Opinion
Case No. C01-5490RJB
November 1, 2002
ORDER GRANTING INTERNAL REVENUE SERVICE'S MOTION FOR SUMMARY JUDGMENT AND GRANTING INTERNAL REVENUE SERVICE'S MOTION FOR A PROTECTIVE ORDER
This matter comes before the court on the Internal Revenue Service's Motion for Summary Judgment (Dkt. 40), on the Internal Revenue Service's Motion for a Protective Order (Dkt. 43), and on Plaintiff's Rule 56(f) Motion to Postpone Consideration of Defendant's Motion for Summary Judgment (Dkt. 49). The Court has considered the pleadings filed in support of and in opposition to the motions and the file herein.
FACTUAL BACKGROUND
During 2001, Mr. Johnson filed several Freedom of Information Act (FOIA) and Privacy Act (PA) requests with the Internal Revenue Service (IRS), requesting a variety of documents and records.
1. On May 31, 2001, Mr. Johnson requested a Document filed under DLN 29217-146-03104-0. The Ogden Campus Disclosure office received the request on July 21, 2001. Kenneth Wilder, a Disclosure Specialist at the Ogden Campus Disclosure Office, located a one page document responsive to the request after determining that the document had been filed under a different locator number, and then sent a copy of the document to Mr. Johnson on January 2, 2002. The IRS did not withhold any information from the document.
2. On June 7, 2001, Mr. Johnson requested a Document filed under DLN 91277-048-00000-8. The Ogden Campus Disclosure Office determined that the documents requested did not exist, and notified Mr. Johnson of the same on August 2, 2001. Mr. Johnson appealed the determination by the Ogden Campus Disclosure Office to the IRS Appeals Office in Riverside, California. The Appeals Office determined that the documents corresponding to Mr. Johnson's request had been destroyed and that there were no copies available; the Appeals Office affirmed the decision of the Ogden Campus Disclosure Office.
3. On June 8, 2001, Mr. Johnson requested a Document filed under DLN 29247-449-70035-8. The Ogden Campus Disclosure Office received the request on July 30, 2001, the Ogden Campus Disclosure Office determined that the documents identified in this request had been provided to Mr. Johnson by the Seattle Disclosure Office on June 25, 1998. Because the examination file was located at the IRS' Seattle offices and the FOIA request sent to the Seattle office predated the one received by the Ogden Campus Disclosure Office, it was the duty of the Seattle Disclosure Office to process any such requests for documents, including the document corresponding in this request. On October 12, 2001, the Ogden Campus Disclosure Office informed Mr. Johnson that the Seattle Disclosure Office was responsible for this request.
4. On June 9, 2001, Mr. Johnson requested a Document filed under DLN 91277-029-77500-8. The Ogden Campus Disclosure Office determined that the documents requested did not exist, and notified Mr. Johnson of the same on August 2, 2001. Mr. Johnson appealed the determination by the Ogden Disclosure Disclosure Office to the IRS Appeals Office in Riverside, California. The Appeals Office determined that the documents corresponding to Mr. Johnson's request had been destroyed and that no copies were available; the Appeals Office affirmed the decision of the Ogden Campus Disclosure Office.
5. On June 10, 2001, Mr. Johnson requested a Document filed under DLN 91277-290-00000-7. The Ogden Campus Disclosure Office determined that the documents requested did not exist, and notified Mr. Johnson of the same on August 2, 2001. Mr. Johnson appealed the determination by the Ogden Campus Disclosure Office to the IRS Appeals Office in Riverside, California. The Appeals Office determined that the documents corresponding to Mr. Johnson's request had been destroyed and that no copies were available; the Appeals Office affirmed the decision of the Ogden Campus Disclosure Office.
6. On June 12, 2001, Mr. Johnson requested a Document filed under DLN 91277-273-00000-5. The Ogden Campus Disclosure Office determined that the documents requested did not exist, and notified Mr. Johnson of the same on August 2, 2001. Mr. Johnson appealed the determination by the Ogden Campus Disclosure Office to the IRS Appeals Office in Riverside, California. The Appeals Office determined that the documents corresponding to Mr. Johnson's request had been destroyed and that no copies were available; the Appeals Office affirmed the decision of the Ogden Campus Disclosure Office.
7. On June 14, 2001, Mr. Johnson requested a Document filed under DLN 91249-240-20000-5. The Ogden Campus Disclosure Office received this request on July 30, 2001. Mr. Wilder determined that this document had been destroyed pursuant to IRS published records retention schedules. On August 24, 2001, the Ogden Campus Disclosure Office notified Mr. Johnson that the document had been destroyed in accordance with the IRS published records retention schedules.
8. On June 15, 2001, Mr. Johnson requested a Document filed under DLN 91277-240-20000-5. The Ogden Campus Disclosure Office determined that the documents requested did not exist, and notified Mr. Johnson of the same on August 2, 2001. Mr. Johnson appealed the determination by the Ogden Campus Disclosure Office to the IRS Appeals Office in Riverside, California. The Appeals Office determined that the documents corresponding to Mr. Johnson's request had been destroyed and that no copies were available; the Appeals Office affirmed the decision of the Ogden Campus Disclosure Office.
9. On June 22, 2001, Mr. Johnson requested Form 23C records of assessment for the years 1993-95. The Ogden Campus Disclosure Office received this request on July 30, 2001. On August 29, 2001, the Ogden Campus Disclosure Office notified Mr. Johnson that it needed additional time to process the request. At Mr. Wilder's request, the IRS Accounting Office Ogden located thirty-one pages of responsive documents. On September 27, 2001, the Ogden Campus Disclosure Office sent the thirty-one pages of responsive documents to Mr. Johnson. The IRS did not withhold any information from the documents.
10. On July 5, 2001, Mr. Johnson requested tax module documents for the years 1992-95. The Ogden Campus Disclosure Office received this request on July 30, 2001. The responsive documents contained TXMODA transcripts, which included all of the information in Mr. Johnson's tax modules for the years 1992 through 1995. These documents were provided to Mr. Johnson by the Ogden Campus Disclosure Office on September 5, 2001. The IRS did not withhold any information from the documents.
11. On July 6, 2001, Mr. Johnson requested AMDISA documents for the years 1995-97. The Ogden Campus Disclosure Office received this request on July 30, 2001. Mr. Wilder determined that the IRS was not in possession of any documents responsive to this request, and informed Mr. Johnson of this on August 30, 2001.
12. On July 13, 2001, Mr. Johnson requested the following documents for 1993: (1) Records identifying the Assessment Officer; (2) Form 9984 Examining Officers Activity Record; (3) Form 5600 Statutory Notice Worksheet; (4) Form 4340 Certificate of Assessments and Payments; (5) Form 813 which is used to create a Non-Master File; and (6) Form 23C Summary Record of Assessment. The Ogden Campus Disclosure Office received this request on August 10, 2001. Mr. Wilder contacted the IRS Accounting Office in Ogden, which is responsible for maintaining records on the assessments ordered by the IRS' Ogden Campus. Mr. Wilder also reviewed the taxpayer account information to determine if any of the requested documents were in the IRS possession. Mr. Wilder verified that the IRS had already provided such documents to Mr. Johnson in response to his June 22, 2001 FOIA/PA request. On September 10, 2001, the Ogden Campus Disclosure Office sent two pages of documents to Mr. Johnson that were responsive to his requests for records identifying the assessment officer and for Form 9984 Examining Officers Activity Record. The Ogden Campus Disclosure Office notified Mr. Johnson that the IRS did not possess any documents responsive to his requests for Form 4340 Certificate of Assessments and Payments and Form 813. The IRS also notified Mr. Johnson that it would not provide any additional documents responsive to his request because he had submitted other FOIA requests with the IRS requesting the same documents; and that the items published in the Internal Revenue Manual were available to the public through the IRS' FOIA reading room and on the website.
On August 30, 2001, Mr. Johnson filed this civil action, contending that the IRS failed to comply with the FOIA and PA by failing to respond to his requests; failing to produce documents he requested; and failing to maintain accurate, timely, relevant and complete records, which are "based upon false, fraudulent and inaccurate records which such act caused a determination which is adverse to" him. See Dkt. 25, ¶ 27. Mr. Johnson requests that the court order that the IRS immediately disclose the documents requested; that if the documents requested do not exist, the IRS certify as such under penalty of perjury; that Mr. Johnson be reimbursed for litigations costs; and that the court award damages. Dkt. 25, at 32-33.
The IRS has now filed a motion for summary judgment and a motion for a protective order.
MOTION FOR SUMMARY JUDGMENT (Dkt. 40)
Motion. The IRS filed a motion for summary judgment, contending that (1) Mr. Johnson fails to state a claim upon which relief may be granted because the IRS is not improperly withholding any documents responsive to his FOIA requests; (2) the federal court lacks subject matter jurisdiction over claims related to Mr. Johnson's June 14, 2001 request because he did not exhaust his administrative remedies; (3) Mr. Johnson is not entitled to monetary damages under the FOIA or the PA; 4) Mr. Johnson is not entitled to attorney's fees or costs; and (5) the Commissioner of Internal Revenue is not a proper party defendant.
In response to the motion for summary judgment, Mr. Johnson responded to the merits of the IRS' summary judgment motion, and also requested that the court delay consideration of this motion for summary judgment until thirty days after an additional period of discover is completed, pursuant to Fed.R.Civ.P. 56(f), so that he may conduct the discovery necessary to respond to this motion for summary judgment.
Summary Judgment Standard. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). there is no genuine issue of fact for trial where the record, taken as a whole could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt.") See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).
The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial — e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the nonmoving party. The nonmoving party may not merely state in that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).
Discussion.
A. Improper withholding of requests. In order to prevail on a motion for summary judgment in a FOIA action, an agency must show that a reasonable search for responsive records was conducted. See Patterson v. IRS, 56 F.3d 832, 841 (7th Cir. 1995): Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). In a FOIA action, the court may enjoin an agency where the agency has (1) improperly (2) withheld (3) agency records. See 5 U.S.C. § 552 (a)(4)(B); Kissinger v. Reporter's Comm. For Freedom of the Press, 445 U.S. 136, 150 (1980). Each of these three criteria must be met before a district court may formulate remedies and force an agency to comply with a FOIA request. See United States Dept. of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989). A court may also enjoin an agency where the agency has refused to comply with an individual request for agency documents pursuant to the Privacy Act. See 5 U.S.C. § 552a(g)(1). If upon the initiation of a lawsuit, it is determined that all documents found responsive to the underlying suit have been released in full to the requester, the litigation should be dismissed on the grounds of mootness because there is no justiciable controversy. See Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987); Carter v. V.A., 780 F.2d 1479, 1481 (9th Cir. 1986); Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982).
Mr. Johnson contends that the IRS failed to respond to his requests and failed to produce the documents he had requested. The record shows that the IRS provided Mr. Johnson with documents responsive to his requests. See Factual Background above related to May 31, 2001; June 22, 2001; July 5, 2001; and July 13, 2001 requests. In some instances, there were no documents to disclose because the requested documents did not exit or had been destroyed pursuant to the IRS' records retention policy. See discussion above related to June 7, 2001; June 9, 2001, June 10, 2001; June 12, 2001; June 14, 2001; June 15, 2001; and July 6, 2001; and July 13, 2001 requests. Regarding the June 8, 2001 request, Mr. Johnson had already requested and received these documents, and he was notified that the Seattle Disclosure Office was responsible for this request; Mr. Johnson has not shown that he sent a request to the Seattle Disclosure Office and/or that the request was denied. Further, with regard to the July 13, 2001 request, the IRS notified Mr. Johnson that it would not provide any additional documents responsive to his request because he had submitted other FOIA requests with the IRS requesting the same documents. This was a reasonable response to a request for documents that the IRS had previously provided Mr. Johnson. Finally, with regard to the July 13, 2001 request, the IRS notified Mr. Johnson that the items published in the Internal Revenue Manual were available to the public through the IRS' FOIA reading room and on the website; this was a reasonable response to Mr. Johnson's request for information that is widely available to the public. The IRS has shown that it conducted a reasonable search for records responsive to Mr. Johnson's requests. There is no evidence that any of the documents were improperly withheld. The IRS' motion for summary judgment should be granted and the case should be dismissed.
B. Failure to exhaust administrative remedies with regard to June 14, 2001 request. The IRS contends that Mr. Johnson failed to exhaust his administrative remedy by filing an administrative appeal with regard to his June 14, 2001 request, and that the claim regarding this request should therefore be dismissed. As discussed above, the record shows that the IRS conducted a reasonable search for records regarding this request, and the IRS concluded that the records requested did not exist. The IRS' motion for summary judgment as to this claim should be granted. However, the court will address the issue regarding the June 14, 2001 on an alternative basis.
In a FOIA action, a plaintiff must exhaust administrative remedies prior to seeking judicial review. See American Fed'n of Gov't Employees v. Department of Commerce, 907 F.2d 203, 209 D.C. Cir. 1990); Spannaus v. Department of Justice, 824 F.2d 52, 58 (D.C. Cir. 1987); United State v. Steele, 799 F.2d 461, 466 (9th Cir. 1986): United States v. United States District Court, 717 F.2d 478, 480 (9th Cir. 1983). Therefore, when an agency has responded to a requester under the FOIA within the statutory time period of twenty working days, 5 U.S.C. § 552 (a)(6)(A)(i), the requester must file an administrative appeal before seeking relief from the courts. See Taylor v. Appleton, 30 F.3d 1365, 1369 (11th Cir. 1994); McDonnell v. United States, 4 F.3d 1227, 1240 (3d Cir. 1993); Oglesby v. U.S. Department of Army, 920 F.2d 57, 61 (D.D. Cir. 1990). Where a FOIA plaintiff attempts to obtain judicial review without first exhausting administrative remedies, the lawsuit is subject to dismissal for lack of subject matter jurisdiction. See Hymen v. Merit Sys. Protection Bd., 799 F.2d 1421, 1423 (9th Cir. 1986) ( overruled on other grounds by Capital Tracing, Inc., v. United States, 63 F.3d 859 (9th Cir. 1995) and Williams-Scaife v. Department of Defense Dependent Schools, 925 F.2d 346 (9th Cir. 1911).
Regarding Mr. Johnson's FOIA/PA request of June 14, 2001, which was received by the IRS on July 30, 2001, the IRS responded to the request on August 24, 2001, within twenty working days of receipt of the request. Mr. Johnson was required to file an administrative appeal before filing a civil action in federal court regarding this issue, and he has not shown that he has done so. The IRS' motion for summary judgment should be granted as to this issue.
C. Monetary damages under FOIA and PA. The FOIA does not provide a remedy of money damages. See Lake Mohave Boat Owners Assoc. v. National Park Serv., 78 F.3d 1360, 1363 n. 1 (9th Cir. 1996); Gale v. U.S. Department of Justice, 628 F.2d 224, 226 n. 4 (D.C. Cir. 1980). Damages are not recoverable in any suit brought under the Privacy Act, 5 U.S.C. § 552a (g)(1)(B), involving access to records, where the remedy is injunctive relief. See 5 U.S.C. § 552a(g)(3)(A); Thurston v. United States, 810 F.2d 438, 447 (4th Cir. 1987); Cell Assoc., Inc., v. National Inst's of Health, 579 F.2d 155, 1161-62 (9th Cir. 1978). Mr. Johnson is not entitled to recover monetary damages for the alleged violations of his rights under FOIA/PA. Even if Mr. Johnson were to prevail in this case, which he has not, he is not entitled to monetary damages. The IRS' motion for summary judgment should be granted as to this issue.
D. Costs. In a FOIA action, "[t]he court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(4)(E). The Privacy Act also provides for an award of reasonable attorney's fees and costs incurred "in any case under this paragraph in which the complainant has substantially prevailed." 5 U.S.C. § 552(a)(g)(3)(B). Mr. Johnson has not requested attorney's fees in connection with this action. At issue is whether Mr. Johnson should be awarded costs for litigating this case.
In order to establish that he substantially prevailed under 5 U.S.C. § 552(a)(4)(E), a plaintiff must, prove (1) that the prosecution of the action could reasonably be regarded as necessary to obtain the information; and (2) that the action had a substantive causative effect on the delivery of the information. Long v. IRS, 932 F.2d 1309, 1313 (9th Cir. 1991). The criteria for awarding attorney's fees and litigation costs in Privacy Act actions are the same as the criteria for awarding such fees and costs as in a FOIA case. Barrett v. Bureau of Customs, 651 F.2d 1087, 1088 (5th Cir. 1981), cert. denied, 455 U.S. 950 (1982).
The IRS responded to Mr. Johnson's FOIA/PA requests of May 31, 2001, June 8, 2001, June 22, 2001, July 5, 2001, and July 13, 2001 after this civil suit was filed. A review of the record shows that the IRS searched for the requested records and was in the process of identifying, locating, and providing the documents at issue when Mr. Johnson filed this civil action. Mr. Johnson has not shown that the prosecution of this action was necessary to obtain the information requested. Mr. Johnson is not entitled to an award of costs or prosecuting action. The IRS' motion for summary judgment should be granted as to this issue.
E. Proper party defendant. Mr. Johnson named "Commissioner of Internal Revenue" as the defendant in this action. The district court has jurisdiction over the agency that allegedly violated the FOIA and PA. 5 U.S.C. § 552(a)(4)(B) and 5 U.S.C. § 552a(g)(1). Individually agency employees are not proper party defendants in FOIA actions. See Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir. 1993): Petrus v. Bowen, 833 F.2d 581, 582 (5th Cir. 1987). The Internal Revenue Service is the proper party defendant in this action. However, because any amendment of the complaint to name the proper party defendant would be futile, the court should not permit Mr. Johnson to file an amended complaint naming the proper party defendant.
F. Claims that the IRS failed to maintain accurate, timely, relevant and complete records. In the Second Amended Complaint, plaintiff claims that the IRS failed "to maintain accurate, timely, relevant and complete records, relating to Plaintiff and account number 574-10-7987 and such inaccurate, untimely, irrelevant and incomplete records are based upon false, fraudulent and inaccurate records which such act caused a determination which is adverse to Plaintiff and brings rise to Plaintiffs [sic] cause of action pursuant to Title 5 U.S.C. § 552a(g)(1)(B), (C), and (D)." See Dkt. 25, ¶ 27. Plaintiff requests restitution as part of his damages. Id. at ¶ 201.
It appears that Mr. Johnson was involved in some action involving the IRS, and that as a result of a decision in that action, plaintiff lost certain assets. Mr. Johnson appears to claim that the records of the IRS were falsified and inaccurate. Mr. Johnson could have raised that issue in the underlying IRS action against him. This claim goes beyond the disclosure provisions of the FOIA and PA, and appears to be an attempt to use the FOIA and PA to attack a judgment entered against Mr. Johnson in a separate proceeding. Mr. Johnson may not use the FOIA and Privacy Act to make such an attack. The claims that IRS failed to maintain accurate, timely, relevant and complete records relating to Mr. Johnson, and that such inaccurate, untimely irrelevant and incomplete records were based upon false, fraudulent and inaccurate records are not properly before the court in this action, and these claims should be dismissed on this motion for summary judgment.
IRS' MOTION FOR PROTECTIVE ORDER (Dkt. 43)
The IRS has filed a motion for protective order, requesting that the court order that the IRS need not respond to Mr. Johnson's interrogatories of Kenneth Wilder, or in the alternative, that the court suspend the date upon which the IRS must respond pending a decision on the IRS' motion for summary judgment.
Mr. Johnson has propounded interrogatories to Mr. Wilder. Dkt. 43, Exh. A. Pursuant to the court's scheduling order, the deadline for completing discovery was August 18, 2002. These interrogatories were served on Mr. Wilder after the date for completion of discovery. Moreover, a review of the interrogatories shows that answers to the questions propounded are not necessary in order for Mr. Johnson to respond to the IRS' motion for summary judgment.
The Internal Revenue Services Motion for a Protective Order should be granted, and the court should order that the IRS need not respond to the interrogatories propounded to Mr. Wilder.
REQUEST FOR CONTINUANCE UNDER FED.R.CIV.P. 56(f) (Dkt. 49)
Mr. Johnson has requested that the court delay consideration of this motion for summary judgment pursuant to Fed.R.Civ.P. 56(f). He requests that the court grant him an additional period of time in which to conduct discovery, and that the IRS motion for summary judgment be continued until thirty days after discovery is concluded. Mr. Johnson contends that the IRS did not identify their "expert witnesses" until it was too late for him to engage in discovery during the discovery period.
Fed.R.Civ.P. 56(f) provides as follows:
When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
In order to continue a summary judgment motion under Fed.R.Civ.P. 56(f), a party so requesting must show that he or she diligently pursued previous discovery opportunities, and must also show how allowing additional discovery would preclude summary judgment. Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir. 1994). Mr. Johnson has not made a sufficient showing under Fed.R.Civ.P. 56(f) to continue this case or to conduct additional discovery. The discovery period set by the court has concluded. The witnesses Mr. Johnson has identified as "experts" are fact witnesses; Mr. Johnson had the opportunity to conduct discovery related to these witnesses during the discovery period. Moreover, Mr. Johnson has made not showing that additional discovery would preclude summary judgment in this case. Mr. Johnson's request for a continuance should be denied.
Therefore, it is hereby
ORDERED that the Internal Revenue Service's Motion for Summary Judgment (Dkt. 40) is GRANTED. The case is DISMISSED. The Internal Revenue Service's Motion for a Protective Order (Dkt. 43) is GRANTED, and the IRS need not respond to the Interrogatories propounded to Mr. Wilder, Plaintiff's Rule 56(f) Motion to Postpone Consideration of Defendant's Motion for Summary Judgment (Dkt. 49) is DENIED.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said last known address.