2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-13-2014

Harold Leonard v. IRS

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4238

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2014

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2014 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Harold Leonard v. IRS" (2014). 2014 Decisions. Paper 1160.

http://digitalcommons.law.villanova.edu/thirdcircuit_2014/1160
PS4-014 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-4238

___________

HAROLD L. LEONARD,

Appellant

v.

U.S. DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 10-cv-06625)

District Judge: Honorable Robert B. Kugler

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 12, 2014

Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

(Opinion filed November 13, 2014)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Harold L. Leonard appeals from the District Court’s ruling granting summary 

judgment in favor of the Internal Revenue Service (“IRS”) and denying his request for 

disclosure of documents under the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. Upon review, we will affirm the judgment of the District Court.

The facts being well-known to the parties, we set forth only those pertinent to this 

appeal. In two letters dated August 2, 2010, Leonard made FOIA requests to the IRS. In 

one letter, Leonard requested “any and all IRS Form 211 and IRS Form 211A filed by 

anyone” bearing his name and Social Security number for tax years 1997 through 2009.1 

(See Amended Complaint at Exhibit A.) The IRS denied the request. In doing so, the 

IRS did not disclose whether any Forms 211 or 211A existed. Rather, the IRS stated that 

if they did exist, they would be exempt from release under FOIA Exemptions 3, 7(A), 

7(C), or 7(D), 5 U.S.C. §§ 552(b)(3) & (b)(7). 

Leonard’s second FOIA request sought “any and all documents provided to the 

IRS by anyone (or entity), including but not limited to legal settlements, allegations of 

income, letters, complaints, etc., bearing” his name and/or his Social Security number for 

tax years 1999 through 2009. (See Amended Complaint at Exhibit B.) Upon receipt of 

that request, the IRS representative responsible for processing it did not do so on the

 

1

IRS Forms 211 and 211A are “whistleblower” forms, which allow individuals to report, 

and potentially receive a reward for reporting, suspected tax violations by others. 

Leonard sought access to those forms because he believes that his estranged wife has 

been causing the IRS to pursue him for tax liabilities.
3

mistaken belief that it was a duplicate of Leonard’s first FOIA request, not a separate 

request. 

In December 2010, Leonard filed a complaint in the District Court, which he later 

amended, challenging the IRS’s refusal to disclose the documents that he requested. The 

IRS filed a motion for summary judgment. With regard to Leonard’s first FOIA request, 

the IRS maintained that the documents that Leonard requested were exempt from 

disclosure.2 As to his second FOIA request, the IRS argued that Leonard’s request was 

not proper because it failed to reasonably describe the documents he sought. Upon 

review, the District Court entered an order denying the IRS’s motion for summary 

judgment without prejudice and directing the IRS to submit to the Court a Vaughn Index 

addressing Leonard’s first FOIA request.3 The District Court also directed the IRS to 

produce any materials responsive to Leonard’s request for Forms 211 and 211A to the 

Court for in camera review.4 With regard to Leonard’s second FOIA request, the District 

Court agreed with the IRS that Leonard’s request for documents was too general. 

 

2 The IRS clarified that if any responsive Form 211 existed, it would be exempt from 

disclosure under FOIA Exemptions 3, 7(A) and 7(D), as well as Exemption 6, 5 U.S.C.

§ 552(b)(6). As to Form 211A, the IRS explained that Exemptions 3 and 7(A) prohibited 

disclosure.

3 A “Vaughn” index is an affidavit that supplies an index of withheld documents and 

details the agency’s justification for claiming an exemption. Patterson v. Fed. Bureau of 

Investigation, 893 F.2d 595, 599 n.7 (3d Cir. 1990); see also Vaughn v. Rosen, 484 F.2d 

820, 826-28 (D.C. Cir. 1973).

4 The District Court concluded that Leonard exhausted his administrative remedies before 
4

However, the Court granted Leonard an opportunity to refine his request and ordered the 

IRS to respond to any refined request made by Leonard. 

As directed, the IRS submitted a Vaughn Index and provided documents 

responsive to Leonard’s first FOIA request to the District Court for in camera review. 

After reviewing the submissions, the District Court entered an order granting the IRS’s 

motion for summary judgment with respect to Leonard’s first FOIA request. After the 

IRS responded to Leonard’s second FOIA request, which Leonard had refined,5the 

parties filed cross-motions for summary judgment. Included with the IRS’s motion were 

two declarations of IRS employees describing in detail the process used to respond to 

Leonard’s second FOIA request. The declarations emphasized that only third-party 

taxpayer identification numbers were redacted and therefore withheld from Leonard.

Thereafter, the District Court entered an order denying Leonard’s motion for 

summary judgment and granting the IRS’s motion for summary judgment. The Court 

concluded that the IRS had adequately responded to Leonard’s second FOIA request and 

that the third-party information that had been redacted was exempt from disclosure 

 

filing his federal complaint.

5 The refined request set forth 45 specific categories of requested documents. In response 

to the request, the IRS produced 187 pages of records, with some information redacted 

from 38 of those pages. The IRS informed Leonard that the redacted information 

consisted of third-party taxpayer information which was protected from disclosure under 

Exemption 3, in conjunction with 26 U.S.C. § 6103(a), as well as Exemption 6.
5

pursuant to FOIA Exemption 3.6 In doing so, the Court noted that Leonard had not 

disputed the nature of the information that had been redacted, nor had he obtained 

consent from the third parties for the release of their taxpayer identification numbers. 

Leonard appeals.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We employ a two-tiered test 

in reviewing an order of a District Court granting summary judgment in proceedings 

seeking disclosure under the FOIA: first, we must “decide whether the district court had 

an adequate factual basis for its determination;” and second, we must “decide whether 

that determination was clearly erroneous.” Abdelfattah v. U.S. Dep’t of Homeland Sec., 

488 F.3d 178, 182 (3d Cir. 2007) (quotations, citations omitted). We will reverse “only if 

the findings are unsupported by substantial evidence, lack adequate evidentiary support in 

the record, are against the clear weight of the evidence[,] or where the district court has 

misapprehended the weight of the evidence.” Lame v. U.S. Dep’t of Justice, 767 F.2d 66, 

70 (3d Cir. 1985). 

Leonard argues that the District Court erred in granting summary judgment in 

favor of the IRS regarding his second FOIA request because the information that was 

withheld is not protected by FOIA Exemption 3.7 Exemption 3 exempts from disclosure 

 

6 Apparently, because the District Court concluded that the third-party tax return 

information was properly withheld under Exemption 3, the Court did not consider the 

IRS’ alternative reliance on Exemption 6 to justify withholding that information.

7Although we afford Leonard’s filings a liberal construction, we conclude that he has 
6

documents that are “specifically exempted . . . by statute.” Section 6103 of Title 26 is an 

exempting statute within the meaning of FOIA Exemption b(3); thus, records protected 

under § 6103 are exempt from disclosure. See 26 U.S.C. § 6103; Grasso v. IRS, 785 F.2d 

70, 77 (3d Cir. 1986). Section 6103(a) states, in pertinent part, that “[r]eturns and return 

information shall be confidential” and shall not be disclosed except as authorized by this 

title. 26 U.S.C. § 6103(a). Section 6103(b)(1) defines return as “any tax or information 

return, declaration of estimated tax, or claim for refund,” and section 6103(b)(2) defines 

return information as “a taxpayer’s identity, the nature, source, or amount of his income, 

payments, receipts, deductions, exemptions, credits, . . . tax withheld, deficiencies . . . 

whether the taxpayer's return was, is being, or will be examined or subject to other 

investigation or processing . . .” Id. at § 6103(b). Section 6103(b)(6) defines taxpayer 

identity as the name, mailing address, taxpayer identification number, or any combination 

thereof, of a person, with respect to whom a return is filed. Id. (emphasis added).

After reviewing the record, we conclude that the IRS provided the District Court 

with sufficient factual basis for its determination that the small amount of information 

that was withheld from Leonard fell within Exemption 3. Leonard makes no arguments 

undermining that conclusion. According to the declaration of Mary Ellen Keys, an 

 

waived any challenge to the District Court’s ruling regarding his first FOIA request 

because he failed to meaningfully raise any issues regarding the correctness of that ruling 

in his opening brief. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is 

well settled that an appellant’s failure to identify or argue an issue in his opening brief 

constitutes waiver of that issue on appeal.”).
7

attorney with the IRS’s Office of Chief Counsel, most of the information retrieved 

pursuant to Leonard’s second FOIA request was released in full, with information 

redacted from only 38 pages. Those 38 pages were redacted only to the extent that they 

contained taxpayer identification numbers of third-party taxpayers. As the District Court 

noted, Leonard did not dispute the IRS’s factual assertion that the redacted information 

consisted only of third-party taxpayer information. Nor did he allege or present any 

evidence showing that the third parties had consented to having their taxpayer 

identification numbers disclosed to him. In light of that, the District Court did not err in 

upholding the IRS’s refusal to release the redacted information pursuant to Exemption 3.

We disagree with Leonard’s assertion that such a determination undermines our 

ruling in Grasso. In Grasso, the FOIA requester sought disclosure of a memorandum of 

an interview he had given to an IRS agent. 785 F.2d at 72. The IRS declined to disclose 

the memorandum arguing, in part, that because its disclosure would interfere with a 

pending enforcement proceeding, the memorandum was properly withheld under 

Exemption 7(A). Id. We affirmed the District Court’s denial of the IRS’s motion for 

summary judgment, concluding that the IRS had failed to meet its burden of establishing 

that the requested information would interfere with a pending enforcement proceeding. 

Id. at 76-77. Leonard argues that before the District Court granted the IRS’s summary 

judgment motion in his case, it should have determined “whether the documents 

requested if produced would have seriously impede[d] an ongoing investigation.” (See
8

Appellee’s Brief at 12-13.) The IRS made no such argument in Leonard’s case, however. 

Thus, because that issue was not relevant under the circumstances presented here, the 

District Court was under no obligation to consider it.8

Accordingly, we will affirm the judgment of the District Court.

 

8 Leonard also argues that the District Court erred because “if the matter were in the 

nature of a criminal proceeding,” he “would be allowed the requested documents.” (See

Appellee’s Brief at at 13.) The argument is irrelevant given that this is a civil matter. 

Moreover, as the IRS correctly notes, the argument is conclusory as Leonard fails to cite 

any authority supporting his contention.