Rogers v. IRS, No. 15-3409, 2016 WL 2343169 (6th Cir. May 4, 2016) (Norris, J.)

Rogers v. IRS, No. 15-3409, 2016 WL 2343169 (6th Cir. May 4, 2016) (Norris, J.)

Re: Request for records concerning criminal investigation of and forfeiture action against requester

Disposition: Affirming district court's grant of summary judgment to agency

• Procedural Requirements:  The Court of Appeals for the Sixth Circuit "conclude[s] that the district court correctly rejected [requester's] contentions for the reasons stated by the district court."  In the proceedings below the IRS had "moved for summary judgment on the grounds that the parties entered into a settlement agreement which contained a release that affirmatively waived [requester's] right to bring his FOIA action."  The Sixth Circuit relates that "[t]he district court held that the release's language was broad enough to encompass [requester's] FOIA action, noting that it 'covers all claims, rights and demands "of every kind" related to the forfeiture actions and discharges the [IRS] from all duties of every kind relating to the actions.'"  Additionally, in response to appellant/requester's argument "that he was prejudiced because the IRS allowed litigation to proceed for fifteen months before raising its defense[,]" the court finds that "[w]hile the IRS could have been more diligent in raising its defense, we are unable to say the district court abused its discretion by permitting the IRS to raise the defense in its summary judgment motion."

Circuit Judge Clay writes separately to concur in part and dissent in part.  First, Judge Clay "concur[s] in the majority's holding affirming the district court's decision in [one] respect."  Judge Clay states that "there is no reason not to . . . hold that [requester] – a sophisticated party represented by two attorneys – is bound by the contract he signed."  "Therefore, his FOIA claim is covered and precluded by the broad language of the release."  However, Judge Clay also argues that "the IRS was precluded from relying on the release because of its failure to timely assert its rights pursuant to the release."  "Contrary to the IRS' argument, the IRS should not have been permitted to raise the defense of release in its summary judgment motion – a motion which was filed more than a year after the lawsuit began."  "To be blunt, if this situation – tantamount to neglectful silence – does not amount to waiver, then nothing will."