Powell v. Internal Revenue Service
OPINION AND ORDER Adopting 55 Report and Recommendation Granting 45 Motion for Summary Judgment filed by Internal Revenue Service. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
WILLIAM E. POWELL,
Case No. 15-11033
Paul D. Borman
United States District Judge
INTERNAL REVENUE SERVICE,
Anthony P. Patti
United States Magistrate Judge
OPINION AND ORDER:
(1) DENYING PLAINTIFF’S OBJECTIONS (ECF NO. 60);
(2) ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (ECF NO. 55);
(3) GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 45);
AND (4) DISMISSING THIS ACTION WITH PREJUDICE
Before the Court is Plaintiff William E. Powell’s Objections to Magistrate Judge
Anthony P. Patti’s April 20, 2016 Report and Recommendation. (ECF No. 55, Report and
Recommendation.) The Report and Recommendation recommended that this Court grant
Defendant Internal Revenue Service’s January 20, 2016 Motion for Summary Judgment. (ECF
No. 45.) Plaintiff filed an Objection to the Report and Recommendation dated May 3, 2016
(ECF No. 56) and thereafter sought permission to resubmit his objection with exhibits (ECF No.
57). Defendant then filed a Response to Plaintiff’s Objection. (ECF No. 58.) Thereafter, this
Court granted Plaintiff’s request to resubmit his objection with exhibits (ECF No. 59) and
Plaintiff re-filed his objection with exhibits (ECF No. 60). Defendant then filed a supplemental
response to Plaintiff’s objection with exhibits (ECF No. 62) and Plaintiff filed a reply (ECF No.
This Court reviews de novo the portions of a report and recommendation to which
objections have been filed. 28 U .S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Having conducted a
de novo review of the parts of the Magistrate Judge’s Report and Recommendation to which
valid objections have been filed pursuant to 28 U.S.C. § 636(b)(1), the Court will deny
Plaintiff’s objections, adopt the Magistrate Judge’s Report and Recommendation, grant
Defendant’s motion for summary judgment, and dismiss this action with prejudice.
On March 19, 2015, Plaintiff filed this action against Defendant. (ECF No. 1.) On April
28, 2015, this Court granted Plaintiff’s request to file an amended complaint. (ECF No. 9.) This
action second of three actions Plaintiff filed against Defendant seeking to compel Defendant to
comply with his requests for certain tax documents pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552. See Powell v. IRS (Powell I), case no. 2:14-cv-12626 (E.D. Mich.)
(judgment entered on Sept. 9, 2015), and Powell v. IRS (Powell III), case no. 2:15-cv-11616
(E.D. Mich.) (judgment entered on Sept. 30, 2016). In the present action, Plaintiff seeks
documents related to a December 4, 2014 request for tax documents and, as asserted in the
amended complaint, documents related to requests dated February 26, 2015, March 2, 2015, and
April 10, 2015. (ECF No. 9, Am. Compl., at 2-8.)
Defendant filed the present motion for summary judgment on January 20, 2016. (ECF
No. 29.) Defendant contended that summary judgment should be granted because:
[P]laintiff did not exhaust his administrative remedies with respect to any
of his denied requested Items;
[P]laintiff did not follow the Service’s FOIA regulations for some of his
with respect to some of [P]laintiff’s proper FOIA requested Items, the
Service conducted a reasonable search but did not locate any responsive
if responsive records were located (and were not exempt from disclosure
under the FOIA) the Service properly released those records to [P]laintiff.
(ECF No, 55, at *2, quoting ECF No. 45, at *9.)
As detailed in this Court’s contemporaneously filed opinion and order denying Plaintiff’s
“Motion to Resubmit Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment”
(ECF No. 65, at *2-3) and in the underlying Report and Recommendation (ECF No. 55, at *3),
Plaintiff failed to file a timely conforming response to Defendant’s Motion for Summary
Judgment. Thus, Defendant’s motion for summary judgment was unopposed. The Court notes,
however, that the Magistrate Judge was careful to acknowledge that “a district court cannot grant
summary judgment in favor of a movant simply because the adverse party has not responded.
The court is required, at a minimum, to examine the movant’s motion for summary judgment to
insure that he has discharged that burden.” (ECF No. 55, at *4, quoting Carver v. Bunch, 946
F.2d 451, 455 (6th Cir. 1991)).
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), the Court
conducts a de novo review of the portions of the Magistrate Judge’s Report and
Recommendation to which a party has filed “specific written objections” in a timely manner.
Lyons v. Comm’r Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). Only those objections
that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir.1986). “The parties have the duty to pinpoint those portions of the magistrate's
report that the district court must specially consider.” Id. (internal quotation marks and citation
omitted). A general objection, or one that merely restates the arguments previously presented,
does not sufficiently identify alleged errors on the part of the magistrate judge. An “objection”
that does nothing more than disagree with a magistrate judge's determination, “without
explaining the source of the error,” is not considered a valid objection. Howard v. Sec'y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir.1991).
Defendant moves for summary judgment under Rule 56(a) of the Federal Rules of Civil
Procedure. This rule provides that summary judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue
as to any material fact and that the movant is entitled to judgment as a matter of law.” Summary
judgment is appropriate where the moving party demonstrates that there is no genuine issue of
material fact as to the existence of an essential element of the nonmoving party’s case on which
the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). “Of course, [the moving party] always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of genuine issue of material fact.”
Id. at 323; see also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987).
A fact is “material” for purposes of a motion for summary judgment where proof of that
fact “would have [the] effect of establishing or refuting one of the essential elements of a cause
of action or defense asserted by the parties.” Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984) (quoting BLACK=S LAW DICTIONARY 881 (6th ed. 1979)) (citations omitted). A dispute
over a material fact is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Conversely, where a reasonable jury could not find for the nonmoving party, there is no genuine
issue of material fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993).
In making this evaluation, the court must examine the evidence and draw all reasonable
inferences in favor of the non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 121011 (6th Cir. 1984).
If this burden is met by the moving party, the non-moving party=s failure to make a
showing that is “sufficient to establish the existence of an element essential to that party=s case,
and on which that party will bear the burden of proof at trial” will mandate the entry of summary
judgment. Celotex, 477 U.S. at 322-23. The non-moving party may not rest upon the mere
allegations or denials of his pleadings, but the response, by affidavits or as otherwise provided in
Rule 56, must set forth specific facts which demonstrate that there is a genuine issue for trial.
FED. R. CIV. P. 56(e).
Plaintiff sets forth numerous objections to the Magistrate Judge’s Report and
Recommendation and the Court addresses each in turn below.
Plaintiff’s First Objection regarding the December 4, 2014 FOIA Request
The Magistrate Judge concluded that this Court does not enjoy subject matter jurisdiction
over Plaintiff’s December 4, 2014 FOIA request to Defendant. As properly noted by the
Magistrate Judge, Plaintiff’s amended complaint only contests Defendant’s January 15, 2015
interim response to his December 4, 2014 FOIA request. (ECF No. 55, at *11.) Yet, William J.
White IV, an IRS Disclosure Specialist, stated that Plaintiff never filed an administrative appeal
with Defendant regarding his December 4, 2014 FOIA Request. (ECF No. 45, White Decl., at
*41-42, ¶¶ 29-32.) Accordingly, the Magistrate Judge concluded that Plaintiff’s complaint was
prematurely filed because Plaintiff was required to exhaust his administrative remedies prior to
filing the present action.1 See Reisman v. Bullard, 14 F. App’x 377, 379 (6th Cir. 2001)
(citations omitted); Am. Civil Liberties Union of Michigan v. F.B.I., No. 11-13154, 2012 WL
4513626, at *4 (E.D. Mich., Sept. 30, 2012), aff’d on other grounds, 734 F.3d 460 (6th Cir.
2013) (finding that “[a] plaintiff’s failure to exhaust administrative remedies precludes a federal
court from exercising subject-matter jurisdiction over the party’s FOIA claims.”)
Plaintiff does not object to this legal conclusion. The Court notes (as it did previously
in regards to Plaintiff’s other FOIA action, case no. 15-11616) that the Sixth Circuit has held in
an unpublished opinion that a plaintiff’s failure to exhaust his administrative remedies in relation
to a FOIA claim “deprive[s] the district court of jurisdiction.” Reisman v. Bullard, 14 F. App’x
377, 379 (6th Cir. 2001) (citations omitted). Yet, since the Sixth Circuit’s decision in Reisman,
the Supreme Court has
adopted a readily administrable bright line for determining whether to classify a
statutory limitation as jurisdictional. We inquire whether Congress has clearly
stated that the rule is jurisdictional; absent such a clear statement, we have
cautioned, “courts should treat the restriction as nonjurisdictional in character.
Sebelius v. Auburn Regional Med. Ctr., 133 S. Ct. 817, 824 (2013) (omitting marks, citing
Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006)); see also Carter v. United States, No.
1:16-cv-530, Report and Recommendation, 2016 WL 4382725, at *2 (S.D. Ohio, Aug. 16, 2016)
(recognizing the same and collecting authority). The majority of courts have also concluded
that “exhaustion under FOIA is a prudential consideration rather than a jurisdictional
prerequisite.” Hull v. I.R.S., U.S. Dep’t of Treas., 656 F.3d 1174, 1181-82 (10th Cir. 2011)
(citing Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir., 2003); see also Taylor v. Appleton, 30
F.3d 1365, 1367 n. 3 (11th Cir. 1994) (“[E]xhaustion of administrative remedies is not a
jurisdiction requirements.”); see also Ocon-Fierro v. Drug Enforcement Admin., No. 1:10-cv1228, 2013 WL 869911 *2 (W.D. Mich., Feb. 15, 2013) report and recommendation adopted by
2013 WL 868325 (recognizing Sixth Circuit’s position as set forth in the unpublished Reisman
decision is minority opinion).
The Court, however, concludes that it is bound to follow the Sixth Circuit’s position as
set forth in Reisman and therefore finds no legal error in the Magistrate Judge’s Report and
Recommendation addressing the issue of exhaustion and subject matter jurisdiction.
Plaintiff admits that he did not file an appeal from Defendant’s January 15, 2015 interim
response to his December 4, 2014 FOIA request. (See ECF No. 60, at *5.) While Plaintiff
argues he did not need to file an appeal because “Defendant never produced the documents to
Plaintiff,” Plaintiff overlooks the fact that the January 15, 2015 response constituted a partial
denial of Plaintiff’s FOIA request. In the January 15, 2015 response, Defendant produced 36
pages of documents but withheld portions of 13 pages through redactions. The January 15, 2015
response further noted that for certain requests “there [were] no documents specifically
responsive to your request” and included a “Notice 393" which expressly stated that an
administrative appeal was available when the IRS has “advised that you that no records
responsive to your request exist” or “deny you access to a record in whole or part.” (White
Decl., at *39, ¶¶19-21, and *51, 55.) Accordingly, the Court concludes that the Magistrate
Judge properly held Plaintiff failed to administratively exhaust his FOIA claim in regards to his
December 4, 2014 request and Plaintiff’s arguments to the contrary are without merit.
Plaintiff’s Second Objection regarding the February 26, 2015 FOIA Request
Plaintiff submitted four FOIA requests all dated February 26, 2015 to Defendant and
each involved the Powell Printing Co., Employer Identification Number (“EIN”) 38-2901076.
(Am. Compl., Ex. 3; ECF No. 45, at 76-96.) Specifically, Plaintiff requested (1) the Business
Master File Transcript (“MFT”) 67 (990, 990EZ), MFT 44 (990), MFT 34 (990 T), MFT 56
(990BL) (“Forms 990 request”) (Am. Compl., at Ex. 3, at 3); (2) a request to inspect the
document with the DLN 38904-747-00785-9 for Powell Printing Co. (“the Form SS-4 request”)
(Am. Compl., Ex. 3, at 1-2); (3) a photocopy of the 1990 2553 (Small Business Election) for
Powell Printing Co. (“the Form 2553 photocopy request”) (Am. Compl., Ex. 3, at 4); and (4) a
request to inspect the 1989/1990 tax return with the DLN 17953-494-00101-0 (“Form 2553
inspection request”) (Am. Compl., Ex. 3, at 5). The Magistrate Judge properly found that
Plaintiff had exhausted his administrative remedies because Defendant failed to comply with the
applicable time limit pursuant to 5 U.S.C. § 552(a)(6)(C)(i). (ECF No. 55, at *14.)
The Magistrate Judge also concluded that Defendant was entitled to summary judgment
on each of Plaintiff’s four requests. As to Plaintiff’s Form 2553 photocopy request and the Form
2553 inspection request the Magistrate Judge held that Plaintiff had already received all of his
requested relief through his earlier filed action, Powell I, case no. 14-12626. (ECF No. 55, at
*15-16.) As to the Form SS-4 request, the Magistrate Judge found that Defendant had evidenced
that it does not possess responsive documents because “the Service does not maintain Forms SS4 for years prior to 1998” and directing Plaintiff to “request this document from the SSA.” (ECF
No. 45, Brinda L. Brown Decl. at *67-69, ¶¶ 19-23.) Finally, as to Plaintiff’s Forms 990 request,
the Magistrate Judge noted that Plaintiff mistakenly believed that the Powell Printing Co., was a
527 Political Organization (“POL”) that would be required to file on the 990 series but that
Defendant provided through sworn declarations there was no “indication that [Powell Printing
Co.] was a tax exempt organization.” (ECF No. 45, Brinda L. Brown Decl. at *74-75, ¶¶ 32-37).
Ultimately, based upon the sworn declarations of disclosure specialists Brinda L. Brown and
William J. White, the Magistrate Judge concluded that a good faith search was performed and
that there was nothing to contradict Defendant’s assertion that “no records responsive to this
Item have ever existed.” (ECF No. 55, at *17-18 (citation omitted).)
Plaintiff now objects to the Magistrate Judge’s conclusions. As to his Form 2553
photocopy request and the Form 2553 inspection requests, Plaintiff argues that there are no
restrictions regarding “the number of occasions that an individual can request documents from
the FOIA” and thus even if Defendant previously complied with his FOIA requests “it should not
be a problem to produce these documents (again).” (ECF No. 60, at *7.) The Court finds this
argument specious and vexatious. Plaintiff received a copy of the requested document and was
allowed to inspect the original document on September 3, 2015 in the presence of court in this
District as a result of his earlier filed action, Powell I. See Powell I, No. 14-CV-12626 (Cox., J.)
(ECF No. 45, finding that Plaintiff inspected the original Form 2553 in the presence of the Court
and “was also provided with a certified copy of the document. Plaintiff has therefore obtained
all relief he sought as to this document.”) Accordingly, Plaintiff’s current request to inspect and
receive of copy of this exact same document is now moot and his objection without merit.
As to Plaintiff’s SS-4 request, Plaintiff has failed to articulate an objection directed at an
error in the Magistrate Judge’s analysis. Plaintiff states that he contacted the Social Security
Administration regarding the forms, as directed by Defendant, but was informed it does not have
those records. Yet, Plaintiff does not contradict Defendant’s declaration that it does not
“maintain the records of Forms SS-4 for years prior to 1998.” Accordingly, the Court rejects
Plaintiff’s objection as to this conclusion.
Plaintiff also argues that the Magistrate Judge erred in relying upon Defendant’s
declarations to find that Powell Printing Co. was not a tax exempt political organization.
Plaintiff cites and relies upon certain records that he argues show that the Powell Printing Co.
Was in fact a 527 POL. (ECF No. 60, at Exs. F & G.) The Court finds Plaintiff’s objection is
without merit. Defendant has evidenced through sworn declaration that “the transcript actually
indicates that the Powell Printing company was not a 527 political organization.” (ECF No. 45,
Brown Decl., at ¶¶ 32-37.) Further, as noted by Defendant, Plaintiff filed tax forms in Powell I
that indicate that Powell Printing Co. was an “S Corp” and not tax exempt. (See Powell I, case
no. 14-12626, ECF No. 10, PgID 207-208, PgID 211-218 (Powell Printing Co. Forms 1120S for
1990 and 1992)).
Finally, to the extent that Plaintiff argues that the Court need to “acknowledge” certain
facts, the Court summarily rejects these requests as irrelevant to the Magistrate Judge’s legal
analysis and conclusions regarding Plaintiff’s February 26, 2015 FOIA requests.
Plaintiff’s Third Objection regarding the March 2, 2015 FOIA Request
On March 2, 2015, Plaintiff submitted a single FOIA request for “information regarding
liens for tax years 1989 through 1993 for the Powell Printing Company under the EIN 382901076.” (Am. Compl., at 4; ECF No. 45, at 98-100.) On March 10, 2015 letter from Senior
Disclosure Specialist Brinda L. Brown directed Plaintiff that he needed to “provide proof of [his]
right to access the requested records.” (ECF No. 45, at *115-16.) The Magistrate Judge found
that because Defendant did not timely respond to Plaintiff’s March 16, 2015 facsimile response,
Plaintiff’s March 2, 2015 FOIA request was exhausted. The Magistrate Judge further concluded,
however, that Defendant was entitled to summary judgment because: (1) the request for the
transcript “may be obtained through routine procedures and are not processed through FOIA”
(ECF No. 45, Brown Decl. at *72-73, ¶ 38); (2) the request was a duplicate request of one made
by Plaintiff on April 26, 2014 (id., at ¶¶ 39-40); and (3) there were no responsive documents to
that request (id., at ¶¶ 41-43).
In relevant part, Plaintiff appears to object to the Magistrate Judge’s conclusion that
Defendant completed a reasonable search and argues that Defendant has “not illustrated in any of
its declarations and affidavits that Defendant did a thorough search through the FRC, the
Custodial Agent, who stores Defendant’s documents.” (ECF No. 60, at *11.)
Plaintiff’s objection is without merit. “In response to a FOIA request, an agency must
make a good faith effort to conduct a search for the requested records using methods reasonably
expected to produce the requested information.” Rugiero v. U.S. Depart. of Justice, 257 F.3d
534, 547 (6th Cir. 2001) (citation omitted). The agency bears the burden to establish the
adequacy of its search and it may “rely on affidavits or declarations that provide reasonable
detail of the scope of the search.” Id. (internal citations and quotation marks omitted).
In the present case, Defendant has evidenced a reasonable search for the requested
records through the sworn declaration of Brown, a Disclosure Specialist, that she attempted to
search for the requested Lien records, that the “Centralized Lien Operations Field Office
Resource Team” could not locate any responsive records. (ECF No. 45, at 73, ¶¶ 39-43.) Brown
further noted that another disclosure specialist had attempted to find the same records but was
similarly unsuccessful. (Id.) Plaintiff’s argument that he discovered a single notation of the
word “LIEN” on a document he received from “Michael Gonzales, W&I in Cincinnati” does not
contradict or undermine the reasonableness of Defendant’s search for the requested documents.
As the Sixth Circuit has explained, “[t]he question focuses on the agency’s search, not on
whether additional documents exist that might satisfy the request.” Rugiero, 257 F.3d at 547.
Accordingly, the Court finds that the Magistrate Judge properly concluded that Defendant’s
search was reasonable under 5 U.S.C. § 552(a)(3)(C).
Plaintiff’s Objections regarding the April 10, 2015 FOIA Request
Plaintiff’s April 10, 2015 FOIA request sought seven items regarding William A. Powell,
Andrew Powell or Powell Printing Co./Inc.: four Business Master File (“BMF:”) Transcripts,
two Formal Closing Agreement Letters and a request for Forms 8871 and 8872.2 Defendant
Plaintiff does not object to the Magistrate Judge’s conclusion that Defendant is entitled
to summary judgment on Plaintiff’s April 10, 2015 request for Forms 8871 (“Political
Organization Notice of Section 527 Status”) and Form 8872 (“Political Organization of
Contributions and Expenditures”). (ECF No. 55, at *27-28.)
responded to Plaintiff’s request by letter on April 14, 2015, and advised Plaintiff that “Disclosure
offices will no longer process requests for transcripts,” and directed Plaintiff on how to properly
request the transcripts. (ECF No. 45, at *132-34.) The Magistrate Judge found that Plaintiff
exhausted his administrative remedy to this request because Defendant’s timely response failed
to notify Plaintiff of his right to appeal. (ECF No. 55, at *22, citing ECF No. 45, at 132.)
Regarding Plaintiff’s request for BMF Transcripts, the Magistrate Judge concluded that
Plaintiff’s requests were improper under Defendant’s FOIA regulations which provide:
“[w]ritten requests for a copy of a tax return and attachments or a transcript of a tax return shall
be made using IRS form 4506, “Request for Copy or Transcript of Tax Form.” 26 C.F.R. §
601.702(d)(1). Accordingly, the Magistrate Judge reasoned that Plaintiff’s FOIA claim failed
because he had not submitted the correct form in his BMF transcript request. See 5 U.S.C. §
552(a)(3)(A)(ii) (each request under FOIA “reasonably describe” the records requested and be
“made in accordance with published rules stating the time, place, fees (if any) and procedures to
Plaintiff fails to articulate an objection to the Magistrate Judge’s conclusion that he failed
to follow the proper procedures for requesting the BMF transcripts. Rather, Plaintiff concedes
that Defendant had “changed its procedures” regarding these documents and merely notes that he
previously requested and received BMF transcripts from Defendant without using the
aforementioned form. Plaintiff’s observations, however, do not undermine the Magistrate
Judge’s legal conclusion that Plaintiff’s request failed to conform to the proper FOIA
procedures. Thus, to the extent Plaintiff has articulated an objection regarding the his April 10,
2015 BMF Transcript request, it is denied.
Formal Closing Agreement Letters
As to Plaintiff’s April 10, 2015 FOIA request for two Formal Closing Agreement Letters,
the Magistrate Judge held that summary judgment was appropriate because the request did not
comply with 5 U.S.C. § 552(a)(3)(A). Specifically, the Magistrate Judge found that Plaintiff’s
request for these documents lacked clarity and did not conform with FOIA’s “reasonable
description” requirement. 5 U.S.C. § 552(a)(3)(A)(I); (ECF No. 45, Jennifer J. Perez Decl. at
*124, ¶ 9.) Additionally, the Magistrate Judge held that Plaintiff’s request also did not comply
with FOIA because it was unclear from the request whether Plaintiff was “properly authorized to
make such a request.” (ECF No. 55, at *26, citing 5 U.S.C. 552(a)(3)(A)(ii); 26 C.F.R.
Plaintiff now objects to the Magistrate Judge’s conclusions and appears to argue that he
has established his right to access records for his grandfather, Andrew Powell, based upon a
BMF transcript he received from Defendant that relates to the Andrew Powell Trust. (ECF No.
60, Ex. M.) Defendant notes in its supplemental response, however, that Plaintiff’s reliance
upon the BMF transcript relating to his grandfather’s trust does not establish Plaintiff’s
entitlement to receive information regarding his grandfather as an individual. (ECF No. 62, at
*2.) Further, Plaintiff also attached a letter to his objection from Defendant dated February 6,
2015 evidencing that Defendant “researched our records and found no activity pertaining to the
Estate of Andrew Powell and Andrew Powell Printing Company for the years 1987 through
1995. Therefore, there are no documents responsive to this portion of your request.” (ECF No.
60, Ex. M.) Finally, Plaintiff acknowledged the pitfalls of his April 10, 2015 FOIA request in
his Reply, stating “Defendant is correct. Plaintiff has not established whether his grandfather’s
estate was examine/audited by the Service or what Plaintiff means by “Formal Closing
Agreement.” (ECF No. 64, at *2.) Plaintiff then goes on to attempt to clarity what “Formal
Closing Agreement” means and notes that he apparently submitted additionally FOIA requests
from Defendant in May, 2016.
Plaintiff’s arguments are unpersuasive and irrelevant as they relate to more recent FOIA
requests. Plaintiff has failed to show any error in the Magistrate Judge’s legal analysis or his
reliance upon Defendant’s sworn declarations. Accordingly, the Court denies Plaintiff’s
objection as it relates to his April 10, 2015 request for the Formal Closing Agreement Letters.
For all these reasons, the Court DENIES Plaintiff’s Objections to Magistrate Judge
Anthony P. Patti’s April 20, 2016 Report and Recommendation (ECF No. 60) and ADOPTS the
Magistrate Judge’s Report and Recommendation (ECF No. 55). Further, the Court GRANTS
Defendant IRS’s January 20, 2016 Motion for Summary Judgment (ECF No. 45) and
DISMISSES this action WITH PREJUDICE.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: December 29, 2016
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on December 29, 2016.
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