POWELL v. INTERNAL REVENUE SERVICE et al

Filing 37

MEMORANDUM AND OPINION re 36 Order on Motions to Dismiss and/or Summary Judgment. Signed by Judge James E. Boasberg on 6/9/2017. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WILLIAM E. POWELL,
Plaintiff,
v.

Civil Action No. 16-1682 (JEB)

INTERNAL REVENUE SERVICE,
Defendant.

MEMORANDUM OPINION
While Benjamin Franklin may have believed that “in this world nothing can be said to be
certain, except death and taxes,” this case demonstrates that the adage does not apply to tax
records. Over the years, pro se Plaintiff William Powell has tried a variety of means to get
Defendant Internal Revenue Service to turn over tax records related to his grandfather, his father,
himself, and his family’s printing business. His limited success in this venture has spurred this
lawsuit. Now, in his Amended Complaint, he asserts a basket of claims against the agency,
predominantly asking that it be ordered to conduct a search for additional records, produce an
index of what it finds, and turn over the documents. The IRS counters in two separate Motions
that the suit should be dismissed or, alternatively, that summary judgment is warranted. As the
Court concurs only in part, it will grant the Motions as to a few claims.
I.

Background
Because this Opinion largely deals with Defendant’s Motion to Dismiss, the facts

presented are taken from Powell’s Amended Complaint and assumed to be true. Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (providing standard). In its initial
background section, though, the Court must rely on descriptions provided by the Internal

Revenue Manual to figure out what records are actually at issue. This is because Plaintiff often
uses acronyms in his pleadings to identify what he is seeking without explaining what these
terms mean.
As to the subsequent factual and procedural sections, by contrast, the Court relies heavily
on the exhibits that he has attached to his Amended Complaint, as well as his briefs. These
pleadings helpfully fill in missing details or clarify confusing statements found in the Amended
Complaint. See Brown v. Whole Foods Market Gr., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015)
(holding district court must consider all pro se litigant’s allegations when considering motion to
dismiss, including those found in plaintiff’s opposition).
A. IRS Records
In his prayer for relief, Powell seeks a number of tax records that the IRS maintains in
different computing systems. Distinguishing among them is critical to determining whether, as
Defendant contends, he has failed to submit any proper request for these documents. The Court
thus offers this brief primer on the IRS record system, along with the caveat that acronymschallenged readers may find this section heavy sledding.
At the center of this litigation are records that can be retrieved through the IRS’s
Integrated Data Retrieval System. As its name implies, the IDRS can search more than one
record system maintained by the agency. Hysell v. Internal Revenue Serv., 36 F. Supp. 3d 58, 61
(D.D.C. 2014). The command code that an IRS employee enters into an IDRS terminal
“determines which database [it] searches and the data [it] retrieves.” Id. These results then
appear “in a computer-created record referred to as a ‘transcript’ viewable either on a computer
screen or in hard copy form.” Id.

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One of these searchable databases is known as the Master-File system. Data is entered
into the Master-File system “when[ever] the IRS receives a return from a taxpayer, makes a tax
assessment, receives a payment, makes a refund, or takes other actions related to a taxpayer.” Id.
at 60 (internal quotation omitted). A master-file transcript thus offers a trove of tax information
because it acts as “the official repository of all taxpayer data extracted from magnetic tape
records, paper and electronic tax returns, payments, and related documents.” ECF No. 31-2
(Declaration of Joy E. Gerdy Zogby), ¶ 9 (quoting Internal Revenue Manual 21.2.1.2).
Depending on the specific type of data entered, this information “is stored in a record as either an
‘account’ or a ‘tax module.’” Hysell, 36 F. Supp. 3d at 60.
The command code of “MFTRA is used to request [this] taxpayer information in the form
of hardcopy transcripts” from the IDRS. See IRM 2.3.32.1. If an IRS employee uses the
command code of MFTRA “complete” for a particular tax-identification number (TIN), the
computer will produce a complete master-file transcript for that taxpayer – i.e., “a transcript
containing all entity and tax module data associated with th[at] TIN.” Zogby Decl.,
¶ 11 (quoting IRM 2.3.32.8). By definition, then, this MFTRA-complete transcript contains data
from any past years relevant to that taxpayer. Id. When conducting an IDRS master-file search,
though, the IRS employee may instead enter a more limited MFTRA “specific” query. See IRM
2.3.32-2. Unlike a MFTRA “complete” command, this MFTRA “specific” search may be used
to retrieve tax returns that include only a particular type of tax module. Id.
Regardless of the scope of the request, a Master File transcript for businesses is
abbreviated as a “BMF” and “contains information about taxpayers filing business returns and
documents related to that business.” Zogby Decl., ¶ 8 (quoting IRM 4.71.2.2). Likewise, for
individuals, the same sort of individual master-file transcript is called an “IMF.” Id. In other

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words, the IDRS can be used to produced IMF-specific, IMF-complete, BMF-specific, and
BMF-complete transcripts, depending on what command is initially entered.
Although rare, it sometimes happens that “certain types of tax assessments cannot be
implemented by [this] Master File processing” system. See Zogby Decl., ¶ 18 (quoting IRM
21.2.1.5). In such a circumstance, the assessments are housed instead on the IRS’s “non-master
file” system, which is also accessible through the Integrated Data Retrieval System. Id., ¶ 19.
The results of such a search are known as NMF transcripts, and IRS employees retrieve them
using command codes specific to the year they were filed. Id.
Finally, as relevant here, the IDRS can also be used to retrieve Taxpayer Information
Files for certain taxpayers. See IRM 2.3.2.2.2. A TIF “includes information regarding active
taxpayer accounts, meaning that the taxpayer’s liability for that year has not been resolved or
was recently resolved.” Hysell, 36 F. Supp. 3d at 61 (internal quotations omitted). To retrieve
this file, a command code of TXMOD(A) entered into the IDRS can be used to display most of
the tax-module information that a TIF contains. See IRM 2.3.11.3.
B. Factual
Turning to the facts of this case, Plaintiff is the son of William A. Powell, a metallurgist
who inherited a successful thirty-year-old printing business in Detroit, Michigan, after the
sudden death of his own father, Andrew, in 1987. See ECF No. 26 (Amended Complaint) at 2.
Two years later, on December 11, 1989, the elder William Powell incorporated that business in
Michigan as the Powell Printing Company. Id. at 2-3. He also executed a trust involving the
business around this time. Id.
A few years later, in March 1992, he passed away, and a probate estate was opened for
him in the Wayne County (Michigan) Probate Court. Id.; see also id. at 7 n.3 (date of death).

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Plaintiff was named as a “nominee” in that matter, but it seems that he did not find out about this
proceeding until 2011. Id. at 3. At that time, Powell reviewed the case docket and noticed that
no proof of service had been filed as to the listed beneficiaries. Id.
He has since been on a mission to uncover financial records related to Powell Printing
Company, his father (William A. Powell), his grandfather (Andrew Powell), and certain trusts
that these two men set up, at least in part because he believes that there may have been some
malfeasance by the trustees in the disbursement of his family’s assets. See, e.g., ECF No. 26-28
(July 5, 2016, RAIVS Request) (explaining “this requested information is needed to help me
determine whether to bring action against the trustees for breach of their fiduciary duty”). To
this end, he has filed approximately 89 Freedom of Information Act requests with Defendant and
challenged the adequacy of the agency’s response to at least some of these inquiries three
separate times in federal court in the Eastern District of Michigan. See Powell v. IRS, No. 1511033, 2016 WL 7473446 (E.D. Mich. Dec. 29, 2016); Powell v. IRS, No. 15-11616, 2016 WL
5539777 (E.D. Mich. Sept. 30, 2016); Powell v. IRS, No. 14-12626, 2015 WL 4617182 (E.D.
Mich. July 31, 2015); ECF No. 34-2 (Declaration of William J. White), ¶ 3 (explaining Powell
has made 89 requests).
This case fortunately has a more limited scope. At issue here is a series of requests for
records that Powell made between June and July 2016. First, on June 15, he submitted a general
FOIA request to Defendant, in which he predominantly sought: 1) master-file transcripts for his
relatives, their trusts, and the printing business from 1989 through 1992, and 2) TXMOD(A)
transcripts for the same entities and time period. See Am. Compl. at 6-8.
The IRS has since responded in ways that he believes were either incomplete or incorrect.
Id. In particular, after his initial request, the Service sent him two letters in late June 2016,

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explaining that it could not process his requests for either of the tax-return transcripts that he
sought because those records were exempt from its FOIA-processing requirements. Id. at 10.
These letters included instructions, however, on the multiple paths he needed to pursue to obtain
these records. See ECF No. 26-21 (IRS Letter on June 20, 2016); ECF No. 26-9 (IRS Letter on
June 22, 2016). They also warned that he had no choice but to pursue these alternative avenues
as his FOIA request would not otherwise be processed. Id.
Powell, accordingly, followed several of these leads. First, he again submitted two
separate requests for these master files, but unfortunately this time to the addresses listed in the
IRS letters for non-master-file requests. See Am. Compl. at 9; June 20, 2016, IRS Letter at 2;
ECF No. 26-10 (June 20 & 24 Requests). More specifically, he sent one such letter for the
transcripts for himself and his relatives to the address listed for individuals’ non-master-file
transcripts and, in addition, sent off the same for the Powell Printing Company to the IRS
location listed for business non-master-file transcripts. See Am. Compl. at 9; June 20, 2016, IRS
Letter at 2; ECF No. 26-10 (June 20 & 24 Requests). He also included in these mailings several
documents to verify his right to these tax records, including copies of his driver’s licenses,
certain probate documents, and death certificates for his deceased father and grandmother. See
Am. Compl. at 9-10.
Next, he turned to the IRS’s specialized Return and Income Verification Service
(RAIVS), which the FOIA letters indicated would process requests for hard copies of master
files. Id. at 11-12; June 20, 2016, IRS Letter at 2. From July 6 through July 19, 2016, he
submitted four separate requests to RAIVS – two to its office in Cincinnati, Ohio, and one each
to its offices in Fresno, California, and Ogden, Utah. See Am. Compl. at 14-15; July 5, 2016,
RAIVS Request (requesting “1041 MFTRA Complete” for William A. Powell Trust); ECF Nos.

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26-29 (July 15, 2016, RAIVS Request 1) (requesting Andrew Powell Printing Company
transcripts for TXMOD(A) Complete, “BMF MFT 06 Complete,” and “1065 MFTRA
Complete”), 26-30 (July 15, 2016, RAIVS Request 2) (requesting Powell Printing Company and
William A. Powell transcripts), 26-31 (July 19, 2016, RAIVS Request) (requesting individual
master files for father and Plaintiff from 1988-1992). Although he claims that he never received
any response to these inquiries, see Am. Compl. at 15, one of the exhibits he attached to his
Amended Complaint is a response from the IRS to a July 2016 request that includes a redacted
master-file transcript for the Powell Printing Company. Id. at 6 (discussing receipt of the letter);
ECF No. 26-3 (IRS Letter on July 13, 2016, and attached transcript).
The Amended Complaint and its other exhibits also indicate that Plaintiff has had some
success in getting a hold of other tax documents from the IRS at times that remain somewhat
unclear. Most notably, the agency sent Plaintiff a redacted 1990 and 1991 Form 1120S tax
return for the Powell Printing Company. See Am. Compl. at 6 (discussing documents); ECF No.
26-4 (Powell Printing Co. 1990 Form 1120S) at 1-2, (Powell Printing Co. 1991 Form 1120S) at
3-4. It also sent him: 1) a BMF-specific transcript for the William A. Powell Trust and one for
the Andrew Powell Trust, see ECF No. 26-5 (William A. Powell Trust BMF TranscriptSpecific); ECF No. 26-6 (Andrew Powell Trust BMF Transcript-Specific); 2) a BMF-specific
transcript for Powell Printing Company, see ECF No. 26-7 (Powell Printing Co. BMF
Transcript-Specific); 3) a BMF-complete transcript for the Powell Printing Company, see ECF
No. 26-44 (Powell Printing BMF Transcript-Complete); 4) a BMF-complete transcript for the
William A. Powell Estate, see ECF No. 26-47 (William A. Powell Estate BMF TranscriptComplete); 5) an IMF-specific transcript for himself, see ECF No. 26-53 (William E. Powell

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IMF Transcript-Specific); and 6) a 1993 federal tax return for the estate of William A. Powell.
See ECF No. 26-48 (Form 706).
C. Procedural History and Subsequent Developments
Unsatisfied with this incomplete haul, Powell filed this case on August 17, 2016, under
26 U.S.C. § 6103, asserting a host of claims against Defendant. See ECF No. 1 (Complaint).
The Court dismissed that Complaint without prejudice because 26 U.S.C. § 6103 – which
exempts tax returns from disclosure except under certain limited circumstances – does not
provide an independent jurisdictional ground for such a suit, but instructed Powell he could refile
under FOIA. See ECF No. 25 (Order on Jan. 24, 2017). He has since filed the current Amended
Complaint under the Privacy Act, although he makes some references to FOIA in his narrative
about the factual underpinnings of this case.
Defendant then moved to dismiss all but one of these claims and asked for leave to file a
separate motion in relation to what it dubbed “Count XII,” which is really just Powell’s twelfth
prayer for relief in the Amended Complaint. See ECF No. 31 (First Motion to Dismiss). After
Powell filed his Opposition to the initial Motion to Dismiss, Defendant filed a second Motion
seeking to dismiss or, alternatively, secure summary judgment on that remaining prayer for
relief. See ECF No. 34 (Second Motion to Dismiss and/or Motion for Summary Judgment). In
this second Motion, Defendant contended that Powell had failed to exhaust his administrative
remedies as to five of the eight transcripts listed in that count, and that his claim to the other
three was now moot, as the IRS had turned over those transcripts on May 15, 2017. Id. at 1-2.
Both Motions are now ripe.

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II.

Legal Standard
In evaluating a motion to dismiss, the Court must “treat the complaint’s factual

allegations as true and must grant plaintiff the benefit of all inferences that can be derived from
the facts alleged.” Sparrow, 216 F.3d at 1113 (citation and internal quotation marks omitted);
see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court need not accept as true,
however, “a legal conclusion couched as a factual allegation,” nor an inference unsupported by
the facts set forth in the Amended Complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178,
193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a cause of action
when the complaint “fail[s] to state a claim upon which relief can be granted.” Although
“detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual
matter, [if] accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556
U.S. at 678 (internal quotation omitted). Though a plaintiff may survive a Rule 12(b)(6) motion
even if “recovery is very remote and unlikely,” the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Summary judgment, by contrast, may be granted if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact is one that would change the
outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a

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material issue, the Court is to construe the conflicting evidence in the light most favorable to the
non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
Factual assertions in the moving party’s affidavits or declarations may be accepted as true unless
the opposing party submits his own affidavits, declarations, or documentary evidence to the
contrary. Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S.
Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears
the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)
(citations omitted). The Court may grant summary judgment based solely on information
provided in an agency’s affidavits or declarations when they “describe the documents and the
justifications for nondisclosure with reasonably specific detail, demonstrate that the information
withheld logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are “accorded a presumption
of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and
discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III.

Analysis
The Court must travel down a rather winding path to assess whether anything from

Plaintiff’s Amended Complaint should survive the current Motions. This journey is compelled
by Powell’s pleadings’ own meandering narrative – which sometimes borders on the

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indecipherable – and the Court’s efforts to provide the most generous reading possible of his
allegations given that he is proceeding without counsel.
To provide some structure, the Court first explains why the suit must be dismissed to the
extent it is asserted under the Privacy Act. The Court then takes up his claims as though they
arise under FOIA and explains why some of those survive.
A.

Privacy Act

Powell relies most heavily on the Privacy Act to press his suit, despite the Court’s earlier
instruction to re-plead it under FOIA. See Order of Jan. 24, 2017. As Defendant correctly
points out, Powell never asserts in the Amended Complaint that he took any of the steps required
to request these documents under the Privacy Act’s separate scheme. He thus has not stated a
claim under that statute. See Hidalgo v. FBI, 344 F.3d 1256, 1260 (D.C. Cir. 2003) (directing
district court to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim where plaintiff failed to exhaust administrative remedies); Bayala v. DHS, Office of Gen.
Counsel, 827 F.3d 31, 35 n.1 (D.C. Cir. 2016) (noting “typical course of action” where plaintiff
has not exhausted administrative remedies is for defendant to move for dismissal under Rule
12(b)(6)).
The Privacy Act “safeguards the public from unwarranted collection, maintenance, use
and dissemination of personal information contained in agency records . . . by allowing an
individual to participate in ensuring that his records are accurate and properly used, and by
imposing responsibilities on federal agencies to maintain their records accurately.” Mobley v.
CIA, 806 F.3d 568, 585 (D.C. Cir. 2015) (quoting Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir.
1984)). In other words, it “– unlike [FOIA] – does not have disclosure as its primary goal and
instead uses disclosure as a tool to allow individuals on whom information is being compiled and

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retrieved the opportunity to review the information and request that the agency correct any
inaccuracies.” Id. at 586 (quoting Henke v. Dep’t of Commerce, 83 F.3d 1453, 1456-57 (D.C.
Cir. 1996) (internal quotations omitted)).
To this end, under the Privacy Act, “[e]ach agency that maintains a system of records”
has to provide an individual access to “his record or to any information pertaining to him which
is contained in the system” upon his request. See 5 U.S.C. § 552a(d)(1). Specifically, it must
allow him “to review the [relevant] record[s] and have a copy made.” Id. If any agency “refuses
to comply with [such] an individual request[,] . . . the individual may bring a civil action against
the agency” in a federal district court, id. § 552a(g)(1)(B), and that court may “enjoin the agency
from withholding the records and order the production to the complainant of any agency records
improperly withheld from him.” Id. § 552a(g)(3)(A).
Each agency covered by the statute – including the IRS – is responsible for promulgating
rules to “establish procedures” necessary to implement these obligations. Such rules must
establish a “reasonable” process for gaining access to personal records. Id. § 552a(f); see 31
CFR § 1.26(a). Defendant, accordingly, has established regulations requiring, inter alia, that a
Privacy Act inquiry must be clearly marked “request for notification and access” and “contain a
statement that it is being made under the provisions of the Privacy Act.” 31 C.F.R. § 1.26, Pt. 1,
Subpt. C, App. B(3)(b)(iii). It must also be correctly addressed to the title and office address of
the designated official set forth in the Notice of Systems of Records and list the principal officer
in charge of maintaining that system. Id., App. B(3)(c).
Relying on these mandates, Defendant argues that Powell fails to state a Privacy Act
claim in his Amended Complaint because he never alleges that he complied with any of the
requirements of this scheme in making his requests. See MSJ at 7-9. Indeed, Plaintiff never

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asserts that his many requests even mentioned the Privacy Act, and none of the requests – which
he helpfully attached to his Amended Complaint – complied with any of these regulations. See
Jun. 20 & 24, 2016, IRS Requests; July 5, 2016, RAIVS Request; July 15, 2016, RAIVS Request
1; July 15, 2016 RAIVS Request 2; July 19, 2016, RAIVS Request. His letters were not
properly labeled as requests for notification and access, see 31 C.F.R. § 1.26, Pt. 1, Subpt. C,
App. B(3)(b)(ii), they did not mention the Privacy Act, id. App. B(3)(b)(iii), they did not specify
the name and location of the particular system of records as set forth in the Notice of Systems, id.
App. B(3)(b)(v), and they did not include “the title and business address of the official
designated in the access section for” such a system as set forth in the Notice of Systems. Id.
App. B(3)(b)(v). Plaintiff instead clearly referred only to FOIA in his initial requests and
appears to have sought disclosure of the documents exclusively under that statute.
As a result, he has not alleged facts essential to any claim under the Privacy Act, and this
neglect is sufficient to warrant dismissal of these counts to the extent they rely on that statute,
rather than FOIA. Taylor v. Treasury Dep’t, 127 F.3d 470, 474 (5th Cir. 1997) (affirming
dismissal on ground that plaintiff’s “failure to present a request that comported with applicable
Privacy Act regulations constituted a failure to exhaust administrative remedies because, as a
technical matter, the IRS never denied a properly framed request for access to records”); Lee v.
Dep’t of Justice, 235 F.R.D. 274, 285 (W.D. Pa. 2006) (“For a [Privacy Act] request to be
proper, it must be made in accordance with the agency’s published regulations regarding, inter
alia, procedures to be followed. Accordingly, a claimant who has failed to present a request
comporting with the applicable regulations has failed to exhaust his administrative remedies
because, as a technical matter, the agency at issue never denied a properly framed request for
access to records.”) (internal citations omitted); Scaife v. IRS, No. 02-1805, 2003 WL 23112791,

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at *3-4 (D.D.C. Nov. 20, 2003) (dismissing Privacy Act claims for failure to comply with IRS
regulations requiring name of the system or subsystem or categories of records to which access
was sought); Macleod v. IRS, 2001 WL 846487, at *1 (S.D. Cal. June 4, 2001) (same); Reeves v.
United States, 1994 WL 782235, at *3 (E.D. Cal. Nov. 16, 1994) (explaining plaintiff’s failure to
identify name and location of particular system of records constituted failure to exhaust
administrative remedies); Lilienthal v. Parks, 574 F. Supp. 14, 18 (E.D. Ark. 1983) (dismissing
Privacy Act claim for failure to exhaust administrative remedies where plaintiff’s Privacy Act
request failed to comply with regulations).
The Court, consequently, will dismiss these claims, but without prejudice, so that Powell
may return to a federal district court after he has pursued his administrative remedies. Of course,
the first step in doing so is the submission of a proper Privacy Act request to Defendant, as
explained above. To accomplish that task, he will need to submit his request to the correct
address, labeled as a “Privacy Act Request,” and include the names of the specific systems of
records to which he wants access, the location of those systems, and the name and address for the
IRS manager of that system. All of this information can be found online on the IRS’s System of
Record Notice. See IRS Privacy Act of 1974, as Amended; System of Records Notice, 80 Fed.
Reg. 54,063 (Sept. 8, 2015), https://www.federalregister.gov/documents/2015/09/08/201521980/privacy-act-of-1974-as-amended-system-of-records-notice.
B.

FOIA

The Court next turns to a consideration of Powell’s claims under FOIA. Congress
enacted FOIA in order “to pierce the veil of administrative secrecy and to open agency action to
the light of public scrutiny.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(quotation marks and citation omitted). “The basic purpose of FOIA is to ensure an informed

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citizenry, vital to the functioning of a democratic society, needed to check against corruption and
to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493
U.S. 146, 152 (1989) (citation omitted). The statute thus provides that “each agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in accordance
with published rules . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A).
Consistent with this statutory mandate, federal courts have jurisdiction to order the
production of records that an agency improperly withholds. See id. § 552(a)(4)(B); Dep’t of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754-55 (1989). In making
this determination, the court “[a]t all times . . . must bear in mind that FOIA mandates a ‘strong
presumption in favor of disclosure.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32
(D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)). In order to satisfy
FOIA, an agency must thus demonstrate both that it adequately searched for responsive records
and that it turned over all such records not subject to a specific exemption.
Critically, though, FOIA only requires that an agency turn over records, not that it
provide a requestor with specific information or answer questions. Willaman v. Erie Bureau of
Alcohol Tobacco Firearms & Explosives, 620 F. App’x 88, 89 (3d Cir. 2015) (“It is clear . . . that
nothing in the [FOIA] requires answers to interrogatories but rather and only disclosure of
documentary matters which are not exempt.”) (internal quotations marks omitted); Di Viaio v.
Kelley, 571 F.2d 538, 542-43 (10th Cir. 1978) (same); see also Hedrick v. FBI, 216 F. Supp. 3d
84, 95 (D.D.C. 2016); Hudgins v. IRS, 620 F. Supp. 19, 21 (D.D.C. 1985). It “is [also] well
established that ‘questions about the authenticity and correctness of the released records are
beyond the scope of the Court’s FOIA jurisdiction.’” Hedrick, 216 F. Supp. 3d at 95 (quoting

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Jackman v. Dep’t of Justice, No. 05-1889, 2006 WL 2598054, at *2 (D.D.C. Sept. 11, 2006)).
To the extent, then, that Powell is attempting to question the authenticity of certain documents
already released to him, see, e.g., Am. Compl. at 6 (referring to receipt of an “alleged” copy of
certain tax returns), or to seek acquisition or confirmation of certain information outside of his
requests for particular records, his claims cannot proceed. See Am. Compl. at 26-27 (requesting
disclosure of certain social security numbers or parent EINs). Inasmuch as Powell seeks specific
forms of relief such as a Vaughn Index in his Amended Complaint, moreover, those remedies are
premature at this stage because it is unclear whether such an Index will ultimately be necessary.
See, e.g., Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993).
So what is left? The only allegations from his Amended Complaint that Powell can
proceed on under FOIA are those that might plausibly be read as seeking records via his June
and July 2016 letters. All of these records he requested at some point at least once from RAIVS
as well. The Court, again interpreting the Amended Complaint as generously as possible, comes
up with this list:
Entity/Individual

Transcript

Request

Master file-complete
Andrew Powell
Printing Company

Master file-specific for “06”
Master file-specific for Form 1065

July 15 RAIVS
Request 1

TXMOD(A)

Master file-complete
Powell Printing
Company

Master file-specific for Form 1120
TXMOD(A)

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July 15 RAIVS
Request 2

Master file-complete
William A.
Powell
Agreement of
Trust

July 5 RAIVS
Request

Master file-specific for Form 1041
TXMOD(A)
Master file-complete

July 15 RAIVS
Request 2
July 5 RAIVS
Request

Master file-specific for Form 706
Estate of William
A. Powell

Master file-specific for Form 1041

July 15 RAIVS
Request 2

TXMOD(A)

William A.
Powell

Master file-complete
Master file-specific for Form 1040

July 19 RAIVS
Request

TXMOD(A)
William E.
Powell

Master file-complete
Master file-specific for Form 1040

July 19 RAIVS
Request

TXMOD(A)

As the IRS now honorably concedes, its letters to Powell after his initial requests about
how to properly seek these tax records “could have been clearer.” MSJ at 6. As a result, the
Service has taken the position that, to be fair, it will treat at least these above-listed RAIVS
requests as though they were properly submitted inquiries, and, in fact, it has since turned over
three of the transcripts that Powell requested. Id.
But this RAIVS category (and thus the chart) does not encompass all of the records that
Powell mentions in his Amended Complaint, nor does the IRS interpret him to still be seeking all
of the documents listed in this chart, as explained more thoroughly below. In addition, at least in

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regard to some of the records mentioned in this chart, the Service raises additional arguments
about why it should not have to turn them over. In short, as far as the Court can tell, there are
four categories of records that must now be dealt with under FOIA: 1) transcripts or records that
Powell mentions in his Amended Complaint, but never requested from the agency in any of his
various submissions; 2) transcripts that he did seek through RAIVS and that the agency has now
turned over; 3) the Andrew Powell Printing transcripts, which Defendant concedes were
requested, but now claims imperfectly so; and 4) other records that Powell plainly requested
from RAIVS, but which the IRS has not yet produced.
The Court takes up each separately, concluding that the first two groups warrant
dismissal, but the final two sets of claims survive.
1. Unrequested Records
It should come as no surprise that where Powell makes no allegation that he ever
requested particular records from Defendant, his FOIA claims related to these documents must
be dismissed. Church of Scientology v. IRS, 792 F.2d 146, 150 (D.C. Cir. 1986) (stating claims
must be dismissed where requestor failed to follow “the statutory command that requests be
made in accordance with published rules”); see McDonnell v. United States, 4 F.3d 1227, 1236
(3d Cir. 1993) (“[Section] 552(a)(3) conditions the agency’s duty [to make records available]
upon receipt of a request that is made in accordance with published rules stating the time, place,
fees, and procedures to be followed and that reasonably describes the records sought.”); Kalu v.
IRS, No. 14-998, 2015 WL 4077756, at *4 (D.D.C. July 1, 2015). In particular, as the IRS
points out, Powell now asks to get non-master files (NMF) in his Amended Complaint for the
printing companies, himself, and the Estate of William E. Powell. See Am. Compl. at 26-27
(Count 12). But Plaintiff never alleges that he ever asked the IRS to search for these transcripts

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in his initial FOIA request, his subsequent requests on June 20 and 24, 2016, or his four RAIVS
requests. None of his attached records of these requests, moreover, makes any mention of nonmaster-files. The closest he comes is the fact that he sent the June 20 and 24 inquiries to the
address listed for non-master-files requests, but the letters themselves clearly ask for other types
of transcripts. As such, his claims related to these records cannot stand.
In addition, Defendant maintains that Powell asks for many other specific records in his
Amended Complaint that were also not included in any of these requests, such as the 1990
corporate tax returns for the Andrew Powell Printing Company. See Am. Compl. at 26. The
Court agrees that there is no allegation that Powell asked for these specific records, and, as a
result, he cannot now demand that the agency search for them. While Powell may apparently
believe that many of these specific tax documents will turn up in the various transcripts that he
did request, that does not constitute an independent claim to such records.
The Court, consequently, agrees that it must dismiss any claim that Powell brings related
to documents that he did not identify in his requests to the IRS.
2. Mootness
Defendant next argues that Powell’s claims to three of the transcripts that he did request
from RAIVS are now moot, as the IRS turned them over to him on May 15, 2017. See MSJ at 24. Powell, for his part, agrees that he got these records, but nevertheless complains that they are
either incomplete or indecipherable to him. See ECF No. 35 (Opposition to MSJ) at 5. Upon
examination – which Powell helpfully assists by attaching them to his Opposition – the Court
agrees with the IRS that this aspect of his suit is indeed moot. It will thus dismiss his claims as
to these three transcripts.

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Article III of the Constitution limits federal-court jurisdiction to actual cases or
controversies, which “must be extant at all stages of review, not merely at the time the complaint
is filed.” Genesis Healthcare Corp. v. Synmczyk, 133 S. Ct. 1523, 1528 (2013) (quoting
Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)) (quotation marks omitted).
“If an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the
lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as
moot.” Id. (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)) (quotation
omitted). In the FOIA context, this means that where the government has released certain
requested documents, the case is moot as to them. William v. Connolly v. SEC, 662 F.3d 1240,
1244 (D.C. Cir. 2011); cf. Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) (“[H]owever fitful
or delayed the release of information under the FOIA may be, once all requested records are
surrendered, federal courts have no further statutory function to perform.”).
This is precisely the circumstance the Court confronts here with regard to Powell’s
request for an Individual Master-File (IMF-complete) Transcript for William E. Powell, a
Business Master-File (BMF-complete) Transcript for the Estate of William A. Powell, and a
BMF-complete for the Powell Printing Company. As Plaintiff concedes, the IRS did recently
turn these three records over to him. See Opp. to MSJ at 4-8. Although he nevertheless protests
that his claim to them should not be dismissed because he believes they were altered, he provides
no reason to demonstrate this to be the case, beyond his suspicion that there should be data
entries for every year. But there is no inherent reason that this should be so, and the Court finds
no evidence that Defendant tampered with these transcripts. Indeed, the agency has provided an
affidavit explaining how it produced these documents, see White Decl., ¶¶ 20-23, which is

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entitled to a presumption of good faith. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991). Powell’s speculation to the contrary, in other words, is of no moment.
Likewise, his further complaint that he cannot decipher the information provided in the
transcripts is not relevant to a claim under FOIA. Hedrick, 216 F. Supp. 3d at 95 (explaining
FOIA only requires records be released); Hudgins, 620 F. Supp. at 21 (same). The agency is
under no obligation to provide him with an interpretation or to help him suss out the information
these records contain. Id.
As such, dismissal of these aspects of his Amended Complaint is proper.
3. Andrew Powell Printing Transcripts
Although the Court’s disposition of the issues above considerably narrows this suit, all is
not lost for Powell. In particular, he and the IRS both agree that Powell’s multiple RAIVS
requests also sought several transcripts for the Andrew Powell Printing Company – namely, a
TXMOD(A), Master file-Complete, Master file-Specific for “06” tax modules, and Master filespecific for Form 1065. Unlike the other documents that Defendant turned over from these
requests, the IRS maintains that Powell never perfected his request for these particular records.
More specifically, he failed to attach the appropriate forms or documentation showing his
authority to obtain tax records for this entity. See MSJ at 11 (citing July 15, 2016, RAIVS
Request 1); White Decl., ¶ 10. The IRS thus contends that dismissal should ensue. See MSJ at
11.
The Court, however, believes this result premature. Most notably, it appears that Powell
alleges that he attached the necessary documents to his June 20 and 24, 2016, requests for
master-files, which were incorrectly mailed to the address for non-master-file requests. See June
20 and 24, 2016, Requests. As the IRS acknowledges, his confusion over the appropriate

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address for these requests was reasonable. The agency never clearly discusses, moreover,
whether the documentation it has otherwise received is sufficient for him to establish his right to
the records, nor what additional documents in particular it would require. See White Decl., ¶ 10.
Given the brevity of its briefing on this topic, the Court cannot find that Defendant has
met its burden to show that Powell has clearly failed to make a valid request for these records. It
may ultimately be the case that he cannot support his right to these documents, but the Court is
not prepared to hold as much at this early stage.
4. Remaining Issues
The Court also finds nothing in the IRS’s Motion to Dismiss or Motion for Summary
Judgment that adequately explains why Powell’s FOIA claims as to the remaining documents –
listed in the chart at pages 16-17, supra – should be dismissed. Like the three that it provided on
May 15, these transcripts are all identified in his RAIVS requests. Defendant, moreover, seems
to agree in its Motion for Summary Judgment that the fair response to its failure to provide clear
instructions on how to properly submit such requests would be to treat these inquiries as properly
filed. See MSJ at 6. Yet the IRS then seems to further resolve that Powell is no longer seeking
any of these transcripts because he does not again mention them by name in his final prayer for
relief. Id. at n.2 (relating that the transcripts Powell lists as having been requested at Am.
Compl. 13-15 do not match up with his conclusion at Am. Compl. 26-27).
Given the pro se nature of this pleading, though, the Court does not think this assumption
warranted. Read as a whole, the Amended Complaint clearly seeks all of the requested
transcripts listed in Powell’s four RAIVS requests. His final prayer for relief, as alluded to
above, does mostly focus on specific tax documents that he apparently hopes to find in those
transcripts, but that does not mean that he has abandoned his claim to the transcripts themselves.

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The Court thus thinks the prudent course is to figure out whether he is entitled to have any of
these additional records turned over to him, rather than assuming he no longer seeks them.
Of course, it may be that some of these transcripts simply do not exist, such as the
Master-File specific requests for Form 1065 tax modules. Or, as the IRS seems to imply, they
may be duplicative of transcripts he has already received. See White Decl., ¶ 19. But the Court
cannot assume this on a Motion to Dismiss. As a result, for now, the Court finds that Powell can
continue with his FOIA claims for the following records: 1) Powell Printing Company – Master
file-specific for Form 1120 and TXMOD(A); 2) William A. Powell Agreement of Trust – Master
file-complete, Master file-specific for Form 1041, and TXMOD(A); 3) Estate of William A.
Powell – Master file-specific for Form 706, TXMOD(A), and Master file-specific for Form
1041; 4) William A. Powell – Master file-specific for Form 1040, Master file-complete,
TXMOD(A); and 5) William E. Powell – Master file-specific for Form 1040 and TXMOD(A).
It will thus deny both Motions as to these records.
IV.

Conclusion
For the reasons stated above, the Court will grant Defendant’s Motions as to Powell’s

claims under the Privacy Act and as to his FOIA claims for the IMF-complete for William E.
Powell, the BMF-complete Transcript for the Estate of William A. Powell, and the BMFcomplete for the Powell Printing Company. To the extent that Powell also sought additional
transcripts through his various RAIVS requests, as described in Sections III.B.3-4, supra, the
Court denies the Motions. A contemporaneous Order so stating shall issue.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: June 9, 2017
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