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Case TitleXanthopoulos et al v. Internal Revenue Service
DistrictDistrict of Minnesota
CityDMN
Case Number0:2019cv03006
Date Filed2019-11-29
Date Closed2021-05-11
JudgeJudge Susan Richard Nelson
PlaintiffNicholas Xanthopoulos
PlaintiffT. Keith Fogg
Case DescriptionAttorney Nicholas Xanthopoulos and Harvard Law Professor T. Keith Fogg submitted a FOIA request to the IRS for records concerning redacted portions of Section 21.1.3.3 of IRS Internal Revenue Manual which explains the policies, procedures, and guidelines for authenticating the identity of third-party representatives. The agency acknowledged receipt of the request and told Xanthopoulos and Fogg that a redacted version of the section was on the agency's website and that the redactions had been made under Exemption 7(E) (investigative methods and techniques). Xanthopoulos and Fogg filed an administrative of the denial. The agency upheld its original decision. Xanthopoulos and Fogg then filed suit.
Complaint issues: Public Interest Fee Waiver, Litigation - Attorney's fees

DefendantInternal Revenue Service
AppealEighth Circuit 21-2502
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Opinion/Order [54]
Opinion/Order [56]
FOIA Project Annotation: A federal court in Minnesota has ruled that the IRS properly withheld records under Exemption 7(E) (investigative methods or techniques) in response to a request from tax attorney Nicholas Xanthopoulos and tax law professor T. Keith Fogg for records concerning Section 21.1.3.3 of the IRS Manual pertaining to authentication of third parties who contact the agency on behalf of a taxpayer to request sensitive taxpayer information. Before 2018, the IRS accomplished this by requesting and then verifying the third-party representative's Central Authorization File number. However, in January 2018, the IRS changed its authentication procedures, adding another requirement that third party representatives provide their own Social Security Numbers to the IRS for authentication when third parties contact the IRS on behalf of a taxpayer. Xanthopoulos and Fogg requested an unredacted copy of Section 21.1.3.3. In response, the IRS withheld portions of the provision, citing Exemption 7(E). Xanthopoulos and Fogg filed an administrative appeal, which was denied. They then filed suit. District Court Judge Susan Richard Nelson first addressed the issue of whether the provision had been compiled for law enforcement purposes. Xanthopoulos and Fogg argued that the provision dealt with administrative matters and not law enforcement. Nelson disagreed. She noted that "the IRS's redacted authentication procedures are 'proactive steps' designed to prevent identity theft and maintain the security of taxpayers' confidential information, as 26 U.S.C. § 6103 requires of it." Citing the agency's affidavit, she indicated that the agency "specifically explains that identity theft and related fraud are significant problems at the IRS. [The affidavit] also explains that the five redactions at issue describe 'specialty situations' in which the IRS uses 'unique' authentication techniques and procedures. And these 'unique' procedures are used to combat the unauthorized disclosure of sensitive taxpayer information, identity theft, and criminal fraud." In response to Xanthopoulos and Fogg's claim that § 6103 did not furnish the IRS with a law enforcement purpose because it only prevented government officials from improperly accessing or sharing taxpayers' sensitive information, Nelson pointed out that "the portions of the IRM at issue in this case, however, do not 'only' relate to governmental oversight of employees' duties. As the IRS has explained, in addition to ensuring employees do not violate § 6103, the redacted portions have another purpose: to combat and prevent identity theft in 'specialty' circumstances." Xanthopoulos and Fogg argued that the redactions did not meet the foreseeable harm standard. But Nelson observed that "the IRS has shown that disclosure could reasonably be expected to risk circumvention of the law in the form of identity theft, unauthorized disclosure of taxpayer information, and fraud."
Issues: Exemption 7(E) - Investigative methods or techniques
Opinion/Order [70]
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-11-291COMPLAINT against Internal Revenue Service (filing fee $ 400, receipt number AMNDC-7307423) filed by Nicholas Xanthopoulos. Filer requests summons issued. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C, # 4 Exhibit(s) D, # 5 Exhibit(s) E, # 6 Civil Cover Sheet) (Xanthopoulos, Nicholas) (Entered: 11/29/2019)
2019-11-292NOTICE of Appearance by Nicholas John Xanthopoulos on behalf of All Plaintiffs. (Xanthopoulos, Nicholas) (Entered: 11/29/2019)
2019-12-023TEXT ONLY ENTRY: CLERK'S NOTICE OF INITIAL CASE ASSIGNMENT. Case assigned to Judge Susan Richard Nelson per 3rd/4th Master list, referred to Magistrate Judge Elizabeth Cowan Wright. Please use case number 19-cv-3006 SRN/ECW. (kt) (Entered: 12/02/2019)
2019-12-024Summons Issued as to Internal Revenue Service. (kt) (Entered: 12/02/2019)
2019-12-025Amended Summons Issued as to Internal Revenue Service. (kt) (Entered: 12/02/2019)
2019-12-036Second Amended Summons Issued as to Internal Revenue Service. (kt) (Entered: 12/03/2019)
2019-12-037MOTION for Admission Pro Hac Vice for Attorney Tuan Samahon. Filing fee $ 100, receipt number AMNDC-7311964 filed by Nicholas Xanthopoulos. (Xanthopoulos, Nicholas) (Entered: 12/03/2019)
2019-12-038MOTION for Admission Pro Hac Vice for Attorney Shawn Rodgers. Filing fee $ 100, receipt number AMNDC-7312264 filed by Nicholas Xanthopoulos. (Xanthopoulos, Nicholas) (Entered: 12/03/2019)
2019-12-179SUMMONS Returned Executed by Nicholas Xanthopoulos. Internal Revenue Service served on 12/9/2019; answer due 1/8/2020. (Xanthopoulos, Nicholas) Modified text on 12/17/2019 (kt). (Entered: 12/17/2019)
2020-01-1510(Text-Only) NOTICE: Telephone Conference set for 1/22/2020 at 10:00 AM before Magistrate Judge Elizabeth Cowan Wright. Counsel were provided conference bridge instructions via email.(TMA) (Entered: 01/15/2020)
2020-01-2211MOTION for Extension of Time to File Answer re 1 Complaint, filed by Internal Revenue Service. (Attachments: # 1 DOCUMENT FILED IN ERROR-DIRECTED TO REFILE. Exhibit(s) Text of Proposed Order)(Hunsader, Joseph) Modified text on 1/23/2020 (CLK). (Entered: 01/22/2020)
2020-01-2213Minute Entry for proceedings held before Magistrate Judge Elizabeth Cowan Wright: Telephone Conference held on 1/22/2020. The Court held a status call regarding the pending Pro Hac Vice motions (Dkts 7,8). Plaintiffs will file a letter on or before January 25, 2020 as to how they propose to proceed. (TMA) (Entered: 01/23/2020)
2020-01-2312PROPOSED ORDER TO JUDGE re 11 MOTION for Extension of Time to File Answer re 1 Complaint, filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 01/23/2020)
2020-01-2314ORDER granting 11 Motion for Extension of Time to Answer Internal Revenue Service answer or otherwise respond due date: 2/14/2020. Signed by Magistrate Judge Elizabeth Cowan Wright on 1/23/2020. (TMA) (Entered: 01/23/2020)
2020-01-2415LETTER TO MAGISTRATE JUDGE by Nicholas Xanthopoulos regarding pending motions for admission pro hac vice for Attorneys Tuan Samahon (Dkt. 7) and Shawn Rodgers (Dkt. 8) . (Xanthopoulos, Nicholas) (Entered: 01/24/2020)
2020-01-2416(Text-Only) ORDER/NOTICE TO ATTORNEY. Defendant may file a response to Plaintiffs Letter to Magistrate Judge (Dkt. 15), on or before January 31, 2020. Ordered by Magistrate Judge Elizabeth Cowan Wright on 1/24/2020. (TMA) (Entered: 01/24/2020)
2020-02-0317ORDER granting 7 Motion for Admission Pro Hac Vice of Attorney Tuan Samahon for T. Keith Fogg and for Nicholas Xanthopoulos; granting 8 Motion for Admission Pro Hac Vice of Attorney Shawn M Rodgers for T. Keith Fogg and for Nicholas Xanthopoulos. Signed by Magistrate Judge Elizabeth Cowan Wright on 2/3/2020. (NAH) (Entered: 02/03/2020)
2020-02-1418ANSWER to Complaint filed by Internal Revenue Service. (Hunsader, Joseph) (Entered: 02/14/2020)
2020-02-1819ORDER/NOTICE: Rule 26 Meeting Report due by 3/9/2020. Pretrial Conference set for 3/16/2020 at 10:00 AM in Courtroom 3C (STP) before Magistrate Judge Elizabeth Cowan Wright. Signed by Magistrate Judge Elizabeth Cowan Wright on 2/18/2020. (Attachments: # 1 Consent Form)(TMA) (Entered: 02/18/2020)
2020-03-0920REPORT of Rule 26(f) Planning Meeting. Filed by Nicholas Xanthopoulos. Jointly Signed by Nicholas Xanthopoulos, T. Keith Fogg, and Internal Revenue Service.(Xanthopoulos, Nicholas) (Entered: 03/09/2020)
2020-03-1021(Text-Only) NOTICE TO ATTORNEY. The Rule 16 Pretrial Conference scheduled for Monday, March 16 at 10:00 a.m. will be held via telephone, rather than in-person. Counsel will be provided conference bridge instructions via email. (TMA) (Entered: 03/10/2020)
2020-03-1622Minute Entry for proceedings held before Magistrate Judge Elizabeth Cowan Wright: Initial Pretrial Conference held on 3/16/2020. (TMA) (Entered: 03/16/2020)
2020-03-1623SCHEDULING ORDER: Motions (non-disp) due 5/15/2020. Motions (disp) due by 7/16/2020. Ready for trial due by 11/16/2020. Signed by Magistrate Judge Elizabeth Cowan Wright on 3/16/2020. (TMA) (Entered: 03/16/2020)
2020-05-0824MOTION for Extension of Time for All Deadlines set forth in the Pretrial Scheduling Order dated March 16, 2020, Unopposed by Defendant, Internal Revenue Service filed by T. Keith Fogg, Nicholas Xanthopoulos. (Attachments: # 1 Proposed Order)(Rodgers, Shawn) (Entered: 05/08/2020)
2020-05-1325ORDER granting 24 Motion for Extension of Time Signed by Magistrate Judge Elizabeth Cowan Wright on 5/13/2020. (TMA) (Entered: 05/13/2020)
2020-08-1326STIPULATION re Briefing Schedule for Anticipated Cross Motions for Summary Judgment. (Rodgers, Shawn) Modified text on 8/14/2020 (lmb). (Entered: 08/13/2020)
2020-08-1727ORDER on 26 Stipulation re: Briefing Schedule for anticipated Cross Motions for Summary Judgment. Signed by Judge Susan Richard Nelson on 8/14/2020.(SMD) (Entered: 08/17/2020)
2020-08-3128MOTION for Summary Judgment filed by Internal Revenue Service. (Hunsader, Joseph) (Entered: 08/31/2020)
2020-08-3129MEMORANDUM in Support re 28 MOTION for Summary Judgment filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 08/31/2020)
2020-08-3130Declaration of Kilsy Barnes in Support of 28 MOTION for Summary Judgment filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 08/31/2020)
2020-08-3131EXHIBIT Statement of Undisputed Facts by IRS in support of re 28 MOTION for Summary Judgment filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 08/31/2020)
2020-08-3132PROPOSED ORDER TO JUDGE re 28 MOTION for Summary Judgment filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 08/31/2020)
2020-09-2833STIPULATION of Facts Not in Dispute by Nicholas Xanthopoulos. Jointly Signed by Nicholas Xanthopoulos, T. Keith Fogg, and Internal Revenue Service. (Attachments: # 1 Exhibit(s))(Xanthopoulos, Nicholas) (Entered: 09/28/2020)
2020-09-2834Cross MOTION for Summary Judgment filed by T. Keith Fogg, Nicholas Xanthopoulos. (Rodgers, Shawn) (Entered: 09/28/2020)
2020-09-2835MEMORANDUM re 34 Cross MOTION for Summary Judgment and in Opposition to IRS's Motion for Summary Judgment filed by T. Keith Fogg, Nicholas Xanthopoulos.(Rodgers, Shawn) (Entered: 09/28/2020)
2020-09-2936EXHIBIT Statement of Undisputed Facts re 34 Cross MOTION for Summary Judgment , 35 Memorandum filed by T. Keith Fogg, Nicholas Xanthopoulos.(Rodgers, Shawn) (Entered: 09/29/2020)
2020-09-2937LR7.1/LR72.2 WORD COUNT COMPLIANCE CERTIFICATE by T. Keith Fogg, Nicholas Xanthopoulos re 35 Memorandum filed by T. Keith Fogg, Nicholas Xanthopoulos.(Rodgers, Shawn) (Entered: 09/29/2020)
2020-09-2938PROPOSED ORDER TO JUDGE re 34 Cross MOTION for Summary Judgment filed by T. Keith Fogg, Nicholas Xanthopoulos.(Rodgers, Shawn) (Entered: 09/29/2020)
2020-09-2939ERRATA to 37 LR7.1/LR72.2 Word Count Compliance Certificate (Corrected Word Count is 11,108) by T. Keith Fogg, Nicholas Xanthopoulos. (Rodgers, Shawn) (Entered: 09/29/2020)
2020-09-2940LETTER TO DISTRICT JUDGE by T. Keith Fogg, Nicholas Xanthopoulos . (Rodgers, Shawn) (Entered: 09/29/2020)
2020-10-0141MOTION for Extension of Time Unopposed by Defendant, Internal Revenue Service, filed by T. Keith Fogg, Nicholas Xanthopoulos. (Rodgers, Shawn) (Entered: 10/01/2020)
2020-10-0142PROPOSED ORDER TO JUDGE re 41 MOTION for Extension of Time Unopposed by Defendant, Internal Revenue Service, filed by T. Keith Fogg, Nicholas Xanthopoulos.(Rodgers, Shawn) (Entered: 10/01/2020)
2020-10-0143ORDER granting 41 Motion for Extension of Time. Signed by Judge Susan Richard Nelson on 10/1/2020. (SMD) (Entered: 10/01/2020)
2020-10-0544MEMORANDUM [Revised] in Support of Plaintiffs' Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment filed by T. Keith Fogg, Nicholas Xanthopoulos. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Rodgers, Shawn) (Entered: 10/05/2020)
2020-10-0945Joint MOTION for Extension of Time for Remainder of Briefing Schedule re: Cross-Motions for Summary Judgment with attached Certificate of Service filed by Internal Revenue Service. (Hunsader, Joseph) Modified text on 10/13/2020 (MMP). (Entered: 10/09/2020)
2020-10-0946PROPOSED ORDER TO JUDGE re 45 Joint MOTION for Extension of Time for Remainder of Briefing Schedule re: Cross-Motions for Summary Judgment filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 10/09/2020)
2020-10-1947ORDER granting 45 Motion for Extension of Time: - Defendant's combined Reply/Opposition Brief, and any supporting papers, shall be filed no later than November 30, 2020; - Plaintiffs' final Reply, and any supporting papers, shall be filed no later than December 21, 2020; - The hearing scheduled for November 12, 2020 is cancelled. If either party requests oral argument on the cross-motions, the party shall so inform the Court by December 28, 2020; and - The Word Count Limit for Plaintiffs' final Reply is enlarged to 16,000 words. Signed by Judge Susan Richard Nelson on 10/14/2020. (SMD) Modified text on 10/19/2020 (CLK). (Entered: 10/19/2020)
2020-11-1848Second MOTION for Extension of Time of One-Week to file combined Reply/Opposition re: Cross-Motions for Summary Judgment in FOIA matter filed by Internal Revenue Service. (Hunsader, Joseph) (Entered: 11/18/2020)
2020-11-1849PROPOSED ORDER TO JUDGE re 48 Second MOTION for Extension of Time of One-Week to file combined Reply/Opposition re: Cross-Motions for Summary Judgment in FOIA matter filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 11/18/2020)
2020-11-1950ORDER granting 48 Motion for Extension of Time. See Order for details and deadlines. Signed by Judge Susan Richard Nelson on 11/19/2020. (SMD) (Entered: 11/19/2020)
2020-12-0451REPLY re 44 Memorandum, Reply in Support of Motion for Summary Judgment and in Opposition to Plaintiffs' Cross-Motion for Summary Judgment filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 12/04/2020)
2020-12-0452RESPONSE re 36 Exhibit IRS Response to Plaintiffs' Statement of Undisputed Material Facts (Dkt. No. 36) filed by Internal Revenue Service.(Hunsader, Joseph) (Entered: 12/04/2020)
2021-01-1153REPLY re 51 Reply, 52 Response filed by T. Keith Fogg, Nicholas Xanthopoulos. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Rodgers, Shawn) (Entered: 01/11/2021)
2021-05-1154ORDER granting 28 Defendant's Motion for Summary Judgment; denying 34 Plaintiffs' Motion for Summary Judgment (Written Opinion) Signed by Judge Susan Richard Nelson on 5/11/2021. (DCR) (Entered: 05/11/2021)
2021-05-1155JUDGMENT (Attachments: # 1 Civil Notice - appeal)(lmb) (Entered: 05/11/2021)
2021-05-1156AMENDED ORDER re 54 granting Defendant's Motion for Summary Judgment; denying Plaintiffs' Motion for Summary Judgment. (Written Opinion) Signed by Judge Susan Richard Nelson on 5/11/2021.(DCR) (Entered: 05/11/2021)
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