In Uncategorized on 09/28/2021 at 16:24

A correspondent advises me that the Genius Baristas belatedly posted all 72 (count ’em, 72) pages of Judge James S (“Big Jim”) Halpern’s takedown of Whistleblower 14377-16W, 2021 T. C. Memo. 113*, filed 9/27/21, today, as I had missed it when they posted it late yesterday. Well, since 3:00 p.m., Eastern time came and went before I posted at 3:40 p.m. yesterday, I am hardly put out of countenance by this much-belated publication.

Judge Big Jim, clearly vexed by DC Cir’s right-about-face when he tried to blow the cover of A. Nonymous, Serial Blower (see my blogpost “A.Nonymous, Serial Blower – Anonymous,” 7/23/19), has a full-dress trial, wherein he blows up A’s claims of physical, economic, marital, and reputational harm (want of specificity on all counts), and, bowing to the protection of innocent third parties, deals likewise with Mrs. A and her business.

The key is whether the public’s interest in knowing who’s clogging the courts is weakened by the need to protect. A class representative’s identity isn’t important when the class comprises a multitude. Where the plaintiff (petitioner)(blower) is a one-off, harm from disclosure has to be shown beyond annoyance. As the hockey players say, “step on the ice and you’re gonna get hit.” But getting roughed, cross-checked, high-sticked, boarded, or speared is something else, and that won’t be assumed. No hurt, no cover.

A. is light on facts.

As IRS wants summary J, we’re back to Van Bemmelen; the record rule rules. In the usual case, if a material fact is disputed, there has to be a trial. But whistleblower cases go off on abuse-of-discretion, and the administrative record is “all ye know on earth and all ye need to know,” as a much finer writer than I put it. A. sinks himself by asking for discovery; if you want to supplement the record, you must specify what was left out. As for suppression or concealment by the agency, you must specify what was thus hidden. Conspiracy theories don’t get it. IRS wins; no payday for A.

Judge Big Jim promises us an appropriate decision and order. Will it feature A. Nonymous unmasked? Even if it does, won’t the Genius Baristas seal it anyway? So A. Nonymous remains A. Nonymous.

*Whistleblower 14377-16W 9 28 21


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