Gillin v. Internal Revenue

• Court: Court of Appeals for the First Circuit
• Decided: December 7, 1992
• Docket: 92-1803
• Status: Published

Opinion

USCA1 Opinion

December 7, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 92-1803

ROBERT A. GILLIN,

                                Plaintiff, Appellant,

                                          v.

                              INTERNAL REVENUE SERVICE,

                                 Defendant, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]
                                           ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ___________________

               Robert A. Gillin on brief pro se.
               ________________
               Jeffrey R. Howard, United States Attorney, and Gretchen Leah
               _________________                              _____________
          Witt, Chief, Civil Division, on brief for appellee.
          ____

__________________

                                 __________________ 

Per Curiam.  The pro se appellant, Robert Gillin, lives in
                 __________       ______

               New  Hampshire and files his federal income tax returns with

               the   Internal   Revenue    Service   office   in   Andover,

               Massachusetts.   In early 1989, Mr. Gillin  learned that IRS

               agents in  Jacksonville, Florida,  were conducting a  "field

               examination" of his 1985 income tax return, using records it

               had obtained from  the Andover  office.  The  IRS asked  Mr.

               Gillin to consent to an extension of  the limitations period

               for  issuing a  statutory  notice of  tax  deficiency.   Mr.

               Gillin  refused.   The  IRS  completed  its examination  and

               concluded that  there  was no  change  in Mr.  Gillin's  tax

               liability,  and therefore  no reason  to issue  a notice  of

               deficiency.

                 In July 1989,  Mr. Gillin  asked the IRS  to release  five

               categories  of  documents  to   him  under  the  Freedom  of

               Information  Act (FOIA),  5 U.S.C.    552.    The categories

               were:

                 1)  The  transcripts of  Mr.  Gillin's "Individual  Master
               Files" for 1982 through 1988.

                 2) All  documents "pertaining" to  Mr. Gillin in  the IRS'
               "Lien Files."

                 3)  All  "documents  and  procedural rules  used  by  [the
               Andover office] to transfer your jurisdiction of our records
               to the Jacksonville IRS office."

                 4) All "documents used as a basis to conclude  there was a
               'deficiency' in our 1985 tax return filed in Andover Service
               Center  that  authorized  Jacksonville  IRS  to  request  an
               extension."

                 5)  All  documents  pertaining  to Mr.  Gillin  "that  are
               currently in the criminal investigation division."

The  IRS  supplied  Mr.  Gillin with  transcripts  of  his

               Individual Master Files.   It told him that it  had searched

               its lien files  and the files of  its Criminal Investigation

               Division,  and found no documents concerning him.  It took a

               narrow view of his  two remaining requests.  First,  the IRS

               said that  because the transfer  of records from  Andover to

               Jacksonville did  not involve a transfer  of "jurisdiction,"

               there were no rules or documents responsive  to Category #3.

               Second, it said that  because it had found no  deficiency in

               Mr.  Gillin's  1985  tax  return, there  were  no  documents

               responsive  to  Category  #4,   which  had  asked  only  for

               documents  used  as a  basis to  conclude  that there  was a
                                                                      ___

               deficiency.

                 In January  1990, after he had  pursued his administrative

               appeals  without gain, Mr. Gillin filed a pro se FOIA action
                                                         ______

               in the New Hampshire federal district court.  He then served

               the  Internal Revenue  Service  with a  number of  discovery

               requests.   On the  government's motion, the  district court

               stayed  all  discovery  pending  the IRS'  response  to  the

               complaint.    The  IRS  filed a  dispositive  motion  which,

               because  it  was  accompanied  by a  number  of  evidentiary

               declarations, was  in effect a motion  for summary judgment.

               The  district court  deemed the  IRS' response  adequate and

               granted judgment accordingly.

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Mr. Gillin then moved to alter or amend the judgment.  The

               district court denied the motion in all respects except one.

               It agreed with Mr. Gillin that the IRS had read too narrowly

               his   request  for  documents  concerning  the  transfer  of

               "jurisdiction" over  his tax  records.   By "harping  on the

               word 'jurisdiction,'"  the court  said, the IRS  "exalts the

               form of  Mr. Gillin's  pro se  request over its  substance."
                                      ______

               Mr.  Gillin  had  identified  a  number  of  standard  forms

               typically  used by  the  IRS when  it transferred  documents

               between offices.  The court instructed the IRS to search for

               and  produce any such forms generated during the transfer of

               Mr. Gillin's tax records from Massachusetts to Florida.  The

               IRS eventually submitted evidentiary declarations describing

               the ensuing search and its results, and produced a number of

               responsive documents, redacting  certain information that it

               claimed  was exempt  from disclosure  under the  FOIA.   The

               district court  issued a "post-judgment  judgment," and this

               appeal followed.

                 We affirm.  Summary  judgment is called for in  FOIA cases

               when "the defending agency . . . prove[s] that each document

               that  falls  within  the  class requested  either  has  been

               produced, is  unidentifiable, or  is wholly exempt  from the

               [FOIA's] inspection requirements."  Perry v. Block, 684 F.2d
                                                   _____    _____

               121, 126  (D.C.Cir. 1982).   Cf. Weisberg  v. United  States
                                            ___ ________     ______________

               Department of  Justice, 745 F.2d 1476,  1485 (D.C.Cir. 1984)
               ______________________

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(in order to  show that  no genuine issue  of material  fact

               exists,  agency must  demonstrate  that it  has conducted  a

               search  reasonably   calculated  to  uncover   all  relevant

               documents).  By the time the district court closed the books

               on  Mr.   Gillin's  lawsuit,  it  was   fully  justified  in

               concluding  that  the  IRS  had satisfied  its  burden  with

               respect  to  each  of   the  five  categories  of  documents

               identified in the FOIA request.

                 1. Transcripts of Individual  Master Files - The IRS  gave
                    _______________________________________

               Mr.  Gillin  all  of the  documents  he  asked  for in  this

               category.  According  to the declaration of Clare  Coelho, a

               disclosure officer in the IRS'  Andover office, she sent Mr.

               Gillin his "IMF transcript for the years 1982 to 1988."1

                 2.  Documents  in  Lien  Files -  The  IRS  submitted  the
                     __________________________

               declaration of  Elaine Tinker,  a disclosure officer  in its

               Portsmouth, New  Hampshire office, to prove  that there were

               no  documents pertaining to  Mr. Gillin  in its  lien files.

____________________

               1.  Mr. Gillin  claims for the  first time in  his appellate
               brief that the  IRS gave  him the IMF  transcripts for  1984
               through  1988, but  withheld  the transcripts  for 1982  and
               1983.   Because  he  did not  make  this allegation  in  the
               district  court, we will not consider it.  See United States
                                                          ___ _____________
               v. Krynicki, 689  F.2d 289, 291  (1st Cir. 1982)  (appellate
                  ________
               courts  ordinarily  will  not  consider  issues  not  raised
               below).   Even  if we  considered it,  we could  give it  no
               weight,  because  it  is  not  supported  by  any  competent
               evidence.   See Gooley v. Mobil Oil  Corp. 851 F.2d 513, 515
                           ___ ______    ________________
               n.2  (1st  Cir.  1988)  (representations  in  brief  are  an
               "impuissant surrogate" for a record showing).

                                            -5-

The  declaration related  how  Ms. Tinker  had searched  the

               relevant records and found no liens against Mr. Gillin.

                 Mr. Gillin argues that Ms.  Tinker's search could not have

               been  adequate because he was  able to discover  on his own,

               through  a search at his  local registry of  records, a lien

               the IRS had placed on property which he says belongs to him.

               He  submitted a Notice of  Federal Tax Lien against property

               located  at  274  Baboosic   Lake  Road  in  Merrimack,  New

               Hampshire, and  an affidavit  attesting to his  ownership of

               that property.  

                 It matters not, however,  whether Mr. Gillin actually owns

               the  property  on  which the  IRS  placed  the  lien.   What

               matters, for our purpose, is that the notice of lien did not

               identify Mr.  Gillin as the  responsible taxpayer or  as the

               owner of  the property attached.   Rather, the  notice named

               the taxpayer as  "J & P Janitorial Services, a Corporation,"

               an  entity  with  which  Mr.   Gillin  claims  to  have   no

               affiliation.  

                 The adequacy of  an agency's  search "is  measured by  the

               reasonableness  of  the  effort  in light  of  the  specific

               request."   Meeropol v. Meese,  790 F.2d 942,  956 (D.C.Cir.
                           ________    _____

               1986).   Mr. Gillin specifically  asked the IRS  to look for

               documents pertaining  to him.   He did not  tell the  IRS to

               look for liens  against J  & P Janitorial  Services, or  for

               liens  placed on the property  at 274 Baboosic  Lake Road in

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Merrimack, New Hampshire, nor did he give the IRS any reason

               to believe  that  documents mentioning  that corporation  or

               that address would "pertain" to him.   The fact that the IRS

               did  not find the lien, therefore, says nothing at all about

               the adequacy of its search. 

                 3. Documents  Used to  Transfer "Jurisdiction" -  We agree
                    ___________________________________________

               with the district  court that the  IRS' initial response  to

               this category of the request  was insufficient, based as  it

               was  on  a  cramped  reading  of  the  term  "jurisdiction."

               However, the  district court  resolved that problem,  and on

               appeal we need  determine only whether the IRS  was entitled

               to  redact portions  of the  responsive documents  as exempt

               from FOIA disclosure.2

                 According   to   the   IRS'   uncontroverted   evidentiary

               declarations, the redacted information consisted entirely of

               Differential  Function  (DIF)  scores.   DIF  scoring  is  a

               mathematical technique used to  identify tax returns most in

               need  of  examination  or audit.    The  IRS  closely guards

               information concerning its  DIF scoring methodology  because

               knowledge  of the  technique  would  enable an  unscrupulous

               taxpayer  to manipulate  his return  to obtain  a lower  DIF

____________________

               2.  Since the  IRS' evidentiary  declarations  show that  it
               searched for transfer documents  to the full extent dictated
               by  the   district  court,  we  need   make  no  independent
               evaluation of the adequacy  of the search.  See  Meeropol v.
                                                           ___  ________
               Meese, 790 F.2d at  951 (where district court order  set out
               _____
               scope  of search  needed,  court evaluated  search only  "in
               terms of its compliance" with the order).

                                            -7-

score  and  reduce  the  probability  of  an  audit.    Such

               information  is exempt from FOIA disclosure under 5 U.S.C.  

               552(b)(3),  which  says that  the  FOIA  does not  apply  to

               matters  specifically  exempted from  disclosure  by another

               statute,  and 26  U.S.C.    6103(b)(2),  which exempts  from

               disclosure  "standards used or to be  used for the selection

               of returns for  examination, or data used or  to be used for

               determining such  standards."   See, e.g., Long  v. Internal
                                               _________  ____     ________

               Revenue Service, 891 F.2d  222, 224 (9th Cir. 1989);  Yon v.
               _______________                                       ___

               Internal Revenue  Service, 671 F.Supp.  1344, 1347 (S.D.Fla.
               _________________________

               1987);  Naranjo v.  Internal Revenue Service,  62 A.F.T.R.2d
                       _______     ________________________

               88-5217  (E.D.Ky.  1988).    See also  Aronson  v.  Internal
                                            ________  _______      ________

               Revenue  Service,  973  F.2d  962, 963-65  (1st  Cir.  1992)
               ________________

               (explaining relationship between   552(b)(3) and   6103).

                 4. Documents  Used to Conclude  There Was  a Deficiency  -
                    ____________________________________________________

               Mr. Gillin asked for:

                 Copies of  all  documents used  as a  basis to  conclude
                 there was a 'deficiency' in our 1985 tax return filed in
                 Andover Service  Center that authorized  Jacksonville to
                 request an extension.

                 The  IRS  took  the  position  that  it  had no  documents

               responsive to this  part of Mr. Gillin's request because the

               request asked for documents used to conclude  that there was
                                                                        ___

               a deficiency, and the IRS had concluded that there was not a
                                                                      ___

               deficiency.    In the  district  court, and  on  appeal (but

               apparently  not  during  the  administrative  process),  Mr.

               Gillin  has argued  that  his request  entitled  him to  the

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documents  used to conduct, or created in the course of, the

               field examination, even though  the examination did not lead

               the  IRS to  calculate  a deficiency.    The district  court

               agreed with the IRS and held Mr. Gillin to the letter of his

               request.

                 The  FOIA, 5 U.S.C.   552(a)(3),  creates an obligation to

               respond  to  a  request  which  "reasonably  describes"  the

               records sought.    We agree  with the  district court  that,

               under  the  circumstances,  Mr.  Gillin's  request  did  not

               "reasonably describe" the records of the field examination.

                 There is evidence in  the record to suggest that  when Mr.

               Gillin first  submitted the FOIA  request, he had  reason to

               believe that the IRS had  found a deficiency as a  result of
                                    ___

               its field examination.  Several  months earlier, the IRS had

               warned him that  if he did not agree to  extend the time for

               examining  his 1985 taxes, the  Service would have no choice

               but to issue a  notice of deficiency forthwith.   Mr. Gillin

               may  have inferred  from  this statement  that  the IRS  had

               already found a deficiency in his taxes.  If that is what he

               believed, then  he  may --  at that  point --  have seen  no

               practical difference  between asking for the  documents used

               to  "conclude there  was a deficiency,"  and asking  for the

               documents used in the course of the field examination.

                 But,  within  a  week  after  Mr.  Gillin  made  the  FOIA

               application, the IRS informed him that it had not calculated
                                                             ___

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a  deficiency  in his  1985 taxes.    This news  should have

               alerted Mr.  Gillin to the flaw  in his request.   He should

               have  recognized  that  the  documents  used  in  the  field

               examination  had not been "used as a basis to conclude there
                                ___

               was  a  deficiency,"  and  that  consequently  there  was  a

               discrepancy between what he actually said and what  he meant

               to say.   Since he, and not  the IRS, was  in a position  to

               recognize and  correct the  ambiguity, we think  it sensible

               that  he bear the burden of clarification.  There is nothing

               in the record, however, to indicate that Mr. Gillin tried to

               amend  or  clarify  his  request  at  any  time  during  his

               administrative dealings with the IRS.3

                 5.  Documents in  Criminal  Investigation  Division -  Mr.
                     _______________________________________________

               Gillin does not  challenge the IRS' statement  that it found

               no records  pertaining to him in  its criminal investigation

               division.

                 Finally, Mr.  Gillin argues that the  district court erred

               in proceeding  to judgment  without allowing him  to conduct

____________________

               3.    It is true that, during the course of this litigation,
               Mr.  Gillin made it reasonably clear to all involved that he
               was now  interested in  obtaining the  records of the  field
               examination, whatever its outcome.  His interrogatories  and
               document productions requests, and  his response to the IRS'
               dispositive motion,  all express this desire.   However, the
               clarification  came  too  late  to  be  relevant,  since  it
               amounted  to  an  impermissible  attempt to  expand  a  FOIA
               request after  the agency  has responded and  litigation has
               commenced.  See Irons v. Levi, 451 F.Supp. 751, 753 (D.Mass.
                           ___ _____    ____
               1978),  vacated on other grounds sub nom. Irons v. Bell, 596
                       _________________________________ _____    ____
               F.2d 468 (1st Cir. 1979).

                                           -10-

discovery.   We can review  this decision only  for abuse of

               discretion, see Meeropol  v. Meese, 790 F.2d at  960-61, and
                           ___ ________     _____

               we  find  none here.    Where  the agency's  affidavits  are

               adequate  to substantiate  the adequacy  and results  of its

               search, and the  validity of the exemptions  it claims, then

               the "district  judge has  discretion to forgo  discovery and

               award summary judgment  on the basis of affidavits."  Goland
                                                                     ______

               v. Central Intelligence Agency,  607 F.2d 339, 352 (D.C.Cir.
                  ___________________________

               1978).

                 We have  considered Mr. Gillin's other  arguments and find

               them  unpersuasive.   Our  decision  renders  moot the  IRS'

               motion to strike Mr. Gillin's appendix.

                 Affirmed.
                 ________

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