TP or Not TP? That Is The Question

[The Observer]

Time to play that favorite game of identifying a litigant as a potential TP. Read through the following cite and list the factors you think show that he is or is not a citizen of Frickintardistan:

RONALD L. SULLIVAN,
Plaintiff,
v.
DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, ET AL,
Defendants.

Release Date: FEBRUARY 07, 2011

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

OPINION AND ORDER

Pending before the Court is Defendant Internal Revenue Service's ("IRS") Motion for Summary Judgment (Doc. 40), as well as pro se Plaintiff Ronald L. Sullivan's ("Sullivan") response (Doc. 41) and objections (Doc.44). Upon review and consideration of Defendant's motion, the response and objections thereto, the relevant legal authority, and for the reasons explained below, the Court finds that the motion should be granted.

I. BACKGROUND AND RELEVANT FACTS

This is a Freedom of Information Act ("FOIA") case. 5 U.S.C. section 552, et seq. Between 2004 and 2007, Sullivan submitted seven FOIA requests to the IRS concerning his 1989, 1998, 2002, and 2003 income tax liabilities. (Doc. 40-4 paragraph 2; Doc. 40-5 paragraphs 2-4; Doc. 40-6 paragraphs 2-3.) Sullivan's first four FOIA requests, dated April 14, 2004, June 2, 2004, July 12, 2004, and July 26, 2004, were all closed as invalid because they failed to include proof of identification, among other deficiencies. (Doc 40-4 paragraphs 3-6;.)

On October 11, 2004, Sullivan made his fifth and sixth requests for documents from the IRS. (Doc. 1-3 at 7; Doc. 40-4 paragraph 7-8; Doc. 40-6 paragraph 2.) On January 3, 2005, in response to Sullivan's fifth FOIA request, the IRS released 190 pages of documents. (Doc. 1-3 at 9; Doc 40-6 paragraph 11.) On two of the pages provided to Sullivan, the IRS withheld the name, taxpayer identification number, address, and tax return information of third parties pursuant to FOIA exemption (b)(3), disclosure of which is prohibited by Internal Revenue Code section 6103(a). (Id.) Sullivan's sixth request was closed as invalid because it consisted of interrogatories rather than a request for records. (Doc. 40-4 paragraph 8.)

On April 26, 2007, Sullivan submitted his seventh FOIA request seeking Taxpayer Advocate Service and Appeals files relating to his tax returns. (Doc. 40-5 paragraphs 1-2.) On May 31, 2007, the IRS provided Sullivan with 181 pages of documents responsive to his seventh request. (Doc. 1-3 at 23; Doc. 40-5 paragraph 6.) On one of the pages provided to Sullivan, the IRS withheld the name, taxpayer identification number, address, and tax return information of a third party pursuant to FOIA exemption (b)(3), disclosure of which is prohibited by Internal Revenue Code section 6103(a). (Id.)

On October 29, 2009, pro se Plaintiff Sullivan filed suit in forma pauperis under FOIA, "for injunctive relief and other appropriate relief for the disclosure and release of agency records improperly withheld from plaintiff by the Defendants." (Doc. 1 at 1.) It appears that Sullivan contests the IRS's response to all seven of his FOIA requests. (Id.) On July 27, 2010, Sullivan filed an "Affidavit in Support of Criminal Complaint and Request for Arrest Warrant." (Doc. 29.) This request was denied. (Docs. 34, 38.) Defendant IRS now moves for summary judgment pursuant to Fed. R. Civ. P. 56(b). (Doc. 40 at 1.)

II. SUMMARY JUDGMENT STANDARD

A party moving for summary judgment must inform the court of the basis for the motion and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The substantive law governing the suit identifies the essential elements of the claims at issue and therefore indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The initial burden falls on the movant to identify areas essential to the nonmovant's claim in which there is an "absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). If the moving party fails to meet its initial burden, the motion must be denied, regardless of the adequacy of any response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Moreover, if the party moving for summary judgment bears the burden of proof on an issue, either as a plaintiff or as a defendant asserting an affirmative defense, then that party must establish that no dispute of material fact exists regarding all of the essential elements of the claim or defense to warrant judgment in his favor. Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986) (the movant with the burden of proof "must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor") (emphasis in original).

Once the movant meets its burden, however, the nonmovant must direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Instead, the nonmoving party must produce evidence upon which a jury could reasonably base a verdict in its favor. Anderson, 477 U.S. at 248; see also DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). To do so, the nonmovant must "go beyond the pleadings and by [its] own affidavits or by depositions, answers to interrogatories and admissions on file, designate specific facts that show there is a genuine issue for trial." Webb v. Cardiothoracic Surgery Assoc. of North Texas, P.A., 139 F.3d 532, 536 (5th Cir.1998) (overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2414 (2006)). Unsubstantiated and subjective beliefs and conclusory allegations and opinions of fact are not competent summary judgment evidence. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998); Grimes v. Texas Dept. of Mental Health and Mental Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994); Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992). Nor are pleadings summary judgment evidence. Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1046 (5th Cir. 1996) (citing Little, 37 F.3d at 1075). The nonmovant cannot discharge his burden by offering vague allegations and legal conclusions. Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992); Lujan v. National Wildlife Fed'n, 497 U.S. 871, 889 (1990). Nor is the court required by Rule 56 to sift through the record in search of evidence to support a party's opposition to summary judgment. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992)).

Nevertheless, all reasonable inferences must be drawn in favor of the nonmoving party. Matsushita, 475 U.S. at 587-88; see also Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). Furthermore, the party opposing a motion for summary judgment does not need to present additional evidence, but may identify genuine issues of fact extant in the summary judgment evidence produced by the moving party. Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 198-200 (5th Cir. 1988). The nonmoving party may also identify evidentiary documents already in the record that establish specific facts showing the existence of a genuine issue. Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990). There is a "genuine" issue of material fact if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

III. DISCUSSION

The IRS excluded certain information requested by Sullivan in his FOIA requests pursuant to a FOIA exemption, 5 U.S.C. section 552(b)(3) and section 6103(a) of the Internal Revenue Code, 26 U.S.C. section 6103(a), because the information contained the personal data of other taxpayers. FOIA exemption (b)(3) states:

(b) This section does not apply to matters that are
--

. . .

(3) specifically exempted from disclosure by statute
(other than section 552b of this title), if that statute
--

(A)(i) requires that the matters be withheld from
the public in such a manner as to leave no discretion
on the issue; or

(ii) establishes particular criteria for withholding
or refers to particular types of matters to be withheld;

. . .

5 U.S.C. section 552(b)(3). Section 6103(a) of the Internal Revenue Code states:

(a) General rule. -- Returns and return information
shall be confidential, and except as authorized by
this title --

(1) no officer or employee of the United States, .
. .

shall disclose any return or return information obtained
by him in any manner in connection with his service
as such an officer or an employee or otherwise or
under the provisions of this section. For purposes
of this subsection, the term "officer or employee"
includes a former officer or employee.

26 U.S.C. section 6103(a).

In order to prevail on its motion for summary judgment, the IRS must establish that it performed a reasonable search for documents responsive to Sullivan's valid requests. See SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991); Oglesby v. United States Dept. of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990); Zemansky v. United States EPA, 767 F.2d 659, 571 (9th Cir. 1985); Weisburg v. Dep't of Justice, 705 F.2s 1344, 1351 (D.C. Cir. 1983) (holding that "the agency must show beyond a material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents"); Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1328 (9th Cir. 1995); Patterson v. IRS, 56 F.3d 832, 841 (7th Cir. 1995).

Defendant IRA provides the declarations of three IRS employees who processed Sullivan's seven FOIA requests. (Docs. 40-4, 40-5, and 40-6.). Sullivan contends that the Government's motion for summary judgment "was submitted in bad faith and solely for delay." (Doc. 41 at 7.) However, Plaintiff has not submitted any evidence of bad faith or delay on the Government's part. The presumption of good faith accorded to agency affidavits cannot be rebutted by a requester's "purely speculative claims about the existence and discoverability of other documents." SafeCard Services, 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

Because there are no material questions of fact regarding Sullivan's claims, summary judgment in favor of the Defendant is proper. Manna v. United States Dep't of Justice, 832 F. Supp. 866, 870 (D.N.J. 1993) (granting summary judgment solely on the basis of agency affidavits if they are "sufficiently detailed and are submitted in good faith."), aff'd 51 F.3d 1158 (3d Cir. 1996), cert. denied, 516 U.S. 975 (1995).

IV. CONCLUSION

Accordingly, the Court hereby ORDERS that Defendant Internal Revenue Service's ("IRS") Motion for Summary Judgment (Doc. 40) is GRANTED.

All other pending motions are MOOT.

SIGNED at Houston, Texas, this 7th day of February, 2011.

Melinda Harmon
United States District Judge

[bmielke]

Is a TP

He started looking for 1989 Tax information in 2004
Seven requests at least four of which were deficient
He is pro se (while that might mean he is poor, I think not see the first point)

[Judge Roy Bean]

Without taking the time to find something in PACER, this sounds to me like a fishing expedition on the part of a confused and bitter party to a potential civil suit against one or more other entities or persons.

[bmielke]

Without taking the time to find something in PACER, this sounds to me like a fishing expedition on the part of a confused and bitter party to a potential civil suit against one or more other entities or persons.

Are you thinking the IRS sued him, or that he sued the IRS?

Because if he was suing the IRS why would he need an FOIA?

[Judge Roy Bean]

Without taking the time to find something in PACER, this sounds to me like a fishing expedition on the part of a confused and bitter party to a potential civil suit against one or more other entities or persons.

Are you thinking the IRS sued him, or that he sued the IRS?

Because if he was suing the IRS why would he need an FOIA?

I'm thinking he's fishing for evidence and not getting what he thought he should.

[Dezcad]

Are you thinking the IRS sued him, or that he sued the IRS?

The caption gives you the answer:

RONALD L. SULLIVAN,
Plaintiff,
v.
DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, ET AL,
Defendants.

Because if he was suing the IRS why would he need an FOIA?

The text of the opinion gives you the answer:

This is a Freedom of Information Act ("FOIA") case. 5 U.S.C. section 552, et seq

On October 29, 2009, pro se Plaintiff Sullivan filed suit in forma pauperis under FOIA, "for injunctive relief and other appropriate relief for the disclosure and release of agency records improperly withheld from plaintiff by the Defendants." (Doc. 1 at 1.) It appears that Sullivan contests the IRS's response to all seven of his FOIA requests. (Id.)

[Burzmali]

It ain't his first rodeo:

http://dockets.justia.com/docket/texas/ ... 32/706815/

[Dezcad]

It ain't his first rodeo:

http://dockets.justia.com/docket/texas/ ... 32/706815/

Not sure how a link to the case and opinion which is the subject of this thread proves that this "ain't his first rodeo".

[Famspear]

Here's a clue. According to a government memorandum filed in the case:

Plaintiff submitted seven FOIA requests to the Internal Revenue Service between 2004 and 2007 concerning his 1989, 1998, 2002, and 2003 income tax liabilities, specifically his appeals of proposed collection actions and the basis for the Service’s determination of his 1989 income tax liabilities...

--from page 1 of the MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, at docket entry 40 (Dec. 3, 2010).

EDIT: Oh, wait, this is already mentioned in the Court's opinion.

[webhick]

There's a lot of brain farts going on today. I say we dub today, "International Day of Quatloosian Intellectual Gassiness."

[Famspear]

There's a lot of brain farts going on today. I say we dub today, "International Day of Quatloosian Intellectual Gassiness."

I blame the weather. It's just too darn cold for south Texas. I can't think.

[bmielke]

Are you thinking the IRS sued him, or that he sued the IRS?

The caption gives you the answer:

RONALD L. SULLIVAN,
Plaintiff,
v.
DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE, ET AL,
Defendants.

Because if he was suing the IRS why would he need an FOIA?

The text of the opinion gives you the answer:

This is a Freedom of Information Act ("FOIA") case. 5 U.S.C. section 552, et seq

On October 29, 2009, pro se Plaintiff Sullivan filed suit in forma pauperis under FOIA, "for injunctive relief and other appropriate relief for the disclosure and release of agency records improperly withheld from plaintiff by the Defendants." (Doc. 1 at 1.) It appears that Sullivan contests the IRS's response to all seven of his FOIA requests. (Id.)

What I took the judge's post to mean was that he thinks there is another suit, and the TD (or whatever he used) used an FOIA request for information with for that suit or to fight that suit.

I guess a better question to have asked would have been given that in a civil case you can file discovery why bother with a FOIA, why not just file suit and file discovery, or in the alternative if you are defending a suit get discovery in the suit.

[Famspear]

On July 27, 2010, at entry 31, the Court docketed Ronald Lee Sullivan's inaptly named "Expert Witness List," which is actually an eleven page, disjointed, incoherent, rambling concatenation of various materials which are at best only marginally inter-related. Sullivan asserts that the Internal Revenue Service, which he calls the "INTERNAL REVENUE TAX AND AUDIT SERVICE" (in all caps, of course) is a "For Profit General Delaware Corporation" incorporated on 7/12/33. Sullivan also claims that "INTERNAL REVENUE SERVICE is the FEDERAL RESERVES [sic] debt collector...." His list of witnesses includes what purports to be quotes from Attorney General Erick [sic] Holder, Congressman Ron Paul, Senator Harry Reid, former IRS Commissioner Mark Everson, IRS Taxpayer Advocate Nina Olson, and others. He briefly mentions the Lawrence case and the OMB control number/Paperwork Reduction Act issue. Mr. Sullivan is a 72 year old resident of Katy, a suburb of Houston, and appears to be confused or befuddled about things in general.

[Judge Roy Bean]

Sad.

One has to wonder what destruction he's wrought on his family as he's aged.

[The Observer]

I am a little surprised that no one mentioned this statement [emphasis is mine]:

Sullivan's sixth request was closed as invalid because it consisted of interrogatories rather than a request for records.

I took this to mean that Sullivan decided to pepper the IRS Disclosure with a list of questions that typically are submitted by the TP crowd to the IRS (in the vein of WTP's infamous question list). The TP hopes that the IRS will be forced to provide "embarassing" answers to the loaded/trick questions that they have compiled.

The only reason I think this is indicative is that the judge did not deign to provide any explanation about the nature of the questions. I would presume if the questions were relevant to the heart of the matter, Disclosure would have provided the answers or the judge would have directed the IRS to provide answers to the taxpayer. In this case, this did not happen and that would appear to show that Sullivan was just pursuing another round of frivolous activity that did not require the IRS to answer or the judge to explain.

[Burzmali]

It ain't his first rodeo:

http://dockets.justia.com/docket/texas/ ... 32/706815/

Not sure how a link to the case and opinion which is the subject of this thread proves that this "ain't his first rodeo".

Oops, I saw the filed date (October 20, 2009) and assumed it had to be a difference case as who in the world would manage to drag a case for a year and a half only to have it thrown out with a summary judgement ruling. I suppose that's what I get for underestimating these folks

[Gregg]

Tax Denier or batshit crazy?

atheist battle motto

Kill 'em all, let Darwin sort 'em out