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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SUSAN B. LONG, et al., 

Plaintiffs,

v.

UNITED STATES INTERNAL

REVENUE SERVICE, 

Defendant.

 No. C74-724P

ORDER GRANTING

PLAINTIFF’S MOTION 

MOTION TO ENFORCE

CONSENT ORDER

This matter comes before the Court on Plaintiff Susan B. Long’s Motion to Enforce

Consent Order Against Defendant United States Internal Revenue Service. (Dkt. No. 8). 

Having reviewed the papers and pleadings submitted by the parties, and finding that oral

argument is not necessary to decide this motion, the Court GRANTS Plaintiff’s motion. 

Within 14 days of the date of this order, Defendant is ORDERED to supply Ms. Long

with copies of any monthly, quarterly, and year-end AIMS Table 37 reports for fiscal years 2002,

2003, 2004, and 2005, as well as any monthly and quarterly reports for fiscal year 2006 that have

been compiled as of the date of this order. Consistent with the terms of the Consent Order

entered by this Court in 1976, Defendant shall, on an ongoing basis and upon proper request by

Ms. Long, promptly make available to her for inspection and copying copies of the AIMS Table

37 reports, as long as the agency continues to compile such reports. The Court further finds that

Ms. Long is entitled to an award of her reasonable attorney fees and costs in bringing this

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ORDER

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motion. Plaintiff shall file and serve a motion for attorney fees and costs no later than 30 days

from the date of this order.

The reasons for the Court’s ruling are set forth below.

Background

In 1974, Ms. Long and her now-deceased husband Philip Long filed this action under the

Freedom of Information Act (FOIA) to obtain statistical information from the Internal Revenue

Service (IRS). On July 23, 1976, the Court entered a Consent Order in this matter. Paragraph 3

of the Consent Order provided that the IRS:

[W]ill, upon proper request by plaintiffs, make all statistical data regardless of the format

or particular categorization which are hereafter compiled and are similar to that contained

in Document 5301, Document 5302, Quarterly Statistical Reports, Report NO-CP:A-68,

or in any of Reports NO-CP:A-231 through -260 promptly available to the plaintiffs for

their inspection . . . . However, it is neither the intent nor purpose of this order that the

defendant be required to compile in future years the statistical data which presently

appear in the aforementioned reports.

The Consent Order further provided in Paragraph 4 that the IRS:

[S]hall, upon proper request by plaintiffs, promptly furnish copies of the records referred

to in . . . paragraph 3, to the extent such records are compiled in the future . . . .

The Consent Order has not been modified or vacated since its entry in 1976, nor does the order

contain any provisions limiting its duration.

On January 5, 2006, Ms. Long filed this motion to enforce the Consent Order. Based on

the parties’ representations, it appears that the IRS no longer compiles a number of the reports

specifically named in the 1976 Consent Order. However, Ms. Long maintains that the IRS now

regularly produces a report – known as Audit Information Management System (AIMS) Table

37 – that contains statistical data similar to the data that had been contained in Report NO-CP:A232, a report referenced in the 1976 Consent Order. Since 2004, Ms. Long has repeatedly

requested that the IRS provide her with copies of AIMS Table 37 reports from fiscal year 2002

forward. See, e.g., Dkt. 9, Ex. 9 (November 8, 2004 letter from Ms. Long). The IRS has not

provided this information to Ms. Long. 

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ORDER

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Analysis

1. Enforceability of Consent Order

“A district court retains jurisdiction to enforce its judgments, including consent decrees.” 

Hook v. State of Arizona Dept. of Corrections, 972 F.2d 1012, 1014 (9th Cir. 1992). Consent

decrees are “essentially contractual agreements” and contract principles are generally applicable

in construing and enforcing such agreements. Id. Unless its terms provide otherwise, a consent

order generally remains in force unless it is modified or vacated through a motion under Fed. R.

Civ. P. 60(b). Id. at 1016. Consistent with these rules, it is undisputed that the 1976 Consent

Order remains in effect and that this Court retains jurisdiction to enforce the order. 

2. Similarity Between Statistical Data Contained in Report NO-CP:A-232 and Data 

in AIMS Table 37

Paragraph 3 of the Consent Order requires the IRS to “make all statistical data . . . which

are hereafter compiled and are similar to that contained” in Report NO-CP:A-232 promptly

available to Ms. Long upon proper request. There is no serious question that AIMS Table 37

contains statistical data that are similar to the data contained in Report NO-CP:A-232. Plaintiff

maintains and Defendant does not dispute that both reports provide statistical data on IRS

examination of tax returns, specifying types of returns examined, hours spent on examination,

additional dollars of taxes recommended, dollars of additional taxes per return examined and

hour of examination, and percentage of returns for which no additional taxes were recommended. 

The IRS does not directly dispute that statistical data in AIMS Table 37 are “similar” to

the data that had been contained in Report NO-CP:A-232. However, the IRS notes that Table

37 contains some data that had not been not included in Report NO-CP:A-232 and argues that

“[r]equiring the IRS to provide more data than it was required to provide under the consent

order subjects it to a burden not contemplated at the time of its entry.” (Dkt. No. 17 at 9).

The IRS’s argument is not persuasive. By its terms, the Consent Order requires the IRS

to provide Ms. Long with data “similar” to the data contained in Report NO-CP:A-232, to the

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ORDER

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extent that the IRS continues to compile such data. As a result, the fact that AIMS Table 37

contains some data that had not been included in Report NO-CP:A-232 does not put Table 37

outside the scope of Consent Order; the data contained in the two reports need not be identical in

all respects in order to be “similar.” In addition, Ms. Long maintains that of the numbers in Table

37 that are not also contained in Report NO-CP:A-232, most if not all either can be derived

arithmetically from the data in Report NO-CP:A-232 or can be found in other reports included in

the Consent Order. 

Therefore, the Court finds that the statistical data in AIMS Table 37 is sufficiently similar

to the data contained in Report NO-CP:A-232 to come within the scope of the Consent Order.

3. Applicability of 26 U.S.C. § 6103

The IRS argues that it is precluded by 26 U.S.C. § 6103 from making AIMS Table 37

available to Ms. Long. This statute, which was amended shortly after the Consent Order was

entered, generally prohibits disclosure of a taxpayer’s “return information.” In relevant part, the

statute defines “return information” as:

[A] taxpayer’s identity, the nature, source, or amount of his income, payments, receipts,

deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld,

deficiencies, overassessments, or tax payments, whether the taxpayer’s return was, is

being, or will be examined or subject to other investigation or processing, or any other

data, received by, recorded by, prepared by, furnished to, or collected by the Secretary

[of the Treasury] with respect to a return or with respect to the determination of the

existence, or possible existence, of liability (or the amount thereof) of any person under

this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense. . . . 

26 U.S.C. § 6103(b)(2)(A). However, “return information” under the statute “does not include

data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a

particular taxpayer.” 26 U.S.C. § 6103(b)(2). 

The IRS contends that AIMS Table 37 contains “return information” as defined by the §

6103. The IRS does not argue that Table 37 contains information that directly identifies any

taxpayer. Instead, the IRS asserts that Table 37 sometimes may include “cells of one” – that is,

cells indicating that only one unnamed taxpayer within a particular data field had been audited. 

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ORDER

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The IRS argues:

[S]tatistical tables that contain “cells of one” taxpayer [data] may not be disclosed

without running afoul of section 6103. . . . Table 37 contains certain fields where

(because of the combination of the industry described and the income level – such as

Fortune 500 companies) it would be possible for “persons in the relevant community” to

use information in the table, in conjunction with publicly available information, such as

press releases, public SEC or judicial filings and other information on the Internet, to

identify a specific taxpayer.

(Dkt. No. 17 at 10-11). In response, Plaintiff disputes that Table 37 categorizes taxpayers by

particular industry or by whether they are Fortune 500 companies, arguing that “[t]he report’s

categories are broad enough that even if a cell in Table 37 contained information about only one

audit, a reader would not be able to identify the taxpayer unless he already knew that the

taxpayer had been audited in the relevant time period.” (Dkt. No. 19 at 6).

On the record before it, the Court finds that § 6103 does not relieve the IRS of its

obligation under the Consent Order to provide AIMS Table 37 to Ms. Long upon proper

request. First, as Plaintiff notes, consent orders are enforceable despite changes in law, unless

they have been properly modified or vacated under Fed. R. Civ. P. 60(b). See, e.g., Hook v.

State of Arizona Dept. of Corrections, 972 F.2d 1012, 1017 (9th Cir. 1992) (“Even if the law

underlying the consent decree no longer appears to support the decree, a party cannot disobey

the decree without bringing a Rule 60(b) motion to modify or vacate the decree”). Here, the IRS

has not sought to modify or vacate the consent decree pursuant to Rule 60(b). 

Second, the IRS’s position that production of AIMS Table 37 could indirectly reveal

taxpayers’ “return information” is speculative at best. Aside from conclusory assertions, the IRS

provides no evidence to support its contention that a “cell of one” in Table 37 could provide

sufficient information to identify the particular taxpayer whose data is included in the cell. The

IRS’s position is further undermined by evidence that the IRS has previously provided Ms. Long

with data compilations that included “cell of one” entries. Indeed, Ms. Long asserts that “[s]ince

the Consent Order was entered, on many occasions extending up through March 2004 – the last

release before the IRS started refusing to provide audit statistics to me – the IRS has furnished

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ORDER

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me thousands of pages of statistical tables containing results from audits that contained cell sizes

of only ‘1.’” (Dkt. No. 20 ¶ 9).

Finally, even assuming for the sake of argument that “cell of one” entries in AIMS Table

37 may indirectly reveal a taxpayer’s “return information,” the IRS could redact such entries. 

Although the IRS asserts that “the burden on the agency to conduct a line-by-line review of

Table 37 on a monthly basis would be inordinate,” (Dkt. No. 17 at 11), such a bare contention is

insufficient to demonstrate that redaction is not feasible. 

4. Production of Annual Data Book

The IRS also suggests that it is currently in compliance with the Consent Order because

Ms. Long “has been provided with the Annual Data Book, which provides most of the data

plaintiff received in the year end Quarterly Statistical Reports, and much more.” (Dkt. No. 17 at

9). However, Plaintiff notes that the 1976 Consent Order identified many specific reports other

than the Quarterly Statistical Reports. As a result, production of the Annual Data Book does not

relieve the IRS of its obligation to produce, upon proper request, existing compilations that

contain statistical data that are similar to the data contained in the other reports identified in the

Consent Order.

5. Frequency of Requests

The IRS also contends that Plaintiff is not entitled under the Consent Order to request

data on a monthly basis, asserting that “[t]here is nothing in the order . . . which supports this.” 

(Dkt. No. 17 at 9-10). However, the Consent Order does not contain any provisions that restrict

the frequency of Ms. Long’s requests. By its terms, the order provides that “all statistical data”

similar to that in the reports thereafter compiled by the IRS will be made available to Ms. Long

“upon proper request,” without limiting the number or frequency of such requests. As a result,

Ms. Long is not precluded under the terms of the order from requesting information on a

monthly basis. 

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ORDER

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6. Attorney Fees and Other Litigation Costs

Plaintiff requests an award of her reasonable attorney fees and costs in bringing this

motion, in an amount to be established later. As Plaintiff notes, FOIA provides that “[t]he court

may assess against the United States reasonable attorney fees and other litigation costs

reasonably incurred in any case under this section in which the complainant has substantially

prevailed.” 5 U.S.C. § 552(a)(4)(E). The IRS offers no substantive response to Plaintiff’s

request for fees and costs.

An award of attorney fees and costs to the prevailing party in a FOIA action is not

mandatory. Instead, “[t]he legislative history of the FOIA makes it clear that Congress did not

intend an award of attorney’s fees to be automatic; rather the trial court ‘must weigh the facts of

each case against the criteria of the existing body of law on the award of attorney fees and then

exercise its discretion in determining whether an award is appropriate.’” Church of Scientology

of California v. U.S. Postal Serv., 700 F.2d 486, 492 (9th Cir. 1983). Therefore, “[i]n order to

receive an award of fees, a prevailing party in a FOIA action must demonstrate both eligibility

for and entitlement to such a recovery.” Long v. IRS, 932 F.2d 1309, 1313 (9th Cir. 1991)

(emphasis in original). 

To satisfy the eligibility prong, “the plaintiff must present ‘convincing evidence’ that two

threshold conditions have been met: he must prove that (1) his filing of the FOIA action was

necessary to obtain the information sought and (2) the action had a ‘substantial causative effect’

on the ultimate receipt of that information.” Id. (emphasis in original). Here, Ms. Long has

presented convincing evidence that it was necessary to file this motion to obtain the information

sought, given the IRS’s previous refusals to provide such information after repeated requests by

Ms. Long. In addition, this motion obviously has had a “substantial causative effect” on the

receipt of the information sought.

If a plaintiff satisfies the eligibility criteria, a district court may, in the exercise of its

discretion, determine that the plaintiff is entitled to an award of fees. Id. In exercising this

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ORDER

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discretion, the Court must consider four criteria:

(1) the public benefit from disclosure, (2) any commercial benefit to the plaintiff resulting

from the disclosure, (3) the nature of the plaintiff’s interest in the disclosed records, and

(4) whether the government’s withholding of the records had a reasonable basis in law.

Id. These four criteria “are not exhaustive” and “the court may take into consideration ‘whatever

factors it deems relevant in determining whether an award of attorney’s fees is appropriate.’” Id.

(internal citations omitted).

Neither side has explicitly addressed these factors in its briefing. However, the record

before the Court contains sufficient information to evaluate the relevant criteria.

Plaintiff is the co-director of the Transactional Records Access Clearinghouse (TRAC), a

research organization associated with Syracuse University. According to Plaintiff, TRAC

provides the public with information and reports regarding the IRS’s performance. Plaintiff

asserts that the statistical information she seeks is “critical to TRAC’s efforts to monitor and

disseminate information on IRS activities, including audit rates, enforcement activities, and

criminal prosecutions.” (Dkt. No. 8 at 4). 

Because Ms. Long seeks to disseminate this information sought in this proceeding to the

public, there would be a public benefit from disclosure of the records sought by Ms. Long. It

also appears that Ms. Long herself stands to gain little if any commercial benefit from the

disclosure of the records sought. See, e.g., Long v. U.S. Dept. of Justice, 10 F. Supp. 205, 207

(N.D.N.Y 1998) (noting that TRAC is a non-profit organization). Ms. Long’s interest in this

matter stretches back 30 years and has both public interest and scholarly components. Finally,

for the reasons discussed previously, the Court finds that the government’s withholding of the

records sought by Ms. Long had little basis in law.

Therefore, the Court is satisfied that Ms. Long is entitled to an award of her reasonable

attorney fees and costs in bringing this motion to enforce the 1976 Consent Order. Plaintiff is

directed to file a motion and supporting materials that document her reasonable attorney fees and

costs within 30 days of the date of this order. 

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ORDER

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Conclusion

Although the Consent Order in this matter was entered 30 years ago, there is no dispute

that the order remains in effect and that the Court retains jurisdiction to enforce the decree. By

its terms, the 1976 Consent Order requires the IRS, upon proper request, to provide Ms. Long

with existing statistical data that are “similar” to the data contained in Report NO-CP:A-232. 

Because the data contained in AIMS Table 37 are similar to the data contained in Report NOCP:A-232, the IRS is obliged to produce Table 37 to Ms. Long on proper request. Therefore,

Plaintiff’s motion to enforce the consent order is GRANTED. 

Within 14 days of the date of this order, Defendant is ORDERED to supply Ms. Long

with copies of any monthly, quarterly, and year-end AIMS Table 37 reports for fiscal years 2002,

2003, 2004, and 2005, as well as any monthly and quarterly reports for fiscal year 2006 that have

been compiled as of the date of this order. Furthermore, Defendant shall, on an ongoing basis

and upon proper request by Ms. Long, promptly make available to her for inspection and copying

copies of the AIMS Table 37 reports, as long as the agency continues to compile such reports. 

The Court further finds that Ms. Long is entitled to an award of her reasonable costs and

attorney fees incurred in obtaining this order. Plaintiff is directed to file a motion for attorney

fees and costs no later than 30 days from the date of this order.

The clerk is directed to send copies of this order to all counsel of record.

Dated: April 3, 2006.

s/Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

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