This is the fourth update related to my efforts to hold the IRS and the U.S. Department of State accountable for denying my 2018 passport renewal application because of an alleged “seriously delinquent tax debt”.

Of course, if you are a subscriber to this website, you know and understand that the IRS falsifies its internal digital records and external paper documents to create the appearance of income tax liabilities in order to harass and frighten Americans, garnish wages, seize assets, and refer innocent people to the Department of Justice to indict, prosecute, convict and imprison them for crimes they did not commit. The incontrovertible evidence proving this fraud was obtained, by FOIA, from the IRS' own records.

See the Introduction page of this website for details.

To bring yourself current on this situation, please start by reading the following:

My December 31, 2019 Update #1, “Robert A. McNeil (RAM) Passport Saga”,

My February 15, 2020 Update #2, “**NEW LAWSUIT** 20-cv-00329 McNeil v US Department of State”, and

My April 19, 2020 Update #3 “UPDATE Case 20-cv-0329 McNeil v. State Department Re: Passport Denial”.

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Update #3 ended with this April 17, 2020 Order [Doc. 8] from Judge Bates, which reads, in pertinent part::

The Court has reviewed the complaint and the answer in this case. Defendant raises grounds for dismissal or summary judgment but has not yet filed a dispositive motion. Accordingly, it is hereby

ORDERED that the parties shall confer and submit by not later than May 19, 2020, a proposed briefing schedule for the filing of dispositive motions to resolve this matter or, in the alternative, a proposed schedule for processing and producing responsive materials. In the event the parties cannot agree, separate proposals shall be filed by that date.

In compliance with the Order, DoJ attorney Burch and I spoke three (3) times by telephone (April 21, 2020 at 2:22pm CST; May 19, 2020 at 9:00am CST; and June 18, 2020 at 10:00am CST) and exchanged numerous emails (March 20, 2020 at 12:35pm CST; May 19, 2020 at 10:28am CST; June 18, 2020 at 11:24am CST; and June 18, 2020 at 12:50am CST ) in an attempt to obtain the single document requested from State, specifically a signed, sworn document, required to be issued by the Internal Revenue Service (“IRS”) to State certifying that I have a “serious tax delinquency” justifying State’s denial of my passport renewal.

In spite of Mr. Burch’s numerous attempts to obtain the certification, he made the following admission: “Upon investigation, it appears that the Department of State does not have the certification.”

On May 19, 2020, with my approval, Mr. Burch filed a Joint Status Report [Doc 9, 2 pages] with the Court stating:

Upon investigation, it appears that the Department of State does not have the certification.

The parties are negotiating alternatives to continuing the litigation of this FOIA case.

The parties respectfully request that the Court give them 30 days to file a joint status report, at which time the parties expect to be able to propose a briefing schedule if the alternatives have not proven fruitful.

On the same day, May 19, 2020, Judge Bates filed a Minute Order [Doc 9a, 1 page] granting the 30-day extension and ordering that we “shall file another joint status report by not later than June 18, 2020, which shall include a proposed schedule for further proceedings.”

On June 18, 2020, I called Mr. Burch to inquire about the status of his further efforts to obtain a copy of the “certification” from State. Unfortunately, he had been unsuccessful. I then informed him that I planned to file a Motion for Summary Judgment. He, then, told me he would file the Joint Status Report so as to comply with Judge Bates’ May 19, 2020 Order.

On June 18, 2020, Mr. Burch filed the Joint Status Report [Doc 10, 2 pages], which stated:

The FOIA request in this case seeks a single document from the Department of State, specifically a certification issued by the Internal Revenue Service that Plaintiff has a “serious tax delinquency.” Upon investigation, it appears that the Department of State does not have the certification.

Plaintiff informed counsel for Defendant today that he plans to move for summary judgment today.

Defendant proposes the following brief schedule for the remaining deadlines for briefing summary judgment:

Defendant files its combined opposition to Plaintiff’s motion for summary judgment and cross motion for summary judgment by July 20, 2020;

Plaintiff files his combined reply in support of his motion for summary judgment and opposition to Defendant’s cross motion by August 20, 2020; and

Defendant files its reply in support of its cross motion by August 31, 2020.

On June 23, 2020, Judge Bates filed a Minute Order [Doc 10b, 1 page] setting/resetting deadlines, as follows:

Plaintiff’s Summary Judgment Motion due by 6/26/2020.

Defendant’s Response to Motion for Summary Judgment due by 7/20/2020.

Plaintiff’s Reply to Motion for Summary Judgment due by 8/20/2020

On June 23, 2020, I filed my Motion for Summary Judgment [Doc 11, 4 pages], which stated:

I never received a signed, sworn copy of Notice CP508C from the IRS, the IRS admitted, in its FOIA response, that no signed, sworn Notice CP508C exists, and Counsel for State admitted, in the June 18, 2020 Joint Status Report [10], that "Upon investigation, it appears that the Department of State does not have the certification", there are no unresolved fact controversies to be litigated.

WHEREFORE, Plaintiff Robert A. McNeil prays that the Court grant this Motion for Summary Judgment and enter judgment as follows:

(1) order Defendant State to immediately issue a passport to Plaintiff Robert Allen McNeil,

(2) waive the passport application fee confiscated by State when it denied Plaintiff’s 2018 passport renewal application, and

(3) grant Plaintiff reimbursement of court filing fees, printing and postage expenses, and such other relief as the Court deems just and proper.

On July 20, 2020, State filed its Motion for Summary Judgment [Doc 12, 2 pages], which read:

Defendant, U.S. Department of State, respectfully moves for summary judgment. This case arises under the Freedom of Information Act (“FOIA”). The Department of State conducted a thorough search and located no responsive records, as explained in the attached memorandum and declaration. There are no material disputes of fact and Defendant is entitled to summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure

Attached to the Motion was States’ Memorandum in Support of Motion for Summary Judgment [5 pages]. I encourage you to read the entire Memorandum, but here are a few relevant excerpts:

Background

Plaintiff, a U.S. citizen, requested a passport from the Department of State, but was refused due to the certification by IRS that Plaintiff has a “seriously delinquent tax debt”.

Plaintiff submitted FOIA requests to both IRS and the Department of State regarding the referenced certification. Specifically, his request to the Department of State sought: “The sworn, signed document provided to the United States Department of State by the Department of Treasury’s Internal Revenue Service ‘certifying’ that I have a serious delinquent tax debt, as referenced in the attached June 27, 2018 State Department letter denying my request to renew my passport.”

Plaintiff thereafter corresponded with the Department of State several times, repeatedly requesting “a copy of the signed, sworn Certification from the Secretary of the Treasury” about his tax debt. Unsatisfied with the responses he received, Plaintiff filed this lawsuit, naming only the Department of State as a Defendant. [RAM Note: I was only unsatisfied because, for 17 months, State’s response to my FOIA was essentially “We’re still searching for the document you requested.”]

Standard of Review

When deciding whether summary judgment is appropriate in the FOIA context, a court is required to view the facts in the light most favorable to the FOIA requester. See Burka v. Dep’t of Health & Human Servs., 87 F.3d 508, 514 (D.C. Cir. 1996); Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994).

When the adequacy of an agency’s search for information requested under the FOIA is challenged, the adequacy is determined by a “reasonableness” test. Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986); Weisberg, 705 F.2d at 1350-51.

Courts have found agencies satisfy the “reasonableness” test when they properly determine where responsive records are likely to be found and search those locations. Lechliter v. Rumsfeld, 182 F. App’x 113, 115 (3rd Cir. 2006) (concluding that agency fulfilled duty to conduct a reasonable search when it searched two offices that it determined to be the only ones likely to possess responsive documents); Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)

The agency must show “that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68.

On this issue, courts accord agency affidavits “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991); see also Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (“Likewise, the agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records.”).

Argument

The agency’s search was adequate, as explained in the attached declarations. The FOIA request at issue here sought “the signed, sworn certification” generated by the Treasury Department pertaining to Plaintiff. Compl. Ex. 10 (ECF No. 1 at 48 of 79) (seeking sworn certification of tax debt); Stein Decl. ¶ 8. There is no evidence that the Department of State ever came into possession of such a record. Instead, the Declaration of Miguel Gonzalez, attached hereto, establishes that the process followed by IRS and State regarding the certification of seriously delinquent tax debts is that IRS sends to the Department of State each week an electronic list of taxpayers with “seriously delinquent tax debt[s]” and that the Department of State uses that list to determine for whom it should revoke or deny passports pursuant to the statutory ban in 22 U.S.C. § 2714a.

The Department of State’s declarations explain that the only office likely to have records related to the issuance of passports is the Office of Passport Services (“PPT”) within the Bureau of Consular Affairs (“CA”) and that none of the other organizational units within State are likely to have records relating to an individual’s passports or tax debts. Stein Decl. ¶ 14. This satisfies the strictures of Aguilar that the agency search all offices likely to have responsive records and attest that no other offices are likely to have responsive records. Because the electronic information identified does not satisfy Plaintiff’s request, there is no other place the agency should have looked.

Plaintiff has pointed to 26 U.S.C. § 7345(d), and its requirement that IRS provide the taxpayer notice, via a form “Notice CP508C,” that IRS has certified to State the seriously delinquent tax debt, to argue that IRS is also statutorily required to provide a copy of the Notice CP508C to the Department of State as well as to the taxpayer. E.g., Compl. ¶ 20. This reads too much into the statutory language, which merely requires that IRS provide a certification to the Department of State, and does not say anything about the form that that certification must take. But the more important point for purposes of this FOIA litigation is that this statute does not undermine the facts described in the attached declarations, which describe a streamlined process by which IRS provides a weekly electronic certification to State, in the form of a list of taxpayers. Gonzalez Decl. ¶¶ 6, 8. For these reasons, the search conducted by the Department of State was adequate under FOIA.

Conclusion

Defendant asks the Court to grant it summary judgment on Plaintiff’s claims.

There were two signed, sworn Declarations attached to State’s Motion for Summary Judgment:

Doc 12-1 [5 pages] Declaration of Eric F. Stein, Director of Information Programs and Services (“IPS) for the U.S. State Department, and

Doc 12-2 [7 pages] Declaration of Miguel Gonzalez, Division Chief of the Informational Technology Liaison branch of the Office of Technical Operations (“TO”) in the Bureau of Consular Affairs (“CA”) Office of Passport Services (“PPT”). Interestingly, attached to the this Declaration was Exhibit A, entitled “Memorandum of Understanding Between the Internal Revenue Service and the Department of State for Revocation or Denial of Passports in the Case of Certain Tax Delinquencies” (“MOU”) [See Doc 12-2, pages 5-7].

I encourage you to read the short Declarations yourself.

Regarding the MOU, here is a summary of what it says:

IRS will develop the list of taxpayers with seriously delinquent tax debt greater than $50,000, as required by IRC Section 7345(b) and obtain certification of the Commissioner, Small Business/Self Employed Division prior to disclosure to State;

IRS will disclose the list of certified seriously delinquent taxpayers to State via secure file transfer. The data elements provided consist of federal tax return information (FTI) that is protected by the confidentiality provisions of IRC Section 6103 and will be limited to taxpayer identifying information, see specified data elements in Section IX. B;

IRS will not transmit any records to State that do not include, at a minimum, the following four elements: First Name(s); Last Name(s); Date of Birth; Social Security Number, and;

IRS will transmit weekly a file which will contain additions, changes, and deletions to the certified list; the weekly file is cumulative such that it will reflect changes to the certified list previously provided. Periodically, IRS will transmit the list of all currently certified seriously delinquent taxpayers.

On July 20, 2020, State also filed its Opposition to Plaintiff’s Motion for Summary Judgment [Doc 13, 5 pages]. The same Declarations of Stein and Gonzalez were attached as Docs 13-1 and 13-2, respectively. The language in the Opposition largely mirrors that in State’s Memorandum in Support of Motion for Summary Judgment and relies on the heavily on the Gonzalez Declaration:

The Declaration of Miguel Gonzalez, attached hereto, establishes that the process followed by IRS and State regarding the certification of seriously delinquent tax debts is that IRS sends to the Department of State each week an electronic list of taxpayers with “seriously delinquent tax debt[s]” and that the Department of State uses that list to determine for whom it should revoke or deny passports pursuant to the statutory ban in 22 U.S.C. § 2714a. See Gonzalez Decl. ¶¶ 6, 8; 22 C.F.R. § 51.60(h)(2)) (previously at 22 C.F.R. § 51.60(a)(3)). IRS does not provide a signed, sworn certification for each taxpayer. See Gonzalez Decl. ¶ 9.

Conclusion

Defendant asks the Court to deny Plaintiff’s motion for summary judgment.

Now, in compliance with Judge Bates’ June 23, 2020 Minute Order, I must reply to State’s Opposition to Plaintiff’s Motion for Summary Judgment by August 20, 2020.

I will soon begin drafting that reply.

Stay tuned.

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Also, please refer to the Docket Sheet for a complete listing of the activity related to this case.