UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 18

- 2347 (TJK) NONBELIEF RELIEF, INC., Plaintiff,

v. CHARLES RETTIG, Defendant, and NEW MACEDONIA BAPTIST CHURCH, Defendant

- Intervenor.

MEMORANDUM OPINION Non B elief R elief describes it self as an organization dedicated to alleviating human suffering, focus ing on individuals targeted for their nonbelief, secular activism, or blasphemy. It

wa s initially incorporated as a tax

- exempt 501(c)(3) organization

. All such organizations must file a detailed financial report

— known as a Form 990

— unless the organization i s exempt from doing so

. Churches and religious institutions are exempt. To protest this allegedly preferential treatment for churches, Nonbelief Relief refused to file a Form 990 for three consecutive years and then had its tax

- exempt status revoked. It now sues the C ommissioner of the Internal Revenue Service, alleging that its status was revoked in violation of the First Amendment’s Establishment Clau se and the Fifth Amendment ’s Due Process Clause. The Commissioner moved to dismiss, as did I ntervenor, T he New Macedonia Baptist Church. In response, Non B elief Relief moved to amend its complaint. For the reasons explained below, the Court will2 grant the Commissioner’s and The New Macedonia Baptist Church’s motion s to dismiss on j urisdictional grounds and deny Non B elief Relief’s motion to amend because it would be futile. Background Non B elief Relief, Inc. was founded as a nonprofit corporation in 2015. ECF No. 1 (“ Compl. ”) ¶¶ 4, 14. Its mission is “to improve conditions in this w orld, including by seeking to help remediate conditions of human suffering and injustice on a global scale, whether the result of natural disasters, human actions or adherence to religious dogma.” Id. ¶ 16. Non B elief Relief seeks, more specifically, to a ssist atheist s and other nonreligious individuals

. See id. ¶¶ 17

– 20. It donates thousands of dollars per year to other charitable organizations. Id. ¶ 22. Upon incorporation, Non B elief Relief qualified as a tax

- exempt nonprofit organization under 26 U.S.C. § 501(c)(3) of the Internal Revenue Code

. Id. ¶¶ 4, 31. The Internal Revenue Service (IRS) imposes various administrative requirements on 501(c)(3) organizations, such as requiring them to file annual reports and certain other forms; these require ments differ somewhat for secular and religious organizations. See id. ¶¶ 27, 30; see also 26 C.F.R. § 6033 (filing requirements for tax

- exempt organizations). In exchange for complying with these administrative requirements, 501(c)(3) organizations are exempt from federal income tax, and donations to them are tax

- deductible. Compl. ¶ 26; see also 26 U.S.C. § § 170, 501(a)

. During the first three years after its incorporation, Non B elief Relief complied with all 501(c)(3) administrative requirements save o ne: submission of Form 990, a detailed annual report of its finances

. Compl. ¶¶ 14, 27

– 28 ; see also 26 U.S.C. § 6033(a)(1)

. It refused to file a Form 990 because churches and religious institutions are not also required to submit one , see 263 U.S.C. § 6033(a)(3)

. 1 Compl. ¶¶ 39

– 40. O rganizations that must submit a Form 990 have to do so each year, although the IRS gives noncompliant organizations a grace period; their tax

- exempt
status is revoked only after they fail t o file it for three consecutive years. 26 U.S.C. § 6033(j)(1). Accordingly, after Non B elief Relief failed to file Form 990 for the three consecutive years , its
tax

- exempt status was automatically revoked in 2018

. Compl. ¶¶ 6, 31 ; 26 U.S.C. § 6033(j)

. Later that year, Non B elief Relief brought this suit , alleging that (1) the IRS’s exempt ion for churches and religious organizations from the requirement to file Form 990 (the “church exemption”) and (2) the IRS’s revocation of Non B elief Relief’s tax

- exempt status each violated the First Amendment’s Establishment Clause. Compl. ¶¶ 61, 63. It also asserted that the IRS’s revocation of its tax

- exempt status violate d the equal protection component of the Fifth Amendment ’s Due Process Clause

. Id

. ¶ 63 . I ts prayer fo r relief request ed declarations that both the church exemption and the revocation of its tax

- exempt status were unconstitutional, an injunction barring the IRS from continuing to exempt churches and religious organizations from filing Form 990, and a court order reinstating its tax

- exempt status. Id. at 12

– 13. Shortly after Non B elief Relief filed suit, The New Macedonia Baptist Church moved to intervene. ECF No. 5. The Court granted that motion, reasoning that The New Macedonia Baptist Church’s interests might diverge from the Commissioner’s because of its intention “to argue not simply that the IRS’s reporting exception is lawful, but that it is constitutionally required under the First Amendment , ” and because its motion otherwise satisfied the requireme nts for intervention as of right. ECF No. 30 at 4

– 5.

1 Non B elief Relief may have been formed in part to challenge the constitutionality of 26 U.S.C. § 6033(a)(3) af ter a similar challenge by a related organization failed for lack of standing. See ECF No. 19

- 1 at 14

– 15; Freedom From Religion Found. v. Koskinen , 72 F. Supp

. 3d 963 (W.D. Wisc. 2014). But its motivations for challenging th at exemption are irrelevant to the C ourt’s analysis.4 The Commissioner moved to dismiss Non B elief Relief’s complaint on several grounds: that (1) the Anti

- Injunction Act and Declaratory Judgment Act bar the declaration sought regarding Non B elief Relief’s own tax

- exempt status and reinstatement of that status ; (2) sovereign immunity bar s the injunctive and declaratory relief sought; and (3) Non B elief Relief lack s standing to bri n g its constitutional challenge to the church exemption

. ECF No. 19. In
response, Non B elief Relief moved to amend its complaint. The proposed amended complaint strikes its previous request s for a n order reinstating its tax

- exempt status and a declaration that the revocation of its tax

- exempt status was unconstitutional , s eemingly in response to the Commissioner’s argument s concerning the Anti

- Injunction Act and Declaratory Judgment Act, but is otherwise identical in substance to the operative complaint. See ECF No. 25. 2 The New Macedonia Baptist Church filed its own mot ion to dismiss , arguing that the Court lack s jurisdiction over Non B elief Relief’s claims , Non B elief Relief lack s standing to bring them , and the IRS’s actions were not only consistent with the Establishment Clause but required by the Free Exercise Clause

. See ECF No. 31. The parties completed briefing on all these motions, including an unopposed surreply by the Commissioner to Non B elief Relief’s motion to amend. See ECF Nos. 27, 29, 32, 33, 35

. Legal Standard s “Federal courts are courts of limite d jurisdiction. They possess only that power authorized by Constitution and sta tute.” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). “Within constitutional bounds , Congress decides what cases the federal courts have jurisdiction to consider.” Bowles v. Russell , 551 U.S. 205, 212 (2007). Courts lack subject

-

2 Non B elief Relief first attempted to file its proposed amended complaint as of right , but it did so too late under Federal Rule of Civil Procedure 15(a)(1)(B). The Court thus struck the amended complaint, Minute Order of March 25, 2019 , and Non B elief Relief then moved to amend

.5 matter jurisdiction over cases which fall within the scope of the Anti

- Injunction Act. Maze v. Internal Revenue Serv. , 862 F.3d 1087, 1091 (D.C. Cir. 2017). In addition, u nder Article III of the Constitution, an indispensable element of the Court’s subject

- matter jurisdiction is the plaintiff’s standing to bring its claims. See Swigert v. Perez , 334 F. Supp. 3d 36, 40 (D.D.C. 2018). Challenges to a plaintiff’s standing are th us properly brought as motions to dismiss under Federal Rule of Civil Procedure 12(b)(1). Haase v. Sessions , 835 F.2d 902, 906 (D.C. Cir

. 1987). “To survive a motion to dismiss for lack of standing, a complaint must state a plausible claim that the plaintiff has suffered an injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision on the merits.” Humane Soc ’ y v. Vilsack, 797 F.3d 4, 8 (D.C. Cir

. 2015) . In considering the motions to dismis s, the Court will “accept the well

- pleaded factual allegations as true and draw all reasonable inferences from those allegations in the plaintiff’s favor.” Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir . 2015). Under Federal Rule of Civil Procedure 15(a)(2), a party may amend its complaint with leave of court. The Court should grant that leave “freely .

. . when justice so requires.” Fed. R. Civ. P. 15(a)(2). But the Court need not grant the motion when the pr oposed amended complaint would not survive a motion to dismiss. Hettinga v. United States , 677 F.3d 471, 480 (D.C. Cir

. 2012). Analysis Non B elief Relief seeks two types of r elief in the operative complaint : first, a declaration that the IRS unconstituti onally revoked its tax

- exempt status in violation of the First Amendment’s Establishment Clause and the Fifth Amendment’s Due Process Clause and an injunction reinstating its status ; and second, a declaration that the church exemption violates the6 Establishment Clause and an injunction striking it down for that reason

. 3 But as explained below, i ts first set of claims are barred by the Anti

- Injunction Act and the Declaratory Judgment Act , and it lacks standing to seek the prospective relief in its s econd set of claims. A. Claims Related to Non B elief Relief’s Tax Status Congress has sharply limited the circumstances in which a taxpayer may bring a pre

collection suit challenging her tax liabilities. The Anti

- Injunction Act, 26 U.S.C. § 7421(a), prohib its any court , subject to certain exceptions, fr o m entertaining a suit “for the purpose of restraining the assessment or collection of any tax.” “The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be du e without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund.” Cohen v. United States , 650 F.3d 717, 724 (D.C. Cir . 2011) (quoting Enochs v. Williams Packing & Navigation Co. , 370 U.S. 1, 7 ( 1962) ). The Supreme Court has interpreted this prohibition broadly to include, as relevant here, suits seeking conferral or retention of tax

exempt status, because a judicial grant of tax exemption may ultimately affect revenue collected by the government

. See, e.g. , Alexander v. Ams. United, Inc. , 416 U.S. 75 2 , 759

– 62 (1974) ; Bob Jones Univ. v. Simon , 416 U.S. 725, 736

– 40 (1974) . Similarly, the Declaratory Judgment Act, 28 U.S.C. § 2201(a) , generally prohibits courts from issuing declaratory judgments “with respect to Federal taxes.” This Circuit has interpreted the Anti

- Injunction Act and the tax limitation in the Declaratory Judgment Act to be coterminous. Fla. Bankers Ass’n v. U.S. Dep ’t of Treasury , 799 F.3d 1065, 1067

– 68 (D.C. Cir. 2015)

. Bob Jones and Americans United straightforwardly dictate the result here . The Anti

Injunction Act and Declaratory Judgment Act divest this C ourt of jurisdiction t o hear claims that

3 All references to the Fifth Amendment’s Due Process Clause refer to that clause’s equal protection component.7 Non B elief Relie f’s tax

- exempt status was improperly revoked , since the award of an injunction or declaratory judgment on Non B elief Relief’s behalf would restrain the government’s collection of taxes against Non B elief and its donors. 4 For example, in Americans United , a nonprofit dedicated to preserving the separation of church and state argued that its tax

- exempt status had been erroneously or unconstitutionally revoked and sought its re instatement. 416 U.S. at 756. The Court held that the Anti

- Injunction Act barred the suit because its “objective” was to enable donors to give gifts that would qualify as charitable deductions. Id. at 761; see also Bob Jones , 416 U.S. at 738

– 42 . It further held that the constitutional nature of Americans United’s claim did not affect its analysis. Americans United , 416 U.S. at 759. Here, Non B elief Relief similarly
asserts that one of the harms caused by its loss of tax

- exempt status is harm to its donors, who

can n o longer make tax

- deductible charitable donations. See Compl. ¶¶ 7

– 8. Under Americans United , Non B elief Relief’s request for reinstatement of its tax

- exempt status thus has the “purpose” of restraining the collection of taxes under 26 U.S.C. § 7421(a), d espite the constitutional nature of its claims

. Non B elief Relief has not meaningfully contested the Commissioner’s argument that its claims as to its tax

- exempt status are barred by the Anti

- Injunction Act and the Declaratory Judgment Act . Rather th an do so, it moved to amend its complaint, effectively withdrawing these claims

. Compare Compl. at 12

– 13, with ECF No. 25

- 2 at 9. Because Non B elief Relief seeks an injunction and declaratory judgment that woul d restrain the collection of federal taxes,

4 26 U.S.C. § 7428, which generally provides an organization the right to bring a suit for a declaratory judgment over the revocation of its 501(c)(3) status, does not apply here because Non B elief Relief’s ta x - exempt status was automatically revoked under 26 U.S.C. § 6033( j). See 26 U.S.C. § 7428(b)(4).8 this Court lacks jurisdiction to grant it the relief it seeks with respect to its own 501(c)(3) status

. 26 U.S.C. § 7421(a); 28 U.S.C. § 2201(a). For th is reason, these claims must be dismissed.
B. Claims Relating to the Church Exemption In addition to claims relating to its own tax

- exempt status, Non B elief Relief alleges that the church exemption, 2 6 U.S.C. § 6033(a)(3) , violates the Establishment Clause and the Due Process Clause and requests th at the Court enjoin the Commissioner from “continuing to preferentially exempt churches and other affiliated religious organizations” from filing Form 990. 5 See Compl. at 12

– 13; ECF No. 25

- 2 at 9. Both the Commissioner and The New Macedonia Baptist Church asse rt that this relief would not redress Non B elief Relief’s alleged injur y , depriving it of standing

. ECF No. 19

- 1 at 25

– 26; ECF No. 31 at 12

– 13. T hey make largely the same standing argument s in opposing Non B elief Relief’s motion to amend, so the Court wil l consider this threshold question for all three motions together

. “The ‘irreducible constitutional minimum of standing’ requires that a plaintiff demonstrate three elements: (1) injury in fact; (2) causation; and (3) redressability.” Scenic Am. Inc. v. U.S. Dep’t of Transp. , 836 F.3d 42, 48 (D.C. Cir. 2016) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560

– 61 (1992) ). “ [A] plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Env ’t Servs. (TOC), Inc. , 528 U.S. 167, 185 (2000)

. Redressability examines whether the relief sought, assuming that the court choose s to grant it, will likely alleviate the particularized injury alleged by the plaintiff.” West v. Lynch ,

5 The operative complaint al leges that the IRS’s revocation of Non B elief Relief’s tax

- exempt status violated both the Establishment and Due Process Clauses, and that the church exemption violates only the Establishment Clause

. See Compl. ¶ 63. Non B elief Relief’s proposed amended co mplaint alleges that the church exemption violates both the Establishment and Due Process Clauses. See ECF No. 25

- 2 ¶ 1.9 845 F.3d 1228, 1235 (D.C. Cir. 2017) (quoting Fla. Audobon Soc’y v. Bentsen , 94 F.3d 658, 663

– 64 (D.C. Cir. 1996) (en banc) ). Logically, then, “[t]he starting point in the redressability analysis is necessarily the relief sought.” Abulhawa v. U.S. Dep’t of the Treasury , 239 F. Supp. 3d 24, 36 (D.D.C. 2017)

. To have standing to seek prospective relief, the plaintiff must show that the claimed injury i s continuing or imminent. Owner

- Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp. , 879 F.3d 3 3 9, 346 (D.C. Cir. 2018) . Both injunctive and declaratory relief are forms of prospective relief. Se e, e.g. , Los Angeles County v. Humphries , 562 U.S . 29, 3 1 (2010) . Thus, to have standing to obtain declaratory or injunctive relief, the plaintiff must show an ongoing or imminent injury. See, e.g. , Los Angeles v. Lyons , 461 U.S. 95, 101

– 110 (1983 )

. Past injuries alone “are insufficient.” Dearth v. Holder , 641 F.3d 499, 501 (D.C. Cir. 2011)

. Non B elief Relief alleges that it suffered a n injury when , as a 501(c)(3) tax

- exempt organization, it was required to file a Form 990, while churches and other religious institutions were not. But assuming th at is so, that injury is neither o ngoing nor imminent , because Non B elief Relief is no longer a tax

- exempt organization and has expressed no intent to reapply for that status. In fact, Non B elief Relief is no t currently suffering any injury caused by the Commissioner’s alleged preferential treatment of churches and religious organizations ; it is being treated the same as all other non

- 501(c)(3) organizations. Because it is not suffering from an ongoing or imm inent injury, it does not have standing to obtain the declaratory and injunctive relief at issue

. See Dearth , 641 F.3d at 501 ; Conservation Force, Inc. v. Jewell , 733 F.3d 1200, 1207 (D.C. Cir. 2013)

. Forward

- looking, prospective relief will not address such past alleged injuries. See Lyons , 461 U.S. at 10 2

– 05

. More specifically, a declaration that the church10 exemption is unlawful and an injunction prohibiting the Commissioner from enforcing it will n ot redress Non B elief Relief’s alleged injury; in fact, it will not affect Non B elief Relief at all. Non B elief Relief a lleges in its proposed amended complaint that “ [t] he Defendant’s unequal treatment of the Plaintiff is ongoing and will continue as long as churches continue to be exempted from the information filing requirements of § 6033.” ECF No. 25

- 2 ¶ 47 . The Court disagree s . The injury it alleges occurred when it had to file a Form 990 , a requirement from which churches and religious organizations are exempt. But as discussed above, this alleged unequal treatment is not ongoing or imminent because Non B elief Relief faces no current or future prospect of having to fill out a Form 990

. See Conservation Force , 733 F.3d at 1207. And w hile i t is true that t he loss of its tax

- exempt status is , in a sense , ongoing , Non B elief Relief has not based its standing argument on that loss , and for good reason. T he relief it seeks

— a declaration that the church exemption is unlawful and an injunction prohibit ing the Commissioner from enforcing it

— will not redress that loss. And as explained above, in any event, the Anti

- Injunction Act and Declaratory Judgment Act d eprive th e Court of jurisdiction to reinstate Non B elief Relief’s tax

- exempt status

. For these re asons, Non B elief Relief’s claims related to the church exemption and its alleged unequal treatment must be dismissed for lack of standing. And because these are the only claims re maining in its proposed amended complaint, its motion to amend must be den ied as futile. See Hettinga , 677 F.3d at 480 (“A district court may deny a motion to amend a complaint as futile if the proposed claim would not survive a motion to dismiss. ” )

. * * * The Court notes that its decision does not mean that the church exemp tion is immune from judicial review. Cf. South Carolina v. Regan , 465 U.S. 367, 378 (1984) (holding that the11 Anti

- Injunction Act would not apply if the plaintiff had no other way to contest the constitutionality of a tax code provision)

. As the Commissio ner points out, Non B elief Relief could pay an y taxes it owed, claim a refund for the entire amount, and sue when the refund was denied, arguing that its 501(c)(3) status was unconstitutionally revoked. 6 See 26 U.S.C. § 7422; 26 U.S.C. § 6532(a)(1). Non B e lief Relief may also respond to a notice of deficiency with a deficiency suit in Tax Court, where it may raise the same issues before paying any tax es owed

. 26 U.S.C. §§ 6212

– 6213; see also Z Str

. v. Koskinen , 791 F.3d 24, 26

– 27 (D.C. Cir. 2015) (outlinin g the avenues available to a plaintiff in a tax lawsuit). Conclusion For all these reasons , the Commissioner’s Motion to Dismiss for Lack of Jurisdiction , ECF No. 19 , will be granted , The New Macedonia Baptist Church’s Motion to Dismiss, ECF No. 31, will be granted , and NonBelief Relief’s Motion for Leave to File a First Amended Complaint , ECF No. 25 , will be denied

. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: January 10 , 2020

6 Injunctive and declaratory relief appear available through a refund suit, despite Non B elief Relief’s arguments to the contrary. See, e.g. , Gaylor v. Mnuchin , 919 F.3d 420, 424

– 26 (7th Cir. 2019), rev’g 278 F. Supp. 3d 1081, 1105 (W.D. Wis.) (in a refund suit, adjudicating a claim for an injunction and declaratory judgment that 26 U.S.C. § 107(2 ), an exemption for religious housing, violates the Establishment Clause).