LATHAM & WATKINS LLP v. EVERSON

Filing 1

LATHAM & WATKINS LLP v. EVERSON

Doc. 1

Case 1:07-cv-00642-JMF

Document 1

Filed 04/06/2007

Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

LATHAM &

WATKINS,

LLP

Civil Case No.

555 ELEVENTH STREET N.W. SUITE 1000

WASHINGTON, DC 20004
COMPLAINT

Plaintiff,
v.

MARK W. EVERSON

COMMISSIONER OF INTERNAL REVENUE ATTENTION: CC:PA:DPL
1111 CONSTITUTION AVENUE N.W.

WASHINGTON, DC 20224
Defendant.

COMPLAINT FOR INJUNCTIVE RELIEF

Plaintiff, Latham & Watkins LLP (Latham),
Defendant, the Internal Revenue Service (IRS),

for its

complaint against

alleges

as

follows:

I.

NATURE OF THIS ACTION

1.

This is

an

action under the Freedom of Information Act, 5 U.S.C. section 552

(FOIA),

as

amended, for injunctive and other appropriate relief and seeking the disclosure and

release of agency records, limited to any and all and the

consisting

of all materials

subject

to

disclosure, including but

not

background files, pertaining

to Revenue

Ruling 2002-6,

2002-1 C.B. 460

Treasurys 1999 Priority Guidance Plan released March 10,
and Products
...

1999 titled: Insurance

Companies

3. Guidance under section 807.

Dockets.Justia.com

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II.

THE PARTIES

2.

Plaintiff Latham, the requester of the agency records that have been
a

improperly

withheld, is

law firm with its main office located at 633 West Fifth Street, Suite 4000, Los

Angeles,

California 90071. The

requesting

office is located at 555 Eleventh Street NW, Suite

1000, Washington, District of Columbia 20004.

3.

Defendant IRS is

an

agency of the

government of the United States, and has
IRS is
an

possession
meaning

and control of the records

requested by plaintiff.

agency within the

of 5 U.S.C.

552(f).

III.

JURISDICTION AND VENUE

4.

This Court has both
the

subject

matter

jurisdiction

over

this action and

personal

jurisdiction jurisdiction

over

parties pursuant

to 5 U.S.C.

section

552(a)(4)(B).

This Court also has

over

this action pursuant to 28 U.S.C. section 1331.

5.

Venue is proper in this District pursuant to 5 U.S.C. section

552(a)(4)(B).

IV.

FACTUAL ALLEGATIONS

FOIA REQUEST PERTAINING TO REVENUE RULING 2002-6 6.

Plaintiff sent to Defendant

a

request dated April 7, 2006 for all materials subject

to

disclosure, including but

not

limited to any and all

background files, pertaining

to Revenue

Ruling 2002-6,

2002-1 C.B. 460.

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7.

Defendant

responded

on

April 18,

2006

stating

that it

was

unable to

respond

within the

statutorily prescribed

time of 20 business

days.

Defendant then invoked the additional

ten-day statutory extension,

which extended the statutory response date to

May 22, 2006.

Defendant also stated that it did not

anticipate being

able to address Plaintiffs request

by

the

statutorily extended
response to be

date and

requested additional
2006.

time to

respond

to Plaintiffs

request, with

a

expected by July 7,

8.

On

September 29, 2006,

Plaintiff contacted Defendant to

inquire

about the status

of its request and

was

told that the request

was

still

pending.

9.

In

a

letter dated

January 31, 2007,

209

days

after the deadline stated in its

April

18, 2006 correspondence, Defendant requested additional time
The letter states that
a

to

respond

to

Plaintiffs request.

response should be

expected by

June

8, 2007.

10.

On March

1, 2007, Plaintiff contacted Defendant via telephone concerning
to check
on

Defendants

letter dated

January 31, 2007

the status of the request. Plaintiff was of yet, and therefore

informed that Chief Counsel has not reviewed the documents
documents could be

as

no

provided
on

to date.

Additionally,
2006 and
no

Plaintiff was informed that

a

search

memo

was

sent to Chief Counsel

April 17,

information has been

provided

in response

to the search

memo.

11.

In

a

letter dated March 5, 2007, Defendant states that Plaintiff has not made any

inquiry
receive

as

to the status of Plaintiffs

request dated April 7, 2006 and if Defendant does
then it will close Plaintiffs request.

not

a

response

by April 9, 2007,

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12.

On

April 2, 2007,

Plaintiff responded to Defendants

March 5, 2007 letter

stating

that it

was

still interested in the documents.

13.

Defendant failed to

respond

to Plaintiffs

April 7,

2006 FOJA request within the

statutorily provided period,
the time of filing this

and did not issue

a

determination with

regard to

Plaintiffs request at

Complaint.

FOIA REQUEST PERTAINING TO THE TREASURYS 1999 PRIORITY GUIDANCE PLAN RELEASED MARCH 10, 1999

PERTAINING TO GUIDANCE UNDER SECTION 807
14.

Plaintiff

sent to

Defendant

a

request dated April 7, 2006 for all background files
1999

pertaining

to

items listed in the

Treasurys

Priority

Guidance Plan released March 10, 1999

titled: Insurance

Companies

and Products

...

3. Guidance under section 807.

15.

Defendant

responded

on

April 18,

2006

stating

that the 1999 Priorities for Tax the

Regulations

and Other Administrative Guidance

was

created jointly

by

Department
was

of

Treasury, Office of Tax Policy and Defendant. Therefore, the
transferred to the

FOJA request

being
to

Department

of Treasury and the

20-day statutory

window for

responding

requests will begin when the request is received by the Department of Treasury.

16.

On

August 9, 2006, Plaintiff submitted additional detail, which clarified
that the

the

information

sought, by specifying application

project

was

headed up

by

Louise

Epstein

at

Treasury

and involved the

of Actuarial Guidelines 33 and 34.

17.

On

September 29, 2006,

the

Department of Treasury,
to items

in response to

a

FOIA

request for all of its background files pertaining

listed in the

Treasurys

1999

Priority
3.

Guidance Plan released March 10, 1999 titled: Insurance

Companies and

Products

...

4

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Guidance under section 807, stated that in addition to the documents
documents

provided,

it identified nine

consisting
at IRS.

of 97 pages, which

were

responsive,

but not

provided

because

they
to

originated

Therefore, the Department of Treasury forwarded these documents

Defendant for review.

18.

In

a

letter dated

January 31, 2007, Defendant requested additional
states that
a

time to

respond

to Plaintiffs

request. The letter

response should be

expected by

June

8, 2007.

19.

On March

1, 2007, Plaintiff contacted Defendant via telephone concerning
2007 to check
on

Defendants

letter dated

January 31,

the status of the request. Defendant of Treasury had transferred nine
at the IRS Chief

confirmed that

during November 2006,

the

Department

documents, which consisted of 97 pages that had originated

Counsel, back

to

Defendant to review. Chief Counsel has not reviewed the documents
documents could be

as

of yet, and therefore

no

provided

to

date.

20.

Defendant failed to

respond

to

Plaintiffs

April 7,

2006 FOJA request within the

statutorily provided period,
the time of filing this

and did not issue

a

determination with

regard

to Plaintiffs

request

at

Complaint.

V. 21.

REQUESTED
reference

RELIEF
1

Latham

incorporates by

paragraphs

through

20

as

though fully

set

forth herein.

22.

By operation of law (as

set forth in 5 U.S.C. section

552(a)(6)(C)(i),

26 C.F.R.

section

601.702(c)(12),

and 31 C.F.R. section

1.5(k)),

Plaintiff has exhausted its administrative

remedies with respect to this matter.

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23.

Plaintiff has

a

statutory right, pursuant
no

to 5 U.S.C. section

552(a)(3),
to

to the

records it seeks, and there is

legal

basis for defendants documents.

failures to

respond

plaintiffs

requests and

to

disclose the

requested

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for the following relief:

A.

Order Defendant to disclose the

requested

records in their entireties and make

copies

available to Plaintiff;
B.

Provide for

expeditious proceedings

in this

action;
in this

C.
D.

Award Plaintiff its costs and reasonable

attorneys fees incurred just
and proper.

action; and

Grant such other relief as the Court may deem
2007

Dated:

April 6,

Respectfully submitted,
LATHAM & WATKINS LLP

~A~QQ~L
Susan E. Seabrook
DC Bar # 472489
555 Eleventh

Street, NW

Suite 1000

Washington, DC 20004 Telephone: [phone] Facsimile: [phone] Attorney for the Plaintiff
Of Counsel: Kevin M. Jacobs
DC Bar # 494866
555 Eleventh Suite 1000

Street, NW

Washington, DC 20004 Telephone: [phone] Facsimile: [phone]

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