390 F. Supp. 3d 84
D.C. Cir.2019Background
- Cause of Action Institute (CoA Institute) submitted two FOIA requests in June 2016 seeking communications and records exchanged between the IRS and the Joint Committee on Taxation (JCT) from Jan. 21, 2009 to present.
- IRS refused to produce responsive records, asserting they are non-agency "congressional records" not subject to FOIA; Appeals Office affirmed denial.
- CoA Institute sued under FOIA seeking an order compelling production of "agency records" allegedly withheld improperly.
- IRS moved to dismiss under Fed. R. Civ. P. 12(b)(1), arguing the court lacks subject-matter jurisdiction because the requested documents are not "agency records" within FOIA and thus outside the United States' waiver of sovereign immunity.
- The Court treated the question as a merits challenge (or, alternatively, as a Rule 12(b)(6) sufficiency question), concluded the jurisdictional framing was incorrect, and denied the IRS's motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether characterization of records as "agency records" is a jurisdictional threshold | CoA Institute: §552(a)(4)(B) "jurisdiction" refers to remedial power; characterization is a merits issue and pleading was sufficient | IRS: If records are not "agency records," FOIA's waiver of sovereign immunity and court jurisdiction do not apply; thus dismissal under Rule 12(b)(1) is proper | Court: Characterization is a merits/factual issue, not subject-matter jurisdiction; Rule 12(b)(1) dismissal inappropriate |
| Proper procedural vehicle for resolving "agency records" question | CoA Institute: Court should decide under Rule 12(b)(6) or later on summary judgment; pleadings sufficient | IRS: Motion properly brought under Rule 12(b)(1) to allow consideration of evidence outside complaint | Court: Construed IRS motion as a Rule 12(b)(6) challenge and found CoA Institute's complaint plausibly alleges a FOIA claim |
| Burden of proof on whether records are "agency records" | CoA Institute: Agency bears burden at merits stage to show records are not agency records | IRS: Framing as jurisdictional would shift burden to plaintiff to prove subject-matter jurisdiction | Held: Agency bears burden; treating issue as jurisdictional would improperly shift burdens; existing law places burden on agency |
| Whether court may consider agency declarations at pleading stage to decide jurisdiction | CoA Institute: Facts in complaint accepted as true; evidentiary disputes appropriate for summary judgment | IRS: Declarations show JCT intends communications to be congressional records; court may look beyond complaint on 12(b)(1) | Court: Although a court may look outside the complaint on 12(b)(1), IRS's dispute is factual and merits-based; such factual disputes should be resolved at summary judgment stage, not by dismissal for lack of jurisdiction |
Key Cases Cited
- Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 566 F.3d 219 (D.C. Cir.) ("agency" status is a merits issue; dismissal should be under Rule 12(b)(6))
- Main St. Legal Servs., Inc. v. Nat'l Sec. Council, 811 F.3d 542 (2d Cir.) (§552(a)(4)(B) "jurisdiction" refers to remedial power; "agency" question is not subject-matter jurisdiction)
- Bureau of Nat'l Affairs v. U.S. Dep't of Justice, 742 F.2d 1484 (D.C. Cir.) (describing FOIA prerequisites: improperly withheld "agency records")
- U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (Sup. Ct.) (burden is on agency to demonstrate materials are not agency records/improperly withheld)
- Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (Sup. Ct.) (distinguishing statutes that use "jurisdiction" to mean remedial powers from subject-matter jurisdiction)
- Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208 (D.C. Cir.) (analyzing "agency records" issue on the merits via summary judgment)