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Donald R. Huene v. U.S. Department of the Treasury


March 2, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


On March 1, 2012, the undersigned conducted a status (pretrial scheduling) conference in this action, in which plaintiff asserts claims pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552; the Privacy Act, 5 U.S.C. § 552a; and 42 U.S.C. § 1983.*fn1 Plaintiff, who is proceeding without counsel, appeared by telephone and represented himself. Although defendants failed to file a status report in advance of the scheduling conference, attorney Anne E. Blaess of the U.S. Department of Justice appeared at the conference*fn2 by telephone on behalf of the Internal Revenue Service ("IRS").*fn3

The undersigned declines to enter a formal scheduling order in this case at this time for two reasons. First, there is a reasonable possibility that plaintiff will dismiss his FOIA claim in the near term. As an initial matter, that FOIA claim appears to be duplicative of plaintiff's FOIA claim in case number 2:11-cv-02109 JAM KJN PS. In any event, plaintiff has consistently stated that he simply seeks the documents at issue and believed that the parties had already agreed to a protocol for disclosure and, if necessary, in camera review of the documents by the court. At the scheduling conference, plaintiff was agreeable to a stipulation of dismissal of the FOIA claim in this case if the IRS satisfactorily provides him with the requested documents. Ms. Blaess represented at the scheduling conference that the IRS has provided her with a cache of responsive documents that she believes she can provide to defendant within seven to ten days. She represented that any redactions of those documents could be addressed by way of dispositive motions and an in camera review by the court. Accordingly, the court orders the IRS to deliver the subject documents to plaintiff within ten days of the date of this order. The parties shall thereafter file a joint status addressing whether this case has been resolved to plaintiff's satisfaction or should proceed to the filing of a dispositive motion or motions, including possible provision of a so-called "Vaughn index."*fn4 See Lane v. Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) ("While ordinarily the discovery process grants each party access to evidence, in FOIA . . . cases discovery is limited because the underlying case revolves around the propriety of revealing certain documents. Accordingly, in these cases courts may allow the government to move for summary judgment before the plaintiff conducts discovery.") (citation omitted). The court entered a similar order in the related case numbered 2:11-cv-02109 JAM KJN PS.

Second, defendant Shelley's motion to dismiss is pending before the court and is scheduled for a hearing on April 12, 2012. The court can more appropriately schedule this case after resolution of the motion, which will determine whether Shelley is a party to this action or merely a witness.

For the foregoing reasons, IT IS HEREBY ORDERED that: 1. Within ten days of the date of this order, the IRS shall deliver to plaintiff the documents that it believes are responsive to plaintiff's FOIA request. Within seven days of such delivery, the IRS shall file written notice with the court confirming timely delivery to plaintiff.

2. Within 45 days of the date of this order, the parties shall file a joint status report addressing whether: (1) following delivery of the subject documents, plaintiff is satisfied with the document production such that the parties intend to file a stipulation dismissing this action; or (2) the court should set a deadline for the filing of dispositive motions concerning the documents produced*fn5 or impose some other schedule.

3. Any failure to reasonably communicate with plaintiff on the part of the IRS or Ms. Blaess may result in the imposition of sanctions against the IRS, Ms. Blaess, or both.

4. The court will enter a formal scheduling order in this case after resolution of the motion to dismiss filed by defendant Anthony Shelley.


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