MOTION FOR DISCOVERY UNDER FEDERAL RULE …moritzlaw.osu.edu/electionlaw/litigation/documents/True...3 CERTIFICATE OF SERVICE I hereby certify that on January 19, 2017, I caused the

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TRUE THE VOTE, INC.,

Plaintiff,

v. INTERNAL REVENUE SERVICE, et al.,

Defendants.

Civ. No. 13-cv-00734-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.

Case 1:13-cv-00734-RBW Document 120 Filed 01/19/17 Page 1 of 3

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Respectfully submitted this 19th day of January, 2017,

Michael J. Lockerby (D.C. 502987) William E. Davis (D.C. Bar No. 280057) Cleta Mitchell (D.C. 433386) Mathew D. Gutierrez (Fla. 0094014)* FOLEY & LARDNER, LLP FOLEY & LARDNER, LLP Washington Harbour One Biscayne Tower 3000 K Street NW Suite #600 2 South Biscayne Boulevard Washington, DC 20007 Suite 1900 (202) 672-5300 (telephone) Miami, FL 33131 (202) 672-5399 (fax) (305) 482-8404 (telephone) [email protected] (305) 482-8600 (fax) [email protected] [email protected] Lead Counsel for Plaintiff [email protected] Counsel for Plaintiff /s/ Noel H. Johnson Kaylan L. Phillips (D.C. 1110583) Noel H. Johnson (Wisc. 1068004)* John C. Eastman (Cal. 193726)* Public Interest Legal Foundation Center for Constitutional Jurisprudence 32 E. Washington, Suite 1675 c/o Chapman University School of Law Indianapolis, IN 46204 One University Drive (317) 203-5599 (telephone) Orange, CA 92866 (888) 815-5641 (fax) (877) 855-3330 x2 (telephone) [email protected] (714) 844-4817 (fax) [email protected] [email protected] Counsel for Plaintiff Counsel for Plaintiff *Pro Hac Vice Motions granted


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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 [email protected]


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Plaintiff,


Defendants.


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

Case 1:13-cv-00734-RBW Document 120-1 Filed 01/19/17 Page 1 of 16

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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


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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


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unnecessary to the determination of True the Vote’s tax-exempt status.” (Doc. 14

¶ 128.) 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.

14-4 – 14-5);

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


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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 tax-

exemption 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. ¶¶ 6-13.) Ms. Engelbrecht and True the Vote attempted to utilize the

Freedom of Information Act to ascertain the circumstances surrounding the


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government’s actions. Yet the recipient agencies of those requests withheld

documents that would allow for such an understanding. (Id. ¶¶ 21-35.)

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


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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;


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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.

112-1 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. 14 ¶ 150-152.)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


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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 209-210, which ultimately

manifested itself as the IRS Targeting Scheme. The Report contains an entire


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section on the discriminatory treatment of True the Vote by the IRS and a high-

ranking 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


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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. 112-1 at 13-14.) 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. 112-1 at 15.) Thus, even assuming, arguendo,

that a cause of the IRS Targeting Scheme was “ineffective management,”1 (Doc.

14-6 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.


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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


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application process are not considered by the automated case selection models.”

(Doc. 112-3 ¶ 28.)

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. 112-3 ¶ 26.)

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


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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. 112-3 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. 112-3, ¶ 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. 112-3 ¶ 2.) 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), https://www.morganlewis.com/

~/media/files/news/2016/bloombergbna_irs-exempt-organizations-director-

switching-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


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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. 112-3 ¶ 2 (“I have held this position since January 2014.”). 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. 112-3 ¶ 18);

iii. implementation of actions recommended in the 2013 TIGTA Report,

including the training designed and developed to implement those

recommendations (Doc. 112-3 ¶ 21);

iv. implementation of actions recommended in the 2013 Senate Finance

Committee Report, including the training designed and developed to

implement those recommendations (Doc. 112-3 ¶¶ 23-25);

v. potential for future audits of True the Vote (Doc. 112-3 ¶¶ 26-30); and

vi. the status and nature of actions taken to implement recommendations

made by other entities, including the Government Accountability


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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


4840-7585-8748.1

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA


Plaintiff,

v.

INTERNAL REVENUE SERVICE, et al.,

Defendants.

Civ. No. 13-cv-00734-RBW

DECLARATION OF CATHERINE ENGELBRECHT

I, Catherine Engelbrecht, make the following declarations pursuant to 28 U.S.C. § 1746

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.


4840-7585-8748.1

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 2011.

8. 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), https://www.scribd.com/doc/147846234/1-21-11-IRS-Engelbrecht-Ent?secret_password=1yhhzb97v09cfgu7c3h3


4840-7585-8748.1

10. 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 Vote3 and King Street Patriots4 2012

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.5

12. 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), https://www.scribd.com/doc/154763155/03-07-11-Response-to-IRS-Letter-Dated-Feb-15-2011-1?secret_password=ur7h6ryxhdsq03plhrb; Dkt. #14-3.3 IRS Request for More Information: True the Vote (2/8/2012), https://www.scribd.com/doc/141470874/IRS-Letter-for-True-the-Vote-Requesting-Further-Information-2-8-2012; Dkt. #14-4.4 IRS Request for More Information: King Street Patriots (2/8/2012), https://www.scribd.com/doc/154822593/2-8-2012-IRS-Request-for-More-Information-KSP?secret_password=holvv50y0xwyytwe90e5 IRS Request for More Information: North East Tarrant Tea Party (2/8/2012), https://www.scribd.com/doc/149903935/IRS-Letter-Feb-2012-Tarrant-County?secret_password=5k2rakqrprfa0g304qs see also, IRS Request for More Information: Clear Lake Tea Party (7/12/2010), https://www.scribd.com/doc/149903936/7-12-13-Clear-Lake-TP-Re-KSP?secret_password=2290suorcchjmino1l0n6 BATFE case file: Engelbrecht Enterprises (Feb. 2012), http://www.mediafire.com/view/s88gv6dgrl10cfq/DOJ+FOIA.pdf


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Occupational Safety and Health Administration (“OSHA”) (Inspection Number 525458). 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 2013.9

16. On September 26, 2013, as a result of this litigation, the IRS granted True the

Vote’s application for tax-exempt status.10

17. 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), https://www.scribd.com/doc/197042789/Exhibit-E-Request-for-Information-3 ; Dkt. #14-5.8 IRS Request for More Information: King Street Patriots (8/21/2013), https://www.scribd.com/doc/162532596/IRS-Letter-to-King-Street-Patriots-Requesting-Additional-Information-Received-8-21-2013?secret_password=ak99d5u8zyn7nayu3fc9 IRS 501(c) designation letter for the King Street Patriots (12/11/2013), https://www.scribd.com/doc/191856344/12-11-2013-Letter-of-Determination-of-c4-Status10 USDOJ/IRS letter to True the Vote for 501(c)(3) designation (9/26/2013), https://www.scribd.com/doc/171234645/9-26-2013-IRS-501-c-3-Determination-Letter-for-True-the-Vote?2=0


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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, 2012.12

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 2013.13 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 (http://blog.chron.com/txpotomac/2013/05/in-letter-to-holder-jackson-lee-blocked-true-the-votes-request-for-irs-tax-exempt-status/) 12 U.S. Senator Barbara Boxer; Boxer Calls on Department of Justice to Protect Americans from Voter Intimidation – 9/27/2012 (http://www.boxer.senate.gov/press/release/boxer-calls-on-department-of-justice-to-protect-americans-from-voter-intimidation/)13 Rep. Elijah Cummings record of correspondence: 1st Cummings letter to TTV, 10/4/2012 http://www.scribd.com/doc/110033576/2012-10-04-EEC-to-Engelbrecht-TrueTheVoteTTV Response to 1st Cummings letter, 10/5/2012 http://www.scribd.com/doc/109125685/2012-October-5-TTV-Cummings-Letter2nd Cummings letter to TTV, 10/18/2012 http://www.scribd.com/doc/110448892/2012-10-18-cummings-to-ttvTTV Response to 2nd Cummings letter, 10/29/2012 http://www.scribd.com/doc/111492227/Cummings-29-October-Letter 3rd Letter to TTV, 12/20/2012 http://www.scribd.com/doc/144911644/2012-20-12-EEC-to-TTV?secret_password=84s6h5wqjbncgutkvh4TTV Response to 3rd Letter, 1/4/2013 http://www.scribd.com/doc/144912427/2013-January-4-TTV-Cummings-Meeting?secret_password=r85dis6ga3l4rpin46k


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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

email trail created by Rep. Cummings to Defendant Lois Lerner’s office seeking information

regarding True the Vote in January 2013.15

21. 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 Patriots16 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-C68269-542

14 Complaint Against Rep. Elijah Cummings (D-MD) and Request for Investigation by Office of Congressional Ethics (2/6/2014), https://www.scribd.com/doc/208347055/2-6-14-OCE-Complaint15 U.S. House Committee on Oversight and Government Reform; New IRS E-Mails: Lois Lerner Funneled Elijah Cummings Info on Targeted Conservative Group (4/9/2014), http://oversight.house.gov/release/new-irs-e-mails-lois-lerner-funneled-elijah-cummings-info-targeted-conservative-group/16 King Street Patriots FOIA letter to FBI (5/10/2013), https://www.scribd.com/doc/147843027/5-10-13-FBI-FOIA?secret_password=l8md5w73s0sr6mf91ho17 U.S. Rep. Ted Poe (Texas) FOIA letter to FBI (5/3/2013), https://www.scribd.com/doc/147842909/5-3-13-FOIA-FBI-Engelbrecht?secret_password=1lanzcdtao9tmw2mx30418 FBI FOI/PA response letter to King Street Patriots (7/2/2013), https://www.scribd.com/doc/154159374/7-2-13-FBI-FOIA-KSP-Denial?secret_password=zfzjmer36n2rmo9pu42


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“STATISTICAL ACCOMPLISHMENT/LIAISON; and #319X-HQ-A1487718-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 2010.

24. Only as a result of pressure from the U.S. House Oversight and Government

Reform Committee19 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.20

25. 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), https://www.scribd.com/doc/188966826/2013-12-02-DEI-Jordan-to-Comey-Re-FBI-Comparison-Ltr-Due-12-16-1320 The Washington Times; JUSTICE: Feds pick Obama supporter to lead probe into IRS tea party targeting (1/8/2014), http://www.washingtontimes.com/news/2014/jan/8/feds-pick-obama-supporter-lead-irs-tea-party-probe/?page=all; see also FBI letter to HCOGR (12/31/2013), https://www.scribd.com/doc/255237277/DOJ-letter-to-HCOGR-12-31-2013


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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.21

28. Following the admission on the part of the Treasury Inspector General for Tax

Administration (“TIGTA”) that approximately 30,000 emails 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 email metadata recovered;

complete copies of all recovered email correspondence; and a list of shared calendar files

between all users of IRS and White House email domains.23 TIGTA withheld nearly all

requested records, citing exemptions for ongoing law enforcement proceedings.24

29. 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), https://www.scribd.com/doc/147842754/5-3-13-FOIA-ATF-Engelbrecht?secret_password=1bdk2j31sn1j9tpctl8gEngelbrecht Manufacturing, Inc. FOIA letter to BATFE (5/10/2013), https://www.scribd.com/doc/147843269/5-10-13-OSHA-FOIA?secret_password=22751ofc8l8jlou9oksb22 Washington Examiner; 30,000 missing emails from IRS’ Lerner recovered (11/22/2014), http://www.washingtonexaminer.com/30000-missing-emails-from-irs-lerner-recovered/article/255652223 True the Vote FOIA letter to TIGTA (12/2/2014), https://www.scribd.com/doc/255242599/2014-12-2-IRS-Emails-FOIA-Letter24 TIGTA FOIA response letter (12/22/2014), Page 1: https://www.scribd.com/doc/255242872/Dept-of-Treasury-12-23-14-P1Page 2: https://www.scribd.com/doc/255242967/Dept-of-Treasury-12-23-14-P2?secret_password=66ItKWX57014nfdJvGq7Page 3: https://www.scribd.com/doc/255242990/Dept-of-Treasury-12-23-14-P3?secret_password=NkQEDUBKNpHHipkxzZet


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30. 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 emails. 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.


Error! Unknown document property name.

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, 2017.

Catherine Engelbrecht




Plaintiff,


Defendants.


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 , 2017. REGGIE B. WALTON United States District Judge


Documents

MOTION FOR DISCOVERY UNDER FEDERAL RULE …moritzlaw.osu.edu/electionlaw/litigation/documents/True...3 CERTIFICATE OF SERVICE I hereby certify that on January 19, 2017, I caused the