UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) CAUSE OF ACTION INSTITUTE, ) ) Plaintiff, ) ) v. ) No. 16-cv-2354 (KBJ) ) INTERNAL REVENUE SERVICE, ) ) Defendant. ) )
MEMORANDUM OPINION
In June of 2016, Plaintiff Cause of Action Institute (“CoA Institute”) submitted
two requests to the Internal Revenue Service (“IRS”) under the Freedom of Information
Act (“the FOIA”), 5 U.S.C. § 552 et seq., seeking disclosure of certain communications
and records exchanged between the IRS and the United States Congress Joint
Committee on Taxation (“JCT”) from 2009 until the present. (See Compl., ECF No. 1,
¶¶ 7, 9). The IRS declined to produce any responsive records on the grounds that CoA
Institute was requesting “non-agency Congressional records that are not subject to the
FOIA.” (Id. ¶ 17 (internal quotation marks and citation omitted).) CoA Institute then
filed the complaint in the instant case, which alleges that the IRS has improperly
withheld “agency records” and seeks a Court order requiring the agency to produce the
documents that CoA Institute has requested. (See id. ¶¶ 25–34; see also id., Relief
Requested, at 8.) 1
1 Page-number citations to the documents that the parties have filed refer to the page numbers that the Court’s electronic filing system automatically assigns. Before this Court at present is the IRS’s motion to dismiss CoA Institute’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). (See IRS’s Mot. to
Dismiss, ECF No. 11.) The IRS maintains that this Court lacks subject-matter
jurisdiction to adjudicate CoA Institute’s claim that the agency is violating federal law,
because “to the extent that such records exist,” they “are not ‘agency records’ subject to
the FOIA’s disclosure requirements.” (Mem. in Supp. of IRS’s Mot. to Dismiss
(“Def.’s Mem.”), ECF No. 11-1, at 13.) In this regard, the IRS insists that this Court
cannot exercise jurisdiction over CoA Institute’s improper-withholding claim under the
FOIA unless the Court first determines that the requested documents qualify as “agency
records” for FOIA purposes; in other words, the agency conceives of its challenge to
the character of the records at issue here as one that relates to this Court’s subject-
matter jurisdiction. (See id. (“The Court lacks jurisdiction if the records at issue are not
‘agency records.’”).) For the reasons explained fully below, this Court disagrees. The
Court is confident that the IRS’s not-agency-records challenge is one that pertains to
the merits of CoA Institute’s FOIA claim, rather than this Court’s power to adjudicate
the dispute and grant the requested relief, and the allegations of CoA Institute’s
complaint are more than sufficient to satisfy the minimal pleading requirements that are
applicable to the initial stage of FOIA litigation. Therefore, the IRS’s motion to
dismiss CoA Institute’s complaint under Rule 12(b)(1) for lack of jurisdiction (or
otherwise) must be DENIED. A separate Order consistent with this Memorandum
Opinion will follow.
2 I. BACKGROUND
A. The Underlying Facts 2
The JCT (the oldest joint committee of Congress) is statutorily authorized to
monitor and investigate “the operation and effects of the Federal system of internal
revenue taxes” and “the administration of such taxes by the [IRS] or any executive
department, establishment, or agency charged with their administration[.]” 26 U.S.C.
§ 8022(1)(A), (B). To this end, the JCT routinely corresponds with the IRS concerning
various matters. (See Compl. ¶ 1.) In mid-December of 2015, the IRS introduced
guidance that “requir[ed] the [agency] to treat nearly all JCT-related records as
‘congressional records’ not subject to the FOIA.” (Id. ¶ 6 (internal quotation marks and
citation omitted).) CoA Institute—a “non-profit strategic oversight group” (id. ¶ 4)—
promptly set out to challenge this new edict, which the group believed “contradict[ed]
FOIA jurisprudence relating to the definition of agency records” (id. ¶ 7).
On June 22, 2016, CoA Institute submitted to the IRS the two FOIA requests that
are the subject of the instant case. (See id. ¶¶ 7, 9.) The first request specifically
sought, for the period between “January 21, 2009 to present[,]”
(1) All records transmitted between the IRS and the JCT, and all communications concerning such transmissions, which do not contain a legend restricting their use or dissemination[;]
(2) All communications between IRS Privacy, Governmental Liaison, and Disclosure (“PGLD”) personnel, as well as other affected IRS functions or components, and the JCT concerning any determination to disclose or withhold IRS records that were the subject of a JCT oversight inquiry[;]
2 The facts recited herein are gleaned from Plaintiff’s complaint, and this Court has treated the complaint’s allegations as true for the purpose of resolving the instant motion to dismiss. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007).
3 (3) All records generated or maintained by the IRS in the normal course of its operations that were subsequently provided to the JCT in response to a general oversight inquiry[;]
(4) All records generated or maintained by the IRS in the normal course of its operations that were subsequently provided to the JCT as part of IRS general oversight responsibilities, but which were not provided in response to a JCT inquiry[; and]
(5) All records created by or originating at the JCT but which were provided to the IRS and are maintained by the IRS in any agency records system, including but not limited to the E-Trak Communication and Correspondence tracking system.
(Id. ¶ 7.) 3 CoA Institute’s second FOIA request, which also covered the period between
“January 21, 2009 to the present[,]” sought “[a]ll communications between the IRS and
the JCT containing any one of thirty-eight (38) specifically identified search terms.”
(Id. ¶ 9 (alteration in original; internal quotation marks omitted); see also FOIA
Request, Ex. 3 to Compl., ECF No. 1-3, at 2.)
On August 8, 2016, the IRS categorically denied both FOIA requests, stating,
inter alia, that “any records responsive to either . . . request[], to the extent they exist,
are non-agency Congressional records that are not subject to the FOIA.” (Compl. ¶ 17
(alterations, internal quotation marks, and citation omitted).) CoA Institute
administratively appealed the IRS’s final responses, including the agency’s
determination that the requested records “were non-agency congressional records not
subject to the FOIA” (id. ¶ 19), and the IRS Appeals Office affirmed the agency’s
denial of the FOIA requests on November 22, 2016 (see id. ¶ 23).
3 “In this request, CoA Institute clarified that the IRS should ‘exclude from the scope’ of its search ‘any records concerning 26 U.S.C. §§ 6045, 6405, and 8022(2).’” (Compl. ¶ 8.)
4 B. Procedural History
On December 1, 2016, CoA Institute filed a complaint in this Court alleging that
the IRS’s refusal to search for, and produce, the requested records was improper
because it violated the FOIA. (See id. ¶¶ 25–34.) The IRS filed a motion to dismiss the
complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) on February 21, 2017
(see IRS’s Mot. to Dismiss), and, in so doing, the agency relied on supporting
declarations by Thomas Barthold, who is the JCT’s Chief of Staff (see Decl. of Thomas
A. Barthold, ECF No. 11-2), and Scott Landes, who is a Supervisory Management and
Program Analyst with the IRS (see Decl. of Scott S. Landes, ECF No. 11-3), as well as
on various other supporting materials and evidence (see Joint Comm. on Taxation
Policy Manual (July 1, 2007), ECF No. 11-4; Letter from Barthold to John Koskinen
(Aug. 3, 2016), ECF No. 11-5).
After the IRS’s motion was fully briefed, this Court held a motion hearing,
during which it became clear that the agency’s subject-matter jurisdiction argument
rested entirely on the issue of whether or not the records that are responsive to CoA
Institute’s FOIA requests qualify as “agency records” that are subject to the FOIA, or
“congressional records” that are not subject to the FOIA. (See, e.g., Hr’g Tr., ECF No.
17, at 18:8–19:22; see also Def.’s Mem. at 13–23; Mem. in Opp’n to Def.’s Mot. to
Dismiss, ECF No. 12, at 10–26; Def.’s Reply in Supp. of Its Mot. to Dismiss (“Def.’s
Reply”), ECF No. 13, at 6–17.) According to the IRS, this Court lacks subject-matter
jurisdiction over CoA Institute’s FOIA claim—and should therefore dismiss it under
Rule 12(b)(1)—simply and solely because the requested records are congressional, not
agency, records. (See Def.’s Mem. at 13–14.)
5 In response to this Court’s inquiry regarding whether the IRS’s motion to dismiss
was properly brought under Rule 12(b)(1), as a challenge to this Court’s subject-matter
jurisdiction, or was, in fact, a challenge to the sufficiency of CoA Institute’s complaint
on the merits under Rule 12(b)(6) (see Hr’g Tr., at 18:20–19:6), the IRS requested the
opportunity to submit supplemental briefing on that narrow question (see Def.’s
Consent Mot. for Suppl. Briefing, ECF No. 14, at 1), which the Court allowed (see Min.
Order of Aug. 28, 2017; see also IRS’s Suppl. Br. in Supp. of Its Mot. to Dismiss
(“Def.’s Suppl. Br.”), ECF No. 15; Pl.’s Suppl. Br. in Opp’n to Def.’s Mot. to Dismiss
(“Pl.’s Suppl. Br.”), ECF No. 16). In its supplemental brief, the IRS continues to assert
that its challenge to CoA Institute’s complaint is jurisdictional per the FOIA statute,
and thus that the agency’s motion to dismiss should be considered under Rule 12(b)(1)
and not Rule 12(b)(6). (See Def.’s Suppl. Br. at 7.) For its part, CoA Institute argues
that the relevant “jurisdictional” language in the FOIA statute “refers to the power of
the court to order a specific kind of remedy, not to the court’s authority to hear a case
in the first instance” (Pl.’s Suppl. Br. at 9), and thus, “the pending motion should be
considered under Rule 12(b)(6)” (id. at 6).
II. LEGAL STANDARDS
A. Motions To Dismiss Pursuant To Rule 12(b)(1) In FOIA Cases
“Federal courts are courts of limited jurisdiction, possessing ‘only that power
authorized by Constitution and statute.’” Custis v. CIA, 118 F. Supp. 3d 252, 254
(D.D.C. 2015) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)). Subject-matter jurisdiction defines the court’s power to entertain a case at all,
and ultimately to confer the remedy that the plaintiff seeks, even assuming that the
6 plaintiff has a meritorious claim. See Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
635, 639 (2009). Thus, a jurisdictional issue is one that pertains to the scope or extent
of a court’s power to act; by contrast, a merits issue is one that pertains to the
plaintiff’s right to obtain the judicial action it seeks. See Morrison v. Nat’l Austl. Bank
Ltd., 561 U.S. 247, 254 (2010) (distinguishing between “[s]ubject-matter jurisdiction,
[which] refers to a tribunal’s power to hear a case[,]” and the “quite separate . . .
question [of] whether the allegations the plaintiff makes entitle him to relief”
(alterations, internal quotation marks, and citations omitted)).
A defendant who seeks to have a federal district court dismiss the plaintiff’s
complaint due to a “lack of subject-matter jurisdiction” properly makes that request
pursuant to Federal Rule of Civil Procedure 12(b)(1). Fed. R Civ. P. 12(b)(1). “[T]he
plaintiff bears the burden of establishing, by a preponderance of the evidence, that the
court has jurisdiction.” Whiteru v. Wash. Metro. Area Transit Auth., 258 F. Supp. 3d
175, 182 (D.D.C. 2017) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
When ruling on a Rule 12(b)(1) motion, the court must “treat the complaint’s factual
allegations as true” and afford the plaintiff “the benefit of all inferences that can be
derived from the facts alleged”; however, factual allegations receive “closer scrutiny”
in the 12(b)(1) context than in the 12(b)(6) context. Delta Air Lines, Inc. v. Exp.–Imp.
Bank of U.S., 85 F. Supp. 3d 250, 259 (D.D.C. 2015) (internal quotation marks and
citation omitted). Moreover, and also unlike a Rule 12(b)(6) motion, a court may look
to documents outside of the complaint to evaluate whether or not it has jurisdiction to
entertain a claim. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005).
7 Significantly for present purposes, when brought in the FOIA context, a Rule
12(b)(1) motion properly addresses the remedial aspect of a federal court’s authority.
This is because the FOIA’s judicial review provision—5 U.S.C. § 552(a)(4)(B)—plainly
“uses the language of ‘jurisdiction’ in erecting the boundaries of a district court’s
remedial powers under the FOIA[.]” Campaign for Accountability v. U.S. Dep’t of
Justice, 278 F. Supp. 3d 303, 312 (D.D.C. 2017) (citations omitted), aff’d, 922 F.3d 480
(D.C. Cir. 2019); see also 5 U.S.C. § 552(a)(4)(B) (“On complaint, the district court . . .
has jurisdiction to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant.”). Thus,
“Rule 12(b)(1) is the proper avenue by which a defendant may urge the court to dismiss
a [FOIA] complaint on the grounds that it seeks a type of relief that the FOIA does not
authorize.” Campaign for Accountability, 278 F. Supp. 3d at 312; see also, e.g., Brown
v. FBI, 675 F. Supp. 2d 122, 129–30 (D.D.C. 2009) (granting dismissal for lack of
subject-matter jurisdiction because the FOIA creates no right to pursue “advisory legal
opinions”); Logan v. United States, 272 F. Supp. 2d 1182, 1187 (D. Kan. 2003) (“The
Court has no subject matter jurisdiction . . . because [the FOIA] does not provide a
private right of action for money damages.” (citation omitted)). In other words, section
552(a)(4)(B) of Title 5 of the United States Code specifically prescribes the Court’s
jurisdiction with respect to the types of relief that are available when a plaintiff claims
that an agency has violated the statute. See Kennecott Utah Copper Corp. v. U.S. Dep’t
of Interior, 88 F.3d 1191, 1202 (D.C. Cir. 1996); see also Citizens for Responsibility
and Ethics in Wash. v. U.S. Dep’t of Justice, 846 F.3d 1235, 1240–42 (D.C. Cir. 2017).
8 B. Motions To Dismiss Pursuant To Rule 12(b)(6) In The FOIA Context
Federal Rule of Civil Procedure 12(b)(6) permits a defendant to test the
sufficiency of a plaintiff’s allegations by requesting dismissal on the grounds that the
complaint “fail[s] to state a claim upon which relief can be granted[.]” Fed. R. Civ. P.
12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Because the FOIA permits a court “to enjoin the agency from withholding agency
records and to order the production of any agency records improperly withheld from the
complainant[,]” 5 U.S.C. § 552(a)(4)(B), “[a] FOIA plaintiff states a claim where it
properly alleges that ‘an agency has (1) improperly (2) withheld (3) agency records[,]’”
Cause of Action v. Nat’l Archives & Records Admin., 926 F. Supp. 2d 182, 185 (D.D.C.
2013) (citation omitted) (quoting U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
142 (1989)), aff’d, 753 F.3d 210 (D.C. Cir. 2014).
In FOIA cases, challenges to the merits of a plaintiff’s claims “typically and
appropriately are decided on motions for summary judgment[,]” Judicial Watch, Inc. v.
Dep’t of the Navy, 25 F. Supp. 3d 131, 136 (D.D.C. 2014) (quoting Defs. of Wildlife v.
U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)), rather than on motions to
dismiss. Indeed, “it is rare in FOIA cases for a court to grant a Rule 12(b)(6) motion to
dismiss that assails the merits of the plaintiff’s pleading—i.e., a motion that disputes
the sufficiency of the allegations underlying the claim for relief[.]” Campaign for
Accountability, 278 F. Supp. 3d at 313 (emphasis omitted). This “dearth of merits-
based Rule 12(b)(6) dismissals most likely stems from the fact that most FOIA
litigation arises under . . . the FOIA’s ‘reactive’ disclosure provision,” i.e., section
9 552(a)(3), which “indicates that an agency’s denial of any procedurally compliant
request for records is improper, at least as a prima facie matter.” Id. (alterations,
internal quotation marks, and citations omitted). Consequently, at the pleadings stage
in a typical FOIA case, “it is quite straightforward . . . [and] relatively easy to plead
the . . . elements of a FOIA claim—i.e., that an agency has withheld the requested
records[,] . . . that the things that the agency withheld were agency records[,]” and that
“[the] agency’s withholding of [the] records was improper[.]” Id. (internal quotation
marks omitted).
III. ANALYSIS
The IRS insists that the factual prerequisites for the exercise of a court’s
remedial powers with respect to a plaintiff’s FOIA claim are, themselves, requirements
that implicate this Court’s subject-matter jurisdiction. (See, e.g., Def.’s Mem. at 13–17;
see also id. at 13 (“The Court lacks jurisdiction if the records at issue are not ‘agency
records.’” (citation omitted)); Def.’s Suppl. Br. at 8–18.) This assertion is misguided,
and the Court squarely rejects the common but confused contention that Congress
intended for a federal district court’s subject-matter jurisdiction over a FOIA claim to
turn on whether or not the agency has improperly withheld “agency records,” for the
reasons explained below. Cf. Miller v. Herman, 600 F.3d 726, 731 (7th Cir. 2010)
(noting that “[t]he conflation of jurisdictional and non-jurisdictional limitations on
causes of action is not an uncommon occurrence”). For good measure, this Court has
proceeded further, to construe the IRS’s Rule 12 motion to dismiss as a challenge to the
sufficiency of the CoA Institute’s pleading under Rule 12(b)(6). And in this regard,
too, the Court is satisfied that CoA Institute has pled a plausible violation of the FOIA,
10 insofar as its complaint plainly alleges that “[t]he IRS is an agency” (Compl. ¶ 5) to
which CoA Institute submitted two detailed requests for records (id. ¶¶ 7, 9), and in
response to those requests, the IRS “denied CoA Institute access to agency records to
which it has a right under the FOIA” (id. ¶ 30). Thus, the IRS’s motion must be denied.
A. The IRS’s Argument That The Requested Records Are “Congressional” Records, Rather Than “Agency” Records, Is A Challenge To The Merits Of CoA Institute’s FOIA Claim, Not A Challenge To This Court’s Subject-Matter Jurisdiction
1. Courts Have Viewed Similar FOIA Disputes—i.e., Those Pertaining To Whether The Defendant Entity Qualifies As An “Agency”—As Properly Resolved Under Rule 12(b)(6) Rather Than Rule 12(b)(1)
It is the well-established statutory obligation of federal agencies to make non-
exempt “agency records” promptly available to any person who submits a request that
reasonably describes the records sought. See 5 U.S.C. § 552(a)(3); see also, e.g.,
Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 895 F.3d 770, 781 (D.C. Cir.
2018); Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n, 711 F.3d
180, 188 (D.C. Cir. 2013). Notably, the first sentence of FOIA’s judicial review
provision further provides that, “[o]n complaint, the district court . . . has jurisdiction to
enjoin the agency from withholding agency records . . . improperly withheld from the
complainant.” 5 U.S.C. § 552(a)(4)(B). As mentioned above, here, the IRS has
steadfastly interpreted the language of this judicial review provision to mean that a
dispute regarding the characterization of the records at issue (i.e., whether or not what
has been requested are “agency records”) presents a threshold question of fact that
relates to the Court’s subject-matter jurisdiction. (See Def.’s Mem. at 13–17; Def.’s
Suppl. Br. at 8–18.) But at least two Courts of Appeals (including the D.C. Circuit)
have rejected the contention that a similar dispute—i.e., whether the defendant entity in
11 a FOIA case qualified as “agency”—implicates a court’s subject-matter jurisdiction, in
a manner that casts significant doubt on the IRS’s argument.
First, in the case of Citizens for Responsibility & Ethics in Washington v. Office
of Administration, 566 F.3d 219 (D.C. Cir. 2009) (hereinafter, “CREW”), the D.C.
Circuit held that it was “err[or]” for a district court to dismiss a FOIA complaint “for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1)” where the entity to which
the records request was directed was not an “agency” covered by the FOIA. Id. at 225.
The district court in CREW had determined that “Rule 12(b)(1) appears to be the proper
authority” for evaluating the dispute concerning the defendant’s status as an “agency,”
Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 559 F. Supp. 2d 9, 19
(D.D.C. 2008), aff’d on other grounds, 566 F.3d 219 (D.C. Cir. 2009), because it read
Supreme Court case law to compel the conclusion that resolution of the “agency” issue
related “to the [c]ourt’s jurisdiction to hear a FOIA case[,]” id. But the D.C. Circuit
disagreed, finding instead that a court’s determination that the defendant was “not an
agency covered by [the] FOIA” meant that plaintiff’s FOIA claim failed on the merits
as a matter of law under Rule 12(b)(6), not that the court was without subject-matter
jurisdiction to consider plaintiff’s FOIA claim by virtue of that determination. See
CREW, 566 F.3d at 225 (concluding that the district court erred in “dismissing the
complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1)[,]” but
affirming the dismissal for failure to state a claim “[b]ecause we conclude that OA is
not an agency covered by [the] FOIA”); see also Int’l Counsel Bureau v. CIA, No. 09-
cv-2269, 2010 WL 1410561, at *1 n.3 (D.D.C. Apr. 2, 2010) (“Although the
[defendant] moved to dismiss for lack of subject matter jurisdiction pursuant to [Rule]
12 12(b)(1), the D.C. Circuit has concluded that where an individual has submitted a FOIA
request to an entity that is not an ‘agency’ covered by FOIA, the Court must dismiss the
request for failure to state a claim under Rule 12(b)(6).”). 4
With respect to a substantially similar dispute regarding whether or not the
National Security Council qualified as an “agency” for FOIA purposes, the Second
Circuit likewise “conclude[d] that the district court properly granted dismissal for
failure to state a claim” under Rule 12(b)(6), “rather than for lack of jurisdiction” under
Rule 12(b)(1). Main St. Legal Servs., Inc. v. Nat’l Sec. Council, 811 F.3d 542, 544 (2d
Cir. 2016). In so holding, the Second Circuit emphasized that, while section
552(a)(4)(B) references the court’s “jurisdiction[,]” that provision “relate[s] to the
court’s remedial power rather than to its subject-matter jurisdiction[.]” Id. at 544, 566
(emphasis added). And the panel also pinpointed the source of other courts’ confusion:
while “[s]ome statutes use ‘jurisdiction’ to reference subject-matter jurisdiction, that is,
a court’s ‘statutory or constitutional power to adjudicate the case[,]’” it is clear beyond
cavil that “[o]ther statutes . . . use ‘jurisdiction’ to ‘specify the remedial powers of the
court[,]’” which “does not implicate subject-matter jurisdiction.” Id. at 566 (alteration
omitted) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89–90 (1998));
4 Fourteen years before deciding CREW, the D.C. Circuit similarly affirmed the dismissal under Rule 12(b)(6) of a complaint that had alleged FOIA violations by members of the Executive Residence. See Sweetland v. Walters, 60 F.3d 852, 855 (D.C. Cir. 1995). Notably, the panel expressly refused to uphold the dismissal under Rule 12(b)(1), because it disagreed with the district court’s conclusion that the defendants’ non-agency status rendered the federal courts without subject-matter jurisdiction over the FOIA dispute. See id. (citing Haddon v. Walters, 43 F.3d 1488, 1490 (D.C. Cir. 1995) (concluding that a district court’s jurisdiction is satisfied where the plaintiff’s “claim arises under the laws of the United States”)); see also Kleiman v. Dep’t of Energy, 956 F.2d 335, 339 (D.C. Cir. 1992) (“Plaintiff’s statement of his own cause of action shows that it is based upon federal law, such that it is a civil action arising under the laws of the United States . . . for jurisdictional purposes.” (alterations, internal quotation marks, and citations omitted)); Wilson v. U.S. Dep’t of Transp., 730 F. Supp. 2d 140, 148 n.5 (D.D.C. 2010) (“As this case was brought under the FOIA, it presents a question of federal law over which this Court has original jurisdiction.” (citing 28 U.S.C. § 1331)), aff’d, No. 10-5295, 2010 WL 5479580 (D.C. Cir. Dec. 30, 2010).
13 see also Sierra Club v. Tenn. Valley Auth., 905 F. Supp. 2d 356, 360 (D.D.C. 2012)
(suggesting that “the term ‘jurisdiction’” in section 552(a)(4)(B) refers to something
other than “subject matter jurisdiction in the technical legal sense of th[at] term[]”).
In this regard, the Second Circuit observed that, even though “the Supreme Court
has previously referred to § 552(a)(4)(B) as jurisdictional[, i]n those cases . . . the
Court appears to have used the term in the sense of remedial power rather than subject-
matter jurisdiction.” Main St., 811 F.3d at 566–67 (citing Tax Analysts, 492 U.S. at 142
(discussing “jurisdiction to devise remedies to force an agency to comply with the
FOIA’s disclosure requirements”)). Thus, “the [Supreme] Court’s earlier descriptions
of § 552(a)(4)(B) as jurisdictional are not controlling” statements of law with respect to
the scope of a district court’s subject-matter jurisdiction, id. at 567; see also Steel Co.,
523 U.S. at 91 (holding that prior opinions referring to statutes as “jurisdictional”
without indicating that they meant subject-matter jurisdiction “have no precedential
effect”), and “[b]ased on [the] text” of section 552(a)(4)(B), the statute plainly “does
not speak to the court’s ability to adjudicate a claim, but only to the remedies that the
court may award[,]” Main St., 811 F.3d at 566 (citation omitted).
The holdings and reasoning of the CREW and Main Street cases singularly
undermine the IRS’s argument that the question of whether or not the records at issue
here qualify as “agency records” implicates this Court’s subject-matter jurisdiction.
(See Def.’s Mem. at 13–17; Def.’s Suppl. Br. at 8–18.) But even without such clear
pronouncements by the courts of appeals, other FOIA precedents also lead inexorably to
the conclusion that the factual prerequisites of a successful claim under the FOIA—
14 including whether or not the withheld records are “agency records”—involves a merits-
based inquiry rather than one that pertains to the Court’s subject-matter jurisdiction.
As one of countless examples, in the context of deciding whether or not “records
of . . . visitor[s] to the White House Complex” were “‘agency records’ subject to
disclosure under [the] FOIA[,]” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208,
211 (D.C. Cir. 2013), the D.C. Circuit not only evaluated the issue in the context of
cross-motions for summary judgment, instead of a Rule 12(b)(1) motion to dismiss, but
did not address subject-matter jurisdiction at all. See generally id. What is more, the
panel grappled with the “agency records” issue as part of its evaluation of the merits of
the plaintiff’s FOIA claim, cf. id. at 233 (characterizing the case as a “difficult” one,
and acknowledging the “serious and substantial arguments in support of [the district]
court’s holding”), and when it reversed the district court’s judgment on the grounds that
certain of the requested records were not “agency records” subject to disclosure under
the FOIA, it did not simultaneously conclude that the district court was thereby divested
of subject-matter jurisdiction to adjudicate the dispute, see id. at 234 (remanding the
case to the district court for further proceedings); see also Mace v. EEOC, 37 F. Supp.
2d 1144, 1145–46 (E.D. Mo. 1999) (“[M]ost courts . . . hold that district courts have
subject matter jurisdiction over FOIA claims, but are deprived of further jurisdiction to
act upon concluding that an agency is entitled to summary judgment.” (emphasis
added)), aff’d, 197 F.3d 329 (8th Cir. 1999); id. at 1146 (remarking that, if the factual
prerequisites of a FOIA claim actually implicated the court’s subject-matter
jurisdiction, “all FOIA cases resolved in favor of the government would ultimately be
15 dismissed for lack of subject matter jurisdiction, which clearly has not been the case in
practice” (internal quotation marks and citation omitted)).
Thus, notwithstanding section 552(a)(4)(B)’s reference to “jurisdiction[,]”
Courts have long considered FOIA disputes that pertain to the nature of the defendant
entity (i.e., is it an “agency”?) or the nature of the records at issue (i.e., are they
“agency records”?) to relate to the merits of a plaintiff’s claim that the defendant has
violated the FOIA, rather than a court’s authority to adjudicate the case. This means
that a Rule 12(b)(1) motion to dismiss brought solely on the grounds that the court
lacks subject-matter jurisdiction because the records are not “agency records”
necessarily fails.
2. The IRS’s Sovereign Immunity Argument Is Unpersuasive, As Is Its Effort To Distinguish Similar Cases That Reject Application Of Rule 12(b)(1)
Notwithstanding these precedents, the IRS insists that “the question of whether a
record is an ‘agency record’ is a ‘threshold’ matter” that pertains to a district court’s
subject-matter jurisdiction because it “implicates the scope of the United States’ waiver
of sovereign immunity[.]” (See Def.’s Suppl. Br. at 7; see also id. (reiterating that its
motion to dismiss “is properly considered under Rule 12(b)(1)”).) As this Court
understands it, the IRS believes that because “section [552(a)(4)(B)] . . . defines the
United States’ waiver of sovereign immunity and limits its scope[,]” if the requested
records are not, in fact, “agency records,” then CoA Institute’s FOIA claim falls beyond
the scope of the United States’ waiver of sovereign immunity, and, in turn, beyond the
scope of this Court’s subject-matter jurisdiction. (Id. at 8; see also id. at 8–12.)
Notably, however, the IRS fails to cite a single case in which a court has
interpreted section 552(a)(4)(B) to demarcate the boundaries of the United States’s
16 waiver of sovereign immunity in a circumstance in which there is a dispute about the
character of the records at issue, or otherwise. And not only does the agency omit any
precedents, it points to no language in section 552(a)(4)(B) or anywhere else in the
FOIA in support of this position. (See id. at 8–12.)
Of course, this void is not surprising, as it is well established that the United
States has waived its sovereign immunity with respect to valid FOIA claims. See Hajro
v. U.S. Citizenship & Immigration Servs., 811 F.3d 1086, 1101 (9th Cir. 2016)
(explaining that section 552(a)(4)(B) is a waiver of sovereign immunity that allows
district courts “to enjoin the agency from withholding agency records and to order the
production of any agency records improperly withheld from the complainant” (quoting
5 U.S.C. § 552(a)(4)(B))). Thus, as far as immunity is concerned, the only real
question is whether the claim at issue is a valid one, which is just another way of
assessing the claim’s merit, not the court’s power to address the claim.
Indeed, courts dismissing invalid FOIA claims for exceeding the statutory waiver
of sovereign immunity have done so in circumstances that are not presented here and
that, in any event, are not inconsistent with construing section 552(a)(4)(B) as a
limitation on the court’s remedial power: for example, where the statute of limitations
has expired, see, e.g., Bigwood v. Def. Intelligence Agency, 770 F. Supp. 2d 315, 318
(D.D.C. 2011) (describing the FOIA’s “statute of limitations ‘[a]s a jurisdictional
condition attached to the government’s waiver of sovereign immunity’” (quoting
Spannaus v. Dep’t of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987))), or where the plaintiff
seeks relief that is not provided by the statute, see, e.g., Hajro, 811 F.3d at 1101
(dismissing contract claim brought under the FOIA’s waiver provision because the
17 claim was not “unequivocally expressed in the statute[,]” and the plaintiff “[wa]s not
seeking to enforce the statutory mandate to provide timely FOIA disclosures itself”);
Scherer v. United States, 241 F. Supp. 2d 1270, 1278 n.15 (D. Kan. 2003) (“[T]he
United States has not consented to suit for punitive damages under [the] FOIA and the
court [therefore] lacks jurisdiction over [plaintiff’s] request for such relief[.]”), aff’d
sub nom., Scherer v. U.S. Dep’t of Educ., 78 F. App’x 687 (10th Cir. 2003). By
contrast, the dispute here is a factual one about whether or not the records sought are
“agency records” such that CoA Institute has presented a valid claim upon which relief
can be granted pursuant to section 552(a)(4)(B). Consequently, the IRS’s efforts to
characterize today’s dispute as implicating sovereign immunity, and thereby to suggest
that the factual predicates therein necessarily relate to a court’s subject-matter
jurisdiction, are unsupported and therefore unpersuasive.
Nor has the IRS credibly distinguished the D.C. Circuit’s holding and analysis in
CREW. See 566 F.3d 219. According to the IRS, “[t]he holding of CREW is limited to
its unique facts and unusual procedural history and thus does not conflict” with the
agency’s argument that the “agency records” issue implicates this Court’s subject-
matter jurisdiction. (Def.’s Suppl. Br. at 12.) In particular, the IRS emphasizes that the
“narrow” issue in CREW was “whether a subcomponent of the Executive Office of the
President was not an ‘agency’ under the FOIA despite the fact that the Executive Office
of the President is an agency under the FOIA” (id.), and, to be sure, that exact issue is
not presented in the instant case. But the IRS has yet to explain how the “agency”
question in CREW is materially different than the question that the IRS raises in the
instant motion to dismiss—i.e., whether the records that CoA Institute has requested
18 from the IRS are “agency records” under the FOIA, despite the fact that other records
retained by the IRS qualify as “agency records” for FOIA purposes. Indeed, from the
standpoint of evaluating section 552(a)(4)(B) as setting forth either jurisdictional or
non-jurisdictional prerequisites to maintaining a FOIA action, both circumstances are
identical. See Bureau of Nat’l Affairs, Inc. v. U.S. Dep’t of Justice, 742 F.2d 1484,
1488 (D.C. Cir. 1984) (hereinafter “BNA”) (quoting the first sentence of 5 U.S.C.
§ 552(a)(4)(B), then stating that “[f]ederal jurisdiction under this provision is therefore
premised upon three requirements: a showing that an agency has (1) ‘improperly’; (2)
‘withheld’; (3) ‘agency records.’” (quoting Kissinger v. Reporters Comm. for Freedom
of the Press, 445 U.S. 136, 150 (1980)). And the IRS’s casual contention that the
“agency” dispute (which the D.C. Circuit unequivocally held to be non-jurisdictional in
CREW) differs from the “agency records” dispute because only the latter “raise[s]
sovereign immunity concerns” (Def.’s Suppl. Br. at 13) is both seemingly irrelevant and
entirely unsubstantiated, as the Court explained when it rejected the IRS’s sovereign
immunity analysis above.
Finally, the IRS’s repeated suggestion that this Court should ignore CREW
because the D.C. Circuit’s BNA opinion carries the day with respect to the jurisdictional
versus non-jurisdictional nature of the instant “agency records” dispute (see Def.’s
Suppl. Br. at 14–18) appears to be rooted in the same fundamental misunderstanding
that sometimes arises when one assumes that when the term “jurisdiction” appears in a
statute Congress is only referring to the subject-matter jurisdiction of the federal courts.
The IRS is correct to observe that, in BNA, the D.C. Circuit plainly stated that
“[f]ederal jurisdiction under [section 552(a)(4)(B)] is . . . premised upon three
19 requirements: a showing that an agency has (1) improperly; (2) withheld; (3) agency
records.” (Def.’s Suppl. Br. at 14 (quoting BNA, 742 F.2d at 1488 (internal quotation
marks and citation omitted)).) But no less an authority than the Supreme Court of the
United States has warned that “[j]urisdiction . . . is a word of many, too many,
meanings[.]” Steel Co., 523 U.S. at 90 (internal quotation marks and citation omitted).
As explained above, section 552(a)(4)(B) plainly proscribes the remedial jurisdiction of
the federal courts, and BNA does not state otherwise. See 742 F.2d at 1488 (explaining
that “[t]he requirement that materials sought by a private party be ‘agency records’ is
jurisdictional—[i.e.,] only when an agency withholds an agency record does the district
court have authority to compel disclosure” (emphasis added)). Thus, BNA’s reference
to ‘jurisdiction’ is entirely consistent with the D.C. Circuit’s subsequent holding in
CREW, which means that the IRS’s suggestion that CREW and BNA must either be
distinguished (see Def.’s Suppl. Br. at 12–14) or reconciled (by concluding that BNA’s
“agency records” analysis controls and pertains to the Court’s subject-matter
jurisdiction) (see id. at 14–18) need not be countenanced.
B. The IRS’s Interpretation Of Section 552(a)(4)(B) Is Inconsistent With Both The Manner In Which Courts Ordinarily Determine Whether They Possess Subject-Matter Jurisdiction And With The Established Burdens Of Proof In The FOIA Context
The IRS’s argument that section 552(a)(4)(B) establishes the parameters of this
Court’s subject-matter jurisdiction not only finds little support in the relevant case law,
it is also manifestly inconsistent with certain bedrock principles of federal
jurisprudence.
20 1. Courts Typically Accept The Merits Of The Plaintiff’s Claims In Order To Assess Their Own Jurisdiction
First of all, it is common practice for federal courts to evaluate their subject-
matter jurisdiction (or lack thereof) as a threshold matter, separate and apart from the
merits of the plaintiff’s claims. See Steel Co., 523 U.S. at 94–95 (holding that federal
courts must ensure that they have subject-matter jurisdiction before considering the
merits of a case); Kaplan v. Cent. Bank of Islamic Republic of Iran, 896 F.3d 501, 511
(D.C. Cir. 2018) (“[A] court must assure itself of the existence of subject-matter
jurisdiction before reaching the merits[.]”); Diggs v. Dep’t of Hous. & Urban Dev., 670
F.3d 1353, 1355 (Fed. Cir. 2011) (“Before we can reach the merits of a case, we must
assess whether we may exercise subject matter jurisdiction[.]”); Constantine v. Rectors
& Visitors of George Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005) (“[A] federal
court necessarily acts ultra vires when it considers the merits of a case over which it
lacks subject-matter jurisdiction.”). The IRS apparently would have this Court decide
whether CoA Institute has a valid FOIA claim insofar as it submitted requests for
“agency records” in order to determine whether the Court has subject-matter
jurisdiction over CoA Institute’s claim, which clearly conflates the issues and puts the
cart before the horse since, “[i]n determining jurisdiction, [courts] generally will
assume the merits as the plaintiff or petitioner pleads them[.]” Ctr. for Regulatory
Reasonableness v. Envtl. Prot. Agency, 849 F.3d 453, 454 n.1 (D.C. Cir. 2017)
(emphasis added), cert. denied, 138 S. Ct. 1041 (2018); cf. Parker v. Dist. of Columbia,
478 F.3d 370, 377 (D.C. Cir. 2007), aff’d sub nom., Dist. of Columbia v. Heller, 554
U.S. 570 (2008) (“[W]hen considering whether a plaintiff has Article III standing, a
21 federal court must assume arguendo the merits of his or her legal claim.” (citation
omitted)).
There is no question that the matter of whether the plaintiff has a cause of action
under the law and is entitled to recovery assuming that the facts are as he alleges them
to be (i.e., the merits issue), is unrelated to the question of “the courts’ statutory or
constitutional power to adjudicate the case.” Steel Co., 523 U.S. at 89 (emphasis in
original). And “established jurisprudence [mandates] that the failure of a cause of
action does not automatically produce a failure of jurisdiction[.]” Id. at 91; see also
Bell v. Hood, 327 U.S. 678, 682 (1946) (explaining that “[j]urisdiction . . . is not
defeated . . . by the possibility that the averments might fail to state a cause of action on
which petitioners could actually recover[, f]or it is well settled that the failure to state a
proper cause of action calls for a judgment on the merits and not for a dismissal for
want of jurisdiction”).
Consequently, quite apart from the determination that the plaintiff cannot recover
as a matter of law or fact, “[d]ismissal for lack of subject-matter jurisdiction because of
the inadequacy of the federal claim is proper only when the claim is so insubstantial,
implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid
of merit as not to involve a federal controversy.” Steel Co., 523 U.S. at 89 (internal
quotation marks and citation omitted). This also necessarily means that dismissal for
lack of jurisdiction does not arise based merely on a plaintiff’s alleged failure to present
a complaint the contains plausible allegations concerning a claim’s merits
prerequisites—here, that “an agency” has “improperly” “withheld” “agency records.”
22 Instead, that failure warrants dismissal on the grounds that the plaintiff has failed to
state a cognizable claim. See Fed. R. Civ. P. 12(b)(6).
Undaunted, the IRS points to district court opinions that appear to have reached
the opposite conclusion; some of which expressly cast the issue of “[w]hether a
document is an ‘agency record’ [a]s a jurisdictional question that must be answered
before proceeding to decide a case under the FOIA on the merits.” Elec. Privacy Info.
Ctr. v. Nat’l Sec. Agency, 988 F. Supp. 2d 1, 7 n.5 (D.D.C. 2013) (citations omitted),
vacated in part on other grounds, No. 13-5369, 2014 WL 12596363 (D.C. Cir. July 31,
2014); see, e.g., Earle v. Dep’t of Justice, 217 F. Supp. 3d 117, 122–23 (D.D.C. 2016)
(same, but acknowledging “Circuit authority that suggests that the inquiry into
sufficiency of the allegation that the agency has improperly withheld records is a
merits-based inquiry”); see also Legg v. Wash. Metro. Area Transit Auth., No. 16-cv-
1023, 2017 WL 2533344, at *1–2 (D.D.C. June 9, 2017) (granting motion to dismiss for
lack of subject-matter jurisdiction on grounds that the defendant was not an agency
subject to the FOIA). For the reasons already explained, holdings such as these
impermissibly blur “the subject-matter jurisdiction/ingredient-of-claim-for-relief
dichotomy,” by “erroneously conflat[ing]” the “[s]ubject matter jurisdiction
[inquiry] . . . with a plaintiff’s need and ability to prove the defendant bound by the
federal law asserted as the predicate for relief—a merits-related determination.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006) (internal quotation marks and citation
omitted).
The IRS’s similar reliance on a D.C. Circuit decision that affirmed a district
court’s dismissal of a FOIA claim for lack of subject-matter jurisdiction where the
23 district court had found that congressional records were not “agency records” (see
Def.’s Suppl. Br. at 15 (discussing ACLU v. CIA, 823 F.3d 655 (D.C. Cir. 2016), cert.
denied, 137 S. Ct. 1837 (2017))) is similarly misplaced. It is clear from an examination
of that circuit opinion, and also the underlying district court decision, that whether or
not the dismissal at issue should have rested on a lack of jurisdiction, as opposed to the
plaintiff’s failure to state a claim, was not specifically considered. See ACLU v. CIA,
105 F. Supp. 3d 35 (D.D.C. 2015), aff’d, 823 F.3d 655. 5 And the Supreme Court has
long lamented “[j]udicial opinions [that] . . . obscure the issue by stating that the court
is dismissing ‘for lack of jurisdiction’ when some threshold fact has not been
established, without explicitly considering whether the dismissal should be for lack of
subject matter jurisdiction or for failure to state a claim.” Arbaugh, 546 U.S. at 511
(internal quotation marks and citation omitted). The Justices have further described
“such unrefined dispositions as ‘drive-by jurisdictional rulings’ that should be accorded
‘no precedential effect’ on the question whether the federal court had authority to
adjudicate the claim in suit.” Id. (quoting Steel Co., 523 U.S. at 91). Moreover, and in
any event, if the D.C. Circuit panel in ACLU intended its affirmance to indicate that the
Circuit has abandoned its long-standing prohibition against dismissing a FOIA claim for
lack of subject-matter jurisdiction based on the absence of a factual prerequisite under
section 552(a)(4)(B), that panel was “without authority to overturn a decision by a prior
panel of th[at] Court.” La. Pub. Serv. Comm’n v. FERC, 522 F.3d 378, 390 (D.C. Cir.
2008) (per curiam) (citation omitted); see also New York-New York, LLC v. NLRB, 676
5 In fact, it appears that the appellants actually “fail[ed] to raise” the propriety of dismissal under Rule 12(b)(1) on appeal. (Pl.’s Suppl. Br. at 21 (citing appellants’ brief).)
24 F.3d 193, 196 (D.C. Cir. 2012) (“[The appellant] may of course seek en banc review to
have our precedent overruled[, b]ut as a three-judge panel, we are bound by that prior
[panel] decision.”).
2. In FOIA Cases, The Agency Bears The Burden Of Demonstrating That The Statutory Prerequisites Are Not Met
The IRS’s jurisdictional argument also fails because it impermissibly and
inexplicably shifts the well-established burdens that each party must carry with respect
to an improper-withholding claim brought under the FOIA. In FOIA cases as in other
civil actions, “the burden of establishing [federal jurisdiction] rests upon the party
asserting jurisdiction,” Kokkonen, 511 U.S. at 377 (citation omitted)—in this case, the
plaintiff, CoA Institute. But it is equally well settled that, at the merits stage of a FOIA
case, “[t]he burden is on the agency to demonstrate, not the requester to disprove, that
the materials sought are not ‘agency records’ or have not been ‘improperly’
‘withheld.’” Tax Analysts, 492 U.S. at 142 n.3 (citation omitted); see also, e.g.,
Consumer Fed’n of Am. v. U.S. Dep’t of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)
(“[T]he agency has [the] burden of demonstrating that the documents requested are not
‘agency records.’” (internal quotation marks and citations omitted)); Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 76,
88 (D.D.C. 2007) (same). Thus, if the IRS’s contention that this Court’s subject-matter
jurisdiction depends on whether or not the requested records are “agency records” is
correct, the burden of demonstrating that the requested records are, in fact, “agency
records” within the meaning of the FOIA would necessarily shift from the IRS to CoA
Institute, given that, “[u]nder Rule 12(b)(1), the plaintiff bears the burden of
establishing the existence of jurisdiction[.]” Dist. No. 1, Pac. Coast Dist., Marine
25 Eng’rs’ Beneficial Ass’n, AFL-CIO v. Liberty Mar. Corp., 70 F. Supp. 3d 327, 340
(D.D.C. 2014).
Therein lies the rub. A government agency’s burden of demonstrating that the
requested documents are not “agency records” cannot be logically reconciled with
treating that question as a jurisdictional prerequisite, which would require the plaintiff
to prove that the requested documents are “agency records.” And there’s more: to
accept the IRS’s framing would mean that the plaintiff would have to prove that
“agency records” were “improperly” withheld as yet another threshold jurisdictional
issue, when under the FOIA, it is unquestionably the agency’s burden to establish that
its withholdings are “proper” because they comport with one of section 552(b)’s nine
enumerated exemptions. See CIA v. Sims, 471 U.S. 159, 182 (1985); see also Tax
Analysts, 492 U.S. at 142 n.3 (“The burden is on the agency to demonstrate . . . that the
materials sought . . . have not been improperly withheld.” (internal quotation marks and
citation omitted)). These contraventions of established law are averted entirely if one
rejects the IRS’s contorted view of section 552(a)(4)(B)’s reference to jurisdiction, and
interprets that language to pertain only to a court’s remedial power to act on a
meritorious claim under the FOIA, rather than to a court’s subject-matter jurisdiction,
as this Court has explained above. (See Sec. III.A, supra.) 6
6 The legislative history of the FOIA provides further support, as it explains that “[p]lacing the burden of proof upon the agency puts the task of justifying the withholding on the only party able to explain it[,]” and “[t]he private party can hardly be asked to prove that an agency has improperly withheld public information because he will not know the reasons for the agency action.” S. Rep. No. 89-813, at 43 (1965). It is both inefficient and ineffective to shift the burden away from the party that possesses the records themselves, as well as most, if not all, of the information speaking to their nature as “agency records”; and, indeed, a common reason for making a FOIA request in the first place is that the requesting party lacks information about the records at issue.
26 C. The Allegations Of CoA Institute’s Complaint, Which Must Be Accepted As True, Are Sufficient To Survive A Rule 12(b)(6) Motion To Dismiss
The Court turns, finally, to the “evidence” that the IRS has presented along with
its Rule 12(b)(1) motion to dismiss, which according to the agency, “establishes that the
JCT intends that its communications with the IRS and the IRS’s responses are
congressional records and not agency records.” (Def.’s Reply at 5.) It may well turn
out that the agency’s proof establishes that there are no “agency records” at issue in this
case, and thus, that CoA Institute’s FOIA claims are meritless. But as the IRS appears
to concede, that is “a factual challenge[.]” (Id. (emphasis in original).) And, at this
stage of the litigation, this Court must accept CoA Institute’s allegations of fact, as
pleaded in its complaint, as if they are true. See Harris v. Dist. of Columbia Water &
Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015).
Notably, the IRS’s recognition that the “agency records” dispute presents a
question of fact appears to be precisely why the agency has opted to double down on its
attempt to cast the issue as a jurisdictional one (thereby enabling the Court to look at
materials beyond the four corners of Plaintiff’s pleading), and is also apparently why
the IRS has eschewed the opportunity to assert that CoA Institute has failed to state a
claim. (See Def.’s Suppl. Br. at 8–12.) In other words, there is no dispute that, if the
IRS’s motion to dismiss is not properly construed as raising a jurisdictional question
under Rule 12(b)(1), what remains at this early stage is the Court’s authority merely to
test the sufficiency of the allegations in CoA Institute’s complaint under Rule 12(b)(6).
See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 625 n.3 (D.C. Cir. 1997)
(explaining that, under Rule 12(b)(6), the Court “[is] limited to considering the
pleadings and the attachments thereto”). And in this regard, there can be no serious
27 debate that CoA Institute’s complaint is sufficient to survive a Rule 12(b)(6) motion to
dismiss.
As explained previously, “[a] FOIA plaintiff states a claim where it properly
alleges that ‘an agency has (1) improperly (2) withheld (3) agency records[,]’” Cause of
Action, 926 F. Supp. 2d at 185 (quoting Tax Analysts, 492 U.S. at 142 (internal
quotation marks omitted)). “To prevail on a motion to dismiss for failure to state a
claim under Rule 12(b)(6),” the IRS would have to “show beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.” St. Francis Xavier, 117 F.3d at 624 (internal quotation marks and citation
omitted). And CoA Institute has clearly satisfied the “quite straightforward” and
“relatively easy” requirement of “plead[ing] the . . . elements of a FOIA claim[,]”
Campaign for Accountability, 278 F. Supp. 3d at 313, because it has alleged that the
“[t]he IRS is an agency” that “has denied CoA Institute access to agency records to
which it has a right under the FOIA” (Compl. ¶¶ 5, 30).
To be sure, “the fact that [the requested] relief is available . . . does not answer
the question of whether [CoA Institute] is correct on the merits when it argues that such
relief is warranted.” Campaign for Accountability, 278 F. Supp. 3d at 317 (emphasis in
original) (citation omitted). That question is appropriately presented in the context of
this Court’s future consideration of the parties’ anticipated cross-motions for summary
judgment. See id. at 313 (“FOIA cases typically and appropriately are decided on
motion for summary judgment.” (internal quotation marks and citation omitted));
Judicial Watch, 25 F. Supp. 3d at 136 (same). After answering the complaint’s
allegations, the parties will be ordered to propose a schedule for briefing motions for
28 summary judgment under Rule 56, and in that context, the agency will be free to argue
that the state of the evidence is such that there is no genuine issue of material fact
concerning the nature of the requested records—i.e., they are indisputably
“congressional records” rather than “agency records”—and that, therefore, the agency is
entitled to judgment as a matter of law. Likewise, CoA Institute can put forward
arguments and evidence to counter the IRS’s legal arguments and demonstrate that there
is no genuine dispute that the agency has transgressed its obligations under the FOIA.
For now, it suffices to conclude that, accepting its allegations as true, CoA Institute has
made a plausible claim for relief under the FOIA.
IV. CONCLUSION
As explained above, the IRS maintains that it has not “denied CoA Institute
access to agency records to which it has a right under the FOIA” (Compl. ¶ 30), and it
argues that, on this basis alone, this Court lacks subject-matter jurisdiction such that
CoA Institute’s FOIA complaint must be dismissed. But the character of the records at
issue does not dictate this Court’s subject-matter jurisdiction over the instant FOIA
claim, and the IRS will have ample opportunity to dispute CoA Institute’s claim when
the agency addresses the merits of CoA Institute’s complaint in a future motion for
summary judgment. In the meantime, and for the purpose of the IRS’s motion to
dismiss, CoA Institute’s allegations must be accepted as true, and they are manifestly
sufficient to state a claim for violation of the FOIA. Therefore, as set forth in the
accompanying Order, the IRS’s motion to dismiss will be DENIED.
DATE: July 17, 2019 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge