Photo Illustration: Jason Doiy/ALM

The IRS on Monday lost out on an attempt to toss a lawsuit filed by a woman who claims an IRS agent violated her right to bodily privacy by following her into her home restroom and insisted on watching her relieve herself.

The U.S. Court of Appeals for the Ninth Circuit found that IRS agent Jean Noll was not entitled to qualified immunity for claims relating to the incident, which occurred in 2006 while she and other IRS agents were serving a search warrant during a criminal tax fraud and conspiracy investigation targeting Michael Ioane Sr., the husband of plaintiff Shelly Ioane.

The Ioanes pursued several causes of action against the United States and the federal agents who executed the search warrant on their home at the trial court before U.S. District Judge Anthony Ishii of the Eastern District of California. But after the government moved for summary judgment, only Shelly’s invasion of bodily privacy claim against Noll remained.

In Monday’s decision, Circuit Judge Mary Murguia found that Noll hadn’t put forth a plausible reason to follow Shelly into the restroom under the circumstances. Murguia found that the agent’s contention that she was concerned that Shelly might destroy evidence was belied by the fact that she and her husband initially had been told that they could leave the house while agents conducted the search. The judge found Noll’s alternative reason—that she was concerned Shelly might be concealing something dangerous under her clothing—was unconvincing, since agents hadn’t conducted a pat-down of either of the Ioanes for weapons during the 30 minutes that preceded the bathroom visit.

“[I]t is clearly established that such a significant intrusion as occurred here never can be permitted in the absence of legitimate government interests, which here, plainly were lacking,” wrote Murguia, who was joined in her opinion by U.S. District Judge Donald Molloy of the District of Montana, sitting by designation.

Circuit Judge Carlos Bea concurred with the panel’s judgment that Noll’s actions likely violated Shelly’s constitutional rights, but found that the agent did not violate “a clearly established” right to bodily privacy. Bea pointed out that the three precedential Ninth Circuit cases cited in Murguia’s opinion all involved enforcement officers observing naked subjects of the opposite sex. Bea found that none of the cited cases involved a “constitutional right to bodily privacy that is violated by same-sex observation.”

The decision upholds Ishii’s summary judgment ruling and tees up a potential trial on Shelly’s remaining claim. A spokeswoman for the IRS declined to comment citing the ongoing litigation.

Shelly Ioane was represented on appeal by Loyola Law School students Ariel Beverly and Norvik Azarian, who handled the case as part of the school’s Ninth Circuit Clinic. They were supervised by professor Paula Mitchell and E. Martin Estrada of Munger, Tolles & Olson.

Estrada said in a phone interview Monday afternoon that the students deserve credit for digging into the facts of the case and the precedent to show that it was “clearly established” that such a significant intrusion couldn’t be justified until the government demonstrated a legitimate interest.

“The results were just a testament to how committed they were to this case,” said Estrada, noting that the clinic’s involvement was limited to the Ninth Circuit appeal.

 

Read the full opinion below: