The DC Circuit, in a mixed ruling, has said the trial court judge had erred in dismissing a collection of Tea Party suits he said had become “moot” because the IRS had apologized for its misbehavior and had said it had stopped such practices.
Of course, the IRS had said it had stopped—sort of—only conditionally. DC Circuit Judge David Sentelle, writing for the majority (the ruling can be seen here), noted that the IRS only had suspended the screening “until further notice.”
A violation of right that is “suspended until further notice” has not become the subject of voluntary cessation, with no reasonable expectation of resumption, so as to moot litigation against the violation of rights. Rather, it has at most advised the victim of the violation—”you’re alright for now, but there may be another shoe falling.”
Sentelle took issue with “suspended,” understanding that suspension is not cessation. He took separate issue with that “until further notice” bit, as noted above.
In fact, too, the IRS had not stopped at all. As Sentelle noted,
…it is absurd to suggest that the effect of the IRS’s unlawful conduct, which delayed the processing of appellant-plaintiffs’ applications, has been eradicated when two of the appellant-plaintiffs’ applications remain pending.
After how many years are these applications still pending? It’s been two years since the trial court made its erroneous dismissal.
Of course, the trial judge knew these things. Based on his logic, too (even if he had been as ignorant as he seemed to be claiming he was), it would seem he would have dismissed charges against Willie Sutton had that worthy only apologized and averred he’s stopped. No consequence should ensue, this judge would seem to insist, for the banks Sutton had already robbed.
How cynical is that?
These are the trial courts and the IRS that will be heavily impacted by the Presidential elections.