When ex-Ch J Michael B (“Iron Mike”) Thornton cut the bases on which a blower might put additional evidence into the administrative record in a Section 7623 whistleblower case from six grounds to three (count ’em, three), he certainly raised the bar.

For more details, see my blogpost “Administering Supplements,” 8/27/20.

And long-time blower Joseph A. (“Fighting Joe”) Insinga, Docket No. 9011-13W, filed 9/23/20, is the first to try to clear it.

Judge David Gustafson lists the grounds: “(1) if the agency deliberately or negligently excluded documents that may have been adverse to its decision; (2) if background information was needed to determine whether the agency considered all the relevant factors; or (3) if the agency failed to explain administrative action so as to frustrate judicial review.” Order, at p. 3.

IRS plays the John Keats gambit; the 4372 Bates-stamped pages before the Court are “all ye know on earth and all ye need to know.”

Judge Gustafson lets Fighting Joe put in whatever he’s got that isn’t in the 4372 pages. However, Fighting Joe has to show they’re not duplicative. “If any of the documents without such Bates numbers that Mr. Insinga has cited and submitted are in fact in that numbered series (but the numbers were not visible in Mr. Insinga’s submission), then he shall provide copies that do bear the numbers.” Order, at p. 4.

And Fighting Joe has to show that each of his documents falls within the ambit of one of the foregoing three grounds.