Under this process, Freedom Path could obtain approval of its pending application if it made certain representations regarding the organization’s past, current, and future spending on political activities. Freedom Path alleges that it declined to participate in this optional expedited process because it viewed the required representations as unconstitutionally broad and as an IRS attempt to force Freedom Path to relinquish some of its First Amendment rights.
Freedom Path maintains that it has made a prima facie showing of in personam jurisdiction based on Lerner’s contacts with the state of Texas in connection with the IRS’s unconstitutional scheme to target conservative organizations like Freedom Path. Alternatively, Freedom Path requests leave to conduct limited jurisdictional discovery to demonstrate Lerner’s contacts with the state of Texas.
In Freedom Path’s complaint, its only allegations related to the court’s power to exercise personal jurisdiction over Lerner are that she oversaw the IRS’s Office of Exempt Organizations, whose Examinations unit was headquartered in Dallas, Compl. ¶ 13, and that she sent an email to the Director of the Examinations unit, located in Dallas, regarding an audit of an organization not involved in the present case, Compl. Ex. 10 at 4; P. Resp. 3–4. These allegations are insufficient to make a prima facie showing of either specific jurisdiction or generalin personam jurisdiction over Lerner. Freedom Path has certainly failed to make a prima facie showing of general jurisdiction, that is, that her affiliations with the state of Texas are so continuous and systematic as to render her essentially at home in Texas. And it has also failed to make a prima facie showing of specific jurisdiction. Freedom Path does not allege that Lerner took any actions in Texas that are relevant to its complaint or that she directed any actions at Texas. In fact, Freedom Path does not even allege that Lerner had any personal involvement with its application for tax-exempt status or was even aware of the application.
In count IV, Freedom Path challenges as unconstitutional the IRS’s use of certain policies and procedures to target conservative organizations for heightened review of applications for tax-exempt status. Although the IRS’s adherence to these policies and procedures may ultimately culminate in a final decision regarding Freedom Path’s tax-exempt status, the use of these policies and procedures neither marks the consummation of the IRS’s decisionmaking process nor determines Freedom Path’s rights or obligations or precipitates legal consequences. Therefore, the policies and procedures that Freedom Path challenges in count IV do not constitute final agency actions, as § 704 requires to state a claim for relief under the APA. Because Freedom Path’s claims in count IV arise under the APA’s general provisions and do not challenge final agency action, the court concludes that count IV does not state a claim on which relief can be granted, and it grants the federal defendants’ motion to dismiss count IV under Rule 12(b)(6).
Nearly two years after the IRS was exposed for improperly sidetracking requests for tax exemptions from tea party groups, POLITICO has learned that at least a half-dozen conservative applicants are still waiting for an answer.
Without an answer, Freedom Path, currently suing the IRS, stopped operating in late spring of 2012 out of concern that it would be denied tax-exempt status and forced to pay back taxes. It also feared donor information could be revealed to the IRS. Freedom Path exists mostly in name now. It doesn’t even have a website. It’s “six-figures” in debt for legal bills suing the IRS. “We’ve had to reduce all of our expenses, and really we’re in a position now where we’re just struggling with legal bills,” Bensing said. “We’re closer to bankruptcy than to solvency.”