Constitutional Rights, If They Are To Be Rights At All, Must Have Some Discernable Remedy. – Federal Judge Thomas P. Griesa, Southern District of New York
As regular readers of our paper are aware, beginning in 2009, our publisher, Sam Zherka ran a series of articles about confiscatory tax policies and held rallies/seminars throughout the county to increase public awareness of this issue, and he has criticized certain public officials for corruption. Our publisher also spent considerable time and effort to organize a Tea Party in New York State, primarily used for educational purposes. Mr. Zherka claims that his IRS application for a tax-exempt status for this organization was scrutinized to an extraordinary degree, forcing him to abandon this effort.
Mr. Zherka further alleges that starting in 2011, IRS Agents Ryan and Ashcroft launched an investigation into his commercial real estate dealings, issuing over 75 subpoenas to his business associates, threatening them with criminal prosecution, should they fail to turn over information incriminating our publisher. As a result of this, Mr. Zherka claims that during the course of an investigation which has continued for more than 24 months, many of these business associates terminated their relationship with him, not wanting to “run asunder” of federal agencies, causing a loss of business, a chilling of his political activities, damage to his reputation and great emotional distress. Moreover, these agents inquired into Mr. Zherka’s political affiliations and activities, he claims, “demonstrating a motivation to retaliate against him for his political speech.”
Subsequently, Mr. Zherka filed a lawsuit against Lois Lerner, Director of the IRS Exempt Organizations division, along with IRS Agents Ryan and Ashcroft. On September 30th, 2014, Southern District of New York Federal Judge Thomas P. Griesa dismissed Lois Lerner from the suit, citing insufficient service. Judge Griesa noted that while federal officials cannot be sued in their official capacity, they can be sued personally and ruled that Mr. Zherka’s lawsuit against Agents Ryan and Ashcroft may proceed.
Among the points that Judge Griesa made in his ruling were the following:
“The allegations are troubling. The plaintiff is not alleging a mere retaliatory tax audit, but a retaliatory investigation involving criminal sanctions…constitutional rights, if they are to be rights at all, must have some discernable remedy; … a purely administrative remedy would be no remedy at all. “
“…These actions are disturbing and sufficiently shocking to allow plaintiff’s claims to go forward. While defendants did not subject plaintiff to forced -stomach pumping or other physical deprivations, they have allegedly investigated him for nearly two years based solely on his political message. Defendant’s alleged conduct appears to have jeopardized many if not most of plaintiff’s business relationships, causing him dramatic and permanent harm. Given plaintiff’s low burden at this stage in the litigation, he has alleged facts egregious enough to shock the conscience in the constitutional sense.“
…”defendants Ryan and Ashcroft’s motion to dismiss is denied in its entirety.”