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Marcusse v. United States Department of Justice Office of Information Policy

United States District Court, District Circuit

August 26, 2013

Janet Mavis Marcusse, Plaintiff,
United States Department of Justice Office of Information Policy et al., Defendants.



Plaintiff Janet Mavis Marcusse challenges the defendants' responses to her requests for records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. She sues three Department of Justice ("DOJ") components, the Department of the Treasury ("Treasury") and its component Internal Revenue Service ("IRS"), and the Board of Governors of the Federal Reserve System ("BOG"). Defendants have filed two separate dispositive motions. What remains is Defendants' Partial Motion to Dismiss and for Summary Judgment filed on behalf of the FBI and the IRS.[1]

Plaintiff has not filed a timely opposition but in her Motion for Reconsideration [Dkt. # 34], she questions the authenticity of some of the more than 10, 000 pages the IRS produced to her on December 21, 2012. See Pl.'s Mot. to Reconsider at 3-5; July 24, 2013 Min. Order & Supplement [Dkt. #35] (indicating that the Court might consider any of plaintiff's arguments in the motion to reconsider that address defendants' arguments for dispositive relief and giving defendants seven days to file any reply); Decl. of Deborah Lambert-Dean [Dkt. #25-8], Ex. AA (IRS's Dec. 21, 2012, letter releasing 10, 960 pages of public records). Defendants have not replied to plaintiff's assertions or briefed the propriety of the IRS's release in December 2012. Hence, the Court, finding from the relevant parts of the record that the FBI and the IRS have otherwise satisfied their disclosure obligations under the FOIA, will grant the instant motion in part and deny it in part without prejudice.


Plaintiff is serving a 25-year sentence imposed by the United States District Court for the Western District of Michigan following her convictions for "mail fraud, conspiracy to commit mail fraud, and money laundering in connection with the[] operation of a fraudulent investment scheme." U.S. v. Flynn, 256 Fed.Appx. 434, 436, 439 (6th Cir. 2008). This action arose from plaintiff's various FOIA requests for records pertaining seemingly to every aspect of her criminal case. Although the complaint purports to present nineteen "Cause[s] of Action, " the first ten causes or claims are in reality allegations devoted to plaintiff's FOIA request dated October 6, 2009, Causes Eleven through Fourteen are allegations devoted to plaintiff's FOIA request dated May 12, 2009, and Causes Fifteen through Sixteen are allegations devoted to plaintiff's FOIA request dated March 16, 2006, to the FBI. The Seventeenth Cause of Action concerns plaintiff's FOIA request to Treasury dated October 19, 2010, and the Eighteenth Cause of Action concerns plaintiff's FOIA request dated April 9, 2012. The Nineteenth Cause of Action merely "alleges that [plaintiff] should have been provided with a Vaughn Index in the previously described 18 causes of action when the defendants failed to provide or denied her FOIA requests." Compl. ¶ 221. The facts relevant to the instant motion follow.

March 16, 2006 Request to the FBI

On March 16, 2006, plaintiff requested from FBI Headquarters information "in regards to two [attached] letters allegedly written and signed by a former employee named Gerard M. Forrester." Decl. of David M. Hardy [Dkt. #25-1], Ex. D. On April 11, 2006, the FBI denied plaintiff's request under FOIA exemptions 6 and 7(C) since she had not provided a privacy waiver from Forrester or proof of his death.[2] Id., Ex. H. The FBI included a privacy waiver form with the response and informed plaintiff about her right to appeal to the Office of Information and Privacy ("OIP"). Id.

Also on March 16, 2006, plaintiff requested from the FBI field office in Miami, Florida, information "in regards to a bank in Nassau, Bahamas, that had its license revoked in March or April of 2001." Id., Ex. E. Plaintiff indicated that the request concerned "Suisse Security Bank & Trust." Id. On April 18, 2006, FBI Headquarters informed plaintiff that "a search of the automated indices to our central records system files located no records in our Miami Field Office... to indicate the subject of your request has ever been of investigatory interest to the FBI, " and informed plaintiff about her right to appeal to OIP. Id., Ex. I.

May 12, 2009 Request to the FBI

On May 12, 2009, plaintiff requested from FBI Headquarters six categories of records, including (1) the search warrant, affidavit, and inventory of items she claims were "seized" from her attorney, Gurmail Sidhu, in July 2004, (2) "applications, authorizations, affidavits, or other documents in regards to tax protester' classification or profiling, " (3) the same in regards to "terrorist' or enemy combatant' classification or profiling, " (4) "[a]ny National Security letter authorized and issued, along with supporting documents and affidavits, " (5) FBI Form 302s, and (6) IRS Memorandum of Interview "MOI's". Id., Ex. K. On June 12, 2009, the FBI informed plaintiff that it had located an investigative file but was withholding the requested records under exemption 7(A) because the records "could reasonably be expected to interfere with [a pending or prospective law enforcement proceeding]." Id., Ex. O. But on appeal, OIP determined that exemption 7(A) did not apply and remanded plaintiff's request for the FBI to "send any and all releasable records...." Id., Ex. S.

Consequently, the FBI reviewed 2, 807 responsive pages contained in six of ten volumes of files and provided 2, 220 pages to plaintiff in six releases between September 13, 2010, and June 13, 2011. Hardy Decl. ¶ 66; see id., Ex. W (releasing 246 of 261 pages reviewed); Ex. Z (releasing 348 of 418 pages reviewed); Ex. CC (releasing 184 of 356 pages reviewed); Ex. II (releasing 288 of 366 pages reviewed); Ex. OO (releasing 261 of 393 pages reviewed); Ex. SS (releasing 893 of 1, 013 pages reviewed). The FBI withheld 587 pages in full "either due to application of a FOIA exemption or because they were duplicates of released pages." Hardy Decl. ¶ 66.[3] With each release, save the sixth, plaintiff paid the assessed fees. Id. In addition, plaintiff exercised her right to appeal to OIP, albeit unsuccessfully, the determinations of the first, second, third, and fifth releases. Id. ¶ 67, n.4.

On September 1, 2011, OIP informed plaintiff that two of her pending appeals were closed because she had failed to pay within 30 days the amount of $89.30 in duplication fees she owed for the sixth interim release on June 13, 2011. Id., Ex. UU. Plaintiff was further informed that she would "be required to substantiate that you have paid this debt before this Office takes action on these or any new appeals you submit." Id. On June 21, 2012, the FBI informed plaintiff that her "pending FOIA requests" were "being closed immediately due to lack of payment for [the foregoing] duplication fees." Id., Ex. YY. The FBI informed plaintiff about DOJ's regulation providing that when a requester has failed to pay an assessed fee within 30 days of the billing date, a component could require payment in the full amount, plus interest, before processing a new FOIA request or continuing to process a pending request. Id.

May 12, 2009 Request to the IRS

Also on May 12, 2009, plaintiff requested the same six categories of records from Treasury that she had requested from the FBI. Lambert-Dean Decl., Ex. A. The IRS opened a file, however, in response to EOUSA having forwarded the same request to the IRS on June 17, 2009. Id. ¶ 7. After determining that the request concerned a criminal investigation, IRS staff purportedly searched the Integrated Data Retrieval System "to see whether the IRS's Criminal Investigation function had a case involving Plaintiff." Id. On July 15, 2009, the IRS informed plaintiff that no responsive records were located and enclosed "Notice 393 explaining your appeal rights." Id. ¶ 7 & Ex. B; see also Ex. C (responding to duplicate request). The IRS has no record of plaintiff having appealed this determination. Id. ¶ 10.

During the course of this litigation, the IRS "search[ed] for, and process[ed]" documents responsive to plaintiff's May 12, 2009, request and her October 18, 2010, request that is not the subject of a count of the underlying complaint. Lambert-Dean Decl. at 13. On December 21, 2012, the IRS released 10, 960 pages "consist[ing], in their entirety, of information made public as exhibits in your federal prosecution." Id., Ex. AA. The IRS redacted social security numbers under exemption 6. Id.

October 19, 2010 Request to the IRS

On October 19, 2010, plaintiff requested from the IRS information pertaining to "monetary award recipients in [her] criminal case, including amount paid, name, and agency." Id., Ex. H. Having interpreted the request as seeking information about a confidential informant, id. ¶ 16, the IRS informed plaintiff on November 16, 2010, that it was denying her request under FOIA exemption 3 (in conjunction with 26 U.S.C. § 6103(a)) and exemption 7(D). Id., Ex. I. In her appeal of that decision, plaintiff states that "the disclosure I am seeking is in reference to my own tax return information, " but she then refers to the alleged testimony and statements of other individuals during her criminal trial and concludes that she is "most interested in those monetary awards paid to [21 listed] federal government employees at the time." Id., Ex. J. The list contains the names of four IRS agents, five assistant United States attorneys, two magistrate judges, four judges, two FBI agents, two United States attorneys, and two federal public defenders. Id. at 2. On January 5, 2011, the Appeals Office affirmed the IRS's determination and advised plaintiff of her right to seek judicial review. Id., Ex. K.

Records Referred to the FBI[4]

In response to a referral of records from EOUSA, the FBI released 96 of 112 pages reviewed on February 2, 2010. Hardy Decl., Ex. R. Ninety-three pages were released with redactions. In addition, ten pages were withheld as duplicative of released pages and six pages were withheld in full. The FBI withheld information under FOIA exemptions 2, 6, 7(C), and 7(D). Id.; Ex. ZZ (pages 1429-1540).

Records Referred to the IRS

On January 14, 2011, the FBI, in processing plaintiff's May 12, 2009, request, referred 92 pages of records to the IRS, 10 of which originated with the IRS and 82 of which originated with the FBI but contained information pertaining to the IRS. Id. ¶ 22. The IRS informed plaintiff on February 18, 2011, that it was withholding under exemptions 3, 7(C) and 7(D) the ten IRS pages because they consisted "in their entirety of MOIs [Memoranda of Interviews] with witnesses conducted by CI Special Agents assigned to the Grand Jury investigation of Plaintiff." Lambert-Dean Decl. ¶ 23 & Ex. P. As to the 82 pages about which the FBI consulted the IRS, the IRS identified information on 81 pages that it recommended be withheld in full under exemptions 3 and 7(C). Id., Ex. P1. On February 28, 2011, the FBI informed plaintiff that following consultation with the IRS, it was withholding the records in full under exemption 3. Hardy Decl., Ex. FF. On February 28, 2011, plaintiff appealed the IRS's withholding of the ten IRS pages, stating that "[t]he exemptions cited obstruct my right to Jencks and Brady information" pertinent to her criminal trial. Lambert-Dean Decl., Ex. Q. On April 12, 2011, the Appeals Office explained the limits of its "jurisdiction" and affirmed the IRS's decision. Id., Ex. R.

On April 22, 2011, the FBI referred 18 documents consisting of 58 pages (one a transmittal sheet) to the IRS. Hardy Decl. ¶ 71; Lambert-Dean Decl. ¶ 102. Since 57 of those pages, too, consisted entirely of "MOIs with witnesses conducted by CI Special Agents assigned to the Grand Jury investigation of Plaintiff, " the IRS informed plaintiff on June 1, 2011, that it was withholding the 18 documents in full under exemptions 6, 7(C), 7(D), and ...

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