UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

William E. Powell,

Plaintiff,

v. Case No. 14-12626

Internal Revenue Service, Honorable Sean F. Cox

Defendant.

_________________________________/

SUPPLEMENTAL ORDER 

ON DEFENDANT’S MOTION TO DISMISS

Plaintiff William E. Powell filed this pro se action against the United States Internal

Revenue Service (“I.R.S.”) on July 3, 2014. 

The matter came before the Court on the I.R.S.’s Motion to Dismiss. In its motion, the

I.R.S. argued that this Court should dismiss this action for lack of subject matter jurisdiction

because Plaintiff has not exhausted his administrative remedies with respect to any proper

Freedom of Information Act (“FOIA”) request made by Plaintiff. As an additional or alternative

ground, the I.R.S. also argued that this Court should dismiss this action because, even if Plaintiff

had exhausted his administrative remedies, the I.R.S. has either produced the requested

documents or advised Plaintiff that it does not possess them. 

In an Opinion & Order issued on July 31, 2015 (Docket Entry No. 39), this Court ruled as

follows:

For the reasons set forth above, IT IS ORDERED that Defendant’s Motion

to Dismiss is GRANTED IN PART, DENIED IN PART, and TAKEN UNDER

ADVISEMENT IN PART. 

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The Court concludes that Plaintiff made three proper FOIA requests to the

I.R.S. that can be considered in this action, which sought: 1) a 1989 Corporate

Tax Return for the Powell Printing Company; and 2) a Form 2553 for the

company. To the extent that Plaintiff seeks to assert claims in this action based

on any other requests to the I.R.S., the Court DISMISSES such claims for lack of

subject matter jurisdiction.

The Court further concludes that Plaintiff has exhausted his administrative

remedies as to his March 28, 2014 FOIA request for : 1) a 1989 Corporate Tax

Return for the Powell Printing Company; and 2) a Form 2553 for the company.

As to the I.R.S.’s additional or alternative argument (i.e., that Plaintiff

fails to state a claim as to those requests because the I.R.S.: 1) produced to

plaintiff a copy of the Form 2553 and cannot find the original of that document;

and 2) informed plaintiff that the 1989 Form 1120 does not exist) the Court

TAKES THAT ISSUE UNDER ADVISEMENT and ORDERS that:

1) no later than August 10, 2015, the I.R.S. may file a new or

amended declaration addressing the agency’s search for the

1989 Corporate Tax Return for the Powell Printing

Company; 

2) the I.R.S. shall to SHOW CAUSE, in writing, no later than

August 10, 2015, why Counsel for Defendant should not

be required to appear at a Conference in this matter, along

with the original Form 2553, so that Plaintiff may inspect

the original document; and

3) Plaintiff may respond to the I.R.S’s Show-Cause-Order

Response no later than August 20, 2015.

IT IS SO ORDERED.

(Docket Entry No. 39 at 14-15).

On August 10, 2015, the I.R.S. filed a response indicating that it has no objection to

providing the original Form 2553 to Plaintiff for inspection and copying at a conference before

the Court. (Docket Entry No. 41 at 1). As such, the Court ordered the parties to appear on

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September 3, 2015, so that Plaintiff could inspect and copy the original Form 2553. The parties

appeared on September 3, 2015, and, in the presence of the Court, Plaintiff inspected the original

Form 2553. Plaintiff was also provided with a certified copy of the document. Plaintiff has

therefore obtained all relief he sought as to this document.

The last remaining issue in this action concerns Plaintiff’s request for a 1989 Corporate

Tax Return for the Powell Printing Company. On August 20, 2015, the I.R.S. provided a sworn

Declaration from Lisa M. Soli (Docket Entry No. 41-1). Soli is a disclosure specialist employed

by the I.R.S. whose official duties have included responding to FOIA requests by Plaintiff. 

Soli’s Declaration details the actions that she took in searching for a 1989 Corporate Tax Return

for the Powell Printing Company. Soli’s Declaration states that, after a diligent search, she has

been unable to locate a 1989 Corporate Tax Return for the Powell Printing Company. Based on

her investigation of the records maintained by the I.R.S., Soli concludes that the Powell Printing

Company was not liable for taxes for 1989 and that it did not file a corporate tax return for 1989. 

(Id.).

Following the I.R.S.’s August 20, 2015 filing of Soli’s Declaration, Plaintiff filed two

additional written submissions. (D.E. No. 43& 44).

The Freedom of Information Act confers jurisdiction on this Court to enjoin an agency

from withholding records and to order the production of any agency records improperly

withheld. 5 U.S.C. § 552(a)(4)(B). Under this provision, federal jurisdiction is dependent on

Plaintiff showing that an agency has 1) improperly 2) withheld 3) agency records. Kissinger v.

Reporters Comm’n for Freedom of the Press, 445 U.S. 136, 150 (1980). 

The Court concludes that it lacks jurisdiction over Plaintiff’s FOIA claim pertaining to

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his request for a 1989 Corporate Tax Return for the Powell Printing Company because “[a]gency

possession of the requested documents is ‘an indispensible prerequisite to liability in a suit under

FOIA.’” Vonderheide v. I.R.S., 194 F.3d 1315, 1999 WL 1000875 at *1 (6th Cir. 1999). As was

the case in Vonderheide, the I.R.S. has provided evidence in the form of a sworn declaration that

has it conducted a good faith search and that it does not possess this requested document.

Agency affidavits regarding a search are given a presumption of good faith that cannot be

rebutted by mere speculation. Safeguard Servs., Inc. v. Securities & Exchange Comm’n, 926

F.2d 1197, 1200 (D.C. Cir. 1991); Hoff v. U.S. Dep’t. of Justice, 2007 WL 4165162 (S.D. Ohio

2007); see also Maynard v. C.I.A., 986 F.2d 547, 560 (1st Cir. 1993) (explaining that an

agency’s affidavit is “accorded a presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence of a document.”). In response, Plaintiff has not offered

any evidence that the I.R.S. possesses a 1989 Corporate Tax Return for the Powell Printing

Company and his assertion that such a document exists is not sufficient to overcome the

agency’s declaration. 

Again, an agency must possess a record in order to improperly withhold it. Absent an

improper withholding, this Court lacks jurisdiction to devise a remedy. Vonderheide, supra. 

Since the document requested by Plaintiff does not exist, the I.R.S. did not improperly withhold

agency records. Id.; Sneed v. U.S. Dept. of Labor, 14 F. A’ppx 343 (6th Cir. 2001); 

Accordingly, this Court lacks jurisdiction over Plaintiff’s last remaining FOIA claim in

this action and the Court ORDERS that this action is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

S/Sean F. Cox 

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Sean F. Cox

United States District Judge

Dated: September 9, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of record on

September 9, 2015, by electronic and/or ordinary mail.

S/Jennifer McCoy 

Case Manager

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