IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MOTION TO DISMISS

Transcription

1 Case 1:13-cv RLW Document 11 Filed 04/22/13 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DR. DAVID GILL, et al, Plaintiffs, v. No. 1:13-cv RLW U.S. DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, Defendant. MOTION TO DISMISS The United States respectfully moves to dismiss under Fed. R. Civ. P. 12(b(1. As grounds, the United States contends that Plaintiffs lack standing. A memorandum of points and authorities and proposed order are attached. DATE: April 22, 2013 OF COUNSEL: RONALD C. MACHEN, JR. United States Attorney Respectfully submitted, /s/ Yonatan Gelblum YONATAN GELBLUM Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 227 Washington, DC Phone/Fax: ( / Yonatan.Gelblum@usdoj.gov

2 Case 1:13-cv RLW Document 11 Filed 04/22/13 Page 2 of 2 CERTIFICATE OF SERVICE I certify that I caused a true and correct copy of the foregoing motion to dismiss, memorandum of points and authorities, and proposed order to be served on Plaintiffs counsel via the Court s electronic case filing system this 22 nd day of April, /s/ Yonatan Gelblum Yonatan Gelblum

3 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DR. DAVID GILL, et al, Plaintiffs, v. No. 1:13-cv RLW U.S. DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, Defendant. POINTS AND AUTHORITIES IN SUPPORT OF THE UNITED STATES MOTION TO DISMISS CONTENTS I. Overview... 1 II. Plaintiffs Allegations Fail to Demonstrate Harm and Causation... 2 III. Argument... 5 A. Plaintiffs Must Establish Standing to Sue... 6 B. Plaintiffs Lack Article III Standing Plaintiffs Do Not Allege a Cognizable Injury The Harm Plaintiffs Allege Results From the Acts of Intervening Parties and Is Not Directly Traceable to the Government A Favorable Ruling Would Not Redress Plaintiffs Injuries C. Plaintiffs Lack Prudential Standing IV. Conclusion... 15

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6 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 4 of 19 I. OVERVIEW Plaintiffs David Gill, an unsuccessful 2012 Congressional candidate, his principal campaign committee Friends of David Gill, and the Center for Ethics and Responsibility in Washington [ CREW ], seek to contest the validity of Treas. Reg (c(4-(1, 26 C.F.R (c(4-(1, which explains the requirements for organizations seeking exemption from income tax under section 501(c(4 of the Internal Revenue Code, 26 U.S.C. 501(c(4. Plaintiffs contend that they were harmed during the 2012 election cycle because the American Action Network [ AAN ] was able fund political advertisements, without disclosing its donors, while claiming exempt status under section 501(c(4 and that these advertisements caused more voters to vote for a candidate other than David Gill than voted for David Gill. Plaintiffs claim that section 501(c(4, which which exempts from tax organizations that operate exclusively for the promotion of social welfare, bars these organizations from intervening in political campaigns, including advertising like that paid for by AAN. They argue argue that the regulation improperly defines exclusively to mean primarily engaged in promoting in some way the common good and general welfare of the people of the community. 26 C.F.R (c(4-(1(a(2. As redress for the election loss, Plaintiffs seek a declaration that the regulation is invalid and an injunction against its implementation. 1

7 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 5 of 19 Plaintiffs lack both constitutional and prudential standing to maintain this action. They lack Article III standing to seek prospective relief because the harm they allege, a lost election, occurred in the past, and, in the case of CREW, the harm it alleges affected others and not itself. Further, the alleged harms were caused by the actions of a third party, AAN, who is not a defendant in this action, and the harms are not likely to be redressed through a favorable ruling. In addition, Plaintiffs lack prudential standing to enforce the tax laws against other persons. The Court should thus dismiss this suit for lack of subject matter jurisdiction. 1 II. PLAINTIFFS ALLEGATIONS FAIL TO DEMONSTRATE HARM AND CAUSATION Plaintiffs brought this two-count complaint seeking a declaratory judgment that Treas. Reg (c(4-(1 is arbitrary and capricious, and an injunction against its implementation. They allege that they were harmed by AAN s actions during the 2012 election cycle, but do not allege ongoing activities by AAN that currently harm them. Plaintiffs also make unsupported and conclusory claims that the harm resulted from recognition by the Internal Revenue Service [ the Service ] of AAN s status as a section 501(c(4 1The United States contends that the regulation is a permissible construction of the statutory language. Because Plaintiffs lack standing, we do not address the issue any further here, but we reserve our right to do so should the Court hold, contrary to our contention, that Plaintiffs have standing to bring this action. 2

8 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 6 of 19 organization, and AAN s subsequent failure to comply with Plaintiffs favored interpretation of section 501(c(4. Plaintiffs assert that in 2010, the Service approved AAN s request for a formal determination of its exempt status under section 501(c(4 2 and that AAN operated in a manner that did not comply with Plaintiffs favored interpretation of section 501(c(4. Plaintiffs further contend that as a consequence of its 501(c(4 status, AAN was not required to disclose publically the identities of its donors, 3 (Compl. 37, 61 and that [a]s a result of approval by the IRS of its tax-exempt status, AAN was able to participate in the 2012 election cycle by raising and spending substantial sums of anonymous money. Id. 62. They also contend that if AAN, as a 501(c(4 organization, had complied with their favored interpretation of section 501(c(4, it could not have funded the attacks on Gill, id. 8. Plaintiffs do not allege any facts showing that if AAN did not 2The Service issues determination letters on exempt status based solely upon the facts and representations contained in the application file. Rev. Proc , I.R.B. 255, Organizations are subject to examination by the Service and revocation of their determination letter if they do not operate in compliance with the requirements of section 501(c(4. Revocation may be retroactive if the organization omitted material facts from its application or operated in a materially different manner from the application. 26 C.F.R (n(6(i; Dem. Leadership Council v. United States, 542. F. Supp. 2d 63, (D.D.C. 2008; Rev. Proc at In contrast, political organizations that are tax-exempt under 26 U.S.C. 527 must generally disclose their contributors, either on IRS Form 8872 or to the Federal Election Commission or a state election authority. 26 U.S.C. 527(j-(k, 6104(d. 3

9 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 7 of 19 qualify for exemption under section 501(c(4, it would have been legally barred from participating in the election or keeping its contributors identities hidden. Plaintiffs claim a causal link to the lack of votes cast for Gill relative to another candidate by asserting that Gill lost largely, if not exclusively as a result of AAN expenditures opposing his candidacy. (Compl. 4, 52. They further allege that he was harmed by having to expend campaign funds to pay attorneys to issue cease and desist letters in response to AAN-funded advertisements, by having to reduce his work hours in order to address the ads, and by AAN-funded ads that damaged his reputation and thus caused voters who would have voted for Gill but for the ads to vote for a different candidate. Id. 5-6, 49-50, 63. Plaintiffs further contend that Friends of David Gill also incurred legal, staff, and advertising costs as a result of having to respond to AAN-funded ads. Id. 11, 47-48, 63. Lastly, Plaintiffs contend that CREW was harmed in its ability to publicly expose the special interests that affected the 2012 election cycle through contributions of anonymous funds to AAN, because it was not required to disclose its donors. Id Plaintiffs concede that Gill is not actively campaigning for office, id. 9, and make no references to any activity by AAN or other organizations since 2012 that continues to harm them. Plaintiffs do not assert that AAN would have 4 See note 3, above. 4

10 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 8 of 19 foregone its political activities in order to maintain its exempt status under section 501(c(4. Plaintiffs do not assert any current actions that continue to cause harm. Moreover, Plaintiffs fail to demonstrate that but for the Treasury Regulations, more voters would have voted for David Gill than other candidates in the 2012 election. III. ARGUMENT Plaintiffs, who bear the burden of establishing jurisdiction, have not demonstrated that they have constitutional and prudential standing. To have standing under U.S. Const. Art. III, a plaintiff must allege an injury in fact that is caused by the defendant s conduct at issue and can be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, (1985. In addition, the plaintiff must demonstrate prudential standing to challenge the government action at issue by, inter alia, showing that its grievance fall[s] within the zone of interests protected or regulated by the statute it seeks to enforce. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004. Plaintiffs allege that they were harmed during the 2012 election cycle by AAN s activities and its failure to disclose its contributors. However, this past harm does not constitute an injury in fact that can serve as a basis for standing to seek the declarative and injunctive relief that Plaintiffs request. In the case of CREW, the complaint also fails to show a concrete and demonstrable injury to its activities. Any link, if there is one, between the harm alleged by Plaintiffs and the 5

11 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 9 of 19 the Treasury Regulation at issue is too attenuated to meet standing requirements, as the allegations demonstrate, under the interpretation most favorable to Plaintiffs, that AAN and voters, intervening actors, caused the harm. It follows that the declaratory and injunctive relief Plaintiffs seek against the government in this action would also fail to redress the past injuries. Nor may Plaintiffs seek to challenge the tax-exempt status of other persons, where enforcement of the Internal Revenue Code has been expressly reserved to the Secretary of the Treasury. 5 A. Plaintiffs Must Establish Standing to Sue This Court s subject matter jurisdiction is constitutionally limited to cases and controversies, U.S. Const. Art. III cl. 2, an element of which is a plaintiff s standing to bring suit, Defenders of Wildlife, 504 U.S. at 560. [N]o principle is more fundamental to the judiciary s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies. Clapper v. Amnesty Int l USA, --- U.S. ---, 133 S. Ct. 1138, 1146 (2013. The question of standing involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. Bennett v. Spear, 520 U.S. 154, 162 (1997 (internal quotation omitted. 5 While courts have recognized the possibility that persons may sometimes have standing to challenge a regulation that favors their competitors, a necessary prerequisite is a claim that the plaintiff himself was entitled to similar treatment and denied such treatment by the regulation. Gottlieb v. FEC, 143 F.3d 618, (D.C. Cir Plaintiffs make no such allegations here. 6

12 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 10 of 19 As the party invoking the Court s jurisdiction, Plaintiffs must establish their standing. If, as here, the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily substantially more difficult to establish. Defenders of Wildlife, 504 U.S. at 562. The burden is on Plaintiffs to allege facts establishing standing. The standard of review on a Fed. R. Civ. P. 12(b(1 motion is generally similar to the standard on a Fed. R. Civ. P. 12(b(6 motion. Ord v. District of Columbia, 587 F.3d 1136, 1140 (D.C. Cir Thus, a court accepts the complaint s factual allegations but need not[]... credit bald assertions, subjective characterizations, optimistic predictions, or problematic suppositions. Sea Shore Corp. v. Sullivan, 158 F.3d 51, 54 (1st Cir (quoting United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir Nor can speculative inferences establish standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006. The court need not accept the plaintiff s legal conclusions. A.N.S.W.E.R. Coalition v. Salazar, No , 2013 U.S. Dist. LEXIS 5066 (D.D.C. Jan. 14, Further, the court may consider matters outside the pleadings. Lewis v. Schafer, 571 F.Supp.2d 54, (D.D.C Here, Plaintiffs complaint does not establish their Constitutional and prudential standing to bring this suit. 7

13 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 11 of 19 B. Plaintiffs Lack Article III Standing Plaintiffs allegations fail to establish any of the three elements of standing under U.S. Const. Art. III. To establish constitutional standing, a plaintiff must allege (1 a concrete and particularized injury to a legally cognizable right that (2 is fairly traceable to the defendant s allegedly unlawful conduct and (3 will likely be redressed by the requested relief. Allen v. Wright, 468 U.S. 737, (1984. Here, Plaintiffs alleged injuries, which occurred in the past, are not a cognizable injury for purposes of standing to seek the prospective relief they demand. Nor is CREW s inability to disclose information to others a cognizable injury. These alleged harms are also not fairly traceable to the regulation at issue, issue, since they result from the intervening discretionary actions of third parties, AAN and voters. Both because of the temporal incongruence between the alleged harms and the relief sought, as well as the involvement of third parties, a favorable ruling on Plaintiffs complaint would not redress Plaintiffs asserted injuries. Therefore, this action must be dismissed as it does not present an Article Article III case or controversy. 1. Plaintiffs Do Not Allege a Cognizable Injury To demonstrate a legally cognizable injury for purposes of standing, a plaintiff must show an injury in fact that is concrete and particularized and actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. at 560. A past injury is not a sufficient injury in fact to establish standing to sue for prospective relief in the form of a declaratory judgment or injunction, which 8

14 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 12 of 19 plaintiffs seek here. L.A. v. Lyons, 461 U.S. 95, 105 (1983 (standing to seek injunction depends on likelihood of future injury; Dearth v. Holder, 641 F.3d 499, 501 (D.C. Cir (past injury insufficient to for standing to seek declaratory judgment or injunction. In addition, an organization suing on its own behalf must establish that it suffered a concrete and demonstrable injury to the organization s activities with [a] consequent drain on the organization s resources constituting... more than simply a setback to the organization s abstract social interests. Common Cause v. FEC, 108 F.3d 413, 417 (D.C. Cir (internal citations and quotation marks omitted. Here, Plaintiffs past harms do not provide them with standing to bring this suit for prospective relief. Further, CREW has not shown that it suffered a concrete and demonstrable injury to its activities, rather than an injury to the people with whom it would have shared the information it seeks. The harms that Plaintiffs allege occurred in the past, during the 2012 election cycle. They include the resources expended by Friends of David Gill, Gill s lost wages and reputational harm, the loss of the election, and CREW s contention that it was unable to expose the special interests that influenced the 2012 election. They do not contend that AAN is currently causing them injury. 6 6 Plaintiffs allege that Gill has not ruled out the possibility of running again. (Comp. 9. Such some day intentions -- without any description of concrete plans, or indeed even any specification of when the some day will be -- do not support a finding of the actual or imminent injury that our cases require. Defenders of Wildlife, 504 U.S. at

15 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 13 of 19 As past harms, these injuries do not constitute an injury in fact allowing Plaintiffs to sue for the prospective declaratory and injunctive relief their complaint seeks. 7 In addition, the only harm that CREW alleged it suffered was the ability to disclose the identity of special interests that influenced the election to others. However, this harm does not constitute a concrete and demonstrable injury to the organization s activities with [a] consequent drain on the organization s resources constituting... more than simply a setback to the organization s abstract social interests. Common Cause, 108 F.3d at 417. In fact, this Court has previously held that CREW lacked standing to sue the Federal Elections Commission in order to force disclosure of election-related information on the grounds that it did not itself suffer injury from the nondisclosure. Citizens for Responsibility & Ethics in Wash. v. FEC, 401 F. Supp. 2d 115, 121 (D.D.C. 2005, aff d, 475 F.3d 337 (D.C. Cir ( CREW is really asserting a derivative harm -- an alleged inability to help others... realize that they may have been deprived of information. But to withstand the rigors of Article III, an injury in fact must be 7 The United States is not arguing that the suit is moot, which presupposes that the Court initially had subject matter jurisdiction; rather, because the Plaintiffs brought suit after the election they never had standing. See Entergy Servs. v. FERC, 391 F.3d 1240, 1245 (D.C. Cir Therefore, the exception to the mootness doctrine for disputes capable of repetition yet evading review would not apply here, as it will not revive a dispute which became moot before the action commenced, Renne v. Geary, 501 U.S. 312, 320 (

16 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 14 of 19 suffered by the plaintiff or the plaintiff's members; one cannot piggyback on the injuries of wholly unaffiliated parties.. 2. The Harm Plaintiffs Allege Results From the Acts of Intervening Parties and Is Not Directly Traceable to the Government A second element of Article III standing is the requirement that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court. Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, (1976. The Supreme Court has recently reiterated that we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. Clapper, --- U.S. at ---, 133 S. Ct. at Here, since the alleged harms were caused by the decisions of AAN, a third party not before the court, as well the decisions of all potential voters in David Gill s district, who also are not before the court, Plaintiffs fail to meet the traceability requirement for standing. Plaintiffs attempt to portray this harm as the result of the regulation at issue requires speculation as to AAN s actions and underlying motivations. They imply that AAN would only have engaged in certain activities if it could do so while enjoying exemption under section 501(c(4. But AAN could have simply chosen to forego tax-exempt status under section 501(c(4, in which case the scope of its activities would not be subject to regulation under that section, nor would it have had to seek tax exempt status under section 527 and disclose its 11

17 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 15 of 19 contributors under the associated disclosure provisions in 26 U.S.C. 6104(d. Plaintiffs also suggest, without directly stating, that but for AAN s anonymous advertising, voters in David Gill s district who either voted for another candidate or chose not to vote, would have voted for him in sufficient numbers to change the result of the election. This case is analogous to Simon, in which indigent patients sought to contest the Service s advisory ruling that hospitals that did not provide care to indigent patients at less than full cost could still qualify for exemption as a charitable organization under 26 U.S.C. 501(c(3. They argued that the Service s ruling encouraged hospitals not to treat the indigent. 426 U.S. at 42. But the Court held that it does not follow... that the denial of access to hospital services in fact results from petitioners' new Ruling.... It is purely speculative whether the denials of service specified in the complaint fairly can be traced to petitioners encouragement or instead result from decisions made by the hospitals without regard to the tax implications. Id. at 43. It would be similarly speculative to conclude that AAN s actions, or the actions of potential voters in David Gill s Congressional district, can be fairly traced to the regulation at issue here, rather than to AAN s own decisions and the decisions of the voters. Plaintiffs have not shown that the harm they allege is fairly traceable to the conduct at issue in their suit. 12

18 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 16 of A Favorable Ruling Would Not Redress Plaintiffs Injuries The deficiencies identified above also demonstrate that Plaintiffs fail to establish the third element of constitutional standing, redressability. Redressability requires that it must be likely, as opposed to merely speculative, that the injury will be 'redressed by a favorable decision.' Defenders of Wildlife, 504 U.S. at (citations omitted. Here, both the temporal disconnect between Plaintiffs past injuries and the prospective relief they seek, as well as the Court s inability to issue a ruling that would compel AAN to either cease its political activities or publically identify its donors demonstrate a lack of redressability. Where, as here, a plaintiff seeks declaratory or injunctive relief while alleging only harm that occurred in the past, a decision granting prospective relief would not redress the past injury. Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 14 (D.C. Cir Similarly, if an independent third party who caused the alleged harm need not change its behavior as a result of a favorable ruling for Plaintiffs, as could occur here if AAN chose to forego exempt status, redressability is lacking. Cf. Simon, 426 U.S. at 43 ( [I]t is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment.. Consequently, Plaintiffs would not obtain redress for their injury through a favorable ruling, and thus they lack Article III standing. 13

19 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 17 of 19 C. Plaintiffs Lack Prudential Standing Apart from lacking the constitutional standing, Plaintiffs lack prudential standing to sue to limit others claims to a tax exemption. Courts have imposed prudential limitations on their exercise of power, and such limitations are jurisdictional. Grocery Mfrs. Ass'n v. EPA, 693 F.3d 169, 179 (D.C. Cir A plaintiff lacks prudential standing if his interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. Clarke v. Securities lndus. Assn., 479 U.S. 388, 399 (1987. Provisions in a statute expressly providing for agency enforcement may thus limit others prudential standing to sue. Animal Legal Def. Fund v. Espy, 23 F.3d 496, 503 (D.C. Cir. 1997(citing Int l Primate Protection League v. Inst. for Behavioral Research, 799 F.2d 934, 939 & n.4 (4th Cir Here, Congress expressly and exclusively vested enforcement of the Internal Revenue Code with the Secretary of the Treasury, and therefore it cannot reasonably be assumed that Congress intended to permit a suit seeking to limit others ability to claim a tax exemption. Congress has established a comprehensive enforcement regime relying exclusively on the Executive Branch to enforce the laws against persons who improperly seek to avoid taxation, which is inconsistent with this private enforcement suit. 26 U.S.C. 7801(a(1 states that [e]xcept as otherwise expressly provided by law, the administration and enforcement of this title shall be performed by or under the supervision of the Secretary of the Treasury. 14

20 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 18 of 19 Other Code provisions also demonstrate Congress intent to limit enforcement to the executive. See, e.g., 26 U.S.C (requiring approval by the Secretary of any suit to recover taxes; Fulani v. Brady, 935 F.2d 1324, 1327 (1991 ( [T]he statutory scheme created by Congress is inconsistent with, if not preclusive of, third party litigation of tax-exempt status.. Recently, a state law provision analogous to section 7801(a, which vested authority to enforce the tax laws in a state-level official, was found to deprive municipalities of prudential standing to enforce a tax statute. Twp. of Lyndhurst v. Priceline.com Inc., 657 F.3d 148, (3d Cir Similarly, here, the exclusive authority vested in the Executive to enforce the Internal Revenue Code against taxpayers deprives Plaintiffs of prudential standing to bring this suit seeking to narrow others claim to a tax exemption under section 501(c(4. IV. CONCLUSION Plaintiffs allegations fail to demonstrate that they meet the three elements of Article III standing, or that they have prudential standing to bring this suit. Their allegations of past harm during the 2012 election do not establish a cognizable injury for purposes of the prospective relief sought by Plaintiffs, nor do CREW s allegations of an inability to disclose information to others. Because Plaintiffs do not allege, beyond a speculative level, that the alleged harms resulted from the regulation at issue rather than from the independent actions of the American Action Network and of voters not before the Court, they cannot 15

21 Case 1:13-cv RLW Document 11-1 Filed 04/22/13 Page 19 of 19 demonstrate traceability. Both the past nature of the harm and its genesis in the actions of parties not before the Court also demonstrate that a favorable ruling would not redress Plaintiffs alleged injuries. Lastly, the Internal Revenue Code demonstrates Congressional intent to limit enforcement of its provisions to the Executive. For the foregoing reasons, Plaintiffs lack standing, and the Court should dismiss this suit for lack of subject matter jurisdiction. DATE: April 22, 2013 OF COUNSEL: RONALD C. MACHEN, JR. United States Attorney Respectfully submitted, /s/ Yonatan Gelblum YONATAN GELBLUM Trial Attorney, Tax Division U.S. Department of Justice Post Office Box 227 Washington, DC Phone/Fax: ( / Yonatan.Gelblum@usdoj.gov 16

22 Case 1:13-cv RLW Document 11-2 Filed 04/22/13 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DR. DAVID GILL, et al, Plaintiffs, v. No. 1:13-cv RLW U.S. DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, Defendant. PROPOSED ORDER And now, this day of, 2013, on consideration of the United States motion to dismiss, it is ORDERED that the motion is granted and it is further ORDERED that this action is dismissed for lack of subject matter jurisdiction. Copies to: Yonatan Gelblum U.S. Department of Justice Tax Division P.O. Box 227 Washington, DC Anne L. Weismann Citizens for Responsibility and Ethics in Washington 1400 Eye Street, NW, Suite 450 Washington, DC UNITED STATES DISTRICT JUDGE