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Judicial Watch • Anthony Yemoh Smith v TIGTA

Anthony Yemoh Smith v TIGTA

Anthony Yemoh Smith v TIGTA

Page 1: Anthony Yemoh Smith v TIGTA

Category:General

Number of Pages:6

Date Created:January 4, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Crooks, Davies, leave, agent, privacy, tigta, Memorandum, Department of the Treasury, motion, complaint, defendant, plaintiff, office, states, district, court, united, EPA, IRS, ICE, CIA


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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND ANTHONY YEMOH SMITH, Plaintiff CIVIL NO. JKB-11-2033 
TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION (TIGTA) Defendant 

MEMORANDUM ORDER [Revised] 
Anthony Yemoh Smith (Plaintiff) brought this suit against the Treasury Inspector General for Tax Administration (TIGTA) (Defendant) alleging violations the Privacy Act, 
U.S.C.  552a. Plaintiff now moves for leave file amended complaint.  The issues have been briefed and oral argument required. Local Rule 105.6. For the reasons explained below, Plaintiffs Motion for Leave File Amended Complaint (ECF No. 13) DENIED. BACKGROUND 
Plaintiff former agent the Internal Revenue Service (IRS). August 2010, TIGTA agents investigated allegations that Plaintiff had falsified travel voucher that submitted his supervisor for reimbursement. part the investigation, TIGTA agent Kevin Davies obtained Plaintiffs arrest record, which revealed that Plaintiff had been arrested 2007 for obstructing police officer. Agent Davies included this information his Report Investigation (ROI), which submitted IRS Territory Manager Cindy Halpert and Group Manager Richard Ledger. The investigating agents also contacted Assistant United States Attorney Mark Crooks regarding possible prosecution the Plaintiff for allegedly making false statements official government travel voucher.  AUSA Crooks declined prosecution favor administrative action. October 2010, Ms. Halpert allegedly ordered that Plaintiffs employment with the IRS terminated based the information the ROI, including the report his prior arrest.   

After his termination, Plaintiff submitted request Defendant under the Privacy Act, 
U.S.C.  552a, seeking expunge delete certain information the ROI, including the record his prior arrest. Defendant denied Plaintiffs request the grounds that the ROI was part system records that was exempt from amendment under the Privacy Act.  Plaintiff appealed the decision, but Defendants Deputy Chief Counsel denied the appeal. July 25, 2011, Plaintiff filed suit this Court seeking order compelling Defendant expunge the ROI and award damages the amount $250,000. October 14, 2011, Defendant filed motion dismiss the complaint for failure state claim.  (ECF No. 9). November 21, 2011, Plaintiff filed the instant motion for leave file amended complaint.  (ECF No. 13). December 2011, before the instant motion became ripe, the Court granted Defendants motion dismiss the original complaint.  (Order, ECF No. 15).  The Court held the case open order rule the instant motion, which now ripe.               

II. LEGAL STANDARD 
Leave amend complaint should freely give[n] where justice requires.  Fed. Civ. 15(a)(2). But, district court may deny leave the amendment would prejudice the opposing party, the moving party has acted bad faith, the amendment would futile. Laber Harvey, 438 F.3d 404, 426 (4th Cir. 2006). district court chooses deny leave, must give justifying reasons. See (citing Foman Davis, 371 U.S. 178, 182 (1962)). 

III. ANALYSIS November 21, 2011, Plaintiff filed document entitled Memorandum Support Plaintiffs Motion for Leave File Amended Complaint. (ECF No. 13). Neither separate motion nor copy the proposed amendment was included with the memorandum.  Plaintiff has therefore failed comply with Local Rule 103.6, which requires party seeking amend pleading submit both clean and blacklined1 copies the proposed amendment.  See Chambers Choice Hotels Intern., Inc., Civil Action No. DKC 11-0404, 2011 2457645 (D. Md. June 2011). Ordinarily, this failure would grounds for denying motion for leave amend for holding the motion abeyance until the necessary documents are received. Nevertheless, court has discretion consider motion for leave amend, even made improperly, long the moving partys failure observe the correct procedures does not prejudice the opposing party. See id. explained below, the Court finds that Plaintiffs Memorandum provides clear indication what intends put his amended complaint.    
Plaintiff seeks leave file amended complaint alleging that Defendant violated 
U.S.C.  522a(b) disclosing records pertaining him his employer without his consent. Specifically, Plaintiff cites two exhibits tab page 5 and tab F  that previously filed attachments his Response Opposition Defendants Motion Dismiss (ECF No. 11).  The document that appears page Plaintiffs Exhibit (paper only) entitled Memorandum Interview Activity and appears record phone conversation between TIGTA Agent Kevin Davies and Assistant United States Attorney Mark Crooks.  The notes indicate that Agent Davies informed AUSA Crooks the results TIGTAs investigation Plaintiff and that AUSA Crooks declined prosecution favor administrative action.  Exhibit (paper only) I.e., a copy the amended pleading which stricken material has been lined through enclosed brackets and new material has been underlined set forth bold-faced type.  Local Rule 103.6.c(2). 
contains two e-mail colloquies. one, Agent Davies informs Plaintiffs supervisor, Richard Ledger, that Plaintiff was arrested 2007 for obstructing police officer. the other, another Plaintiffs supervisors, Cindy Halpert, discusses terminating Plaintiffs employment, based part the information about his arrest.   
Plaintiff asserts that Agent Davies disclosure information from his investigation file violated the Privacy Act, U.S.C.  522a(b), which provides, relevant part, follows: agency shall disclose any record which contained system records any means communication any person, another agency, except pursuant written request by, with the prior written consent of, the individual whom the record pertains, unless disclosure the record would 
(3) for routine use defined subsection (a)(7) this section Subsection (a)(7) defines routine use as: the use [a] record for purpose which compatible with the purposes for which was collected[.]  The Act also requires each agency that maintains system records publish notice the Federal Register including, among other things, the routine uses for which the records will compiled. U.S.C.  552a(e)(4)(D). The Department the Treasurys notice regarding TIGTA Office Investigation Files published Fed. Reg. 20,715. states that the purpose the records is maintain information relevant complaints received TIGTA and collected part investigations conducted TIGTAs Office Investigations, and that one routine use the records to:  
[d]isclose information Federal, State, local, other public authority maintaining civil, criminal, other relevant enforcement information other pertinent information, which has requested information relevant necessary the requesting agency's, bureau's, authority's hiring retention individual, issuance security clearance, license, contract, grant, other benefit[.] 
Id. undisputed that the records involved this case are part the TIGTA Office Investigations files. Plaintiffs original complaint, alleged that the IRS had sought investigation TIGTA when suspected him falsifying travel voucher.  (Compl. ECF No. 1). further alleged, and reiterates his Memorandum, that the information Agent Davies ROI report affected (i.e., was relevant to) the IRSs decision whether retain him employee.  Id.; (Mem. ECF No. 13).  The facts alleged Plaintiffs original complaint and his memorandum seeking leave amend thus leave doubt that Agent Davies disclosure his ROI Plaintiffs supervisors constituted routine use TIGTA Office Investigation files, and therefore did not violate subsection (b) the Privacy Act.  Allowing Plaintiff file amended complaint adding claim based such theory would therefore futile.      

IV. ORDER 

Accordingly, ORDERED that Plaintiffs Motion for Leave File Amended Complaint (ECF No. 13) DENIED. 
Dated this 3rd day January, 2012 THE COURT:
         /s/       James Bredar       United States District Judge THE UNITED STATES DISTRICT COURT FOR THE DISTRICT MARYLAND ANTHONY YEMOH SMITH, Plaintiff CIVIL NO. JKB-11-2033 
TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION (TIGTA) Defendant 

ORDER accordance with the Courts Order (ECF No. 15) dismissing Plaintiffs original complaint and with the foregoing Memorandum and Order denying Plaintiffs motion for leave file amended complaint, the Clerk directed CLOSE THIS CASE.  
Dated this 3rd day January, 2012 THE COURT:
         /s/       James Bredar       United States District Judge