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.
__________
New

The pro se appellant, Robert Gillin, lives in

______

Hampshire and files his federal income tax returns with

the

Internal

Revenue

Massachusetts.
agents in

Service

office

In early 1989, Mr. Gillin

Jacksonville, Florida,

in

Andover,

learned that IRS

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

tax

issuing a

Gillin

refused.

concluded that

statutory
The
there

notice of

IRS

completed

was no

change

deficiency.

its examination
in Mr.

Gillin's

Mr.

and

tax

liability,

and therefore

no reason

to issue

a notice

of

deficiency.
In July 1989,
categories
Information

of

Mr. Gillin
documents

Act (FOIA),

asked the IRS

to

him

under

5 U.S.C.

to release
the

552.

five

Freedom

of

The categories

were:
1) The transcripts of Mr.
Files" for 1982 through 1988.

Gillin's "Individual

2) All documents "pertaining" to

"Lien Files."

Mr. Gillin in

Master

the IRS'

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
currently in the criminal investigation division."

The

IRS

supplied

Mr.

Individual Master Files.

its lien files
Division,

Gillin with

transcripts

It told him that it

and the files of

of

are

his

had searched

its Criminal Investigation

and found no documents concerning him.

It took a

narrow view of his

said that

two remaining requests.

because the transfer

Jacksonville did

First,

of records from

not involve a transfer

Mr.

Gillin's

responsive

to

documents

used

to Category #3.

because it had found no

1985

tax

Category
as a

return, there
#4,

which

basis to

Andover to

of "jurisdiction,"

there were no rules or documents responsive

Second, it said that

the IRS

deficiency in

were
had

conclude

no

documents

asked

only

that there

for

was a
___

deficiency.
In January
appeals

1990, after he had

pursued his administrative

without gain, Mr. Gillin filed a pro se FOIA action

______

in the New Hampshire federal district court.

the

Internal Revenue

requests.
stayed

On the

all

complaint.
because

it

discovery
The
was

with a

number of

government's motion, the

IRS

pending

the IRS'

filed a

dispositive

accompanied

declarations, was
The

Service

He then served

district court

by a

in effect a motion
deemed the

granted judgment accordingly.

-3-

number

discovery

district court

response
motion
of

to

the

which,

evidentiary

for summary judgment.

IRS' response

adequate and

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

"jurisdiction" over

his tax

concerning
records.

word 'jurisdiction,'"

the court

form of

pro se
______

Mr.

Mr. Gillin's

Gillin

typically

had
used by

between offices.
and

identified
the

the

transfer

By "harping

of

on the

said, the IRS

"exalts the

request over its

substance."

IRS when

number

of

standard

it transferred

forms

documents

The court instructed the IRS to search for

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
claimed

was exempt

district court

certain information that it

from disclosure

under the

issued a "post-judgment

FOIA.

The

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

produced, is

within

the

class requested

unidentifiable, or

either

is wholly exempt

has

been

from the

[FOIA's] inspection requirements."

121, 126

(D.C.Cir. 1982).

Perry v. Block, 684 F.2d

_____
_____

Cf. Weisberg
___ ________

Department of Justice, 745 F.2d 1476,

______________________

v. United States
______________

1485 (D.C.Cir. 1984)

-4-

(in order to
exists,
search

agency must

Gillin's

concluding

that

to

calculated

of material

that it
to

fact

has conducted

uncover

all

relevant

By the time the district court closed the books

Mr.

respect

no genuine issue

demonstrate

reasonably

documents).
on

show that

each

lawsuit,
the

IRS

of

it

was

fully

had satisfied

the

five

its

categories

justified
burden
of

in

with

documents

identified in the FOIA request.

1. Transcripts of Individual Master Files - The IRS
_______________________________________
Mr.

Gillin

category.

all

of the

According

documents

he

asked

for in

to the declaration of Clare

disclosure officer in the IRS'

gave

this

Coelho, a

Andover office, she sent Mr.

Gillin his "IMF transcript for the years 1982 to 1988."1

2.

Documents in Lien Files __________________________

declaration of
Portsmouth, New
no

Elaine Tinker,

The

IRS

a disclosure officer

Hampshire office, to prove

documents pertaining to

submitted

Mr. Gillin

the

in its

that there were

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.
been

adequate because he was

Tinker's search could not have

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

located

at

274

Hampshire, and

Federal Tax Lien against property

Baboosic

Lake

an affidavit

Road

in

Merrimack,

attesting to his

New

ownership of

that property.
It matters not, however,
the

property

on

whether Mr. Gillin actually owns

which the

IRS

placed

the

lien.

What

matters, for our purpose, is that the notice of lien did not
identify Mr.
owner of

Gillin as the

the property attached.

the taxpayer as
an

responsible taxpayer or

entity

Rather, the

as the

notice named

"J & P Janitorial Services, a Corporation,"

with

which

Mr.

Gillin

claims

to

have

no

measured by

the

affiliation.
The adequacy of
reasonableness
request."
1986).

an agency's

of

effort

in light

Meeropol v. Meese,
________
_____

look for liens

to him.

against J

asked the IRS

He did not

& P Janitorial

placed on the property

of

790 F.2d 942,

Mr. Gillin specifically

documents pertaining

liens

the

search "is

specific

956 (D.C.Cir.

to look for

tell the

IRS to

Services, or

at 274 Baboosic

-6-

the

for

Lake Road in

Merrimack, New Hampshire, nor did he give the IRS any reason
to believe

that

documents mentioning

that address would "pertain" to him.

did

that corporation

or

The fact that the IRS

not find the lien, therefore, says nothing at all about

the adequacy of its search.

3. Documents Used to Transfer "Jurisdiction" ___________________________________________
with the district

IRS' initial response

to

this category of the request

was insufficient, based as

it

was

of

on

cramped

However, the

reading

district court

appeal we need
to

court that the

We agree

the

term

"jurisdiction."

resolved that problem,

determine only whether the IRS

redact portions

of the

and on

was entitled

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.

mathematical technique used to

need

of

examination

knowledge
taxpayer

of the

technique

to manipulate

____________________

scoring

is

identify tax returns most in

or audit.

information concerning its

DIF

The

IRS

closely guards

DIF scoring methodology

because

would

enable an

unscrupulous

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

information
552(b)(3),
matters

the

which

and 26

disclosure

of

an

audit.

Such

is exempt from FOIA disclosure under 5 U.S.C.

says that

specifically

statute,

probability

the

FOIA

exempted from

U.S.C.

of returns for

standards."

Revenue Service, 891 F.2d

_______________

1987);

Naranjo v.
_______

88-5217

(E.D.Ky.

to be used for

v. Internal
________

222, 224 (9th Cir. 1989);

See also
________

Yon v.
___

1344, 1347 (S.D.Fla.

Internal Revenue Service,

________________________
1988).

from

used for the selection

See, e.g., Long

_________ ____

Internal Revenue Service, 671 F.Supp.

_________________________

to

by another

which exempts

examination, or data used or

determining such

apply

disclosure

6103(b)(2),

"standards used or to be

does not

Aronson
_______

62 A.F.T.R.2d
v.

Internal
________

Revenue Service,
________________

973

F.2d

962, 963-65

(explaining relationship between

(1st

552(b)(3) and

Cir.

1992)

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

responsive to this

position

that

it

had no

documents

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.
apparently
Gillin

In the
not

district

during

has argued

that

the

court, and

administrative

his request

on

appeal (but

process),

entitled

him to

Mr.

the

-8-

documents

used to conduct, or created in the course of, the

field examination, even though

the

IRS to

calculate

the examination did not lead

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.

respond

to

request

records sought.
under

the

552(a)(3),
which

We agree

circumstances,

creates an obligation to

"reasonably

with the
Mr.

describes"

district court

Gillin's

request

the

that,

did

not

"reasonably describe" the records of the field examination.

There is evidence in
Gillin first

the record to suggest that

submitted the FOIA

believe that the IRS had

___
its field examination.
warned him that
examining

may

request, he had

reason to

found a deficiency as a

result of

Several

months earlier, the IRS had

if he did not agree to

his 1985 taxes, the

but to issue a

Service would have no choice

from

this statement

already found a deficiency in his taxes.

believed, then

he

may --

practical difference
to

extend the time for

notice of deficiency forthwith.

have inferred

"conclude there

when Mr.

at that

that

the IRS

had

If that is what he

point --

between asking for the

was a deficiency,"

Mr. Gillin

have seen

no

documents used

and asking

for the

documents used in the course of the field examination.

But,

within

week

after

Mr.

Gillin

made

the

FOIA

application, the IRS informed him that it had not calculated

___

-9-

deficiency

alerted Mr.
have

recognized

1985 taxes.

Gillin to the flaw

examination
was

in his

that

the

This news

should have

in his request.

documents

used

He should

in

the

had not been "used as a basis to conclude there

___

deficiency,"

and

that

consequently

there

discrepancy between what he actually said and what

to say.

Since he, and not

recognize and
that

field

correct the

the IRS, was

he meant

in a position

ambiguity, we think

he bear the burden of clarification.

was

to

it sensible

There is nothing

in the record, however, to indicate that Mr. Gillin tried to

amend

or

clarify

his

request

at

any

time

during

his

Documents in Criminal Investigation Division _______________________________________________

Mr.

administrative dealings with the IRS.3

5.

Gillin does not

no records

challenge the IRS' statement

pertaining to him in

that it found

its criminal investigation

division.
Finally, Mr.
in proceeding

Gillin argues that the

to judgment

district court erred

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

discretion, see Meeropol

___ ________
we

find

adequate

none here.

the "district

for abuse of

v. Meese, 790 F.2d at

_____

960-61, and

Where

to substantiate

search, and the

this decision only

the agency's

the adequacy

and results

validity of the exemptions

judge has

award summary judgment

affidavits

discretion to forgo

of its

it claims, then

discovery and

on the basis of affidavits."

v. Central Intelligence Agency,

___________________________

are

Goland
______

607 F.2d 339, 352 (D.C.Cir.

1978).
We have
them

considered Mr. Gillin's other

unpersuasive.

Our

decision

arguments and find

renders

moot the

IRS'

motion to strike Mr. Gillin's appendix.

Affirmed.
________

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