of True the Vote for examination, audit, or investigation; ii. IRS audit selection and referral procedures and programs and any other post-determination compliance programs, including training designed to eliminate the use of viewpoint-based discrimination with such programs; and iii. reports and training of the IRS s Political Activity Referral Committee (Doc p. 24). iv. IRS Review of Operations ( ROO ) which, according to Government witness Tamera L. Ripperda, are non-contact compliance reviews of tax exempt organizations. (Doc , 18.) h) Deposition of Government witness Tamera L. Ripperda. The Government s sole witness Tamera L Ripperda states that she is the current director of the IRS s Exempt Organization Division. (Doc ) However, Ms. Ripperda departed that position just three days after the Government filed her testimony. See Bloomberg BNA, Daily Tax Report, IRS Exempt Organizations Director Switching Roles Next Month (Oct. 26, 2016), ~/media/files/news/2016/bloombergbna_irs-exempt-organizations-directorswitching-roles-next-month_26oct16.ashx?la=en (last accessed Jan. 19, 2017). Ms. Ripperda s departure means she is no longer in a position to oversee the alleged implementation of TIGTA s recommendations. Moreover, Ms. Ripperda 14

18 Case 1:13-cv RBW Document Filed 01/19/17 Page 15 of 16 was not in the position of EO Director or even in a position within the EO unit until years after the conduct alleged in the Amended Complaint occurred. (Doc ( I have held this position since January ). This raises serious questions regarding whether Ms. Ripperda has the requisite personal knowledge necessary to testify as to the IRS s conduct, the effects of that conduct, and the alleged eradication of those effects. See Fed. R. Evid. 602 ( A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. ) Nevertheless, True the Vote is entitled to depose Tamera L. Ripperda regarding the following non-exhaustive topics: i. Ms. Ripperda s personal knowledge of the facts about which she testifies; ii. ROO compliance reviews of True the Vote (Doc ); iii. implementation of actions recommended in the 2013 TIGTA Report, including the training designed and developed to implement those recommendations (Doc ); iv. implementation of actions recommended in the 2013 Senate Finance Committee Report, including the training designed and developed to implement those recommendations (Doc ); v. potential for future audits of True the Vote (Doc ); and vi. the status and nature of actions taken to implement recommendations made by other entities, including the Government Accountability 15

19 Case 1:13-cv RBW Document Filed 01/19/17 Page 16 of 16 Office, the Senate Finance Committee, and the House Oversight Committee. 7. The foregoing evidence is discoverable pursuant to Federal Rule of Civil Procedure 26(b)(1) because it is relevant to True the Vote s claims that the IRS engaged in viewpoint discrimination in violation of True the Vote s First Amendment rights and engaged in violations of the Administrative Procedure Act. 8. The foregoing evidence is essential to demonstrate the existence of disputes concerning facts material to the disposition of this case, specifically, whether the Government has carried its heavy burden of establishing mootness as a result of its voluntary cessation. 9. True the Vote is presently unable to present the foregoing evidence because any such evidence is solely and exclusively in the possession and/or control of the Government. 10. Accordingly, this Court should grant True the Vote relief under Federal Rule of Civil Procedure 56(d). The Government s motion for summary judgment should be denied, or alternatively deferred, to allow time to take discovery regarding the foregoing evidence. 11. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. Executed on January 19, 2017, /s/ Cleta Mitchell Counsel for Plaintiff 16

20 Case 1:13-cv RBW Document Filed 01/19/17 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA TRUE THE VOTE, INC., Plaintiff, v. Civ. No. 13-cv RBW INTERNAL REVENUE SERVICE, et al., Defendants. DECLARATION OF CATHERINE ENGELBRECHT I, Catherine Engelbrecht, make the following declarations pursuant to 28 U.S.C in support of Plaintiff True the Vote s request for declaratory and injunctive relief in this matter: 1. I am the founder of Plaintiff True the Vote, Inc., a tax-exempt organization organized under Section 501(c)(3) of the Internal Revenue Code. 2. I am also the founder of King Street Patriots, a non-profit organization organized under Section 501(c)(4) of the Internal Revenue Code. 3. In June 2010, King Street Patriots applied to the Internal Revenue Service ( IRS ) for recognition as a tax-exempt organization under Section 501(c)(4) of the Internal Revenue Code. King Street Patriots was designed to be a grassroots organization that serves as a hub for liberty-minded residents of the Houston, Texas area. My goal in founding King Street Patriots was to create a place where residents could gather and educate themselves on the core tenets of civics. 4. Shortly thereafter, on July 15, 2010, True the Vote applied to the IRS for recognition as a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code

21 Case 1:13-cv RBW Document Filed 01/19/17 Page 2 of 10 As stated in the application, True the Vote s mission is to promote and improve the integrity of the voting process in the United States. Its primary activity is to observe and promote better compliance with election laws and procedures through citizen participation. True the Vote seeks to educate the public about election law compliance and procedures. True the Vote works with any person or organization who shares its mission of supporting and promoting free and fair elections. 5. For seven months, I heard nothing from the IRS regarding the applications filed by True the Vote and King Street Patriots. 6. Beginning in December 2010, my non-profit organizations, my family business, and I were subjected to repeated visits, audits, and investigations by three different federal agencies, as well as the IRS. 7. In December 2010, Houston-based agents from the Federal Bureau of Investigation s Domestic Terrorism Task Force appeared at my nonprofit offices seeking access to meeting attendee manifests and asking broad questions about my organizations principles. FBI agents contacted my organizations five subsequent times, between December 2010 and December In January 2011, the IRS notified my family business, Engelbrecht Enterprises, had been selected for an audit for the 2008 and 2009 tax years. 1 Although we had been in business for over a decade at that point, this was our first federal audit. 9. In June 2011, my husband and I were personally selected for a tax audit for the 2008 and 2009 tax years. 1 IRS Confirmation of Audit Appointment for Engelbrecht Enterprises (1/21/2011),

22 Case 1:13-cv RBW Document Filed 01/19/17 Page 3 of In February 2011, True the Vote received a letter from the IRS Exempt Organizations Division ( EOD ) requesting additional information about True the Vote. 2 The requested information was provided to the IRS by March 8, 2011, as requested. 11. In February 2012, the EOD served True the Vote 3 and King Street Patriots with new letters requesting additional information in response to their respective applications. The tailored questions were even more burdensome and intrusive than the February 2011 questions. In the case of True the Vote, the letter contained roughly 105 inquiries. This was the first round of tailored questions for the King Street Patriots since filing its initial application. Though I would not discover it for more than a year later, other 501(c) applicants were being questioned about their potential involvement with my nonprofit entities In February 2012, a business in which I held a commercial interest maintained, and had maintained for a number of years, a license issued by the Bureau of Alcohol, Tobacco, Firearms & Explosives ( BATFE ). For the first time, in February 2012, BATFE agents visited my business entity to conduct an unscheduled audit. BATFE cited only minor paperwork infractions and requested updated signatures on forms. 6 Nevertheless, BATFE agents again visited my business in April 2013 to conduct another audit. 13. From July to October 2012, a separate business interest of mine, Engelbrecht Manufacturing, Inc. (SIC: 3599), was subjected to an unscheduled site inspection by the 2 IRS Request for More Information: True the Vote (2/15/2011), Response-to-IRS-Letter-Dated-Feb ?secret_password=ur7h6ryxhdsq03plhrb; Dkt. # IRS Request for More Information: True the Vote (2/8/2012), Dkt. # IRS Request for More Information: King Street Patriots (2/8/2012), IRS-Request-for-More-Information-KSP?secret_password=holvv50y0xwyytwe90e 5 IRS Request for More Information: North East Tarrant Tea Party (2/8/2012), County?secret_password=5k2rakqrprfa0g304qs see also, IRS Request for More Information: Clear Lake Tea Party (7/12/2010), KSP?secret_password=2290suorcchjmino1l0n 6 BATFE case file: Engelbrecht Enterprises (Feb. 2012),

23 Case 1:13-cv RBW Document Filed 01/19/17 Page 4 of 10 Occupational Safety and Health Administration ( OSHA ) (Inspection Number ). Until the 2012 site visit, neither OSHA nor any other office of the U.S. Department of Labor had contacted the business since its founding roughly fifteen years prior. 14. In October 2012, EOD served a third round of questioning on True the Vote. 7 Many of the questions were dedicated to asking the political leanings of those the organization trained to serve as election observers by True the Vote in advance of the November 2012 general election. 15. In August 2013, EOD served a second round of questioning on King Street Patriots. 8 The organization later was granted 501(c)(4) status in December On September 26, 2013, as a result of this litigation, the IRS granted True the Vote s application for tax-exempt status Since the founding of my non-profit organizations, three sitting Members of Congress have disparaged and defamed me before other federal offices and the news media, usually without attempting to contact my organizations first. 18. On October 28, 2010, U.S. Representative Sheila Jackson Lee (D-Texas), who then represented the congressional district in which True the Vote is located, wrote to the United States Attorney General s Office seeking an investigation into unfounded allegations of voter 7 IRS Request for More Information: True the Vote (10/9/2012), Request-for-Information-3 ; Dkt. # IRS Request for More Information: King Street Patriots (8/21/2013), Letter-to-King-Street-Patriots-Requesting-Additional-Information-Received ?secret_password=ak99d5u8zyn7nayu3fc 9 IRS 501(c) designation letter for the King Street Patriots (12/11/2013), 10 USDOJ/IRS letter to True the Vote for 501(c)(3) designation (9/26/2013),

24 Case 1:13-cv RBW Document Filed 01/19/17 Page 5 of 10 intimidation. 11 No effort was ever made on the part of Rep. Jackson Lee s office to communicate with my organizations before she wrote to the DOJ. 19. In 2012, U.S. Senator Barbara Boxer (D-California) publicly promoted a letter written to the Civil Rights Division of the U.S. Department of Justice on September 27, The letter attempted to confirm that an investigation by the Division was underway into True the Vote s work, citing thinly-sourced claims from a Los Angeles Times article. 20. The third Member of Congress, U.S. Representative Elijah Cummings (D- Maryland), sent the news media letters to True the Vote claiming that the House Oversight and Government Reform Committee had begun a formal investigation into my affairs. Six such letters were exchanged between True the Vote and Rep. Cummings between October 2012 and January The letters echoed Sen. Boxer s assertions and referenced various documents demanded from True the Vote. In response to these document demands, True the Vote offered to meet and review materials in person. No such meetings were ever scheduled. On February 6, 2014, True the Vote filed a formal complaint with the U.S. House of Representatives Office of Congressional Ethics, generally over concerns that Rep. Cummings and/or his staff may be or 11 Houston Chronicle; In letter to Holder, Jackson Lee opposes True the Vote s request for IRS tax-exempt status 5/21/2013 ( 12 U.S. Senator Barbara Boxer; Boxer Calls on Department of Justice to Protect Americans from Voter Intimidation 9/27/2012 ( 13 Rep. Elijah Cummings record of correspondence: 1st Cummings letter to TTV, 10/4/ TrueTheVote TTV Response to 1st Cummings letter, 10/5/ Cummings-Letter 2nd Cummings letter to TTV, 10/18/ TTV Response to 2nd Cummings letter, 10/29/ Letter 3rd Letter to TTV, 12/20/ TTV?secret_password=84s6h5wqjbncgutkvh4 TTV Response to 3rd Letter, 1/4/ Meeting?secret_password=r85dis6ga3l4rpin46k

25 Case 1:13-cv RBW Document Filed 01/19/17 Page 6 of 10 have been communicating with other federal agencies about my interests. 14 Roughly two months later, the House Oversight and Government Reforms Committee announced the existence of an trail created by Rep. Cummings to Defendant Lois Lerner s office seeking information regarding True the Vote in January In the spring of 2013, following the second visit from BATFE, and nearly three years after True the Vote filed its application for tax-exempt status with the IRS, I instructed my research staff to send Freedom of Information Act ( FOIA ) requests to various government agencies to learn why they were targeting me and my non-profit organizations. 22. The recipient agencies of True the Vote s FOIA requests have withheld documents that would allow me and True the Vote to learn the circumstances surrounding the targeting of me, my non-profit organizations, and my businesses by the IRS and other federal agencies. 23. In May 2013, both the King Street Patriots 16 and U.S. Representative Ted Poe (D- Texas) 17 filed FOIA requests seeking available records pertaining to the dates when the FBI agents made contact. Disclosure officers later returned a response stating that only two pages of the King Street Patriots seventeen-page file would be released due to criminal investigation exemptions. 18 The two documents that were produced were heavily redacted. These documents contained a single date June 1, 2011 and described two case IDs: #266O-HO-C Complaint Against Rep. Elijah Cummings (D-MD) and Request for Investigation by Office of Congressional Ethics (2/6/2014), 15 U.S. House Committee on Oversight and Government Reform; New IRS s: Lois Lerner Funneled Elijah Cummings Info on Targeted Conservative Group (4/9/2014), 16 King Street Patriots FOIA letter to FBI (5/10/2013), FOIA?secret_password=l8md5w73s0sr6mf91ho 17 U.S. Rep. Ted Poe (Texas) FOIA letter to FBI (5/3/2013), FBI-Engelbrecht?secret_password=1lanzcdtao9tmw2mx FBI FOI/PA response letter to King Street Patriots (7/2/2013), FBI-FOIA-KSP-Denial?secret_password=zfzjmer36n2rmo9pu

26 Case 1:13-cv RBW Document Filed 01/19/17 Page 7 of 10 STATISTICAL ACCOMPLISHMENT/LIAISON; and #319X-HQ-A HO COMMUNITY OUTREACH. These case reports lead the reader to believe that first contact had been established that day in June, contrary to records indicating it began in December Only as a result of pressure from the U.S. House Oversight and Government Reform Committee 19 did the FBI turn over additional documents regarding the King Street Patriots. The FBI disclosed that it made contact with the King Street Patriots to verify whether an individual of interest attended a meeting. However, no other dates or points of contact were confirmed In May 2013, both Engelbrecht Manufacturing and Rep. Poe filed FOIA requests with OSHA seeking records related to the agency s site inspection of my company s premises. The letters included requests for documents related to the instigation and source(s) of any complaint(s) generated or filed to inspire the inspection. No such instigating documents were provided in response. 26. After I made public the government s targeting of me and my businesses, a Madison, Wisconsin-based reporter managed to get a Department of Labor spokesperson to claim on record that my company had been selected as as part of an OSHA initiative to inspect fabricated metal products manufacturers in Texas and other southern states. My research team then discovered an ongoing OSHA Emphasis Program for Safety & Health Hazards in the Manufacture of Fabricated Metal Products for all Group 34 manufacturers in Texas. However, 19 U.S. House Oversight and Government Reform Committee letter to FBI (12/2/2013), 20 The Washington Times; JUSTICE: Feds pick Obama supporter to lead probe into IRS tea party targeting (1/8/2014), see also FBI letter to HCOGR (12/31/2013),

27 Case 1:13-cv RBW Document Filed 01/19/17 Page 8 of 10 my company is categorized as a Group 35 entity. An additional FOIA request confirmed that no such Emphasis Program existed for Group 35 companies in Texas at that time. 27. FOIA requests submitted to BATFE returned only case files directly pertaining to the site inspections noted above Following the admission on the part of the Treasury Inspector General for Tax Administration ( TIGTA ) that approximately 30,000 s belonging to defendant Lois Lerner had been recovered by investigators, 22 True the Vote submitted a FOIA request to TIGTA seeking, among other documents, the following: a manifest of all metadata recovered; complete copies of all recovered correspondence; and a list of shared calendar files between all users of IRS and White House domains. 23 TIGTA withheld nearly all requested records, citing exemptions for ongoing law enforcement proceedings In 2015, True the Vote submitted additional FOIA requests to the FBI, BATFE, DOJ, DOJ Criminal Division (Public Integrity Section), DOJ Civil Rights Division, and OSHA. Records sought included any documents regarding my non-profits and commercial entities shared between the aforementioned federal offices and the IRS. Third party communications (i.e., Members of Congress, other NGOs, etc.) between these offices and the IRS were requested as well. 21 U.S. Rep. Ted Poe (Texas) FOIA letter to BATFE (5/3/2013), FOIA-ATF-Engelbrecht?secret_password=1bdk2j31sn1j9tpctl8g Engelbrecht Manufacturing, Inc. FOIA letter to BATFE (5/10/2013), 13-OSHA-FOIA?secret_password=22751ofc8l8jlou9oksb 22 Washington Examiner; 30,000 missing s from IRS Lerner recovered (11/22/2014), 23 True the Vote FOIA letter to TIGTA (12/2/2014), s-FOIA-Letter 24 TIGTA FOIA response letter (12/22/2014), Page 1: Page 2: P2?secret_password=66ItKWX57014nfdJvGq7 Page 3: P3?secret_password=NkQEDUBKNpHHipkxzZet

28 Case 1:13-cv RBW Document Filed 01/19/17 Page 9 of The request to the DOJ was transferred to the DOJ s Civil Rights Division, which estimated a delivery expense of $11,400 to produce the requested records. 31. The FBI withheld all responsive documents, citing an exemption for law enforcement investigations. 32. The DOJ Criminal Division and the DOJ Civil Rights Division have acknowledged receipt of True the Vote s FOIA requests but have not produced documents. 33. In 2015, True the Vote submitted additional FOIA requests to TIGTA concerning Lois Lerner s recovered s. One of these requests was denied due to untimeliness. The other request was referred to the IRS, which claimed there were no responsive documents, leaving True the Vote with no other recourse to obtain the information outside of litigation. 34. In 2015, True the Vote sought assistance from the U.S. Senate Committee on Finance to obtain access to IRS files directly related to True the Vote and its officers. 35. In February 2016, the Department of Labor produced responsive documents. However, the vast majority of those records related to OSHA s inspection. No records revealed why my business was selected for audit

29 Case 1:13-cv RBW Document Filed 01/19/17 Page 10 of 10 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on January 18, Catherine Engelbrecht Error! Unknown document property name.

30 Case 1:13-cv RBW Document Filed 01/19/17 Page 1 of 1 TRUE THE VOTE, INC., UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Plaintiff, v. INTERNAL REVENUE SERVICE, et al., Defendants. Civ. No. 13-cv RBW Oral Argument Scheduled for March 2, 2017 ORDER Upon consideration of Plaintiff s Motion for Discovery Under Federal Rule of Civil Procedure 56(d), and the Government s response thereto, it is hereby ORDERED that Plaintiff s Rule 56(d) Motion is GRANTED. IT IS SO ORDERED this day of, REGGIE B. WALTON United States District Judge