No, not Ado Annie’s line from Rodgers’ & Hammerstein’s “no legs, no jokes, no chance” musical that saved the Theatre Guild. No, this was The Judge Who Writes Like a Human Being, a/k/a The Great Dissenter, s/a/k/a The Implacable Foe of the Partitive Genitive, Judge Mark V. Holmes, telling IRS that they “cain’t say no” to that diehard whistleblower Kenneth William Kasper, Docket No. 22242-11W, filed 8/19/14.
This is yet another variation on the theme “win your case at discovery”. But first, do you remember Kenneth William? No? Then read my blogpost “The IRS Loses a Doubleheader”, 7/12/11, where some sloppy mailing by IRS keeps Kenneth William in the Hunt for the Gold. And Kenneth William isn’t giving up soon.
Kenneth William wants to check out IRS’ files in a bankruptcy case, whereat IRS may have gotten some boodle based on Kenneth William’s pictures, descriptions and accounts of corporate and individual skullduggery.
IRS says no, but Judge Holmes gets the parties on the horn (a great fan of teleconferencing, he), and as they stick to their positions, Judge Holmes, recognizing the law is, in his words, “uncertain”, calls for briefs.
Well, Kenneth William comes out swinging.
“A review of their briefs shows that a major issue in the case is whether the record rule applies in whistleblower cases. It is a strong possibility that this Court will find that it does, and it is also quite possible that the documents that Mr. Kasper seeks will not be in that administrative record. But one of the ways in which a litigant in a case governed by the record rule gets a trial is if he alleges that something is missing from the record that ought to be there – such as whether an agency ‘has considered all relevant factors and explained its decision.’ Tri-Valley CAREs v. U.S. Dept. of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012). This makes discovery – particularly a very pointed and well-described request like Mr. Kasper’s – useful and available.” Order, at p. 1.
For those who tuned in late, the record rule, much beloved by, among others, Ninth Circuit (and trial is set for Phoenix, AZ, Ninth Circuit country), is the contrapositive of the Yellow Pages’ famous slogan: “If it’s not in here, it’s not out there”.
In “record rule” jurisdictions, the courts review agency determinations based upon the record before the agency at the moment of determination. “All thy piety and wit”, as the Persian bard put it, cannot change a line of it, either by addition or subtraction. If the parties are unhappy with the proffered record, they must say so.
So hand it over, IRS, right after Labor Day.
Takeaway for whistleblowers and their representatives: Get the discovery demand that Kenneth William put together and govern yourselves accordingly.