
USCA1 Opinion

	




          December 7, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1803                                              ROBERT A. GILLIN,                                Plaintiff, Appellant,                                          v.                              INTERNAL REVENUE SERVICE,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Robert A. Gillin on brief pro se.               ________________               Jeffrey R. Howard, United States Attorney, and Gretchen Leah               _________________                              _____________          Witt, Chief, Civil Division, on brief for appellee.          ____                                  __________________                                 __________________                  Per Curiam.  The pro se appellant, Robert Gillin, lives in                 __________       ______               New  Hampshire and files his federal income tax returns with               the   Internal   Revenue    Service   office   in   Andover,               Massachusetts.   In early 1989, Mr. Gillin  learned that IRS               agents in  Jacksonville, Florida,  were conducting a  "field               examination" of his 1985 income tax return, using records it               had obtained from  the Andover  office.  The  IRS asked  Mr.               Gillin to consent to an extension of  the limitations period               for  issuing a  statutory  notice of  tax  deficiency.   Mr.               Gillin  refused.   The  IRS  completed  its examination  and               concluded that  there  was no  change  in Mr.  Gillin's  tax               liability,  and therefore  no reason  to issue  a notice  of               deficiency.                 In July 1989,  Mr. Gillin  asked the IRS  to release  five               categories  of  documents  to   him  under  the  Freedom  of               Information  Act (FOIA),  5 U.S.C.    552.    The categories               were:                 1)  The  transcripts of  Mr.  Gillin's "Individual  Master               Files" for 1982 through 1988.                 2) All  documents "pertaining" to  Mr. Gillin in  the IRS'               "Lien Files."                 3)  All  "documents  and  procedural rules  used  by  [the               Andover office] to transfer your jurisdiction of our records               to the Jacksonville IRS office."                 4) All "documents used as a basis to conclude  there was a               'deficiency' in our 1985 tax return filed in Andover Service               Center  that  authorized  Jacksonville  IRS  to  request  an               extension."                 5)  All  documents  pertaining  to Mr.  Gillin  "that  are               currently in the criminal investigation division."                 The  IRS  supplied  Mr.  Gillin with  transcripts  of  his               Individual Master Files.   It told him that it  had searched               its lien files  and the files of  its Criminal Investigation               Division,  and found no documents concerning him.  It took a               narrow view of his  two remaining requests.  First,  the IRS               said that  because the transfer  of records from  Andover to               Jacksonville did  not involve a transfer  of "jurisdiction,"               there were no rules or documents responsive  to Category #3.               Second, it said that  because it had found no  deficiency in               Mr.  Gillin's  1985  tax  return, there  were  no  documents               responsive  to  Category  #4,   which  had  asked  only  for               documents  used  as a  basis to  conclude  that there  was a                                                                      ___               deficiency.                 In January  1990, after he had  pursued his administrative               appeals  without gain, Mr. Gillin filed a pro se FOIA action                                                         ______               in the New Hampshire federal district court.  He then served               the  Internal Revenue  Service  with a  number of  discovery               requests.   On the  government's motion, the  district court               stayed  all  discovery  pending  the IRS'  response  to  the               complaint.    The  IRS  filed a  dispositive  motion  which,               because  it  was  accompanied  by a  number  of  evidentiary               declarations, was  in effect a motion  for summary judgment.               The  district court  deemed the  IRS' response  adequate and               granted judgment accordingly.                                            -3-                 Mr. Gillin then moved to alter or amend the judgment.  The               district court denied the motion in all respects except one.               It agreed with Mr. Gillin that the IRS had read too narrowly               his   request  for  documents  concerning  the  transfer  of               "jurisdiction" over  his tax  records.   By "harping  on the               word 'jurisdiction,'"  the court  said, the IRS  "exalts the               form of  Mr. Gillin's  pro se  request over its  substance."                                      ______               Mr.  Gillin  had  identified  a  number  of  standard  forms               typically  used by  the  IRS when  it transferred  documents               between offices.  The court instructed the IRS to search for               and  produce any such forms generated during the transfer of               Mr. Gillin's tax records from Massachusetts to Florida.  The               IRS eventually submitted evidentiary declarations describing               the ensuing search and its results, and produced a number of               responsive documents, redacting  certain information that it               claimed  was exempt  from disclosure  under the  FOIA.   The               district court  issued a "post-judgment  judgment," and this               appeal followed.                 We affirm.  Summary  judgment is called for in  FOIA cases               when "the defending agency . . . prove[s] that each document               that  falls  within  the  class requested  either  has  been               produced, is  unidentifiable, or  is wholly exempt  from the               [FOIA's] inspection requirements."  Perry v. Block, 684 F.2d                                                   _____    _____               121, 126  (D.C.Cir. 1982).   Cf. Weisberg  v. United  States                                            ___ ________     ______________               Department of  Justice, 745 F.2d 1476,  1485 (D.C.Cir. 1984)               ______________________                                            -4-               (in order to  show that  no genuine issue  of material  fact               exists,  agency must  demonstrate  that it  has conducted  a               search  reasonably   calculated  to  uncover   all  relevant               documents).  By the time the district court closed the books               on  Mr.   Gillin's  lawsuit,  it  was   fully  justified  in               concluding  that  the  IRS  had satisfied  its  burden  with               respect  to  each  of   the  five  categories  of  documents               identified in the FOIA request.                 1. Transcripts of Individual  Master Files - The IRS  gave                    _______________________________________               Mr.  Gillin  all  of the  documents  he  asked  for in  this               category.  According  to the declaration of Clare  Coelho, a               disclosure officer in the IRS'  Andover office, she sent Mr.               Gillin his "IMF transcript for the years 1982 to 1988."1                 2.  Documents  in  Lien  Files -  The  IRS  submitted  the                     __________________________               declaration of  Elaine Tinker,  a disclosure officer  in its               Portsmouth, New  Hampshire office, to prove  that there were               no  documents pertaining to  Mr. Gillin  in its  lien files.                                                  ____________________               1.  Mr. Gillin  claims for the  first time in  his appellate               brief that the  IRS gave  him the IMF  transcripts for  1984               through  1988, but  withheld  the transcripts  for 1982  and               1983.   Because  he  did not  make  this allegation  in  the               district  court, we will not consider it.  See United States                                                          ___ _____________               v. Krynicki, 689  F.2d 289, 291  (1st Cir. 1982)  (appellate                  ________               courts  ordinarily  will  not  consider  issues  not  raised               below).   Even  if we  considered it,  we could  give it  no               weight,  because  it  is  not  supported  by  any  competent               evidence.   See Gooley v. Mobil Oil  Corp. 851 F.2d 513, 515                           ___ ______    ________________               n.2  (1st  Cir.  1988)  (representations  in  brief  are  an               "impuissant surrogate" for a record showing).                                            -5-               The  declaration related  how  Ms. Tinker  had searched  the               relevant records and found no liens against Mr. Gillin.                 Mr. Gillin argues that Ms.  Tinker's search could not have               been  adequate because he was  able to discover  on his own,               through  a search at his  local registry of  records, a lien               the IRS had placed on property which he says belongs to him.               He  submitted a Notice of  Federal Tax Lien against property               located  at  274  Baboosic   Lake  Road  in  Merrimack,  New               Hampshire, and  an affidavit  attesting to his  ownership of               that property.                   It matters not, however,  whether Mr. Gillin actually owns               the  property  on  which the  IRS  placed  the  lien.   What               matters, for our purpose, is that the notice of lien did not               identify Mr.  Gillin as the  responsible taxpayer or  as the               owner of  the property attached.   Rather, the  notice named               the taxpayer as  "J & P Janitorial Services, a Corporation,"               an  entity  with  which  Mr.   Gillin  claims  to  have   no               affiliation.                   The adequacy of  an agency's  search "is  measured by  the               reasonableness  of  the  effort  in light  of  the  specific               request."   Meeropol v. Meese,  790 F.2d 942,  956 (D.C.Cir.                           ________    _____               1986).   Mr. Gillin specifically  asked the IRS  to look for               documents pertaining  to him.   He did not  tell the  IRS to               look for liens  against J  & P Janitorial  Services, or  for               liens  placed on the property  at 274 Baboosic  Lake Road in                                            -6-               Merrimack, New Hampshire, nor did he give the IRS any reason               to believe  that  documents mentioning  that corporation  or               that address would "pertain" to him.   The fact that the IRS               did  not find the lien, therefore, says nothing at all about               the adequacy of its search.                  3. Documents  Used to  Transfer "Jurisdiction" -  We agree                    ___________________________________________               with the district  court that the  IRS' initial response  to               this category of the request  was insufficient, based as  it               was  on  a  cramped  reading  of  the  term  "jurisdiction."               However, the  district court  resolved that problem,  and on               appeal we need  determine only whether the IRS  was entitled               to  redact portions  of the  responsive documents  as exempt               from FOIA disclosure.2                 According   to   the   IRS'   uncontroverted   evidentiary               declarations, the redacted information consisted entirely of               Differential  Function  (DIF)  scores.   DIF  scoring  is  a               mathematical technique used to  identify tax returns most in               need  of  examination  or audit.    The  IRS  closely guards               information concerning its  DIF scoring methodology  because               knowledge  of the  technique  would  enable an  unscrupulous               taxpayer  to manipulate  his return  to obtain  a lower  DIF                                                  ____________________               2.  Since the  IRS' evidentiary  declarations  show that  it               searched for transfer documents  to the full extent dictated               by  the   district  court,  we  need   make  no  independent               evaluation of the adequacy  of the search.  See  Meeropol v.                                                           ___  ________               Meese, 790 F.2d at  951 (where district court order  set out               _____               scope  of search  needed,  court evaluated  search only  "in               terms of its compliance" with the order).                                            -7-               score  and  reduce  the  probability  of  an  audit.    Such               information  is exempt from FOIA disclosure under 5 U.S.C.                 552(b)(3),  which  says that  the  FOIA  does not  apply  to               matters  specifically  exempted from  disclosure  by another               statute,  and 26  U.S.C.    6103(b)(2),  which exempts  from               disclosure  "standards used or to be  used for the selection               of returns for  examination, or data used or  to be used for               determining such  standards."   See, e.g., Long  v. Internal                                               _________  ____     ________               Revenue Service, 891 F.2d  222, 224 (9th Cir. 1989);  Yon v.               _______________                                       ___               Internal Revenue  Service, 671 F.Supp.  1344, 1347 (S.D.Fla.               _________________________               1987);  Naranjo v.  Internal Revenue Service,  62 A.F.T.R.2d                       _______     ________________________               88-5217  (E.D.Ky.  1988).    See also  Aronson  v.  Internal                                            ________  _______      ________               Revenue  Service,  973  F.2d  962, 963-65  (1st  Cir.  1992)               ________________               (explaining relationship between   552(b)(3) and   6103).                 4. Documents  Used to Conclude  There Was  a Deficiency  -                    ____________________________________________________               Mr. Gillin asked for:                 Copies of  all  documents used  as a  basis to  conclude                 there was a 'deficiency' in our 1985 tax return filed in                 Andover Service  Center that authorized  Jacksonville to                 request an extension.                 The  IRS  took  the  position  that  it  had no  documents               responsive to this  part of Mr. Gillin's request because the               request asked for documents used to conclude  that there was                                                                        ___               a deficiency, and the IRS had concluded that there was not a                                                                      ___               deficiency.    In the  district  court, and  on  appeal (but               apparently  not  during  the  administrative  process),  Mr.               Gillin  has argued  that  his request  entitled  him to  the                                            -8-               documents  used to conduct, or created in the course of, the               field examination, even though  the examination did not lead               the  IRS to  calculate  a deficiency.    The district  court               agreed with the IRS and held Mr. Gillin to the letter of his               request.                 The  FOIA, 5 U.S.C.   552(a)(3),  creates an obligation to               respond  to  a  request  which  "reasonably  describes"  the               records sought.    We agree  with the  district court  that,               under  the  circumstances,  Mr.  Gillin's  request  did  not               "reasonably describe" the records of the field examination.                 There is evidence in  the record to suggest that  when Mr.               Gillin first  submitted the FOIA  request, he had  reason to               believe that the IRS had  found a deficiency as a  result of                                    ___               its field examination.  Several  months earlier, the IRS had               warned him that  if he did not agree to  extend the time for               examining  his 1985 taxes, the  Service would have no choice               but to issue a  notice of deficiency forthwith.   Mr. Gillin               may  have inferred  from  this statement  that  the IRS  had               already found a deficiency in his taxes.  If that is what he               believed, then  he  may --  at that  point --  have seen  no               practical difference  between asking for the  documents used               to  "conclude there  was a deficiency,"  and asking  for the               documents used in the course of the field examination.                 But,  within  a  week  after  Mr.  Gillin  made  the  FOIA               application, the IRS informed him that it had not calculated                                                             ___                                            -9-               a  deficiency  in his  1985 taxes.    This news  should have               alerted Mr.  Gillin to the flaw  in his request.   He should               have  recognized  that  the  documents  used  in  the  field               examination  had not been "used as a basis to conclude there                                ___               was  a  deficiency,"  and  that  consequently  there  was  a               discrepancy between what he actually said and what  he meant               to say.   Since he, and not  the IRS, was  in a position  to               recognize and  correct the  ambiguity, we think  it sensible               that  he bear the burden of clarification.  There is nothing               in the record, however, to indicate that Mr. Gillin tried to               amend  or  clarify  his  request  at  any  time  during  his               administrative dealings with the IRS.3                 5.  Documents in  Criminal  Investigation  Division -  Mr.                     _______________________________________________               Gillin does not  challenge the IRS' statement  that it found               no records  pertaining to him in  its criminal investigation               division.                 Finally, Mr.  Gillin argues that the  district court erred               in proceeding  to judgment  without allowing him  to conduct                                                  ____________________               3.    It is true that, during the course of this litigation,               Mr.  Gillin made it reasonably clear to all involved that he               was now  interested in  obtaining the  records of the  field               examination, whatever its outcome.  His interrogatories  and               document productions requests, and  his response to the IRS'               dispositive motion,  all express this desire.   However, the               clarification  came  too  late  to  be  relevant,  since  it               amounted  to  an  impermissible  attempt to  expand  a  FOIA               request after  the agency  has responded and  litigation has               commenced.  See Irons v. Levi, 451 F.Supp. 751, 753 (D.Mass.                           ___ _____    ____               1978),  vacated on other grounds sub nom. Irons v. Bell, 596                       _________________________________ _____    ____               F.2d 468 (1st Cir. 1979).                                           -10-               discovery.   We can review  this decision only  for abuse of               discretion, see Meeropol  v. Meese, 790 F.2d at  960-61, and                           ___ ________     _____               we  find  none here.    Where  the agency's  affidavits  are               adequate  to substantiate  the adequacy  and results  of its               search, and the  validity of the exemptions  it claims, then               the "district  judge has  discretion to forgo  discovery and               award summary judgment  on the basis of affidavits."  Goland                                                                     ______               v. Central Intelligence Agency,  607 F.2d 339, 352 (D.C.Cir.                  ___________________________               1978).                 We have  considered Mr. Gillin's other  arguments and find               them  unpersuasive.   Our  decision  renders  moot the  IRS'               motion to strike Mr. Gillin's appendix.                 Affirmed.                 ________                                           -11-
