Plaintiff

1
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

The NATIONAL ORGANIZATION FOR
MARRIAGE, INC.,

Plaintiff,

v.

The UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE,

Defendant.

Civ. No. 13-cv-1225-J CC/IDD

REPLY MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEYS FEES

Plaintiff the National Organization for Marriage, Inc. (NOM), through counsel, hereby
submits this reply memorandum in support of its Motion for Attorneys Fees (Dkt. 91, the
Motion).
ARGUMENT
I. NOM Is a Prevailing Party Because It Has Substantially Prevailed with Respect
to the Amount in Controversy and the Most Significant Issue.

A. The Governments Suggested Methodology for Calculating the Amount in
Controversy Is Inconsistent with the Intent of Section 7431, Would
Unnecessarily Protract Litigation, and Is Otherwise Logically Flawed.

The Government asserts that the amount in controversy must include NOMs claim for
$50,000 in lost donations, a claim NOM voluntarily dropped early in the litigation to protect the
First Amendment rights of its donors. (Motion at 7 n.2; United States of Americas Response in
Opposition to Plaintiffs Motion for Attorneys Fees (Dkt. 92) at 5 (Opp.).) The Governments
positionfor which it provides no legal supportis flawed for several reasons.
Case 1:13-cv-01225-JCC-IDD Document 93 Filed 08/15/14 Page 1 of 21

2

First, the Governments position is defeated by the text of the statute, which uses the
phrase amount in controversy. 26 U.S.C. 7430(c)(4)(i)(I) (emphasis added). The Government
was not obligated to defend against the lost donation claim and it was not presented to this Court
for resolution on summary judgment. Rather, NOMs claim for lost donations was voluntarily
withdrawn early in this litigation and therefore was not in controversy.
Second, adoption of the Governments methodology would undermine the intent of the
statute by placing successful plaintiffs at a severe disadvantage in seeking attorneys fees. While
an insubstantial award is not dispositive, Don Johnson Motors, Inc. v. United States, No. B-06-
047, 2008 U.S. Dist. LEXIS 36594, 10 (S.D. Tex. Mar. 14, 2008), courts have often assessed
whether [the] Plaintiff substantially prevailed on the amount in controversy by calculating the
percentage of the amount in controversy the Plaintiff successfully received, id at 13 n.6. Under
the Governments methodology, the value of the denominator in such a calculation would be a
value that the plaintiff could not have received and would include claims for damages against
which the Government was not obligated to defend. Conceivably, a recovery of even 100 percent
of the damages pursued at trial could be rendered insubstantial if the complaint alleged additional
damages that were voluntarily withdrawn for reasons unrelated to the merits of the case.
Third, the Governments preferred methodology would unnecessarily protract discovery
and trials because it would penalize plaintiffs who, before or during discovery, attempt to narrow
the scope of the dispute by withdrawing damages claims they no longer wish to pursue. The

3

Governments position would leave plaintiffs with little choice but to pursue all damages claims
to final resolution lest they render themselves ineligible for attorneys fees.
1

B. NOMs Recovery in this Case Is Substantial.
NOM ultimately recovered $50,000 in actual damages, a recovery of approximately 85
percent of the final value sought ($58,586.37), and 50 times the offer made by the Government
($1,000). NOMs recovery is not disproportionally low, Mallas v. United States, 876 F. Supp.
86, 89 (M.D.N.C. 1994), but is substantial, Reynoso v. United States, No. 10-00098, 2011 U.S.
Dist. LEXIS 87929, 8 (N.D. Cal. Aug. 9, 2011) (Plaintiff thus recovered eighty-one percent
of the amount in controversy in this action and has substantially prevailed under section 7430).
The Government has cited no cases where an unspecified request for punitive damages
was included in the calculation of the amount in controversy. Aside from avoiding speculation,
there are good reasons not to include them. Punitive damages further a States legitimate
interests in punishing unlawful conduct and deterring its repetition. State Farm Mut. Auto. Ins.
Co. v. Campbell, 538 U.S. 408, 416 (2003). Yet, the Government advances a scheme that could
stifle these interests by deterring plaintiffs from seeking even unspecified punitive damages in
the first instance. Indeed, the Government believes this Court should use at least a 2:1 multiplier
to calculate punitive damages in this case. (Opp. at 10.) According to the Government, then, a
plaintiffs failure to defeat a summary judgment motion on a punitive damages claim would erect
a categorical bar to a plaintiffs eligibility for attorneys fees, even if actual damages are

1
If the Governments position is adopted, punitive damages, if they are included at all, should be
included at no more than a nominal value, as they were never reduced to an amount in NOMs
pleadings. (See Opp. at 9 (citing Don Johnson, 2008 U.S. Dist. LEXIS 36594 at 7).)

4

recovered in full. (Opp. at 11-12 (suggesting that any recovery less than fifty percent is not
substantial).)
2

C. The Most Significant Issue in this Litigation Was the Unauthorized
Disclosure of NOMs 2008 Schedule B.

Focusing on one introductory paragraph in NOMs Complaint, the Government attempts
to paint NOMs lawsuit as being primarily about theories of willfulness and gross negligence.
(Opp. at 12 (citing Compl. 2).) To be sure, based on the information available to it, NOM
reasonably believed that the disclosure of its donor list was intentional or the result of gross
negligence. Supra n.2. But the inclusion of those theories in the Complaint does not change the
fact that this lawsuit was pursued primarily to establish definitively that the IRS was responsible
for the disclosure and subsequent publication of NOMs confidential donor list and to recover
damages. The Government conveniently ignores the 27 paragraphs of the Complaint that discuss
NOMs exhaustive efforts to simply determine whether the IRS made the disclosure, and who at
the IRS was responsible for it (Compl. 45-71), as well as the 8 paragraphs discussing the
actual damages sustained as a result of the disclosure, (id. 29-36), which damages remain the
same regardless of whether the disclosure was the result of negligence or willfulness.

2
Even those with seemingly meritorious punitive damages claims may be deterred from seeking
them under the Governments scheme. As was the case with NOM, the victim of an unlawful
disclosure or inspection may be unable to ascertain the full facts and circumstances of that
disclosure or inspection prior to filing suit, due to no fault of his own. At the time NOM filed this
case, it knew that its chief political enemy, the Human Rights Campaign (HRC), had obtained,
from a whistleblower, NOMs 2008 Schedule B, which contained internal IRS markings.
Though the Government knew for nearly two years prior that the disclosure of NOMs 2008
Schedule B was actually made to Matthew Meisel, apparently as a result of mere negligence, the
Government withheld that information from NOM until after NOM filed this suit, despite
NOMs repeated requests for such information via the Freedom of Information Act (FOIA).
The facts available to NOM at the time it filed this case strongly supported NOMs belief that the
disclosure was intentional and thus justified NOMs request for punitive damages. And then,
during discovery, Mr. Meisel and individuals associated with HRC asserted their Fifth
Amendment rights and refused to answer discovery questions.

5

Not until the Government forced NOM to file this action did the Government admit that
it disclosed one copy of Plaintiffs 2008 Form 990 unredacted Schedule B to a single third
party in violation of law. (Dkt. 33 78.) And even then, the Government denied responsibility
for all of NOMs damages and did not reveal any details concerning the U.S. Treasury Inspector
General for Tax Administrations (TIGTA) investigation until served with discovery requests.
The Governments belated concessions do not change the fact that this lawsuit was filed
primarily to prove that the IRS was guilty of an unauthorized disclosure of confidential tax return
information. On that issue, NOM substantially prevailed. See Wilkerson v. United States, 67 F.3d
112, 120 (5th Cir. 1995) (A victory on the primary issue will suffice[.]).
The Government attempts to distinguish Huckaby v. United States Dept of Treasury, 804
F.2d 297 (5th Cir. 1986) on the grounds that Huckaby did not concern whether the disclosure
. . . resulted from . . . intentional [or] willful conduct. (Opp. at 13 n.8.) But that is simply not
true. Like NOM, Huckaby ask[ed] for punitive damages under section 7431(c)(1)(B) on
grounds that the disclosures were willful and grossly negligent. Huckaby, 794 F.2d at 1050.
Even while rejecting the punitive damages claim, the court determined that Huckaby was a
prevailing party because he nevertheless prevailed on the primary issue: whether the
government was liable for tax return disclosures. Huckaby, 804 F.2d at 300.
Goettee v. Commissioner, 192 Fed. Appx. 212 (4th Cir. 2006), an unpublished decision
of the Fourth Circuit cited in the Governments Opposition, actually undermines the
Governments position. In Goetee, the taxpayers sought abatement of interest that had accrued
on past-due taxes of four different tax periods (1978, 1979, 1981, and 1982). Id. at 214. In total,
the taxpayers claimed that nineteen specific, non-consecutive months of interest, as well as the
interest of unspecified additional periods, should be abated. See id. at 216. After the Tax Court

6

abated three months of interest, the taxpayers moved for attorneys fees. The taxpayers argued
that they had substantially prevailed with respect to the most significant issue because they had
succeeded in showing that the IRS abused its discretion in refusing to abate any interest. Id. 223.
The Fourth Circuit disagreed because no central issue dominated the proceedings. Id. Rather,
the taxpayers raised a series of individualand unrelatedclaims of delay against the IRS,
requesting abatement for each individual claim. Id. (emphasis added). The diversity of the
taxpayers claims meant there was simply no central issue . . . upon which either of the parties
could substantially prevail. Id. In reaching that conclusion, the Fourth Circuit noted that
Huckaby, in contrast, is a case in which a central issue dominated the proceedings,
notwithstanding the Huckaby plaintiffs failed claims for punitive damages and statutory
damages for seven alleged disclosures. Id. As this case closely mirrors the claims in Huckaby,
Goetee demonstrates that the primary issue in this litigation was whether the IRS was liable for
the disclosure of NOMs 2008 Schedule B.
II. The Government Has Not Established that Its Position Was Substantially
Justified.

In claiming that its position in this litigation was substantially justified, the Government
takes an indefensible position: that NOM did not claim that the IRS was simply negligent in
disclosing NOMs tax return. (Opp. at 16-17.) But NOMs Complaint could not be clearer: The
IRSs disclosure was intentional, grossly negligent, or negligent. (Compl. 102.) And
although the IRS claims that it admitted negligence in its Answer, it actually denied the
allegations in the preceding sentence. (Dkt. 33 102-03.) In fact, the IRS has refused to admit
that its actions were negligent. Instead, the Government repeatedly referred to its actions as
inadvertent, up to and throughout its summary judgment motion. (See Dkt. 68 (referring to the
unauthorized disclosure as inadvertent seventeen times).) Even where the IRS suggested that

7

NOM was entitled to $1,000 in statutory damages, the IRS conditioned its position: [T]o the
extent this action has been brought within the two-year statute of limitations and Plaintiff
otherwise establishes that it did not request the information through a third party, the government
is liable to Plaintiff for $1,000 for one inadvertent disclosure of Plaintiffs 2008 Form 990
unredacted Schedule B. (Dkt. 33 121.) Even with respect to issues it claims to have conceded,
the Governments position continues to be of questionable justification.
The Governments claim that its defensewas reasonable at every phase of the
litigation (Opp. at 17), is also easily refuted by this Courts summary judgment opinion, which
found it likely that the disclosure of NOMs 2008 Schedule B was the actual and proximate
cause of NOMs claimed damages. Natl Org. for Marriage, Inc. v. United States, IRS, No.
1:13cv1225 (J CC/IDD), 2014 U.S. Dist. LEXIS 77263, 26-34 (E.D. Va. J une 3, 2014) (NOM).
Only after losing those issues on summary judgment did the Government agree to settle the case
pursuant to NOMs offer. See Hanson v. Commr, 975 F.2d 1150, 1155-1156 (5th Cir. 1992)
([T]he governments concession of a case is one factor to be considered when the trial court
decides whether the governments overall position was substantially justified.).
The Government does not refute that nearly two years prior to the filing this action, its
own investigation revealed that it was the source of the 2008 Schedule B posted on the Internet
by the Human Rights Campaign and The Huffington Post. Nor does it refute that by J une 2012,
NOM informed TIGTA that Fred Karger had published that document as part of his complaint to
the California Fair Political Practices Commission (FPPC). Nevertheless, the Government
claims that its position with respect to NOMs actual damages was substantially justified because
NOM adjusted (downward) the amount of actual damages it claimed during the course of
discovery. (Opp. at 17-18.) Yet there is nothing to suggest the Government would have taken a

8

reasonable position had NOM included its final damages value in the Complaint. In fact, the
Governments behavior strongly suggests the opposite is true. With respect to damages
associated with the Karger complaintwhich NOM included in the complaint (Compl. 36)
the Government took the position that it was not liable for any of them throughout the entire
course of the litigation. (See Dkt. 33 123 (The United States denies that it owes Plaintiff actual
damages for an IRS employees single inadvertent disclosure of Plaintiffs 2008 Form 990
unredacted Schedule B.).) The Government then took and maintained that same hard-line
position with respect to all of NOMs claimed actual damages as they were specified in
discovery. At no point during this case did the Government take a justified position with respect
to its liability for NOMs actual damages. The Governments suggestion that it would have
changed its position had it known the final value of NOMs damages prior to filing its Answer is
thus undeniably false.
Nor does the Governments mere belief that six weeks prior to the close of discovery it
was unclear that the damages NOM incurred were necessary (Opp. at 18) make its position any
more justified. This Court has not only determined that the Governments belief was erroneous,
but that it was certainly foreseeable that releasing NOMs Schedule B to a member of the media
could result in its publication, and that NOM would take legal action to prevent further harm.
NOM, 2014 U.S. Dist. LEXIS 77263 at 33 (emphasis added).
Even when given a second chance to concede actual damages following the close of
discovery, the Government refused. On April 2, 2014almost four weeks before the
Government filed its summary judgment motionNOM approached the Government and
offered to abandon its claim for punitive damages and settle the issue of actual damages as well
as attorneys fees. (Opp. at 8.) Despite NOMs offer, the Government in its Opposition

9

repeatedly chides NOM for continuing to pursue its gross negligence and willfulness claims; yet
the Government made no counter-offer on the issue of actual damages and proceeded to move
for summary judgment.
The Governments arguments concerning mitigation of damages cannot save it. The
Government believes it was justified in raising this argument until at least April 2, 2014, when
according to the GovernmentNOM fully disclose[d] the extent to which it had received
donations in response to solicitations referring to the disclosure or its lawsuit. (Opp. at 18.)
However, the Government should have known that the extent of those solicitations was irrelevant
unless the Government could show the necessary elements of causation. As this Court put it, the
Governments burden was to confirm that the contributions were caused by the disclosure as
opposed to some other impetus. NOM, 2014 U.S. Dist. LEXIS 77263 at 37. The Government
should have known well before April 2, 2014, that it could not make that showing. As far back as
J anuary 21, 2014, in response to the Governments first set of requests for admission concerning
donations received as a result of the disclosure, NOM informed the Government that it is not
within Plaintiffs control to know the motive behind a specific donation to it. Further, Plaintiff
does not accept earmarked donations. (See, e.g., Dkt. 92-3 at 29.) Moreover, even after NOM
provided the Government with the data it requested, the Governments legal bases for the
application of the mitigation defense was far from reasonable, as the Government claims.
(Opp. at 19.) In the words of this Court, The only evidence on this issue is NOMs admission
that 2012 was a record year for donations and it received $46,086.37 from solicitations that
referenced the disclosure. These facts alone are insufficient. NOM, 2014 U.S. Dist. LEXIS
77263 at 37 (internal citations omitted) (emphasis added); see also Steven N.S. Cheung, Inc. v.
United States, 2007 U.S. Dist. LEXIS 85488, 13-14 (W.D. Wash. J an. 17, 2007) (Had

10

defendant carefully considered its position in light of the evidence it possessed and the prior
rulings of this Court, it should have realized that its position was not substantially justified.).
3

For the foregoing reasons, NOM is a prevailing party, and is entitled to reasonable
attorneys fees.
III. The Requested Attorneys Fees Are Reasonable.

The Governments Opposition does not mention the fact that NOM excluded nearly
1,290 hours expended on its behalf (amounting to nearly $471,000) from its Motion in an
exercise of billing judgment. (See Exhibit D, Dkt. 91-3.) In fact, the Government scolds NOM
for its poor exercise in billing judgment (Opp. at 23), and repeatedly refers to NOMs pre-
billing judgment total as though NOM were requesting fees for every hour expended on the case,
(id. at 8 n.5, 23). But, in fact, NOM reduced the number of timekeepers from thirty one to seven,
eliminating all non-attorney time and the time of nine attorneys in their entirety. (See Exhibit D,
Dkt. 91-3.) Further, NOM made numerous reductions from even the remaining seven
timekeepers invoices accounting for even potentially excessive, redundant, or otherwise
unnecessary hours. (See Motion at 15-17.)
Yet the Government attempts to downplay the tremendous success NOM enjoyed by
resolving its heavily-contested claim for actual damages and, in so doing, claims that the
requested amount is unreasonable. As is explained above, NOMs recovery was substantial (both

3
In the event this Court finds the Governments position was substantially unjustified only with
respect to a given issue or phase of this litigation, the court[] may consider each phase or issue
of the litigation discretely to determine whether the Plaintiff is entitled to recover expenses
incurred in pursuing that issue or litigating that phase, Christian Coal. Intl v. United States,
133 F. Supp. 2d 437, 438-439 (E.D. Va. 2001) (citing Ragan v. Commn, 135 F.3d 329 (5th Cir.
1998)).

11

monetarily and in principle) and its request for fees is reasonable, especially in light of the
extensive reductions already made by NOMs counsel.
A. NOMs Proposed Lodestar Calculation Is Reasonable and Appropriate.

Throughout its response, the Government attempts to graft the entirety of 26 U.S.C.
7430 into section 7431 or, in the alternative, claim that any ambiguities should be resolved in its
favor. But the plain language of section 7431 is contrary to such a reading and is unambiguous:
in the case of a plaintiff which is described in section 7430(c)(4)(A)(ii),
reasonable attorneys fees, except that if the defendant is the United States,
reasonable attorneys fees may be awarded only if the plaintiff is the
prevailing party (as determined under section 7430(c)(4)).

26 U.S. C. 7431(c)(3). As NOM previously explained (Motion at 18 n.9), Congress chose to
specifically incorporate section 7430s prevailing party standard but chose not to include any
other provisions of section 7430. (See also Dkt. 91-2 61-65.) What Congress did say,
however, was that reasonable attorneys fees may be awarded. 26 U.S. C. 7431(c)(3). NOMs
Motion, therefore, requested a fee award pursuant to a lodestar calculation, the appropriate
measure of the reasonable fee to which a prevailing party is entitled. See City of Burlington v.
Dague, 505 U.S. 557, 560 (1992); see also, Motion at 14-15.
4

1. The Requested Hourly Rates Are Reasonable.

The Government does not dispute that NOMs requested hourly rates are the prevailing
market rate appropriate for each attorney. Instead, it simply argues that the statutory cap of

4
The Government mischaracterizes Mr. Zalls affidavit as inappropriate expert testimony
serving to circumvent[] the imposed page limit. (Opp. at 19.) But Mr. Zall is an independent
counsel, well-versed in IRS litigation and related fields. His affidavit serves to provide an outside
opinion on the reasonableness of NOMs counsels fee petition, similar to the routine affidavits
from local counsel on the prevailing market rate. See, e.g. In re Outsidewall Tire Litig., 748 F.
Supp. 2d 557, 567 (E.D. Va. 2010). NOM did not direct Mr. Zall regarding the content of his
affidavit. Moreover, NOM provided sufficient and extensive legal and factual arguments to
support its case in its Petition.

12

section 7430 applies to this case.
5
But such a position is not supported by the plain language of
section 7431 or by the legislative history of the same. (See Motion at 18 n.9.) The Government
contends that allowing for the prevailing market rate here would render the relief provided in
7431 significantly more expansive than 7430. (Opp. at 22.) Yet the Government provides no
evidence that such a result was not Congresss intention. And given that Congress incorporated
some portions of section 7430 into section 7431 but not others signifies that Congress did intend
to broaden the hourly rate allowed for these specific cases. [W]here Congress knows how to say
something but chooses not to, its silence is controlling. United States v. Webb, 655 F.3d 1238,
1257 (11th Cir. 2011); see also Ctr. For Special Needs Trust Admin., Inc. v. Olson, 676 F.3d
688, 701-02 (8th Cir. 2012) (Where Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.). Such a result is logical
given the specific (and, ideally, rare) set of circumstances required to bring and prevail on a
claim for the unauthorized disclosure or inspection of confidential information, rather than the
myriad cases for which section 7430 or the Equal Access to J ustice Act allows the recovery of
fees. See 26 U.S.C. 7430 (allowing an award of fees for any administrative or court
proceeding which is brought by or against the United States in connection with the

5
The Government points to a court in the Western District of Missouri that restated section
7430s statutory cap when evaluating a claim for attorneys fees pursuant to section 7431. See
Snider v. United States, 2005 WL 3150761 at *1. Even though this non-binding authority
appears to incorporate a portion of section 7430 where Congress has not spoken, in the end, the
court did not apply that hourly rate and, instead, simply stated that the rates requested by
counselbased on the prevailing market rateare reasonable and awarded the requested fees.
Id. at *2. If this Court finds that the statutory cap in section 7430 has been grafted into section
7431, then NOM submits that the difficulty of the issues presented in the case (see, e.g., Dkt. 91-
7 23, 36 and Dkts. 91-36 (declarations explaining counsels experience)) justify applying
the requested prevailing market rate.

13

determination, collection, or refund of any tax, interest, or penalty under this title) (emphasis
added) and 28 U.S.C. 2412 (providing attorneys fees to a prevailing party in any civil action
brought by or against the United States) (emphasis added).
Because 26 U.S.C. 7431 is silent on the applicable hourly rate, Hensleys prevailing
market rate standard applies. See Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983).
2. The Requested Hours Are Reasonable and Already Account for
Appropriate Billing Judgment.

Despite the Governments bare statements about the unreasonableness of NOMs Motion,
NOM has shown that it exercised careful billing judgment in reducing a substantial number of
hours from even the seven remaining time keepers. Such billing judgment included numerous
reductions or elimination or time spent conferencing with other counsel, traveling to and
attending depositions, and reviewing key drafts, as well as exclusions of time exclusively related
to NOMs theories on willfulness or gross negligence. (See Motion at 17 n. 7.)
Despite these reductions, the Government contends that counsel engaged in significant
block billing and provided time entries that are too vague for the Court to make a reasoned
determination of whether the time spent on the tasks was appropriate. (Opp. at 27.) But that is
not the case. NOM provided nearly 100 pages of carefully billed time entries, the bulk of which
set forth a specific task or tasks (and with counsel exercising billing judgment to account for
improper block billing or vague entries).
6
Notably, an applicant is not required to record in
great detail how each minute of his time was expended. Hensley at 437 n.12. Rather, he need

6
The Government criticizes NOM for the amount of time spent on its Complaint, (Opp. at 28-
29), but, due to its exercise of billing judgment, NOM is only seeking $40,666.80 for all time
spent on the case prior to October 1, 2013. (See Dkt. 91-3, Ex. A; Dkt. 91-4, Ex. A; Dkt. 91-5,
Ex. B; Dkt. 91-6, Ex. B.)

14

only identify the general subject matter of his time expenditure. Id. That is precisely what
NOMs counsel has done.
Further, in an exercise of billing judgment, NOM is not requesting additional fees for the
time its counsel spent on this reply nor the expenses incurred in retaining outside counsel to
provide affidavits as to the reasonableness of its hours and the prevailing market rate. (Exhibit 8,
Second Declaration of Kaylan L. Phillips at 2, see also Motion at 26-27 (providing authority for
the compensation of such fees and expenses).)
7

B. NOMs Claims Shared a Common Core of Facts.

As NOM explained, this case involves a common core of facts, i.e. the circumstances
surrounding the IRSs processing of a request for NOMs 2008 Schedule B and the subsequent
disclosure and dissemination of the document. (Motion at 21-24; see also, Dkt. 73 at Section III
(describing the need to look at the record facts regarding the disclosure, including what was
requested and by whomfacts NOM uncovered during discoveryin order to resolve actual
and proximate causation).) Yet, the Government maintains that NOMs willfulness and gross
negligence claims are solely responsible for nearly all of the work that its attorneys completed.
(Opp. at 24.) That is not the case. NOM would have been required to conduct the same

7
The Governments half-hearted suggestion that NOM must submit its fee agreement with
counsel in order to demonstrate its eligibility to collect attorneys fees is entirely unfounded.
(Opp. at 30 n.26.) In fact, the Governments own authority confirms that no written agreement
need even exist. (See id. (agreement with counsel may be implied).) Besides, on its own, [t]he
presence of an attorney-client relationship suffices to entitle prevailing litigants to receive fee
awards. Ed A. Wilson, Inc. v. GSA, 126 F.3d 1406, 1409 (Fed. Cir. 1997). There can be no
serious dispute that NOM enjoyed that relationship with its counsel. Under that arrangement,
NOM is obligated to pay any and all fees collected to its counsel. See Exhibit 8 at 5.

15

depositions and request the same information regardless of whether it was seeking actual
damages alone as it did when seeking to establish gross negligence or willfulness.
8

From its first filing, the Government denied that there was a causal link between the
disclosure and the damages NOM incurred. (Dkt. 33 123) (The United States denies that it
owes Plaintiff actual damages for an IRS employees single inadvertent disclosure of Plaintiffs
2008 Form 990 unredacted Schedule B.) The Government never backed down from this
position throughout the entire litigation. This causal link was essential regardless of whether
NOMs theory was negligence, gross negligence, or willfulness. Like the extensive efforts
undertaken by NOMs counsel before litigation (see Dkt. 1 45-70 (describing the numerous
pre-litigation efforts undertaken by NOM and its counsel to ascertain information regarding the
disclosure)), the Governments refusal to admit a causal link between the disclosure and NOMs
damages required NOMs counsel to undertake significant efforts during litigation (a large
percentage of which NOM excluded from its Motion in an exercise of billing judgment).
For example, it was only through NOMs discovery requests served upon the
Government that NOM learned that Mr. Meisel told the IRS that he was a member of the media,
(Dkt. 68-5 at 4), a fact that NOM used in its defense against the Governments motion for
summary judgment on actual damages. (See Dkt. 73 1 and p. 25.) This information was not
provided in the Governments Answer. In fact, the Governments Answer did not provide any
details as to the circumstances surrounding the release of NOMs confidential information so

8
Contrary to the Governments characterization, (Opp. at 24 n.20), the amendments to NOMs
witness list after summary judgment is not an indication that the discovery it took was limited to
its gross negligence or willfulness claims. Rather, on the amended list, NOM lists six witnesses
(including Ms. Peters, Mr. Hamilton, Mr. Meisel, Mr. Nix, and the Governments 30(b)(6)
designees) whose deposition testimony it believed it would use in its presentation on actual
damages, due to the witness being outside of the Courts subpoena power. (Dkt. 84 at 2-3.)

16

NOMs discovery and pre-trial efforts were necessary to learn the true circumstances of the
disclosure and prepare its presentation for actual damages.
9

Further, each deposition NOM took (three of which involved individuals listed on the
Governments initial disclosures as witnesses with relevant information (Exhibit 9,
Governments Initial Disclosures)) was necessary to prove the causal link the Government
consistently denied and to establish the Governments liability for NOMs actual damages:
1. Wendy Peters, according to the Governments initial disclosures, has information
concerning the request for Plaintiffs 2008 Form 990, the processing of that request and the
general allegations contained in Plaintiffs complaint. (Exhibit 9 at 3.) NOM could not have
presented its case for actual damages without information regarding the request and disclosure of
its 2008 Schedule B. Ms. Peterss deposition was necessary to establish the causal link between
the negligent act and the unauthorized disclosure to a third party, to wit, Mr. Meisel. (See, e.g.,
Dkt. 73 1.) It was through documents authenticated in her deposition that NOM was able to
establish actual caution and the evidence showing that it was reasonably foreseeable that the
document would be further disseminated. (See, e.g., id. 8, 18; Dkt. 68 2, 3, 7-10, 14.)
2. David Hamilton, according to the Governments initial disclosures, has information
concerningthe system that contained the image of Plaintiffs 2008 Form 990, and IRS records
pertaining to the allegations contained in Plaintiffs complaint. (Exhibit 9 at 2.) NOM could not

9
As NOM made plain in its Complaint, it devoted significant time to seeking the truth of the
disclosure prior to filing suit, including quickly filing a request for investigation which, in the
course of discovery, NOM discovered was the impetus for TIGTAs investigation into the
disclosure. (Dkt. 73 at 2.) NOM also filed numerous FOIA requests and appeals. (Dkt. 1 45-
71.) In response to one of NOMs FOIA requests for records regarding requests to the IRS for
NOMs tax return information, the IRS even responded that no such records exist. (Id. 57.)
Because the IRS was not forthcoming about the disclosure, NOM was forced to file this lawsuit.
The Government now criticizes NOM for spending time on a lawsuit that the Government could
have prevented in the first place.

17

have presented its case for actual damages without testimony regarding what information the
Government had regarding the disclosure of NOMs 2008 Schedule B. Mr. Hamiltons
deposition was key to proving the causal link, including providing information on the origin and
development of the watermark on the disclosed document and verifying that the same watermark
was consistently found on the disclosed document after it was disseminated. (See, e.g., Dkt. 68
9-13, 22; Dkt. 73 15, 51.) Such facts were important to show the connection between the
IRSs disclosure and the dissemination by Mr. Meisel and by Mr. Karger.
3. Matthew Meisel, according to the Governments initial disclosures, has information
pertaining to the request for the disclosure of Plaintiffs 2008 Form 990, the IRSs production of
Plaintiffs 2008 Form 990, the receipt by the Human Rights Campaign of Plaintiffs 2008 Form
990, and certain other remaining allegations contained in Plaintiffs Verified Complaint.
(Exhibit 9 at 1.) NOM could not have presented its case for actual damages without information
regarding the request, disclosure, and dissemination of its 2008 Schedule B. Although Mr.
Meisel ended up asserting his Fifth Amendment privilege during the deposition, documents
produced by him pursuant to subpoena provided information about the causal link between the
IRS and the dissemination, including a February 24, 2011 conversation in which Mr. Meisel
referred to a promising conduit from whom he might receive NOMs tax return donor list. (See
Dkt. 45 at 15-17.) These documents contradicted the Governments claim in its J anuary 27, 2014
discovery responses that the disclosure to Mr. Meisel occurred on or around March 24, 2011,
(Exhibit 10 at 3), which, itself conflicted with the IRSs response to NOMs FOIA Request that
no records existed (indicating that no requests had been made for NOMs tax returns, supra, n.9).
Shortly after Mr. Meisel produced these documents, the Government changed its story, asserting
without any direct evidentiary support that the disclosure to Mr. Meisel occurred on or around

18

February 10, 2011. (Dkt. 68-5 at 5. Compare Exhibit 10 at 7-8, n-y with Dkt. 68-5 at 4-6,
n-y.) Thus, NOMs discovery of third parties was necessary to learning the circumstances
surrounding the disclosure.
4. The Government 30(b)(6) deposition was clearly necessary for NOM to obtain
information binding on the Defendant itself regarding the request, disclosure, and dissemination
of its 2008 Schedule B, key elements of its actual damages claim. This deposition established the
process and failure of the IRSs system, which established negligence, and the causal connection
between the negligence and the disclosure to Meisel. (See, e.g., Dkt. 68 10, 26; Dkt. 73 1,
49, 51.) This deposition would have been necessary whether NOM was suing for only negligence
or for negligence, gross negligence, or willfulness because of the need for testimony that is
binding on the Government.
5. The deposition of Kevin Nix, a former HRC employee with information regarding the
disclosure and dissemination of NOMs tax information, was necessitated by Mr. Meisels
assertion of his Fifth Amendment privilege regarding relevant facts to NOMs case.
10
Although
Mr. Nix, like Mr. Meisel, ended up asserting his Fifth Amendment privilege during the
deposition, it was necessary for NOM to engage in discovery with him given that documents
produced by HRC established his receipt of the disclosed document from Mr. Meisel and his
passing along the document for further dissemination by HRC and the Huffington Post. (See,
e.g., Dkt. 68 19.)

10
Importantly, the Department of J ustice refused to grant Mr. Meisel immunity from prosecution
(despite there being no known pending proceedings against him). Such immunity would have
required him to respond to NOMs questions and, without it, NOM was required to serve
discovery on numerous third parties, including Mr. Nix.

19

6. Fred Karger, according to the Governments initial disclosures, has information
concerning the complaint he filed against Plaintiff in California and other allegations contained
in Plaintiff's Verified Complaint with respect to him and that action. (Exhibit 9 at 2.)
Importantly, the Government noticed his deposition. NOMs attendance was critical as his
testimony provided the final link between the unauthorized disclosure and the harm incurred by
NOM regarding his complaint. (See, e.g., Dkt. 68 29; Dkt. 73 28, 31, 35.) Mr. Kargers
testimony, along with the documents he produced pursuant to subpoena, showed that the
proximate cause of the harm inflicted by his complaint was the disclosure by the IRS.
The hours requested in NOMs Motion related to a common set of facts and were
necessary to prove NOMs claims for actual damages.
Conclusion

Because NOM is a prevailing party in this litigation, NOM respectfully requests
reasonable attorneys fees in the amount of $691,025.05 for the work of its counsel on the
underlying litigation and on its Motion for fees.

20

Respectfully submitted this 15th day of August, 2014.

/s/
J ason Torchinsky (Va. 47481)
Shawn Toomey Sheehy (Va. 82630)
Holtzman Vogel J osefiak, PLLC
45 North Hill Drive, Suite 100
Warrenton, VA 20186
(540) 341-8808 (telephone)
(540) 341-8809 (fax)
jtorchinsky@hvjlaw.com
ssheehy@hvjlaw.com
Counsel for Plaintiff

J ohn C. Eastman (Cal. 193726)*
Anthony T. Caso (Cal. 88561)*
Center for Constitutional J urisprudence
c/o Chapman University School of Law
One University Drive
Orange, CA 92866
(877) 855-3330 x2 (telephone)
(714) 844-4817 (fax)
jeastman@chapman.edu
caso@chapman.edu
Cleta Mitchell, of counsel (D.C. 433386)*
William E. Davis, of counsel (D.C. 280057)*
Mathew D. Gutierrez, of counsel (Fla. 0094014)*
Kaylan L. Phillips (Ind. 30405-84)*
Noel H. J ohnson (Wisc. 1068004)*
ACTRIGHT LEGAL FOUNDATION
209 West Main Street
Plainfield, IN 46168
(317) 203-5599 (telephone)
(888) 815-5641 (fax)
cmitchell@foley.com
wdavis@foley.com
mgutierrez@foley.com
kphillips@actrightlegal.org
njohnson@actrightlegal.org

* Admitted Pro Hac Vice

21

Certificate of Service

I hereby certify that on August 15, 2014, I filed the foregoing via ECF which notified the
following counsel of record:
UNITED STATES OF AMERICA, INTERNAL REVENUE SERVICE
Philip M. Schreiber (D.C. 502714)*
Christopher D. Belen (Va. 78281)
Trial Attorneys, Tax Division
U.S. Department of J ustice
Post Office Box 14198
Ben Franklin Station
Washington, DC 20044
(202) 514-6069 (Mr. Schreiber)
(202) 307-2089 (Mr. Belen)
Fax: 202-514-9868
philip.m.schreiber@usdoj.gov
christopher.d.belen@usdoj.gov

Benjamin L. Tompkins (D.C. 474906)*
Assistant United States Attorney
United States Attorneys Office for the Central District of California
Federal Building, Suite 7516
300 North Los Angeles Street
Los Angeles, CA 90012
(213) 894-6165
Fax: (213) 894-0115 *Admitted Pro Hac Vice

David Moskowitz
Assistant U.S. Attorney
2100 J amieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3845
Fax: (703) 299-3983
david.moskowitz@usdoj.gov

/s/
Shawn Toomey Sheehy (Va. 82630)
Holtzman Vogel J osefiak, PLLC
45 North Hill Drive, Suite 100
Warrenton, VA 20186
(540) 341-8808 (telephone)
ssheehy@hvjlaw.com
Exhibit 8
Second Declaration of
Kaylan L. Phillips
Case 1:13-cv-01225-JCC-IDD Document 93-1 Filed 08/15/14 Page 1 of 6 PageID# 2194
UNITED STATES DISTRICT COURT
The NATIONAL ORGANIZATION FOR
MARRIAGE, INC.,
Plaintiff,
v.
The UNITED STATES OF AMERICA,
INTERNAL REVENUE SERVICE,
Defendant.
Civ. No. 13-cv-1225-J CC/IDD
SECOND DECLARATION OF KAYLAN L. PHILLIPS IN SUPPORT OF
PLAINTIFFS MOTION FOR ATTORNEYS FEES
Kaylan L. Phillipsdeclares, pursuant to 28 U.S.C. 1746:
1. I reiterate the facts of my prior declaration made in support of Plaintiffs Motion for
Attorneys Fees (Dkt. 91-3, Motion), with respect to my experience, billing practices, and
hourly rates and incorporate them herein by reference to the following statements.
2. Since the filing of my first declaration, ActRight Legal Foundation has reasonably
expended an additional 30.6hours in preparation of its Reply to NOMs Motion for Attorneys
Fees, totaling $10,710in attorneys fees. See Exhibit A. In an effort to be even more reasonable,
NOM is not requesting any of this additional time nor is it requesting any expenses that it
incurred or will incur relating to the Motion and Reply.
3. As stated in its Motion, NOMs counsel, after exercising billing judgment, previously
incurred $691,025.05 litigating NOMs claims in this case and preparing the Motion. (See Dkt.
90.)
1
4. The total amount of attorneys fees for which NOM seeks in its Motion remains
$691,025.05.
5. NOM is contractually obligated to pay any and all fees awarded to its counsel.
Executed in Plainfield, Indiana, on August 15, 2014,
_______________
Kaylan L. Phillips
ActRight Legal Foundation
209 West Main Street
Plainfield, IN 46168
(317) 203-5599 (telephone)
(888) 815-5641 (fax)
kphillips@actrightlegal.org
2
Exhibit 8 -
Exhibit A
10:39 AM
08/15/14
Time by Job Detail
August 8 - 15, 2014
Page 1 of 2
Date Name Duration Notes

NOM- 990
Litigation:990
08/08/2014 Noel J ohnson 0:12 NHJ - R local rules re reply memos; create shell for reply memo for attys fee motion.
08/08/2014 Noel J ohnson 0:18 NHJ - Draft second declaration of KLP re attys fees motion.
08/11/2014 Noel J ohnson 3:24 NHJ - R Govs Opposition brief; make outline and begin drafting reply for Atty fee motion.
08/11/2014 Noel J ohnson 1:54 NHJ - Continue reviewing Government's opposition to atty fees petition; continue outlining reply and
08/11/2014 Noel J ohnson 0:30 NHJ - C KLP to discuss Government's opp. to atty fee petition.
08/11/2014 Noel J ohnson 2:30 NHJ - Continue reviewing defendants' authority and drafting atty fee petition reply.
08/11/2014 Kaylan Phillips 3:42 KLP- R response to fee petition in detail. Take notes. C with NHJ re same.
08/12/2014 Noel J ohnson 2:06 NHJ - Continue RS and drafting atty fee reply brief.
08/12/2014 Noel J ohnson 0:24 NHJ - Proofread and make edits to atty fee reply brief.
08/12/2014 Noel J ohnson 0:06 NHJ - RS re compensability of local attorney time; email to KLP re same.
08/12/2014 Kaylan Phillips 2:30 KLP- D section on reasonableness of fees: lodestar calculation, prevailing maket rate.
08/13/2014 Noel J ohnson 0:12 NHJ - R and incorporate KLP's comments; r KLP's section on reasonableness.
08/13/2014 Noel J ohnson 1:06 NHJ - LR re "incurred" requirement; P paragraph on same for atty fee reply.
08/13/2014 Noel J ohnson 0:24 NHJ - LR re opinion testimony.
08/13/2014 Noel J ohnson 0:18 NHJ - LR re special factors and statutory rate cap.
08/13/2014 Noel J ohnson 0:42 NHJ - Continue LR re special factors and statutory rate cap.
08/13/2014 Kaylan Phillips 1:42 KLP- Continue working on reasonableness of fee award section; prevailing market rate.
08/13/2014 Kaylan Phillips 0:42 KLP- Continue working on reasonableness of fee award section: reasonableness of fees.
08/13/2014 Kaylan Phillips 2:06 KLP- Continue working on reasonableness of fee award section: common set of facts.
08/14/2014 Kaylan Phillips 1:48 KLP- Continue working on fee petition reply. C with NHJ re: arguments. Review emails from teammate
08/14/2014 Kaylan Phillips 0:18 KLP- Call with WD re fee petition.
08/14/2014 Kaylan Phillips 0:30 KLP- Email with MG re Snider case. R case and edit FN in brief.
08/14/2014 Kaylan Phillips 0:30 KLP- Continue working on fee petition reply: review legislative history for 7431.
08/14/2014 Kaylan Phillips 0:54 KLP- Continue working on fee petition reply: respond to section on block billing, etc.
Total Litigation:990 30:36
Total NOM- 990 30:36
10:39 AM
08/15/14
Time by Job Detail
August 8 - 15, 2014
Page 2 of 2
Date Name Duration Notes
TOTAL 30:36
Exhibit 9
Government Initial
Disclosures
IN THE UNITED STATES DISTRICT COURT
Alexandria Division
THE NATIONAL ORGANIZATION FOR
MARRIAGE, INC.
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v. Civil Action No. 13-1225-JCC-IDD
THE UNITED STATES OF AMERICA,
Defendant.
INITIAL DISCLOSURES OF DEFENDANT UNITED STATES OF AMERICA
The United States of America, by its undersigned attorneys, makes its initial disclosures
in accordance with Fed. R. Civ. P. 26(a)(l) and the parties' proposed scheduling order, as
follows:
I . The name, and, if known, the address and telephone number of each individual likely to
have discoverable information-along with the subjects of that information-that the
disclosing party may use to support its claims or defenses, unless the use would be solely
for impeachment:
(a) Representative(s) for Plaintiff
c/o Plaintiffs counsel
Subject: Plaintiffs designee has information pertaining to the alleged
disclosure of and alleged damages resulting from the inadvertent disclosure of
Plaintiff's 2008 Form 990, as well as the other allegations in its Verified
Complaint.
(b) Matthew Meisel
Waltham, Massachusetts
c/o Matt Kaiser, The Kaiser Law Firm PLLC, 1400 I St, NW, #525,
Washington, D.C. 20005, (202) 640-2850.
Subject: Mr. Meisel has information pertaining to the request for the
disclosure of Plaintiffs 2008 Form 990, the IRS's production of Plaintiffs
2008 Form 990, the receipt by the Human Rights Campaign of Plaintiffs
1
Exhibit 9 - Page 1 of 6
2008 Form 990, and certain other remaining allegations contained in
Plaintiff's Verified Complaint.
(c) Representative for Human Rights Campaign
Washington, D.C.
c/o James W. Cooper, Arnold and Porter LLP, 555 12'
11
St., NW, Washington,
D.C. 20004, (202) 942-6603
Subject: Representative has information pertaining to Plaintiff's allegations
against HRC, and generally Plaintiff's allegations in its Verified Complaint.
(d) Fred Karger
3369 Wilshire Blvd.
Suite 1290
Los Angeles, CA 9001 0
Subject: Mr. Karger has information concerning the complaint he filed against
Plaintiff in California and other allegations contained in Plaintiff's Verified
Complaint with respect to him and that action.
(e) Unidentified donors for the Plaintiff
Subject: Donor(s) bave information pertaining to the Plaintiff's alleged
damages resulting fiom the disclosure of Plaintiff's 2008 Form 990
umedacted Schedule B.
(f) Jeremy S. Hooper
350 W. 57th St. Apt. 6G
New York, New York 10019
Subject: Mr. Hooper has information concerning Plaintiffs allegations
against HRC and Plaintiff's damages claims in this case.
(g) David Hamilton, systems administrator I programmer in the Statistics of
Income Data Management Division
Internal Revenue Service
Ogden, Utah
c/o: Philip Schreiber, Benjamin L. Tompkins, Christopher Belen, Trial
Attorneys, U.S. Department ofJustice, Tax Division, P.O. Box 14198,
Washington, D.C. 20044.
Subject: Mr. Hamilton has information concerning the Statistics of Income
Exempt Organizations Return Image Network, the system that contained the
image of Plaintiff's 2008 Form 990, and IRS records pertaining to the
allegations contained in Plaintiff's complaint.
2
(h) Wendy Peters, Processing Clerk
Internal Revenue Service
Ogden, Utah
c/o: Philip Schreiber, Benjamin L. Tompkins, Christopher Belen, Trial
Attorneys, U.S. Department ofJustice, Tax Division, P.O. Box 14198,
Washington, D.C. 20044.
Subject: Ms. Peters has information concerning the request for Plaintiffs
2008 Form 990, the processing ofthat request and the general allegations
contained in Plaintiffs complaint.
In addition to the foregoing, the United States may support its claims or defenses
through the testimony of other individuals whose identities are not yet known to the
United States, including, for example, individuals identified by Plaintiti in its initial
disclosures or in response to the United States' Interrogatories. The United States also
may rely on expert testimony to support its claims or defenses and, if so, shall identify
any such experts as provided in the Federal Rules of Civil Procedure, and in accordance
with any applicable Orders of this Court. Finally, the United States may rely upon any
non-governmental employees identified in Plaintiffs initial disclosures. The United
States reserves the right to supplement these disclosures under Fed. R. Civ. P. 26(e) as
the need arises.
2. A copy of-or a description by category and location--of all documents, electronically
stored information, and tangible things that the disclosing party has in its possession,
custody, or control and may use to support its claims or defenses, unless the use would be
solely for impeachment:
(a) Records pertaining to Plaintiffs damages, including records related to
Plaintiff's donors, Fred Karger's complaints and the remaining allegations
pertaining to Plaintiffs Verified Complaint;
(b) Plaintiffs 2007,2008, 2011 and 2012 Fonns 990;
(c) IRS records pertaining to the history regarding the Plaintiffs 2008 Form 990,
and the disclosure thereof;
(d) Documents pertaining to HRC's receipt of Plaintiffs 2008 Form 990;
(e) Blank Form 4506-A;
() Blank Form 3983C;
(g) Exhibits to Plaintiffs Verified Complaint; and
(h) Internal Revenue Manual sections pertaining to the processing of Form 4506-
A requests.
3
In addition to the foregoing, the United States may support its claims or defenses through
documents the existence of which are not yet known to the United States, including, for
example, documents identified by Plaintiff in its initial disclosures or in response to the
United States' Interrogatories or produced to the United States by Plaintiff in response to
the United States' Requests for Production of Documents. The United States reserves the
right to supplement these disclosures under Fed. R. Civ. P. 26(e) as the need arises.
The referenced documents are either in the possession of the undersigned counsel for the
United States or with the Internal Revenue Service.
3. A computation of each category of damages claimed by the disclosing party-who must
also make available for inspection and copying as under Rule 34 the documents or other
evidentiary material, unless privileged or protected from disclosure, on which each
computation is based, including materials bearing on the nature and extend of injuries
suffered:
The United States does not claim any damages.
4. For inspection and copying as under Rule 34, any insurance agreement under which an
insurance business may be liable to satisfy all or part of a possible judgment in the action
or to indemnify or reimburse for payments made to satisfy the judgment:
Not applicable to this proceeding.
Dated: December 20, 2013
4
KATHRYN KENEALL Y
Assistant Attorney General

PHILIP M. SCHREIBER*
BENJAMIN L. TOMPKINS*
CHRISTOPHER D. BELEN
Trial Attorneys, Tax Division
U.S. Department of Justice
Post Office Box 14198
Ben Franklin Station
Washington, DC 20044
(202) 514-6069 (Mr. Schreiber)
(202) 514-5885 (Mr. Tompkins)
(202) 307-2089 (Mr. Belen)
Fax: 202 514-9868
E-Mail: philip.m.schreiber@usdoj.gov
benjamin.!. tompkins@usdoj .gov
christopher. d. belen@usdoj .gov
-and-
5
DANA J. BOENTE
ACTING UNITED STATES ATTORNEY
David Moskowitz
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3845
Fax: (703) 299-3983
E-Mail: david.moskowitz@usdoj.gov
Attorneys for the United States of America
* Admitted pro hac vice
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on December 20, 2013, I served the foregoing Initial
Disclosures on counsel of record below by electronic mail and U.S. Mail addressed as follows:
Jason Brett Torchinsky
Holtzman Vogel Josefiak PLLC
45 North Hill Drive
Suite 100
Warrenton, VA 20186
540-341-8808
Fax: 540-341-8809
Email: jtorchinsky@hvjlaw.com
Shawn Toomey Sheehy
Holtzman Vogel Josefiak PLLC
45 North Hill Drive
Suite I 00
Warrenton, VA 20186
540-341-8808
Fax: 540-341-8809
Email: ssheehy@hvjlaw.com
6
CHRISTOPHER D. BELEN, VSB #78281
Trial Attorney, Tax Division
U.S. Department of Justice
Exhibit 10
Government First Discovery
Responses

11016338.2
IN THE UNITED STATES DISTRICT COURT
Alexandria Division

THE NATIONAL ORGANIZATION FOR )
MARRIAGE, INC. )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1225-J CC-IDD
)
THE UNITED STATES OF AMERICA, et al., )
)
Defendants. )
_________________________________________ )

DEFENDANTS OBJECTIONS AND RESPONSES TO PLAINTIFFS
FIRST DISCOVERY REQUESTS

Pursuant to Local Rule 26(C) and Federal Rules of Civil Procedure 33, 34, and 36,
Defendant, the United States of America, through its undersigned counsel, provides the
following responses and objections to Plaintiffs first set of interrogatories, requests for
admission, and requests for production of documents in the above-captioned action. The
responses below incorporate, as if fully set forth in general and for each specific discovery
request, the United States Objections to Plaintiffs First Discovery Requests, dated J anuary 7,
2014. As discovery is ongoing and the Internal Revenue Service (IRS) is searching for
additional documents, the United States will supplement these discovery responses in accordance
with Fed. R. Civ. P. 26(e).

INTERROGATORY OBJECTIONS AND RESPONSES
1. Identify the individual(s) who was/were in any way involved in the inspection,
dissemination and/or disclosure of Plaintiffs return and/or return information as well as the
supervisor(s) of the individual(s).

2

Response: Defendant incorporates its objections dated J anuary 7, 2014 in its response to
this interrogatory. Subject to these objections, Defendant states as follows: Wendy J . Peters is
identified as being involved in the disclosure of Plaintiffs amended 2008 Form 990, Return of
Organization Exempt From Income Tax (Form 990), including an unredacted Schedule B.
Her former immediate supervisor was Ben Aaron J ohanson. The United States also contends
that Matthew Meisel was involved, and that individuals associated with the Human Rights
Campaign (HRC), the Huffington Post, and other news outlets and third parties may have been
involved in the unforeseeable dissemination of Plaintiffs amended 2008 Form 990, unredacted
Schedule B. The United States does not know these individuals supervisors, if any.

2. For each individual(s) identified in Interrogatory Number 1, state all facts and
describe in detail any inspections and/or disclosures of NOMs return and return information,
including the following for each disclosure:
(a) What specific return and/or return information was inspected and/or disclosed;
(b) Where and when such inspection(s) and/or disclosure(s) occurred;
(c) Regarding disclosure(s), to whom was the return and/or return information disclosed;
(d) Regarding disclosure(s), whether and how the disclosure(s) was/were requested;
(e) Which individuals associated with the United States, if any, were consulted or
informed of the inspection(s) and/or disclosure(s);
(f) When any individuals listed in (e), if any, were informed of such inspection(s) and/or
disclosure(s);
(g) Identify all documents and persons with knowledge that tend to support or undermine
your contentions in (a) through (f) above.

3

this interrogatory. Subject to these objections, Defendant states as follows:
(a) The United States has admitted, subject to its legal defenses as stated in its Answer,
that one inadvertent disclosure of Plaintiffs amended 2008 Form 990, unredacted Schedule B
occurred. The United States has denied (and continues to deny) that there were any unauthorized
inspections of Plaintiffs return or return information.
(b) The United States contends that the disclosure occurred on or around March 14, 2011
when the return was sent out from the IRS Ogden Service Center in Ogden, Utah.
(c) The United States contends that Plaintiffs amended 2008 Form 990, unredacted
Schedule B was disclosed to Matthew Meisel.
(d) The United States contends that Matthew Meisel requested Plaintiffs 2008 Form 990
via an IRS Form 4506-A, Request for Public Inspection or Copy of Exempt or Political
Organization IRS Form, around J anuary, 2011.
(e) The United States objects that this information is not reasonably calculated to lead to
the discovery of admissible evidence. Furthermore, the United States avers that it does not know
the exact number of individuals associated with the United States that were informed of the
disclosure because answering this interrogatory would require the United States to expend a
disproportionate and exorbitant number of hours to locate and provide irrelevant information
located in executive agencies offices nationwide in order to determine who was consulted or
informed of the inspection(s) and/or disclosure(s). Moreover, Plaintiffs interrogatory is vague
because it does not delineate whether the individuals were informed of the disclosure from
within the IRS or outside sources, such as media, when such individuals were informed of the
disclosure, or whether Plaintiffs interrogatory includes individuals informed or consulted after

4

the filing of this action. Subject to these objections and the general objections incorporated
above, the United States avers that, after the publication of Plaintiffs amended 2008 Form 990,
unredacted Schedule B in late March and early April 2012 by persons not employed by or
affiliated with the IRS, the following individuals were informed of the disclosure or were asked
to help determine whether a disclosure had been made: agents and employees for the Treasury
Inspector General for Tax Administration (TIGTA); IRS employees listed or otherwise named
in the TIGTA Report of Investigation (ROI), dated October 10, 2012; Sherry Whitaker, Robert
Blackwell, David Hamilton, Karl Hinds, Michael Leszcz, Ben Aaron J ohanson, Kelli Graser,
Connie Peek, Debra Scott, J aLynne Archibald, Debbie Bybee, Rhonda Gill, Linda Oram, Stacy
Fisher, Christina DAmico, Roberta Zarin, Lois Lerner, Michelle Eldridge, David Fish, J oseph
Urban, Dawn Marx, Andy Megosh, Laurice Ghougasian, Holly Paz, J oseph Grant, Doble
Gregorio, Maria Hooke, Moises Medina, Richard Daly, Marian Bodart, J ustin Lowe, Thomas
Miller, J udith Kindell, Sharon Light, Christina Navarrete-Wasson, J effrey Cooper, Kevin
Cunningham, Marci Ansley Plyer, Christina Hartman, Shelley Moore, Steven Miller and J .
Russell George. To the extent any other individuals are not listed, and in accordance with Fed.
R. Civ. P. 33(d), the United States incorporates any other individuals listed in the documents
produced in response to Plaintiffs document requests that involve communications pertaining to
the disclosure of Plaintiffs amended Form 2008, unredacted Schedule B.
(f) The United States objects that this information is not reasonably calculated to lead to
the discovery of admissible evidence. Subject to these objections and the general objections
incorporated above, individuals associated with the United States were informed on various dates
of the disclosure of Plaintiffs amended 2008 Form 990, unredacted Schedule B, beginning on or
around April 5, 2012.

5

(g) The United States identifies the TIGTA ROI, dated October 10, 2012, in support of its
contentions, the relevant sections of the Internal Revenue Manual (IRM) that identify the
applicable policies, and the IRS database history indicating approximately when the Letter
3983C, EO Photocopy Request Response, at issue was processed in March 2011. The United
States will identify additional responsive documents if and when they are produced. Individuals
with knowledge in support of the United States contentions include individuals listed or
identified in (i) the TIGTA ROI, (ii) documents produced by HRC and Matthew Meisel, (iii) the
United States initial disclosures, and (iv) in response to subpart (e) of this interrogatory.

3. Please state with specificity all facts and identify all documents that tend to
support or undermine your contention that the disclosure of Plaintiffs return and/or return
information was inadvertent and limited to one occurrence. See Answer, 105-08.
this interrogatory. Subject to these objections, Defendant states as follows with regard to
documents: The United States identifies the TIGTA ROI in support of its contentions, the
relevant sections of the IRM that identify the applicable procedures and policies governing the
disclosure, and the documents pertaining to the processing of and response to the Form 4506-A
at issue (including when the responding RAIVS (Return and Income Verification Services)
clerk entered a command into the IRS database system used by RAIVS clerks to instruct the
system to prepare a 3983C letter). The United States will identify additional responsive
documents if and when they are produced. With regard to the facts and in addition to the United
States J anuary 7, 2014 objections, the United States objects to this interrogatory as unduly
burdensome because it demands that Defendant prove a negative that more than one

6

disclosure occurred. Plaintiff bears the burden of demonstrating that more than one disclosure
occurred. Facts that support or undermine the United States contentions are included in the
TIGTA ROI and the applicable documents pertaining to the processing of requests for Plaintiffs
Form 990. Furthermore, as the United States is still developing its defense of this case, the list of
facts in support of its contentions is necessarily incomplete. Subject to those statements, the
United States contends that the following facts support that the sole disclosure in this case was
inadvertent for the following reasons, among others:
(a) the diagonal watermark on the excerpted version of Plaintiffs amended 2008
Form 990, unredacted Schedule B that was included in Plaintiffs Verified
Complaint in this case, and which was disclosed by the IRS and later allegedly
disseminated by the Human Rights Campaign and the Huffington Post
(100560209), is a unique identifying number created as a watermark by the
IRS database system that indicates the specific IRS employee who accessed
Plaintiffs amended 2008 Form 990 on a specific date and time in response to a
Form 4506-A;

(b) that identifying number is never repeated and is embedded into the tax return
when it is accessed and caused to be printed out by the IRS employee;

(c) querying the IRS database regarding that unique identifier revealed that a low-
level IRS RAIVS clerk properly accessed Plaintiffs amended 2008 Form 990,
including the unredacted Schedule B, in J anuary 2011 and printed it in order to
respond to a completed IRS Form 4506-A;

(d) the IRS had properly scanned two versions of Plaintiffs amended 2008 Form 990
one with a redacted Schedule B and one with an unredacted Schedule B
into the IRS database;

(e) at the time of the disclosure, the IRS clerk who inadvertently disclosed the
unredacted Schedule B from Plaintiffs amended 2008 Form 990 was not aware of
Plaintiffs mission, its viewpoint, its agenda, or its officers;

(f) there are no facts that support that the IRS clerk was directed, instructed, bribed,
coerced, blackmailed, or otherwise influenced by anyone to release Plaintiffs
amended 2008 Form 990, Schedule B without the proper redactions;

(g) the IRS clerk does not recall the request for Plaintiffs 2008 Form 990, nor does
she recall processing the request;


7

(h) the IRS clerk has denied intentionally disclosing Plaintiffs amended 2008 Form
990, Schedule B without the proper redactions;

(i) at the time of the disclosure, the IRS clerk did not know Matthew Meisel, Kevin
Nix, Sam Stein, anyone at the Human Rights Campaign (HRC) or the
Huffington Post, or Fred Karger;

(j) at the time of the disclosure, the clerk did not know any of the other individuals
Plaintiff identified to TIGTA as persons who disagree with Plaintiffs mission;

(k) at the time of the disclosure, the IRS clerk was processing a substantial majority
of the approximately 100 to 300 requests for copies of Form 990s the IRS
received per week;

(l) the IRS Wage and Information Division (W & I) unit tasked with responding to
requests for Form 990s the W & I RAIVS unit located in the Ogden, Utah IRS
Service Center processed over approximately 11,000 Form 4506-A requests in
2010 and over approximately 13,000 Form 4506-A requests in 2011;

(m) at the time of the disclosure and through the time of the TIGTA investigation
leading to its ROI dated October 10, 2012, the IRS W & I Ogden Accounting
Operations Quality Review unit, which reviewed RAIVS unit completed work
related to the IRS production of copies of Form 990s, had never detected errors
with regard to the IRS clerk who disclosed Plaintiffs amended 2008 Form 990,
unredacted Schedule B;

(n) before responding to Mr. Meisels request for the Form 990, the IRS clerk
contacted an IRS media relations specialist to determine whether Mr. Meisel was
a member of the media, which he claimed to be when he completed and filed the
IRS Form 4506-A;

(o) before responding to Mr. Meisels request for a copy of Plaintiffs Form 990 and
after she printed both copies of the original and the amended versions of
Plaintiffs 2008 Form 990s, the IRS clerk waited over a month for the IRS media
relations specialist to determine that Mr. Meisel was not a member of the media;

(p) the IRS clerk e-mailed the IRS media relations employee a total of five times
between J anuary and March, 2011, waiting for a determination of Mr. Meisels
status as a member of the media;

(q) Mr. Meisel also requested Plaintiffs 2007 Form 990, which the IRS produced at
the same time as its amended 2008 Form 990, in March 2011;

(r) in J anuary, 2011, the IRS clerk printed both versions of Plaintiffs 2008 Form
990, including an unredacted Schedule B, at a printer located within the RAIVS
unit;

8

(s) after printing Plaintiffs amended 2008 Form 990 in J anuary 2011, the IRS clerk
failed to redact the names and addresses of Plaintiffs contributors, even though
redacting that information was her responsibility and normal practice and
procedure, and was required to satisfy the Internal Revenue Code and the IRS
policies and procedures;

(t) the IRS clerk did not produce to Mr. Meisel a copy of Plaintiffs original 2008
Form 990, a tax return that included a Schedule B that listed more donors than the
Schedule B attached to Plaintiffs amended Schedule B;

(u) the IRS clerk caused the IRS systems to create a Form 3983C letter, which is a
typical letter used in responding to Form 4506-A requests;

(v) the IRS clerk did not mail the copy of Plaintiffs Forms 990 that were produced to
Mr. Meisel. The IRS clerk sent photocopied Forms 990 to the CRX unit, which
was responsible for assembling photocopied tax forms together with 3983C letters
responding to the persons requesting the copies. A 3983C letter was printed at the
Ogden Service Center print center in response to an instruction entered into the
IRS database system and sent to CRX, where it was assembled with the relevant
photocopied Forms, and put out for picking up by IRS mail clerks and mailed;

(w) the IRS produced a 3983C letter and the 2007 Form 990 and amended 2008 Form
990 in response to a Form 4506-A request;

(x) the actual disclosure of Plaintiffs amended 2008 Form 990, unredacted Schedule
B to Mr. Meisel occurred in or around March, 2011, a year before the disclosure
became widely known and a year before the Schedule B information was
unforeseeably publicized and disseminated by HRC, the Huffington Post, and
Fred Karger;

(y) the Internal Revenue Service responded to three subsequent Form 4506-A
requests for Plaintiffs Form 990s in August, September and December 2011,
including two by the clerk who inadvertently disclosed the Form 990 at issue,
and properly redacted the names and addresses of Plaintiffs contributors; and,

(z) the Internal Revenue Service played no part in any effort by any third parties,
including Mr. Meisel, HRC, or the Huffington Post, to obscure the unique
identifiers located on the Schedule B that Plaintiff allegedly uncovered through its
investigation.


9

4. Please state with specificity all facts and identify all documents that tend to
support or undermine your contention that the United States did not engage in any unauthorized
inspections. See Answer, 112.
this interrogatory. Specifically, Defendant states that Interrogatory 4 is unduly burdensome
because it demands that Defendant prove a negative. Plaintiff bears the burden of proving that
Defendant engaged in any alleged unauthorized inspection but has asserted no facts supporting
such a contention. Subject to and without waiving its objections, the United States states that the
IRS clerk properly inspected Plaintiffs 2007 and 2008 Form 990 in order to respond to Matthew
Meisels Form 4506-A request.

5. Please identify each and every individual or entity who was an employee,
contractor or vendor of or to the United States that conducted any kind of analysis (including
computer and/or forensic), investigation (whether internal or conducted by a third party), created
any report, conducted any interviews or provided any presentations to the United States relating
to the disclosure and/or inspection of NOMs return and return information or this lawsuit, and
identify all documents relating to the same.
this interrogatory. Subject to these objections, Defendant states as follows: The United States
identifies the TIGTA ROI in support of its contentions, and will identify additional responsive
documents if and when they are produced. Subject to those statements, the United States
identifies the following individuals and entity in response to this interrogatory: TIGTA and
agents of TIGTA, as identified in the TIGTA ROI; IRS employees identified in the TIGTA ROI,

10

and individuals identified in the documents produced in response to Plaintiffs document
requests.

6. Identify and describe Internal Revenue Service policies concerning the handling
of requests for confidential tax information, including procedures regarding redactions.
this interrogatory. Subject to these objections, Defendant states that IRS policies concerning the
handling of requests for Exempt Organizations Form 990s, including the procedures regarding
redactions, will be produced in response to Plaintiffs request for production of documents.
These documents include 26 U.S.C. 6103 & 6104 (including their applicable regulations);
IRM sections 3.20.12 (Imaging and Perfecting Exempt Organization Returns for Public and
Internal Viewing), 3.20.13 (Exempt Organization Photocopy Procedures), 11.3.9 et seq.
(Disclosure of Official Information Exempt Organizations), Form 4506-A, 3983C letters, and
other general documents that outline the scanning and processing of Exempt Organizations
Form 990s. Examples of these documents exist in the United States production. These IRM
sections describe the applicable policies and procedures concerning how the IRS processes,
responds to and retains Form 4506-A requests. Furthermore these IRM sections describe the
redacting of a Form 990 Schedule B when an exempt organization tax return is filed with the
IRS. Finally, the sample Forms 4506-As and 3983C letters provide examples pertaining to the
forms requesting and documents accompanying an IRS production of copies of Forms 990.

7. Identify all persons who provided training relating to the disclosure of return
information to any individual(s) identified in response to Interrogatory Number 1.

11

this interrogatory. Subject to these objections, Defendant states as follows: The United States
identifies the following IRS individuals in response to this interrogatory: Marylou Andrews
(ret.) provided on-the-job training, including on the relevant governing IRM provisions, to
Wendy Peters relating to the photocopying and disclosure of return information. Computer
training on disclosure and privacy issues was provided by the centralized IRS Training
department. Various individuals, including RAIVS employees, provided on-the-job training to
Ben Aaron J ohanson.

8. Identify the date, type and nature of training provided to any individual(s)
identified in Interrogatory Number 1.
this interrogatory. Subject to these objections, Defendant states that Wendy Peters was provided
on-the-job training, a W & I February, 2009 training regarding the procedures for processing tax
form transcript requests received through the Income Verification Express Service (IVES)
program, in addition to learning about the protocols detailed in the Internal Revenue Manual,
through on-the-job training and experience gained from preparing numerous responses to Form
4506-A requests. IRS computerized trainings on disclosure and privacy issues were provided on
September 22, 2008, and on information security on April 21, 2009, and April 13, 2010.
Documents regarding training are being produced by the government.


12

9. Identify all persons within the Department of the Treasury and/or the Internal
Revenue Service, who communicated, either internally or externally, regarding Plaintiff and the
inspection and/or disclosure of Plaintiffs confidential return and/or return information.
this interrogatory. Defendant specifically objects to the overly broad and unduly burdensome
request for information regarding Plaintiff, as applied to any communication, internally or
externally, by all persons within two large government agencies with tens of thousands of
employees, in the context of this case, which pertains to a lone, inadvertent disclosure of tax
return information. As such, the Defendant would be required to expend an exorbitant number
of hours to locate and identify all individuals in offices nationwide in order to determine who
may have communicated with anyone regarding Plaintiff and the inspection and/or disclosure of
Plaintiffs confidential return and/or return information. Moreover, Defendant objects because
this interrogatory is irrelevant and not reasonably calculated to lead to the discovery of
admissible evidence. Subject to these objections, Defendant states that IRS and TIGTA
employees listed in the TIGTA ROI, as well as individuals listed in response to subpart (e) of
Interrogatory 2 and other individuals identified in the documents produced in response to
Plaintiffs document requests, communicated about Plaintiff after the publishing of Plaintiffs
amended 2008 Form 990, Schedule B and as it related to the disclosure of its amended 2008
Form 990, Schedule B.

10. Identify all Internal Revenue Manual [sic] Treasury Regulations, Delegation
Orders, Treasury Orders, Treasury General Counsel Orders, General Counsel Memoranda, Chief

13

Counsel Advice, Internal Revenue Bulletins, Revenue Procedures, and Technical Advice
Memoranda, relating to the inspection and the disclosure of returns or return information.
Response: Defendant objects to Interrogatory 10 as unduly burdensome because
Plaintiff has equal access to public documents that may be responsive to Plaintiffs request.
Plaintiff seeks those materials that Defendant believes relat[e] to the inspection and the
disclosure of returns or return information, and, therefore, Defendant objects because
Interrogatory 10 seeks attorney work product and it requires Defendants counsel to conduct
legal research for Plaintiff, which is not proper under Fed. R. Civ. P. 33. Subject to and without
waiving these objections, the Defendant identifies the following materials that concern the
disclosure of return information under 26 U.S.C. 6103, 6104: portions of the Code of Federal
Regulations, including, 26 C.F.R. 301.6103(a)-1, 301.6103(a)-2, 301.6103(c)-1,
301.6103(h)(2)-1, 301.6103(1)-1, 301.6103(j)(1)-1, 301.6103(j)(1)-1T, 301.6103(j)(5)-1,
301.6103(k)(6)-1, 301.6103(k)(9)-1, 301.6103(l)-1, 301.6103(l)(2)-1, 301.6103(l)(2)-2,
301.6103(l)(2)-3, 301.6103(l)(14)-1, 301.6103(m)-1, 301.6103(n)-1, 301.6103(n)-2,
301.6103(p)(2)(B)-1,301.6103(p)(4)-1, 301.6103(p)(7)-1; 26 C.F.R. 301.6104(a)-1,
301.6104(a)-2, 301.6104(a)-3, 301.6104(a)-4, 301.6104(a)-5, 301.6104(a)-6, 301.6104(b)-1,
301.6014(c)-1, 301.6104(d)-0, 301.6104(d)-1, 301.6104(d)-2, 301.6104(d)-3; 26 C.F.R.
601.702; IRM sections 3.5.20, 3.11.12, 3.20.12, 3.20.13, and 11.3.1 et seq. (specifically 11.3.9),
and others cited in response to Interrogatory 6, above. In addition, the Disclosure and Privacy
Law Reference Guide, Publication No. 4639, Catalogue No. 50891P, a publication of the IRS,
Office of Chief Counsel, Procedure & Administration, is made available to the public at
www.irs.gov. In particular, Chapter 13, Part III, of that publication addresses Publicity of
Information Required From Certain Exempt Organizations I.R.C. 6104.

14

11. If the documents in response to any of these interrogatories or requests for
production are in the possession of a third party, and you are not providing them in response to
any of the document production requests, please identify the third party and which document(s)
it possesses.
Response: The United States identifies Matthew Meisel as a third party that may possess
documents that are responsive to this request. These documents could include the Form 4506-A
Mr. Meisel submitted to the IRS, the 2007 and 2008 Form 990s he received from the IRS and the
3983C letter that accompanied the IRS response.

12. Please identify all individuals who assisted in and/or conferred with you in the
preparation of the responses to these interrogatories, the requests for production of documents
and the requests for admission.
Response: Defendant objects to Interrogatory 12 to the extent it seeks information that is
subject to the attorney-client privilege, protections of the attorney work-product doctrine, or the
law enforcement investigative privilege. Subject to these objections, Defendant states that
counsel for the United States, counsel for the Internal Revenue Service and counsel for TIGTA
assisted in or were conferred with regarding the preparation of Defendants responses to
Plaintiffs first set of discovery. Beyond those individuals and the individuals who provided
counsel with copies of the documents in their possession and/or control, the following
individuals assisted in or were conferred with in the preparation of the responses to Plaintiffs
first set of discovery: Karl Hinds, J aLynne K. Archibald, Christina L. Navarrete-Wasson, Connie
Peek, and Sherry Whitaker.


15

13. If you do not provide an unqualified admission in response to all of the requests
for admission below, separately for each request for admission, state all facts and identify all
persons with knowledge and documents that support your response.
Response: To the extent the United States does not provide an unqualified admission,
the facts, individuals, and documents in support of its response are listed for each request,
respectively.

DEFENDANTS OBJECTIONS AND RESPONSES TO SPECIFIC REQUESTS FOR ADMISSION
1. Please admit that NOMs 2008 Schedule B that was published on the Human
Rights Commission and the Huffington Posts websites on March 30, 2012 is identical to the
version that was disclosed by the United States.
this request for admission. Subject to those objections, the United States responds as follows:
the United States is unable to admit or deny based upon a diligent inquiry. The United States
does not have the exact document that was produced to Matthew Meisel and does not know what
was published on the Human Rights Campaign and the Huffington Posts websites on March 30,
2012. The United States admits that the unique identifying diagonal watermark on the excerpted
page from Plaintiffs amended 2008 Form 990 attached to Plaintiffs Verified Complaint and
that Plaintiff alleges was redacted from the amended 2008 Form 990, Schedule B, which
currently exists on the Huffington Posts website matches a copy of a page from Plaintiffs
amended 2008 Form 990, Schedule B that the IRS inadvertently disclosed. The United States
will supplement this response in accordance with Fed. R. Civ. P. 26(e) to the extent necessary.


16

2. Please admit that every retrieval of a Form 990 from the IRS internal computer
systems is logged, tracked, and traceable to a specific employee, vendor or contractor.
Denied. The United States admits that, except for qualified systems administrators, every access
of Plaintiffs amended 2008 Form 990 from the IRS database named Online SEIN or OL-SEIN
(Statistics of Income Exempt Organizations Return Image Network) is logged and traceable to a
specific date, time, and IRS employee.

3. Please admit that accessing the IRS internal computer systems containing
complete unredacted Form 990s requires one or more log-in steps that any person seeking access
to such files must follow.
Denied as written. The United States admits that IRS employees must have specific permissions
to log into particular systems. Access to a complete, unredacted Form 990 requires authorized
IRS employees, except qualified and authorized systems administrators, to properly login using
several steps before being able to view an unredacted Form 990.

4. Please admit that the donor information contained on Schedule B of Form 990 is
confidential taxpayer information.

17

Denied. The United States admits that the names and addresses of contributors reported on
Plaintiffs amended 2008 Form 990, Schedule B is protected by 26 U.S.C. 6103.

5. Please admit that the release of the unredacted Schedule B to third parties did not
follow normal IRS internal procedures for responding to requests for Form 990s.
Denied as written. The United States admits that the IRS clerk who processed the request for
Plaintiffs amended 2008 Form 990 normally would have redacted the names and addresses
contained on the Schedule B before she sent the Form 990 out to any third party in accordance
with the Internal Revenue Code and the relevant sections of the Internal Revenue Manual as
outlined in response to Interrogatory Numbers 6 and 10, and inadvertently failed to do so.

DEFENDANTS OBJECTIONS AND RESPONSES TO SPECIFIC REQUESTS FOR PRODUCTION
1. All documents regarding the IRSs disclosure and/or inspection of NOMs return
and return information (including its 2008 Form 990, Schedule B), including documents relating
to the Treasury Inspector General for Tax Administration's (TIGTA) Complaint Number 63-
1204-0051-C, as well as internal and external communications.
this request for production. Subject to those objections, the United States responds that it is
producing responsive, relevant and non-privileged documents along with these responses and
objections, and that it will supplement its production of such documents to the extent additional

18

responsive, relevant and non-privileged documents are located, and in accordance with the
Federal Rules of Civil Procedure or this districts Local Rules.

2. All documents constituting communications to or from any individual working at
the Department of the Treasury and/or the Internal Revenue Service-including but not limited to
political appointees, employees, anyone within the Treasury Inspector Generals Office and
independent contractors-relating to the inspection and/or disclosure of Plaintiff's return and
return information. The communications sought are both internal communications within either
the Internal Revenue Service or the Department of the Treasury and external communications
between a person within either the Department of the Treasury or Internal Revenue Service and
someone outside either agency, including but not limited to: reporters, persons working for other
government agencies, other branches of the federal government including Congressional
Committees, representatives of the national political parties, political candidates, elected federal
officials, persons at non-profit entities, etc.

3. All documents including and relating to training materials, written procedures, or
other instructions concerning the review of requests for information about tax exempt

19

organizations that were provided to any individual(s) identified in response to Interrogatory
Number 1, above.

4. All documents containing any written instruction, formal or informal, by any
individual working at the Department of the Treasury and/or the Internal Revenue Service-
including but not limited to political appointees, employees, anyone within the Treasury
Inspector Generals Office and independent contractors -- relating to the processing, screening,
review and/or scrutiny of Form 990s based on the taxpayers political viewpoint, associate [sic]
or affiliation or other categorization based on perceived public policy viewpoint by the taxpayer.
this request for production.

5. Produce the Treasury Inspector Generals Report concerning the investigation
into the disclosure of Plaintiffs return and/or return information, along with any supporting
materials.

20


6. Produce copies of all requests, if any, the IRS or Department of Treasury received
for Plaintiffs Form 990 tax return and any response provided to any such requestor.
this request for production. Subject to those objections, the United States responds that, at the
time of the events at issue, pursuant to then-operative IRS procedures, Forms 4506-A and letter
requests for copies of Forms 990 were retained by the IRS for 45 days after work on the request
was finished. Therefore, despite a diligent search, it has not located any documents that are
responsive and relevant to this request.

7. Produce internal tracking documents reflecting the aggregate number of FOIA or
other public information requests for Form 990s received and processed by the individuals
identified in Interrogatory 1 that includes the number of requests received, the number of
documents produced, the number of documents from which they properly removed confidential
information before releasing any such properly requested document, the number of no
information or denials provided, and statistics showing the average length of time for
processing these various requests.
this request for production. Subject to those objections, the United States responds that pursuant

21

to IRS procedures operative into 2013, Forms 4506-A and letter requests for copies of Forms 990
were retained by the IRS for only 45 days after work on the request was finished and then
destroyed. Therefore, despite a diligent search, Forms 4506-A or other requests for production
of Forms 990 for earlier time periods could be not located. The United States further responds
that it is producing responsive, relevant and non-privileged documents along with these
responses and objections, and that it will supplement its production of such documents to the
extent additional responsive, relevant and non-privileged documents are located, and in
accordance with the Federal Rules of Civil Procedure or this districts Local Rules.

8. Produce any correspondence within or between the IRS and the Department of
Treasury or other government agencies or between the Executive and Legislative branches
regarding the inspection and/or disclosure of Plaintiffs return and/or return information,
including any correspondence related to the post-release internal investigation.

9. Produce copies of any standard cover letters prepared for use by the Exempt
Organizations Division that accompany the provision of any records or denial of production of

22

any records or the redaction of any confidential portions of such records, and any documents
reflecting instructions for use of such cover letters.
producing responsive, relevant and non-privileged documents including sample 3983C letters
along with these responses and objections, and that it will supplement its production of such
documents to the extent additional responsive, relevant and non-privileged documents are
located, and in accordance with the Federal Rules of Civil Procedure or this districts Local
Rules.

10. Produce copies of all signoff sheets, tracking devices, or documents related to any
computer system access control and monitoring systems identifying those who accessed the
database containing Plaintiffs confidential return and return information.

11. Produce copies of all signoff sheets or tracking devices involved in tracking the
response to the information request, if any, including the request referenced in Defendants
initial disclosure, that allegedly led to the release of Plaintiffs confidential return and return
information.

23


12. All documents regarding any referral to the Department of J ustice and/or any of
its components by the IRS or TIGTA (or any other federal agency or employee) for investigation
of the inspection and/or disclosure of NOMs return and return information (including its 2008
Form 990, Schedule B).
this request for production. Subject to those objections, the United States responds that the
United States is producing the letter from the Department of J ustice to Wendy Peters included
with the ROI.

13. All documents regarding the decision of the Department of J ustice and/or any of
its components to charge or not charge any individual(s) in connection with the inspection and/or
disclosure of NOM's return and return information (including its 2008 Form 990, Schedule B).
this request for production. Subject to those objections, the United States responds that the
United States is producing the letter from the Department of J ustice to Wendy Peters included
with the ROI.

14. All documents that relate to your admission, whether supporting or undermining,
that the IRS engaged in one inadvertent disclosure. See Answer, 105-08.

24


15. All documents that relate to your contention, whether supporting or undermining,
that the IRS engaged in no unauthorized inspections. See Answer, 112.

16. All documents constituting communication between or among any employee,
contractor or vendor of the United States and any third party (including, but not limited to
Matthew S. Meisel or his counsel, the any officer, employee or vendor of or to Human Rights
Campaign or its counsel, J eremy Hooper, Mr. Fred Karger) that relate to this lawsuit, the IRSs
inspections and/or disclosures of NOMs return and return information (including its 2008 Form
990, Schedule B).

25


17. All documents identified or referenced in response to NOMs interrogatory
requests, and all documents to which you referred or otherwise used as a basis for responding to
any of the interrogatory requests, whether or not specifically identified or referenced.

18. All documents that relate to any factual claim or allegation made in your Answer,
whether the document(s) support or undermine the factual claim or allegation.

26


19. All documents you intend to rely on at trial.

11016338.2
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on J anuary 27, 2014, I served the foregoing Objections and
Responses to Plaintiffs First Discovery Requests on counsel of record below by electronic mail
and by U.S. Mail addressed as follows:

J ason Brett Torchinsky
Holtzman Vogel J osefiak PLLC
45 North Hill Drive
Suite 100
Warrenton, VA 20186
540-341-8808
Fax: 540-341-8809
Email: jtorchinsky@hvjlaw.com

/s/ Philip Schreiber
PHILIP M. SCHREIBER
Trial Attorney, Tax Division
U.S. Department of J ustice


Plaintiff

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