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Judicial Watch • Appellant Reply Brief JW v Social Security Administration

Appellant Reply Brief JW v Social Security Administration

Appellant Reply Brief JW v Social Security Administration

Page 1: Appellant Reply Brief JW v Social Security Administration

Category:General

Number of Pages:21

Date Created:May 17, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Haskell, employer, Appellee, taxpayer, Internal, Revenue, amendment, Exemption, service, section, watch, request, judicial, Supreme Court, court, EPA, IRS, ICE, CIA


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NOT YET SCHEDULED FOR ORAL ARGUMENT] THE UNITED STATES COURT APPEALS 
FOR THE DISTRICT COLUMBIA CIRCUIT 
No. 11-5246 
JUDICIAL WATCH, INC. 
Plaintiff-Appellant, 
SOCIAL SECURITY ADMINISTRATION 
Defendant-Appellee. APPEAL FROM THE U.S. DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 

REPLY BRIEF APPELLANT JUDICIAL WATCH, INC. 
Paul Orfanedes
 Julie Axelrod
 JUDICIAL WATCH, INC.
 425 Third Street, S.W., Suite 800
 Washington, 20024
 (202) 646-5172
 
Counsel for Plaintiff-Appellant 
TABLE CONTENTS 

TABLE CONTENTS............................................................................................i
 
TABLE AUTHORITIES ....................................................................................
 
INTRODUCTION .....................................................................................................1
 
ARGUMENT .............................................................................................................2	 
Although the SSA Has Shown That Section 6103s Definition
	Tax Return Information Includes the Taxpayers Identity, Has
	Not Shown That This Definition Includes Taxpayers Employers
	Identity. .................................................................................................2
 
II.	 
The SSA Has Not Demonstrated Why Should Not Conduct 
Search. ...................................................................................................7
 
III.	 
Judicial Watchs Records Request the Type Statistical Data 
Covered the Haskell Amendment Exception.................................10
 
IV.	 
Judicial Watch Has Not Narrowed Its Request; The More Narrow
 Category Documents Which the SSA Seeks Limit The 
Request All Judicial Watch Ever Sought. .......................................11	 
Because Releasing the Data Sought Judicial Watch Would Not
 Violate Section 6103, and the SSA Admits That the Data Readily
 Reproducible, the SSA Must Produce the Data. .................................12
 
CONCLUSION........................................................................................................14
 
CERTIFICATE COMPLIANCE.......................................................................16
 
CERTIFICATE SERVICE ................................................................................17
 
TABLE AUTHORITIES CASES 
Church Scientology IRS,
 484 U.S. (1987) ..........................................................................................11
 
Davis SSA, 
281 Supp. 1154 (N.D. Cal. 2003) ..................................................13, 

Elliott U.S. Dept Agriculture,
 596 F.3d 842, 851 (D.C. Cir. 2010)  ................................................................9
 
Hull IRS, 
656 F.3d 1174 (10th Cir. 2011). ....................................................................9
 
Krohn Department Justice, 
628 F.2d 195 (D.C. Cir. 1980) ......................................................................13
 
Landmark Legal Foundation IRS, 
267 F.3d 1132(D.C. Cir. 2001) ...................................................................3,
 
Oglesby United States Dept Army, 
920 F.2d (D.C. Cir. 1990)...........................................................................9
 
Sample Bureau Prisons,
 466 F.3d 1086 (D.C. Cir. 2006) .............................................................12, 

STATUTES U.S.C.  3102............................................................................................1, U.S.C.  3402....................................................................................................1, U.S.C.  6103................................................................................2, 12, U.S.C.  6103(b)(2) ..............................................................................................3 U.S.C.  6103(b)(2)(A) ................................................................................1, U.S.C.  6103(b)(6) ......................................................................................4, U.S.C.  7701(a)(1) ..........................................................................................3,
 

INTRODUCTION 
Five years after Judicial Watch, Inc. (Judicial Watch) first filed this lawsuit based its Freedom Information Act (FOIA) request seeking listing the top U.S. employers highest number no match letters received through the Social Security Administrations (SSA) Code program, the SSAs admission that the data sought maintained electronically and readily reproducible means that only one dispositive issue still genuinely dispute.  Although the SSAs brief addresses such issues the scope Judicial Watchs request and the adequacy the SSAs search, only one now both contested and decisive: whether the taxpayers identity referred U.S.C. 6103(b)(2)(A) taxpayers return refers not only the identity the taxpayer sending the return the Internal Revenue Service (IRS) but the identity his employer well. The SSAs position that such listing exempt from production under FOIA Exemption depends this interpretation. its brief, the SSA argues that the employer taxpayer with respect return because employer withholds income from the employee pursuant the Internal Revenue Code U.S.C.  3102, 3402. Appellees Brief 20. However, the fact that these provisions the Internal Revenue Code require employers withhold tax from their employees wages way makes the employer taxpayer under U.S.C. 6103(b)(2)(A). Tellingly, the language Section 3102 itself explicitly distinguishes between the employer and the taxpayer, stating that the tax imposed section 3101 shall collected the employer the taxpayer. The employer therefore not one the taxpayers for the purposes the W-2 and the tax return.  Because only the taxpayers identity, not his employers, included the definition return information Section 6103, the employers identity should not protected from disclosure the statute. 
The data requested Judicial Watch therefore not exempt from disclosure under Exemption  Because the SSA has admitted that the data maintained electronically and readily reproducible, has essentially conceded that, not exempt, such data available and therefore should searched for and produced.  The SSA has not demonstrated that providing such data would violate U.S.C  6103, has not shown that the list Judicial Watch requests constitutes return information, and this list must produced. 

ARGUMENT	 Although the SSA Has Shown That Section 6103s Definition Tax Return Information Includes the Taxpayers Identity, Has Not Shown That This Definition Includes Taxpayers Employers Identity. 
The SSA insists that U.S.C.  6103s definition the term tax return information settles whether the information sought Judicial Watch covered Exemption FOIA. cites Section 6103s definition the term including taxpayers identity and cites case law support the idea that Section 6103 encompasses taxpayers identity.  Appellees Brief 18. See U.S.C.  6103(b)(2), Landmark Legal Found. IRS., 267 F.3d 1132 (D.C. Cir. 2001).  However, this formulation sidesteps the question who the relevant taxpayer whose identity being protected. Clearly, the employee who submits the tax return the Internal Revenue Service (IRS) taxpayer whose identity must protected return information, but the SSAs position that the person (who under U.S.C.  7701(a)(1) may individual, trust, estate, partnership, association, company, corporation) whose identification information appears this employees tax forms this taxpayers employer must also considered the taxpayer. Appellees Brief 21. case law cited the SSA supports this definition taxpayer, however, case law has addressed this issue. The District Court addressed this issue for the first time, and this Courts novo review will therefore reexamine the arguments which both the SSA and Judicial Watch have used.  The SSA implies that Judicial Watch should not continue argue using legal reasoning that has consistently employed throughout this litigation. Appellees Brief 19. However, Judicial Watchs position that the relevant taxpayer Section 6103s definition return information the person who files the return and other continues the logical interpretation the definition. 
The SSA believes this question settled merely because the employer must submit copy the employees W-2 showing that the employer has withheld taxes the employees account for the year, according U.S.C.  3102, 3402.  The SSA argues that, therefore, the employer person with respect whom return filed. U.S.C.  6103(b)(6). Appellees Brief 20. However, the employers duty send copy IRS Form W-2 the SSA does not make the employer person with respect whom return filed. This copy the tax return being sent with respect the employees taxes, not the employers. The employer (though likely payer taxes also sending the IRS his own return) not the taxpayer these taxes.  The money owed the federal government comes out the employees pocket, not the employers. 
The employer not the taxpayer with respect particular tax return merely because the federal government finds more expeditious have the taxpayers employer withhold the taxpayers taxes rather than have taxpayers send the full amount owed the IRS themselves. The federal government could theory collect these taxes directly from the taxpayers who owe them: however, perhaps out concern that taxpayers will not compliant their employers are their behalf, that taxpayers would spend too much their gross income every year able pay their taxes full when they are due April 15th, the government has chosen use employers tax collectors.  Nevertheless, this decision the federal government command employers send least some their employees taxes straight the IRS rather than allow their employees the use their income over the year does not convert the employer into the taxpayer. If, for instance, the taxpayer reports more exemptions his W-2 than entitled and owes taxes his income April 15, the employer does not have pay these taxesit only the employee who owes them, not the employer who did not collect them. 
Thus, only the employeethe one who actually owes the taxesis properly described the taxpayer. The sections the Internal Revenue Code which the SSA cites make this distinction clear, discussing the employer and the taxpayer two separate persons. Section 3102 states that: The tax imposed section 3101 shall collected the employer the taxpayer, deducting the amount the tax from the wages and when paid (emphasis added). U.S.C.  3102. The employer, therefore, legal person distinguished from the taxpayer. The employer the person responsible for collecting the taxes owed the taxpayer, not the person responsible for paying the taxes.  Thus the employer himself not the taxpayer. the word taxpayer these provisions covered both the employee and the employer, this sentence would rather state that the tax shall collected the employer from the employee.  The employer this context tax collector, not tax payer. 
Classifying only the employee paying taxes and not his employer the taxpayer referred Section 6103 also makes sense because the language the statute focuses the employee, not the employer.  Every item U.S.C.  6103(b)(2)(A), including the amount tax liability and tax payments, makes sense reference the employee, most them only make sense reference the employee, and none them must refer the employer order make sense. The SSAs point that the amount taxes the employer has withheld related the employee for [the] year [s]pecific the employer does not show that the amount tax liability, tax withheld, and tax payments relate the employer the definition U.S.C.  6103(b)(2)(A). Appellees Brief 20.  All those items relate just clearly the employee, whose tax liability, tax withheld, and tax payments are items relevant calculating the taxes must pay according his return. Thus, examination the definition tax return information provides reason think that the employer well the employee relevant taxpayer. The employee who submitted the return the person with respect whom return filed Section 6103(b)(6), and the person who withheld taxes his wages not.  Therefore, revealing the identity employer not 
revealing taxpayers identity under the statute.  Although the tax that his employer withheld from the taxpayers wages tax return information, the 
identity the withholder, his employer, not. Section 6103, and thus Exemption does not protect the identities the employers from FOIA requests seeking information about classes unidentifiable taxpayers. This information what Judicial Watch seeks. 
The SSA also argues that employer can considered taxpayer for the purposes Section 6103 (b)(2)(A) merely because taxpayer under the Internal Revenue Code pursuant U.S.C. 6103(b)(6) and 7701(a)(1). Appellees Brief 21. However, this definition would mean that the relevant taxpayer was any person who happens also pay taxes great number Americans). that were the case, any person who pays taxes could make the claim that Section 6103 exempts his identity from disclosure under FOIA.  The taxpayer not anyone who pays taxes all, but the specific person with respect whom return filed.  However, long the employer does himself pay taxes, his own tax return protected Section 6103.  Judicial Watch not seeking the tax returns the employers who appear the requested list. 

II. The SSA Has Not Demonstrated Why Should Not Conduct Search. 
The SSA admits that did not conduct search information subject Section 6103, and has claimed that [a]ll [r]esponsive [i]nformation [f]alls [w]ithin Section 6103. Appellees Brief 25, 29. The SSA has therefore admitted that has not conducted reasonable search for documents responsive the request, reasonable search would not exclude any search all documents responsive the request. The SSA also admits that the data maintained electronically and readily reproducible.  Appellees Brief 13,  Because the SSA maintains the data Judicial Watch requested electronically, reasonable search would include search these electronic records.  The SSA cannot avoid reasonable search for responsive records claiming exemption. 
The SSA relies the claim that such documents are exempted from disclosure, and such search would futile.  Appellees Brief 27. The SSA states that Landmark held that Section 6103 information is categorically sheltered from disclosure regardless whether was collected with respect return Landmark, 267 1135 (emphasis added). Appellees Brief 26. Although such quotation does not appear Landmark, the page cited does hold that taxpayer identities are category information that should sheltered from disclosure.  That they are shielded from disclosure does not imply they are shielded from search, however. agency could avoid search under the excuse that would futile anytime made claim exemption, this were the case. Despite the SSAs statement that very few courts have addressed this issue futile searches, the D.C. Circuit has addressed this issue.  Appellees Brief 27. cited Judicial Watchs Opening Brief, under the general FOIA framework, 
agency must search for properly requested records, even the records ultimately are found subject valid exemption. Oglesby United States Dept Army, 920 F.2d 57, (D.C. Cir. 1990). Opening Brief Appellant 17. 
The SSA relies case, Hull Internal Revenue Service, from the 10th circuit, which also addresses the issue futile searches but comes different conclusion than this circuit. 656 F.3d 1174 (10th Cir. 2011). This Court should not adopt the reasoning Hull, which departs from the reasoning the D.C. Circuit. the dissenting judge Hull explained: the D.C. Circuit Court recently noted, to prevail summary judgment, 
[an] agency must show beyond material doubt that has conducted search reasonably calculated uncover all relevant documents.  Even the protected records could withheld under one the FOIA exemptions, that does not absolve the agency its duty identify responsive documents, claim the relevant exemptions, and explain its reasoning for withholding the documents its affidavit. Elliott U.S. Dept Agriculture, 596 842, 851, 389 U.S. App. D.C. 272 (D.C. Cir. 2010) (quotation marks, alternations, and citations omitted). allow the IRS claim that FOIA request does not comply with its regulations, thus precluding any duty search, obviates the requirement search under FOIA. 
Hull IRS, 656 1174, 1197 (10th Cir. 2011). The facts Hull, are also 
distinguishable from this case, because that plaintiff was attempting obtain tax 
return information about specific individual, whose identity was known and 
named the plaintiff, without that individuals consent.  There specific 
individual this case whose identity known Judicial Watch, and whose 
specific tax return information Judicial Watch attempting obtain. 
III.	 Judicial Watchs Records Request the Type Statistical Data Covered the Haskell Amendment Exception. 
Statistics pertains the collection, organization, analysis, and interpretation data. list which ranks top U.S. employers the numbers no match letters received clearly relates the collection, organization, and analysis data. Statistical analysis need not complex that performing the manipulations required assemble statistical compilation would more than trivial.  Such information would still readily reproducible the SSA. this case, the SSA admits that the data maintained electronically and readily reproducible. Appellees Brief 13, This admission refutes any argument that the SSA should not produce the data simply because requires performing trivial statistical analysis it.  However, the SSAs admission that Judicial Watch seeks only data that has been compiled and ranked does show that the even the records which Judicial Watch seeks were considered tax return information, because seeks only statistical compilation, the request fits within the Haskell Amendments exception for statistical data. 
Judicial Watch not arguing that the Haskell Amendment intended modify 6103 making nonidentifying return information eligible for disclosure. Appellees Brief 24. Such argument would mean any nonidentifying return information that not the form statistical studies and other compilations data subject disclosure, and thus that return information should disclosed the identifying information within were redacted.  Judicial Watch does not claim that this the case, nor has sought listing employers with the employers names redacted. Rather, Judicial Watch argues that what seeks the type compilation data that the Haskell Amendment meant preserve for disclosure, held the Supreme Court Church Scientology Internal Revenue Service, 484 U.S. (1987). Church Scientology, the Court reiterated that the purpose this amendment insure that statistical studies and other compilations data now prepared the Internal Revenue Service and disclosed outside parties will continue subject disclosure the extent allowed under present law. Id. 16. The presence the Haskell Amendment shows that the confidentiality protections passed Section 6103 were not directed towards compilations data but towards protecting the privacy Americans who have choice but submit tax returns. 
IV.	 Judicial Watch Has Not Narrowed Its Request; The More Narrow Category Documents Which The SSA Seeks Limit The Request All Judicial Watch Ever Sought. 
The SSA has misunderstood Judicial Watchs initial request.  The SSA states that Judicial Watchs request seeks all records SSAs possession detailing the top 100 U.S. employers without requiring the records limited those containing information establishing that the employer satisfies the criteria for being the list. Judicial Watch does not seek and has never sought all records detailing any information about those employers, merely all records which detail such top U.S. employers being employers who have received the comparatively largest number no-match letters. its initial request, Judicial Watch stated that listing specifically what sought. Judicial Watch has only ever sought obtain listing employers and was not self-servingly mischaracterizing its FOIA request when stated that not seeking obtain 
no match letters themselves nor the information therein.  Judicial Watch has 
never sought such letters.  Judicial Watch therefore did not expect that such list 
would necessarily include the employers Employer Identification Numbers, and would readily accept list with such numbers redacted. Judicial Watchs request therefore does not compromise Section 6103s protections confidentiality.	 Because Releasing the Data Sought Judicial Watch Would Not Violate Section 6103, and the SSA Admits That the Data Readily Reproducible, the SSA Must Produce the Data. footnote its brief, the SSA states that [i]t undisputed that the data maintained electronically and readily reproducible (see Appellants Br. 2021), but SSAs position that cannot provide Judicial Watch without violating U.S.C.  6103.  Appellees Brief 13, The SSA has therefore all but conceded that such data available.  Since this data available, and not exempt, the SSA must search for and disclose it.  The SSA has admitted that Sample Bureau Prisons, 466 F.3d 1086 (D.C. Cir. 2006) requires agencies provide records requesters electronic format, the agency keeps the records electronic format.  Appellees Brief 13,  The SSA also admits that does keep the records issue electronic format.  Appellees Brief 13,  The SSA therefore must produce them Judicial Watch.  The SSA also concedes that the Electronic Freedom Information Act Amendments 1996 and the widespread usage advanced technology have changed the requirements the law since Krohn Department Justice, 628 F.2d 195 (D.C. Cir. 1980), 
which the District Court relied upon.  Appellees Brief 12, 13, 
Having conceded can find and readily produce the documents sought Judicial Watch and that the law requires such documents are not exempt from FOIA, the SSA simply states that the passage the E-FOIA amendment neither repealed nor diminshed[sic] Exemption 3. Appellees Brief 13, 14, Judicial Watch does not dispute that the E-FOIA amendment did not repeal diminish Exemption nor any FOIAs other exemptions. However, stated above and Judicial Watchs Opening Brief, the information requested not tax information shielded from disclosure Exemption 
Even the SSA has not consistently taken the position that such information tax information. Although the SSA attempts characterize the earlier case Davis, Cowell, Bowe SSA of moment here, the case more relevant than the SSA portrays it.  Appellees Brief 19, The SSA, quoting only that [p]laintiffs sought records reflecting communications between the SSA and two employers without quoting the rest the sentence, attempts obscure that those plaintiffs also sought notices from the SSA the employers that social security numbers their wage reports not match the corresponding 
employees name, date birth, and/or sex, that is, the no match letters the 
type issue here. Davis SSA, 281 Supp.2d 1154, 1155 (N.D. Cal. 2003). Appellees Brief 19, n.4. But, here, Judicial Watch seeks only ranking top receivers no match letters, not the letters themselves, and the data requested even further removed from being tax information. Davis, the SSA represented that: the IRS has changed its policy. will longer argue that the social security information sought this case tax information. Id. 1156. the no match letters themselves are not tax information, then clearly ranking U.S. employers who have received the largest number no match letters not tax information. not tax information, Section 6103 does not shield its disclosure under Exemption  These records are readily reproducible and not exempt under FOIA.  The SSA must produce them. 

CONCLUSION 
For the foregoing reasons, and the reasons Judicial Watchs Opening Brief, Judicial Watch respectfully requests that the Court reverse the District Courts grant summary judgment favor SSA and denial Judicial Watchs 
cross-motion for summary judgment and remand this case for further proceedings. 
Dated: May 17, 2012 Respectfully submitted, 
Paul Orfanedes 
/s/ Julie Axelrod Julie Axelrod JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, 20024 
(202) 646-5172 
Counsel for Plaintiff-Appellant 

CERTIFICATE COMPLIANCE 
Pursuant Fed. App. 32(a)(7), certify that the foregoing brief complies with the type-volume limitations Fed. App. 32(a)(7)(B).  The brief contains 579 words, counted Microsoft Word 2010, excluding the parts the brief exempted Fed. App. 32(a)(7)(B)(ii). also certify that this brief complies with the typeface requirements Fed. App. 32(a)(5) and the type style requirements Fed. App. 32(a)(6).  The brief has been prepared 14-point, proportionally spaced Times New Roman font. 

/s/ Julie Axelrod 

CERTIFICATE SERVICE hereby certify that this day May 2012, filed the foregoing REPLY BRIEF APPELLANT JUDICIAL WATCH, INC. with the Clerk Court for the U.S. Court Appeals for the District Columbia Circuit using the Appellate CM/ECF system.  Participants the case are registered CM/ECF users and service will accomplished the Appellate CM/ECF system. also hereby certify that caused eight copies delivered the Clerk Court for the U.S. Court Appeals for the District Columbia Circuit via hand delivery. 
/s/Julie Axelrod



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