Houser v. Church, Civil Action No. 16-1142 (RBW)
| Decision Date | 14 September 2020 |
| Docket Number | Civil Action No. 16-1142 (RBW) |
| Citation | 486 F.Supp.3d 117 |
| Parties | George D. HOUSER, Plaintiff, v. Diana CHURCH, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
George D. Houser, Ashland, KY, pro se.
Olga L. Tobin, U.S. Department of Justice, Washington, DC, for Defendants.
George D. Houser ("the plaintiff") brings this civil action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2018), against the Internal Revenue Service ("IRS" or "the defendant").1 He filed his Complaint (ECF No. 1, "Compl.") on June 2, 2016.2 Count One of the Complaint survived the Defendant's Motion to Dismiss (ECF No. 9), and now pending before the Court is the Defendant's Motion for Summary Judgment (ECF No. 66). For the reasons discussed below, the Court grants the motion in part and denies the motion in part without prejudice.3
According to the plaintiff, he was "false[ly] convicted of Health Care and Tax Fraud ... and is serving" a 20-year term of imprisonment. Compl. ¶ 25. The United States Court of Appeals for the Eleventh Circuit, however, affirmed the plaintiff's criminal convictions and the sentences imposed by the United States District Court for the Northern District of Georgia. The Eleventh Circuit summarized the outcome of the District Court proceedings as follows:
Following a four-week bench trial, George D. Houser was convicted of one count of conspiring with his wife, Rhonda Washington Houser ..., to commit health care fraud, in violation of 18 U.S.C. § 1349, of eight counts of payroll tax fraud, in violation of 26 U.S.C. § 7202, and of two counts of failure to timely file income tax returns, in violation of 26 U.S.C. § 7203. The district court sentenced Mr. Houser to 240 months’ imprisonment and ordered him to pay nearly $7 million in restitution to Medicare and Medicaid and more than $870,000 to the Internal Revenue Service[.]
United States v. Houser , 754 F.3d 1335, 1337 (11th Cir. 2014).
The IRS filed its summary judgment motion (ECF No. 66) on July 29, 2019. On August 5, 2019, the Court issued an Order (ECF No. 68) advising the plaintiff of his obligations under the Federal Rules of Civil Procedure and the local civil rules of this Court to respond to the motion. Specifically, the Order advised the plaintiff that if he did not file an opposition by August 26, 2019, the Court may enter judgment in the defendant's favor if the "Court satisfies itself that the record and any undisputed material facts justify granting summary judgment." Order, Houser v. Church , No. 16-CV-1142 (D.D.C. Aug. 5, 2019) (quoting Winston & Strawn, LLP v. McLean , 843 F.3d 503, 507 (D.C. Cir. 2016) (citing Fed. R. Civ. P. 56(e)(3) )).
The plaintiff requested two extensions of time to respond to the defendant's summary judgment motion (ECF Nos. 69, 72), and both requests were granted by the Court. The Court's January 22, 2020 Minute Order advised the plaintiff that no further extensions would be granted absent a showing by the plaintiff of physical or mental incapacitation verified by a medical professional. The plaintiff has now filed a third request for an extension of time (ECF No. 73), explaining that the prison's law library has been closed entirely, or its hours are limited, as a measure to prevent spread of the coronavirus. The Court will deny the plaintiff's request, as it does not comply with the January 22, 2020 Minute Order.4
The plaintiff's FOIA request to the IRS arrived by letter dated June 28, 2015. Statement of Material Facts (ECF No. 66-2, "SMF") ¶ 5.5
The first part of the plaintiff's FOIA request seeks taxpayer records. Id. Regarding himself, the plaintiff seeks Integrated Collection System transcripts for the period beginning January 1, 1977. See id. ¶ 5.a. He seeks similar information about the following corporate entities to which the plaintiff was affiliated: Forum Healthcare Group, Inc.; Forum Group Management Services, Inc.; Forum Group at Mount Berry Nursing & Rehabilitation Center, LLC; Forum Group at Moran Lake Nursing & Rehabilitation Center, LLC; and Forum Group at Wildwood Park Nursing & Rehabilitation Center, LLC (collectively, "Five Corporate Entities"). See id.7
The second part of the plaintiff's FOIA request seeks "[a]ll records of the statutory and program protocol regulating the giving of testimony respecting the payment of taxes, the evaluation of financial statements, and the assessment of willfulness and fraud, including technical rules, specific instructions and other documented protocol." Id. ¶ 5.b.
Third, the plaintiff seeks IRS records describing "professional conduct in the giving of testimony, evaluation of financial statements, and the assessment of fraud, issued because of, about, or concerning" four specific matters. Id. ¶ 5.c. Those matters are: (1) a comprehensive personal financial statement the plaintiff sent to the IRS on February 23, 2005; (2) Revenue Officer Odell Justice's referral of the plaintiff for fraud on March 2, 2005; (3) Revenue Officer Justice's referral of the plaintiff for the search of his offices; (4) Revenue Officer Justice's testimony; and (5) IRS Agent Marilyn Igbalajobi's testimony. Id.10
Through subsequent correspondence, see id. ¶¶ 7-13, the plaintiff perfected his FOIA request by letter dated December 18, 2015, see id. ¶ 14.11 The IRS's January 12, 2016 response denied the plaintiff's request for expedited processing, see id. ¶¶ 14-15, and on February 24, 2016, the IRS released to the plaintiff 196 pages of records responsive to Part 1 of his FOIA request, see id. ¶¶ 17-18. Because a requester could obtain copies of return transcripts and employment records by means other than a FOIA request, the IRS did not respond to this portion of Part 1 of the request. See id. ¶ 19. And, the IRS did not respond at all to Parts 2 and 3 of the plaintiff's FOIA request before this litigation was initiated. Id. ¶ 20.
William M. Rowe, an attorney with the Office of Chief Counsel, Procedure & Administration, Branch 7 of the IRS, "coordinat[ed] with the [United States] Department of Justice" in defending against this litigation. Declaration of William M. Rowe (ECF No. 66-8, "Rowe Decl.") ¶ 1. On review of case history notes made by the Disclosure Specialist to whom the plaintiff's FOIA request was initially assigned, and upon review of the plaintiff's Complaint, Rowe determined that additional searches were necessary. See SMF ¶¶ 26, 29-30; Rowe Decl. ¶ 22. He "directed and coordinated all the searches the IRS conducted post-suit." Rowe Decl. ¶ 2.
The IRS's initial search occurred before this litigation commenced. See SMF ¶¶ 25-27. It consisted of a query of the Integrated Collection System using either the subject's Employer Identification Number ("EIN") or Social Security Number ("SSN") as the search term, selecting the options of "transcripts" and "complete" for a taxpayer's complete transcript. See id. ¶ 28. This search yielded 196 pages of responsive records designated Bates numbers 1-196. Id. ¶ 18. Of these 196 pages, the IRS released 160 pages in full and released 36 pages in part, having redacted certain information under FOIA Exemptions 3, 5 and 7(A). Id.
The Integrated Collection System retains transcripts for three years after processing, or when they are "no longer needed for administrative, legal, audit, or other operational purposes, whichever is sooner." Id. ¶ 28. The pre-litigation search "only included events beginning in the year 2006," however, id. ¶ 31, and the plaintiff seeks records generated prior to 2006, see id. ¶ 5.a.
Amanda H. Stanwood is a former Special Agent in the IRS Criminal Division whose duties "included investigating potential criminal violations of the Internal Revenue Code and related financial crimes." Declaration of Amanda H. Stanwood (ECF No. 66-16, "Stanwood Decl.") ¶ 1. She has "[a] thorough understanding of the procedures for maintaining records related to an investigation," id. , such as "reports, various forms, correspondence, memoranda, case summary files, clippings and other background information, collected exhibitory materials (e.g. ledgers, checks, deposit slips, journals, etc.) and other case related documents generated or received," id. ¶ 6. She also knows how to search for records related to an ongoing or closed investigation. Id. ¶ 1; see id. ¶ 7. She states that she was involved in the plaintiff's investigation from 2006 through September 2015. Id. ¶ 5. Stanwood "was in possession of [the] plaintiff's paper criminal investigation file, which consisted of sixteen (16) banker's boxes of records," and the "paper civil collection case file which was forwarded to the IRS Criminal Investigation Division by Revenue Officer Odell Justice along with [the] plaintiff's criminal referral." Id. ¶10.
Stanwood searched the criminal case file and the collection case file that now-retired Revenue Officer Justice had compiled. SMF ¶ 32. She "located 38 pages of Integrated Collection System transcripts in the paper criminal case files" but no others. Id. ¶ 33. Ultimately, of these 38 pages of records, designated Bates Nos. 197-234, the IRS released 8 pages in full and released the other 30 pages in part, relying on FOIA Exemptions 3, 6 and 7(A). Id. ¶ 35.
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