                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2007

Stuler v. IRS
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2251




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2251


                                  LARRY L. STULER

                                           v.

                          INTERNAL REVENUE SERVICE

                                                       Larry Stuler,
                                                              Appellant


                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                          D.C. Civil Action No. 05-cv-1717
                             (Honorable Arthur J. Schwab)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 12, 2007

        Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges

                               (Filed: February 15, 2007)


                                       OPINION


PER CURIAM.

      Larry Stuler appeals pro se from an order of the United States District Court for

the Western District of Pennsylvania, granting the Internal Revenue Service’s motion for
summary judgment in this action brought under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552. For the following reasons, we will affirm.

       On March 21, 2005, Stuler submitted a FOIA request to the IRS seeking copies of

various records from the years 1990 through 1993. Specifically, he asked for records: 1)

citing the partnership of which he was considered a partner; 2) listing the “breakdown

within the Capital construction fund . . . of the taxpayer . . . by dollar amount for the

capital account, the capital gain account, and the ordinary income account as defined

within 26 C.F.R. Sec. 3.0 (e)”; 3) listing the dollar amount for the capital of self-

employment income he derived as a partnership; and 4) listing “all the ‘agreement

vessels’ which were subject to the agreement established pursuant to 26 C.F.R. § 3.0.”

       On April 8, the IRS responded that Stuler’s request was improper under FOIA and

that he appeared to be challenging the income tax system. It directed Stuler to a website

which addresses several anti-tax arguments, and stated that for any question concerning

his correspondence, he could contact the IRS’s Senior Disclosure Specialist, Anne Jensen.

Stuler filed an administrative appeal to the Office of Disclosure, which on May 12, 2005,

affirmed the agency’s initial determination.

       On December 14, Stuler filed in the District Court a petition for release of records,

challenging the IRS’s failure to disclose documents and records in response to his FOIA

request. In response, the IRS conducted a search but found no responsive documents or

records. The IRS then moved for summary judgment and submitted Anne Jensen’s



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declaration in support of its motion. On March 31, 2006, the District Court granted

summary judgment in favor of IRS. Stuler filed a timely appeal.1

         FOIA imposes upon each agency a duty to make records “promptly available” that

are “reasonably describe[d]” in a written request “made in accordance with published

rules stating the time, place, fees (if any), and procedures to be followed.” 5 U.S.C.

§ 552(a)(3)(A). Under the IRS’s regulations, a proper FOIA request “must describe the

records in reasonably sufficient detail to enable the IRS employees who are familiar with

the subject matter of the request to locate the records without placing an unreasonable

burden upon the IRS.” 26 C.F.R. § 601.702(c)(5)(i); see § 601.702(c)(4)(D). A request

reasonably describes records if “the agency is able to determine precisely what records

are being requested.” Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 387 (D.C. Cir. 1996)

(quoting Yeager v. DEA, 678 F.2d 315, 326 (D.C. Cir. 1982)). The agency is not

required to create responsive records or answer questions posed as FOIA requests. See

Yeager, 678 F.2d at 321; Zemansky v. United States EPA, 767 F.2d 569, 574 (9th Cir.

1985).

         Here, Stuler’s request did not comply with the above requirements as it did not

sufficiently describe the records sought. In her declaration in support of summary

judgment, Jensen stated that none of Stuler’s requests was clear in articulating the

documents sought and that each would require the IRS to perform substantial research.



   1
   We have jurisdiction under 28 U.S.C. § 1291.

                                              3
Jensen also stated that she had nonetheless attempted to locate records based on Stuler’s

requests and was unable to locate any responsive documents. In opposing the IRS’s

motion for summary judgment, Stuler offered no evidence undermining Jensen’s

declaration. Because Stuler failed to offer any evidence demonstrating compliance with

the requirement to reasonably describe the records he requested, the IRS was not required

under FOIA to conduct any search and properly refused his request.

       For the reasons given, we conclude that the District Court properly granted

summary judgment in favor of the IRS. Accordingly, we will affirm its judgment.




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