Freedom From Religion Foundation et al. v. Steven Miller

Filing 19

ORDER granting 7 Motion to Dismiss with respect to claim that church exemptions from application requirements are unconstitutional. Signed by District Judge Barbara B. Crabb on 9/10/13. (krj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - FREEDOM FROM RELIGION FOUNDATION
and TRIANGLE FFRF,
ORDER
Plaintiffs,
12-cv-946-bbc
v.
DANIEL I. WERFEL, Acting Commissioner of the
Internal Revenue Service,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In an order dated August 22, 2013, dkt. #18, I directed plaintiffs Freedom from
Religion Foundation and Triangle FFRF to show cause why I should not dismiss their
complaint as to one of their claims for lack of standing. In particular, I questioned plaintiffs’
standing to challenge the exemption churches receive from a requirement imposed on other
nonprofit organizations to file a “detailed application” and pay a fee before receiving tax
exempt status.
The problem was that plaintiffs were seeking to enjoin preferential treatment for
churches, but they did not identify an ongoing injury. Their only alleged injury was that
they had been required to prepare an application and a pay a fee, but they were not seeking
a return of the fee or any other damages. Thus, even if plaintiffs prevailed on their claim,
it would not redress their injury. O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past

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exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief, however, if unaccompanied by any continuing, present adverse effects.”).
Although the government had raised this issue in the context of briefing its motion to
dismiss, I gave plaintiffs an opportunity to address it because it was raised for the first time
in the government’s reply brief.
I gave plaintiffs a deadline of August 30, 2013, but plaintiffs failed to respond to the
order or an ask for an extension of time. I will construe plaintiff’s silence as a concession
that they do not have standing to bring this claim.

ORDER
IT IS ORDERED that the motion to dismiss filed by defendant Daniel Werfel, dkt.,
#7, is GRANTED with respect to the claim that church exemptions from application
requirements are unconstitutional. Plaintiffs’ complaint is DISMISSED as to that claim for
lack of subject matter jurisdiction.
Entered this 10th day of September, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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