An application for a stay of the District Court's order
requiring applicant, pursuant to the Freedom of Information Act, to
turn over to respondents certain information regarding tax audit
standards is denied, and a previously granted temporary stay is
vacated, in view of applicant's failure, under the circumstances,
to amend it answer in the District Court to raise additional
defenses.
JUSTICE REHNQUIST, Circuit Justice.
Applicant Bureau of Economic Analysis, a division of the United
States Department of Commerce, seeks to stay an order of the United
States District Court for the Western District of Washington
ordering applicant, pursuant to the Freedom of Information Act, 5
U.S.C. § 552, to turn over to respondents certain information
regarding tax audit standards. The procedural history of this case
is somewhat confusing. In 1975 respondents commenced an action
against the Internal Revenue Service to obtain certain data.
Respondents prevailed in that suit, and the IRS appealed to the
Court of Appeals for the Ninth Circuit. While that action was
pending, respondents commenced this action in the District Court
against applicant to obtain similar data in its possession, and, on
February 20, 1979, moved for summary judgment. In May, 1979, the
Ninth Circuit ruled against the IRS,
Long v. Internal Revenue
Service, 596 F.2d 362 (1979),
cert. denied, 446 U.S.
917 (1980), but remanded the case so that the IRS could raise
certain additional defenses.
Page 450 U. S. 1302
On October 17, 1980, the IRS, on remand, did indeed amend its
answer to raise the additional defenses. Significantly, however,
the applicant did not amend its answer in the case. On January 12,
1981, the District Court entered summary judgment against applicant
on the ground of its "unreasonable delay" in amending its answer to
respondents' complaint, and ordered that the sought-after
information be disclosed. The Court of Appeals for the Ninth
Circuit has declined to stay the District Court's order.
In its application for a stay, the applicant asserts that it is
likely to prevail on the merits, and that it will suffer
irreparable harm if the tax information is disclosed. Although I
express no views as to the probability of this Court's granting a
petition for certiorari should applicant lose its appeal to the
Court of Appeals for the Ninth Circuit, I think if Congress makes
the Government answerable as a defendant in the courts of the
United States, the Government is obligated to abide by the rules
prescribed for it as a litigant. It is my view that the applicant,
by failing to amend its answer in this case for more than a year
and a half after the Ninth Circuit's decision in
Long v.
Internal Revenue Service, rendered itself liable for summary
judgment. The applicant argues that any delay was not unreasonable,
since it wrote a letter to the District Court on October 16, 1979,
saying that it would be inappropriate to render summary judgment in
this case until a final resolution of
Long v. Internal Revenue
Service. But the United States Attorney's two-paragraph letter
falls well short of an amendment of its answer in this case.
Accordingly, I am unwilling to exercise my authority as Circuit
Justice at this stage of the litigation and stay the order of the
United States District Court for the Western District of
Washington.
Accordingly, the temporary stay heretofore granted by me on
February 23, 1981, is vacated, and the application for stay is
denied.
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