USCA1 Opinion
December 7, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1803
ROBERT A. GILLIN,
Plaintiff, Appellant,
v.
INTERNAL REVENUE SERVICE,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Robert A. Gillin on brief pro se.
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Jeffrey R. Howard, United States Attorney, and Gretchen Leah
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Witt, Chief, Civil Division, on brief for appellee.
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Per Curiam. The pro se appellant, Robert Gillin, lives in
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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
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deficiency.
In January 1990, after he had pursued his administrative
appeals without gain, Mr. Gillin filed a pro se FOIA action
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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."
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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
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121, 126 (D.C.Cir. 1982). Cf. Weisberg v. United States
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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
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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
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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.
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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
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v. Krynicki, 689 F.2d 289, 291 (1st Cir. 1982) (appellate
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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
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n.2 (1st Cir. 1988) (representations in brief are an
"impuissant surrogate" for a record showing).
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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.
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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
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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
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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.
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Meese, 790 F.2d at 951 (where district court order set out
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scope of search needed, court evaluated search only "in
terms of its compliance" with the order).
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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
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Revenue Service, 891 F.2d 222, 224 (9th Cir. 1989); Yon v.
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Internal Revenue Service, 671 F. Supp. 1344, 1347 (S.D.Fla.
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1987); Naranjo v. Internal Revenue Service, 62 A.F.T.R.2d
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88-5217 (E.D.Ky. 1988). See also Aronson v. Internal
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Revenue Service, 973 F.2d 962, 963-65 (1st Cir. 1992)
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(explaining relationship between 552(b)(3) and 6103).
4. Documents Used to Conclude There Was a Deficiency -
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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
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a deficiency, and the IRS had concluded that there was not a
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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
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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
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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.
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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
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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.
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1978), vacated on other grounds sub nom. Irons v. Bell, 596
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F.2d 468 (1st Cir. 1979).
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discovery. We can review this decision only for abuse of
discretion, see Meeropol v. Meese, 790 F.2d at 960-61, and
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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
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v. Central Intelligence Agency, 607 F.2d 339, 352 (D.C.Cir.
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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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