Man wins appeal against the IRS for attorney’s fees for FOIA request of audit

By Yolanda Martinez | Jul 16, 2013

NEW ORLEANS – A man whose motion for attorney’s fees was denied by a district court has won an appeal at the U.S. Court of Appeals for the Fifth Circuit involving his case against the IRS.

After being audited in November 2006 by the IRS, appellant Mark Batton filed a Freedom of Information Act (FOIA) request with the IRS. Nearly a year later, in September 2007, Batton sued after not receiving any response. Subsequently, the Open Government Act took effect, allowing for awards to be issued for attorney’s fees when parties “substantially prevailed.”

The district court decided that Batton was not eligible to get his attorney’s fees covered because he did not “substantially prevail” in his FOIA lawsuit and because he filed a FOIA request before the Open Government Act took effect in December 2007.

The appeals court disagreed, stating that Batton did substantially prevail and is eligible for attorney fees under the Open Government Act.

The opinion states that it was only after Batton filed a FOIA request that the IRS started to produce “a fraction of the responsive,” thus making him “substantially prevail.” The court also decided that since Batton’s FOIA request was not properly served to the IRS until January 2008, technically, all “relevant events took place after the effective date.”

In a per curiam opinion, Circuit Judges Emilio M. Garza, Leslie H. Southwick and Catharina Haynes vacated the district court’s decision and remanded for reconsideration of Batton’s eligibility to receive attorney’s fees.

Case No. 12-20401.

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