*1 return prepared. 1977 tax Petitioner independent had no income of her own required which would have that she file a separate return. Therefore, peti hold we particular tioner did not intend tax own, return only- to be her because the petitioner return intended to file was a husband,
joint signed her return and the return, party sign failure of either to sign petition authorize someone it for er, renders it as to petitioner. invalid Since the Tax other did not Court consider these factors, we find that the Tax Court clearly determining was petitioner erroneous joint intended to file this return. above, For the reasons set forth AF- we FIRM the Tax Court with respect to the 1976 tax deficiencies REVERSE with
respect to the 1977 tax deficiencies. This accordingly case is pro- REMANDED for
ceedings consistent opinion. with this
AKRON STANDARD OF DIVISION INDUSTRIES,
EAGLE-PICHER
INC., Plaintiff-Appellee, DONOVAN,
Raymond Secretary of U.S. Labor,
Defendant-Appellant.
No. 84-3650. Appeals, States
United Court Circuit.
Sixth Aug. 26,
Argued
Decided Jan. *2 days for suspended alleged
was for five disobey- and absence from his work station ing by orga- Palmer reacted instructions. nizing a wildcat strike at Lectromelt. He discharged together was then with other strikers. then filed two complaints, Palmer one with and the other the OSHA with (NLRB) National Board Labor Relations asserting Lectromelt had suspended him him in and later had fired retaliation complaint for his and his safety union activ- ity.1 During the course of their several independent investigations, OSHA and witnesses, NLRB interviewed number including Palmer’s former fellow employ- investigator, ees. The OSHA accordance procedures, with usual was allowed access file, including to the NLRB case summaries Sweeney, Atty., Emily testimony M. Asst. U.S. of witnesses interviewed (ar- Cleveland, investigator. Frank A. the Ohio. Rosenfeld Board OSHA declined to Schaitman, prosecute Palmer’s retaliation gued), complaint, Leonard Div., Staff, but the for the Justice, Appellate Wash- General Counsel NLRB Civil accepted complaint pend- his which is still D.C., ington, defendant-appellant. for ing agency.2 with that (argued), Bickett David H. L. James During the course of the NLRB Shaffer, investi- Stephen Spolar, Joondeph B. & gation requested Akron Standard Akron, Ohio, Shaffer, plaintiff-appellee. for investigatory OSHA its entire disclose file WELLFORD, MERRITT and Cir- Before under the Freedom of Information Act CELEBREZZE, Judges; and cuit Senior (FOIA). declined to disclose this Judge. Circuit ground that information on the pending with the NLRB interfere WELLFORD, Judge. Circuit proceedings the and invade of the Palmer, employee to in the file those Hollis at that time an individuals referred Casting Machinery and Com- who furnished information OSHA. Lectromelt (Lectromelt) response appeal, and of the un- to Akron Standard’s the pany chairman committee, (parent complaint agency filed a of Labor safety ion OSHA) documents, Safety and Admin- disclosed a number of Occupational Health file, portions of (OSHA), charging safety but withheld some istration certain Akron, (1) again claiming privacy and interference plant. violations at Ohio investigation, (2) plant with the NLRB inspectors cited the for several agency violations, shortly opinions need to internal Palmer afterward was, anyone drops who time tromelt to reinstate at the of the incidents Lectromelt 11, 1984, here, complaint. April panel of Akron Standard Division of a division NLRB On Industries, Eagle-Picher finding but Standard Akron ALJ’s the NLRB affirmed the discharge. shortly plant after Palmer’s sold suspension for cause but it remanded the Standard, however, remains one Akron case for determination further complaint. parties named in Palmer's NLRB Act, discharge Labor later violated the Relations holding offer the reinstatement did not (ALJ) Judge Law dismissed An Administrative he since turned the moot Palmer's (1) finding suspen complaint, that Palmer’s remand, the ALJ offer On found that down. for cause and was not retaliation sion was lawfully discharged and he has Palmer was (2) activity related or union again appealed to the Board. once discharge propriety now issue over buyers of Lec because of an offer moot (The recommendations and the identities of administrative internal memorandum exemption sources. is not subject confidential appeal.) Labor Shortly before the is- the company’s appeal, its decision on sued I. Employee’s Job Per- Information suit in Akron Standard filed district court 7(C) formance — *3 FOIA, seeking of the under disclosure Secretary contends under of portions the In withheld OSHA file. Exemption 7(C) claimed pri- the individual’s suit, response the of to the vacy interest must against be balanced the by filed an affidavit Sofia Petters Labor P. public’s interest in disclosure. In the Labor, the of the Office of Solicitor of case, noted, present he Palmer claimed that setting history forth of the the case company the against had retaliated him for Department’s justification for with- the its filing safety complaint, despite the em- holding of parts some of the file. She ployee’s right complaint to file a without explained that the full file had located been suffering doing discrimination for so under newly that “the vast of the 11(c) of Occupational Section the Safety discovered documents will be released.” Act, 660(c).3 and Health 29 U.S.C. § added, however, portions She some Secretary deleted por- not would be disclosed. The withheld information which interpreted could be to categories: (1) fell tions into three internal unfavorably upon complainant’s reflect memoranda, for which the performance, performance as well the 552(b)(5); Exemption claimed U.S.C. § others, performance in of terms of the of (2) their Employees work. have an extreme- (which competence gathered was in order ly significant privacy interest in matters disciplined to determine he this____ such as poor job
and dismissed
perform-
public
the
in
As for
ance),
disclosure to
7(C),
for which
Exemption
it claimed
against
privacy interest,
be balanced
this
552(b)(7)(C) (the
5 U.S.C.
law enforce-
§
Secretary’s representative
the
stated:
(3)
exemption);
ment
the identi-
witnesses,
employee
ties of some of the
essentially
here
Plaintiff
has
stated that
given
each whom was
the standard writ-
purpose
the
for which it seeks the infor-
assurance
ten
that his
be
supplement
discovery
mation
to
its
or
confidential,
kept
agency
for which the
use
otherwise
the information in the un-
7(D),
claimed
practice
proceeding
fair labor
currently
552(b)(7)(D).
upon
are
to de-
pending
called
before the NLRB.
Interests
the
propriety
cide
these
two
repeatedly
recog-
latter
such as this have
been
exemptions
appeal
public
claimed
to
court.
to
nized
be
ones and
660(c):
appropriate.
investiga-
3. 29 U.S.C. §
such
deems
tion,
If
(c)(1)
Secretary
provi-
person
any
determines that the
discharge
No
shall
inor
violated,
against any employee
manner
of this
discriminate
sions
subsection have been
he
employee
any
bring
any
because such
appropriate
had filed
com-
shall
an action in
Unit-
plaint or instituted or caused to be instituted
against
person.
ed States district
such
court
any proceeding
chap-
under or related to this
any such
action the United States district
any
testify
ter or has
or is
testified
about to
jurisdiction,
courts
shall have
for cause
proceeding
such
because
or
of the exercise
(1)
paragraph
to
shown
restrain violations
employee
such
on behalf of
others
himself or
appropriate
of this subsection and order all
any right
chapter.
afforded
including rehiring or
relief
reinstatement of
(2) Any employee who
he
believes that
has
employee
position
with
his former
back
discharged
or otherwise discriminated
pay.
against by any person in
of this
violation
(3)
receipt
days
Within 90
of a com-
may,
thirty days
subsection
such
within
after
plaint filed under this subsection the Secre-
occurs,
violation
file a
with the
tary
notify
complainant
of his deter-
shall
Secretary alleging
Upon
such discrimination.
(2)
paragraph
under
of this subsec-
mination
receipt
complaint,
Secretary
of such
shall
tion.
cause such
to be
as he
made
nom.,
Clark,
Kiraly v.
cert. denied sub
weight
given no
accordingly have been
7(C).
104 S.Ct.
80 L.Ed.2d
under
balance
Scientology v.
(1984) (citing
Church
nondis-
public interest
Since “the
(9th
Defense,
by proving
employee-wit-
either
names and
that
statements
other witnesses
provided
ness
category.
information “under an ex-
reiterate,
time,
F.B.I.,
by
agency.
5. We
at the same
claimed
See Brown v.
observation
this court
and others that FOIA is not to
F.2d at
be
merely
private litigant
utilized
of a
benefit
purely personal
reveal
dispute
does not
Akron Standard
government
investigation,
obtained in a
nor do
Ex-
records at issue meet
threshold test for
accept
we
Akron Standard’s
contention that
"investigatory
emption
they be
7 that
records
merely
because the and file
compiled
purposes.”
enforcement
for law
exemption may
proper
is closed that a
552(b)(7).
not be
U.S.C. §
whether,
easy
under the cir-
davit shows that it would be too
must decide
figure
this case to
out who made each
cumstances,
of these witnesses’
production
so few
revealing their names
statement because
witnesses
without
statements
confidentiality
many
of their
involved and because too
were
destroy the
7(D).
unique
would be found in each
Exemption
details
identity under
statement.
acknowledged in re
court
The district
Brief,
Appellant’s
p. 23.
Radowich v.
See
7(D)
that information
spect
(4th
Attorney,
575
Rose, 425
at
to the OSHA have been made public way privacy in no affects Palmer’s No. 84-5961. interest the statements which have not Appeals, United States Court of FBI, Kiraly See public. been made Sixth Circuit. (6th Cir.1984)(“The mere F.2d act testifying at trial therefore should not Argued Oct. open private public disclosure.”); files to Decided Jan. FBI, (2d Brown v. Cir.1981) (“Mr. that, by testifying, Brown’s assertion Shepardson right has waived her
Ms.
privacy is without foundation in law or
logic____ Shep- While it is true that Ms. suppress cannot those
ardson facts which record, public
have a matter of become she right privacy her
retains to other matters.”) majority finally support seeks to its
position by reasoning that “there is no com-
pelling interest” to withhold the informa- 552(b)(7)(C)
tion under Section and that public's interest disclosure con-
“[t]he
cerning agen- the nature and extent of the
cy’s investigation” insignificant. is not problem with these statements is that
they represent balancing between Palm- public’s
er’s interest and the inter- simply
est disclosure. This issue is not
before this Court since the district court any privacy
concluded that Palmer lacked
interest all in at the records. reasons, foregoing
For the I would af- part, part,
firm in reverse in and remand
this case to district court to balance against
interest in disclosure.
