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Houser v. Church

United States District Court, District of Columbia

September 22, 2017

GEORGE D. HOUSER, Plaintiff,
DIANA CHURCH, et al., Defendants.


          REGGIE B. WALTON United States District Judge

         The plaintiff brings this action under the Freedom of Information Act (“FOIA”), see 5 U.S.C. § 552, against the Internal Revenue Service (“IRS”), a component of the United States Department of the Treasury.[1] This matter is before the Court on Defendants' Motion to Dismiss, ECF No. 9.[2] For the reasons discussed below, the Court motion is granted in part and denied in part.

         I. BACKGROUND

         According to the plaintiff, he “was false[ly] convicted of Health Care and Tax Fraud.” Complaint (“Compl.”) ¶ 25. The conviction was rendered in the United States District Court for the Northern District of Georgia, and specifically, the plaintiff was convicted of “one count of conspiring with his wife . . . to commit health care fraud, in violation of 18 U.S.C. § 1349, of eight counts of payroll tax fraud, in violation of 26 U.S.C. § 7202, and of two counts of failure to timely file income tax returns, in violation of 26 U.S.C. § 7203.” United States v. Houser, 754 F.3d 1335, 1337 (11th Cir. 2014). The plaintiff was sentenced to an aggregate 240-month term of incarceration. See Pl.'s Opp'n, Affidavit (“Aff.”) Four, Attachment (“Attach.”) (Judgment in a Criminal Case, United States v. Houser, No. 4:10-CR-12-01 (N.D.Ga. Aug. 14, 2012)).[3] In addition, the court “ordered [the plaintiff] to pay nearly $7 million in restitution to Medicare and Medicaid and more than $870, 000 to the [IRS].” Houser, 754 F.3d at 1337.

         The plaintiff's quest for documents began with his June 28, 2015 submissions to the IRS. Compl. ¶ 9. The plaintiff generally seeks records “including, but not limited to, letters, correspondence, notes, [d]ata, memoranda, notes, email[s] . . ., technical manuals, books, photographs, and tangible objects” pertaining to the plaintiff himself and five corporate entities: Forum Healthcare Group, Inc., Forum Group Management Services, Inc., Forum Group at Mount Berry Nursing & Rehabilitation Center, LLC, Forum Group at Moran Lake Nursing & Rehabilitation Center, LLC, and Forum Group at Wildwood Park Nursing & Rehabilitation Center, LLC. Id., Exhibit (“Ex.”) 1 (Letter to Diana Church, Freedom of Information Act Headquarters, Internal Revenue Service, from the plaintiff dated June 25, 2015 (hereinafter “FOIA Request”)), Ex. A at 1. In addition, the plaintiff requested expedited processing of his request and a waiver of all fees resulting from his document request. See id. at 2, 4-5.

         The plaintiff asked for records “in paper format where possible[.]” Id. at 1. He also asked for “assistance in inspecting the records prior to receiving them, ” and proposes the following procedure:

If you provide a compact disk to [Correctional] Counselor Todd . . ., the prison, while retaining control of the disk, will allow me to inspect its contents, determine which records I need, and subsequently return the disk uncopied. Because [the Federal Correctional Institution in Ashland, Kentucky] does not allow inmates to copy materials from compact disks, and because I will therefore need the selected records in paper format, this procedure is the effective equivalent of inspecting the record in an [IRS] reading room.

Id. at 1-2.

         The IRS responded with instructions for the plaintiff to “provide the written consent of an individual authorized to act on behalf of the corporations [identified in the FOIA Request] before [the agency could] consider releasing the records [he] requested.” Compl., Ex. 2 (Letter to the plaintiff from Cassandra E. Knight-Paige, Disclosure Specialist, Disclosure Office, dated July 8, 2015) at 1. One option proposed by Ms. Knight-Page was for the individual providing the authorization to “proffer[] a statement made under penatly [sic] of perjury in accord[ance] with 28 U.S.C.[] § 1746[.]” Id. ¶ 11.

         On July 30, 2015, the plaintiff sent to the IRS “a nine (9) page Consent Agreement, an unsworn declaration under penalty of perjury pursuant to 28 U.S.C.[] § 1746 . . ., and an excerpt of [IRS] field officer Odell Justice's trial testimony naming [the plaintiff as the person] authorized to represent the [corporate] entities before the [IRS].” Compl. ¶ 12; see generally id., Ex. 3 (Letter to Cassandra E. Knight-Paige from the plaintiff dated July 30, 2015, with attachments). The declaration was titled “Unsworn Declaration Under Penalty of Perjury, ” and does not bear the plaintiff's signature. Id., Ex. 3 (Attestation).

         In response, the IRS again sought “the written consent of an individual authorized on behalf of [the] corporations” identified in the FOIA request “before [the IRS would] consider releasing the records [the plaintiff] requested.” Id., Ex. 4 (Letter to the plaintiff from Cassandra E. Knight-Page dated August 10, 2015) at 1. It was unclear to the plaintiff whether the IRS received his July 30, 2015 correspondence, see id. ¶ 15, and his next letter to the IRS asked whether the parties' correspondence had “cross[ed] in the mail, ” id., Ex. 5 (Letter to Cassandra E. Knight-Paige from the plaintiff dated August 20, 2015). He also sought to amend his FOIA request as follows:

[W]ould you please change the date range for the request by extending the date . . . to either the date the request is fulfilled, or, preferably, 12/31/15. This change is being made so that the request encompasses and includes all inter- and intra-agency communications the IRS receives that involve the FOIA request itself.

Id., Ex. 5 (emphasis removed).

         Still considering the plaintiff's request incomplete, the IRS responded by acknowledging receipt of the plaintiff's August 20, 2015 correspondence and clarified that its August 10, 2015 letter was sent in response to the plaintiff's July 30, 2015 letter. See id., Ex. 6 (Letter to the plaintiff from Cassandra E. Knight-Paige dated September 8, 2015). The IRS directed the plaintiff to follow the instructions provided in its August 10, 2015 letter in order for the plaintiff to perfect his request. Id., Ex. 6. The plaintiff then sent a letter to the IRS which summarized all of the correspondence between the parties and stated his dissatisfaction with the lack of a substantive response to his FOIA request, that being, the IRS's alleged refusal to disclose responsive records. See generally id., Ex. 7 (Letter to Cassandra E. Knight Page, Diana Church, and the Director, Office of Governmental Liaison and Disclosure, Freedom of Information Act Affairs, IRS, from the plaintiff dated October 20, 2015).

         The IRS again asked for a statement pursuant to 28 U.S.C. § 1746, either swearing or affirming the plaintiff's identity, because the statements the plaintiff previously submitted were unsworn. Id., Ex. 8 (Letter to the plaintiff from Cassandra E. Knight-Paige dated November 25, 2015) at 1. With regard to the fees required to process the plaintiff's FOIA request, the IRS asked the plaintiff either to agree to pay the search and copy fees, or to submit a request for a reduction or waiver of the fees. Id., Ex. 8 at 2. The plaintiff maintained that he already had submitted a proper verification of his identity, and he agreed to pay the fees associated with the processing of his request. See generally id., Ex. 8 (Letter to Cassandra E. Knight-Paige and Diana Church from the plaintiff dated December 18, 2015) at 1-2. According to the plaintiff, he submitted yet ÔÇťanother unsworn declaration ...

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