[Produced by Optical Character Recognition]
Johnson v. C.I.R.
Not Reported in F.Supp.2d,
2002 WL 31934162 (W.D.Wash.),
90 A.F.T.R.2d 2002-7460,
2003-1 USTC P 50,104
(Cite as: 2002 WL 31934162 (W.D.Wash.))
W.D. Washington.
Runar Dean JOHNSON, Plaintiff,
v.
COMMISSIONER
OF INTERNAL REVENUE, Defendant.
No. C01-5490RJB.
Nov. 1, 2002.
ORDER GRANTING INTERNAL REVENUE SERVICE'S
MOTION FOR SUMMARY JUDGMENT AND GRANTING INTERNAL REVENUE SERVICE'S MOTION FOR
A PROTECTIVE ORDER
BRYAN, J.
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
Plaintiffs 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
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'
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 Campus Disclosure Office to the IRS Appeals Office in
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
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
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
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
in
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
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 discovery
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
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
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 con- ducted. See Patterson v. IRS, 56 F.3d 832, 841
(7th Cir.1995); Oglesby v.
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; 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 to 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 States v.
Steele, 799 F.2d 461, (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
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
1363, 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.
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. § 552a(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 1097, 1088 (5th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct.
1454, 71 L.Ed.2d 665 (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 for prosecuting this 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). Individual
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 XXXXX-XXXX 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.
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 Service's 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. 5 6 (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 Calilfornia, 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 discoverty.
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 no 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. Plaintiffs 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 party's last known address.
JUDGMENT IN A CIVIL CASE
[/] Decision by Court. This action came
under consideration before the Court. The issues have been considered and a
decision has been rendered.
IT IS ORDERED AND ADJUDGED
That the
Internal Revenue Service's Motion for Summary Judgment is GRANTED. The case is DISMISSED. The Internal Revenue Service's Motion
for a Protective Order is GRANTED, and the IRS need not respond to the
Interrogatories propounded to Mr. Wilder. Plaintiffs Rule 56(f) Motion to
Postpone Consideration of Defendant's Motion for Summary Judgment is DENIED.
* * MAILING CERTIFICATE OF CLERK * *
True and correct copies of the attached
were mailed by the clerk to the following:
Runar Dean Johnson
C/O
Diane E. Tebelius,
Esq.
U S ATTORNEY'S OFFICE
FAX 553-0116
Jennifer L Best, Esq.
TAX DIVISION
202-307-0714
.end