Case Detail

FOIA Project Annotation: Aside from the exemptions themselves, a primary basis agencies use for rejecting FOIA requests is that the records requested do not qualify as agency records because they are in the custody or control of an body or entity not subject to FOIA. The FOIA's definition of an agency comes from the Administrative Procedure Act and limits the statute's coverage to executive agencies with exceptions for offices inside the Executive Office of the President that primarily advise the President. The statute also specifically excludes Congress and the judiciary. To the extent that these issues are subject to litigation, a primary focus is the unsettled intersection between congressional and agency records. While the statute is clear that Congress' own records are not covered, it is considerably less clear where the line exists when agency records are provided to Congress as part of its legislative and oversight functions. Decisions like United We Stand America v. IRS, 359 F.3d 595 (D.C. Cir. 2004), in which the D.C. Circuit found that specific restrictions on disclosure placed on IRS records provided to the Joint Committee on Taxation showed the Committee's decision to control the records are obvious examples of when agency records become congressional records. Several years ago, when the Republicans still controlled the House, then Rep. Jeb Hensarling (R-TX), who chaired the House Financial Services Committee, encouraged agencies to adopt a policy of denominating all records sent to Congress as congressional records not subject to FOIA. To get some sense of how embedded this policy had become, Cause of Action Institute submitted FOIA requests to agencies like the IRS. In its two requests to the IRS, CoA Institute asked for records transmitted between the IRS and the Joint Committee on Taxation. The agency denied both requests, claiming the records were not agency records but congressional records not subject to FOIA. CoA Institute filed suit and the agency asked Judge Ketanji Brown-Jackson to dismiss the case for lack of jurisdiction based on its claim that the agency had not withheld any records subject to FOIA. Although she did nothing more than allow CoA Institute to continue its suit, Brown-Jackson decisively rejected the entire basis for the agency's motion for dismissal, finding instead that whether or not records qualified as agency records subject to FOIA was an issue to be determined at the merits stage as part of an affirmative defense against responding to the request. Brown-Jackson began her assessment by noting that "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. 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 had improperly withheld 'agency records'. . ." Instead, she pointed out that "the Court is satisfied that CoA Institute has pled a plausible violation of the FOIA, insofar as its complaint plainly alleged that 'the IRS is an agency' to which CoA Institute submitted two detailed requests for records, and in response to those requests, the IRS 'denied CoA Institute access to agency records to which it has a right under the FOIA.'" Brown-Jackson explained that two appellate court decisions undercut the agency's jurisdictional argument. She pointed out that in CREW v. Office of Administration, 566 F. 3d 219 (D.C. Cir. 2009), the D.C. Circuit rejected the exact same jurisdictional argument and instead found that "a court's determination that the defendant was 'not an agency covered by 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. The second decision was Main Street Legal Services v. National Security Council, 811 F.3d 542 (2d Cir. 2016), where the Second Circuit held that "while section 552(a)(4)B) references the court's 'jurisdiction,' that provision 'relates to the court's remedial power rather than to its subject-matter jurisdiction.'" Brown-Jackson observed that "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." Brown-Jackson found further support in Judicial Watch v. U.S. Secret Service, 726 F.3d 208 (D.C. Cir. 2013), where 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. 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, 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." Based on this case law, Brown-Jackson explained that "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." The IRS tried to distinguish the holding in CREW v. Office of Administration from the facts here, asserting that CREW involved an EOP office while this case involved Congress. While recognizing the difference in entities, Brown-Jackson pointed out that "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 â€" i.e., whether the records that CoA Institute has requested from the IRS are 'agency records' under 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 maintain a FOIA action, both circumstances are identical." Brown-Jackson also faulted the agency's jurisdictional argument for shifting the burden of proof from the agency to CoA Institute. She noted that "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. . ." She pointed out that "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 proves 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."
Issues: Litigation - Jurisdiction - Failure to State a Claim, Agency Record

Date Filed	Doc #	Docket Text
2016-12-01	1	COMPLAINT against INTERNAL REVENUE SERVICE ( Filing fee $ 400 receipt number 0090-4761393) filed by CAUSE OF ACTION INSTITUTE. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8, # 9 Exhibit Exhibit 9, # 10 Exhibit Exhibit 10, # 11 Exhibit Exhibit 11, # 12 Exhibit Exhibit 12, # 13 Exhibit Exhibit 13, # 14 Civil Cover Sheet, # 15 Summons IRS, # 16 Summons AG, # 17 Summons Clerk)(Steven, Lee) (Entered: 12/01/2016)
2016-12-01	2	Corporate Disclosure Statement by CAUSE OF ACTION INSTITUTE. (Steven, Lee) (Entered: 12/01/2016)
2016-12-01	3	NOTICE of Appearance by Ryan Patrick Mulvey on behalf of CAUSE OF ACTION INSTITUTE (Mulvey, Ryan) (Entered: 12/01/2016)
2016-12-02		Case Assigned to Judge Ketanji Brown Jackson. (sb) (Entered: 12/02/2016)
2016-12-02	4	SUMMONS (3) Issued Electronically as to INTERNAL REVENUE SERVICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(sb) (Entered: 12/02/2016)
2016-12-05	5	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions and filing exhibits. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 12/5/2016. (lckbj1) (Entered: 12/05/2016)
2016-12-06	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. INTERNAL REVENUE SERVICE served on 12/5/2016 (Steven, Lee) (Entered: 12/06/2016)
2016-12-06	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 12/06/2016. (Steven, Lee) (Entered: 12/06/2016)
2016-12-06	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/6/2016. Answer due for ALL FEDERAL DEFENDANTS by 1/5/2017. (Steven, Lee) (Entered: 12/06/2016)
2017-01-03	9	NOTICE of Appearance by Kieran O'Neill Carter on behalf of INTERNAL REVENUE SERVICE (Carter, Kieran) (Entered: 01/03/2017)
2017-01-04	10	MOTION for Extension of Time to File Answer or other Responsive Pleading to Complaint by INTERNAL REVENUE SERVICE (Attachments: # 1 Text of Proposed Order)(Carter, Kieran) (Entered: 01/04/2017)
2017-01-09		MINUTE ORDER granting, for good cause shown, 10 Consent Motion for Extension of Time to Answer. Defendant shall answer or otherwise respond to the complaint on or before 2/21/201. Any further requests for extensions of time must comply with 5 the Court's General Order and Guidelines for Civil Cases. Counsel is specifically directed to Section 5 of the Appendix to the General Order and Guidelines. Signed by Judge Ketanji Brown Jackson on 1/9/2017. (lckbj1, ) (Entered: 01/09/2017)
2017-02-21	11	MOTION to Dismiss for Lack of Jurisdiction by INTERNAL REVENUE SERVICE (Attachments: # 1 Memorandum in Support, # 2 Declaration of Thomas A. Barthold, # 3 Declaration of Scott S. Landes, # 4 Exhibit A, # 5 Exhibit B, # 6 Index of Exhibits, # 7 Text of Proposed Order)(McMonagle, Ryan) (Entered: 02/21/2017)
2017-03-03	12	Memorandum in opposition to re 11 MOTION to Dismiss for Lack of Jurisdiction filed by CAUSE OF ACTION INSTITUTE. (Attachments: # 1 Declaration Mulvey, # 2 Text of Proposed Order)(Mulvey, Ryan) (Entered: 03/03/2017)
2017-03-10	13	REPLY to opposition to motion re 11 MOTION to Dismiss for Lack of Jurisdiction filed by INTERNAL REVENUE SERVICE. (Attachments: # 1 Declaration of Jonathan Davis)(McMonagle, Ryan) (Entered: 03/10/2017)
2017-04-20		MINUTE ORDER setting hearing on 11 Motion to Dismiss for 8/3/2017 at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 04/20/2017. (lckbj1) (Entered: 04/20/2017)
2017-06-07		MINUTE ORDER. It is hereby ORDERED that the Hearing on 11 Motion to Dismiss currently set for 8/3/2017 at 10:30 AM is VACATED and RESET for 8/24/2017 at 10:30 AM in Courtroom 17 before Judge Ketanji Brown Jackson. Signed by Judge Ketanji Brown Jackson on 06/07/2017. (lckbj1) (Entered: 06/07/2017)
2017-08-24		Minute Entry for proceedings held before Judge Ketanji Brown Jackson: Motion Hearing held on 8/24/2017 11 MOTION to Dismiss for Lack of Jurisdiction. Oral arguments heard. Motion taken under advisement. (Court Reporter: Barbara DeVico) (kh) (Entered: 08/24/2017)
2017-08-25	14	MOTION to Permit the Parties to File Supplemental Briefing by INTERNAL REVENUE SERVICE (Attachments: # 1 Text of Proposed Order)(Carter, Kieran) (Entered: 08/25/2017)
2017-08-28		MINUTE ORDER granting 14 Consent Motion for Supplemental Briefing. It is hereby ORDERED that Defendant's supplemental brief is due on or before 9/15/2017, and Plaintiff's supplemental brief is due on or before 10/6/2017. Given the parties' request to submit supplemental briefing, and the Court's granting of that request, it is FURTHER ORDERED this case is ADMINISTRATIVELY STAYED until further Order of this Court. This administrative stay has no effect on the parties' supplemental briefing obligations or any deadlines in this matter. Signed by Judge Ketanji Brown Jackson on 08/28/2017. (lckbj1) (Entered: 08/28/2017)
2017-09-15	15	SUPPLEMENTAL MEMORANDUM to re 11 MOTION to Dismiss for Lack of Jurisdiction filed by INTERNAL REVENUE SERVICE. (Carter, Kieran) (Entered: 09/15/2017)
2017-10-04	16	SUPPLEMENTAL MEMORANDUM to re 12 Memorandum in Opposition to Motion to Dismiss for Lack of Jurisdiction filed by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 10/04/2017)
2017-11-28	17	TRANSCRIPT OF PROCEEDINGS before Judge Ketanji Brown Jackson held on 8-24-17; Page Numbers: 1-91. Date of Issuance:11-28-17. Court Reporter/Transcriber Barbara DeVico, Telephone number 202-354-3118, Transcripts may be ordered by submitting the <a href="http://www.dcd.uscourts.gov/node/110">Transcript Order Form</a><P></P><P></P>For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, PDF or ASCII) may be purchased from the court reporter.<P> NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.<P></P> Redaction Request due 12/19/2017. Redacted Transcript Deadline set for 12/29/2017. Release of Transcript Restriction set for 2/26/2018.(DeVico, Barbara) (Entered: 11/28/2017)
2019-07-17	18	MEMORANDUM OPINION denying Defendant's 11 Motion to Dismiss. Signed by Judge Ketanji Brown Jackson on 7/17/2019. (lckbj2) (Entered: 07/17/2019)
2019-07-17	19	ORDER denying Defendant's 11 Motion to Dismiss. Signed by Judge Ketanji Brown Jackson on 7/17/2019. (lckbj2) (Entered: 07/17/2019)
2019-07-31	20	ANSWER to Complaint by INTERNAL REVENUE SERVICE.(McMonagle, Ryan) (Entered: 07/31/2019)
2019-08-05	21	SUPERSEDING GENERAL ORDER AND GUIDELINES FOR FOIA CASES ASSIGNED TO JUDGE KETANJI BROWN JACKSON. This Order supersedes this Court's prior 5 General Order and Guidelines for Civil Cases. The Court will hold the parties and counsel responsible for following these amended directives, and parties and counsel should pay particular attention to the Court's instructions for processing and production of records, batching motions, and filing exhibits. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 8/5/2019. (lckbj1) (Main Document 21 replaced on 8/6/2019) (zgdf). (Entered: 08/05/2019)
2019-08-05		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall review this Court's 21 Superseding General Order and Guidelines Applicable to FOIA Cases, and promptly confer and file a joint proposed schedule for disclosure or briefing motions for summary judgment, on or before 8/19/2019. Signed by Judge Ketanji Brown Jackson on 8/5/2019. (lckbj1) (Entered: 08/05/2019)
2019-08-19	22	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (Carter, Kieran) (Entered: 08/19/2019)
2019-08-27		MINUTE ORDER. In light of the representations in the parties' 22 Joint Status Report, it is hereby ORDERED that, on or before 9/30/2019, the parties shall file a further joint status report, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 8/27/2019. (lckbj1) (Entered: 08/27/2019)
2019-09-30	23	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 09/30/2019)
2019-10-03		MINUTE ORDER. In light of the representations in the parties' 23 Joint Status Report, it is hereby ORDERED that, on or before 10/28/2019, the parties shall file a further joint status report, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 10/3/2019. (lckbj1) (Entered: 10/03/2019)
2019-10-04		Set/Reset Deadlines: Joint Status Report due by 10/28/2019 (hs) (Entered: 10/04/2019)
2019-10-08		Set/Reset Deadlines: Joint Status Report due by 10/28/2019 (hs) (Entered: 10/08/2019)
2019-10-28	24	Joint STATUS REPORT by CAUSE OF ACTION INSTITUTE. (Mulvey, Ryan) (Entered: 10/28/2019)
2019-10-31	25	NOTICE of Change of Address by Lee A. Steven (Steven, Lee) (Entered: 10/31/2019)
2019-11-12		MINUTE ORDER. In light of the representations in the parties' 24 Joint Status Report, it is hereby ORDERED that, on or before 11/25/2019, and the last Monday of every month thereafter, the parties shall file a further joint status report, which shall include a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 11/12/2019. (jag) (Entered: 11/12/2019)
2019-11-25	26	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 11/25/2019)
2019-12-30	27	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (Carter, Kieran) (Entered: 12/30/2019)
2020-01-27	28	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (Carter, Kieran) (Entered: 01/27/2020)
2020-02-24	29	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 02/24/2020)
2020-03-30	30	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (Carter, Kieran) (Entered: 03/30/2020)
2020-04-29	31	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (Carter, Kieran) (Entered: 04/29/2020)
2020-05-26	32	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (Carter, Kieran) (Entered: 05/26/2020)
2020-06-29	33	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 06/29/2020)
2020-07-27	34	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 07/27/2020)
2020-08-31	35	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 08/31/2020)
2020-09-28	36	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 09/28/2020)
2020-10-26	37	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 10/26/2020)
2020-11-30	38	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 11/30/2020)
2020-12-28	39	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 12/28/2020)
2021-01-26	40	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 01/26/2021)
2021-02-22	41	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 02/22/2021)
2021-03-29	42	Joint STATUS REPORT by INTERNAL REVENUE SERVICE. (McMonagle, Ryan) (Entered: 03/29/2021)
2021-04-29		MINUTE ORDER. In light of the representations in the parties' 42 Joint Status Report, it is hereby ORDERED that the parties shall file their notice of completion and joint proposed schedule on or before 5/17/2021. Signed by Judge Ketanji Brown Jackson on 4/29/2021. (jag) (Entered: 04/29/2021)
2021-05-17	43	NOTICE of Completion and Joint Proposed Schedule by INTERNAL REVENUE SERVICE re Order,, Set Deadlines, (McMonagle, Ryan) (Entered: 05/17/2021)
2021-06-08		MINUTE ORDER setting schedule for further proceedings: Plaintiff's Amended Complaint is due on or before 6/14/2021; Defendant's Answer to the Amended Complaint is due on or before 6/23/2021; Defendant's Motion for Summary Judgment shall be served on or before 7/23/2021; Plaintiff's Opposition and Cross-Motion for Summary Judgment shall be served on or before 9/28/2021; Defendant's Reply and Cross-Motion Opposition shall be served on or before 10/28/2021; Plaintiff's Cross-Motion Reply shall be served on or before 11/30/2021; briefs shall be filed as a batch within three (3) business days of the service of the last reply brief authorized by this Minute Order, but in any event no later than the Final Filing Deadline of 1/7/2022. Signed by Judge Ketanji Brown Jackson on 6/8/2021. (jag) (Entered: 06/08/2021)
2021-06-11	44	AMENDED COMPLAINT against INTERNAL REVENUE SERVICE filed by CAUSE OF ACTION INSTITUTE. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Redlined Amended Complaint)(Mulvey, Ryan) (Entered: 06/11/2021)
2021-06-23	45	ANSWER to 44 Amended Complaint, by INTERNAL REVENUE SERVICE.(McMonagle, Ryan) (Entered: 06/23/2021)
2021-06-28		Judge Ketanji Brown Jackson has been elevated to serve on the U.S. Court of Appeals for the D.C. Circuit. She is therefore no longer assigned to this case, and this matter has been reassigned to the Calendar Committee, which will oversee it until it is assigned to another district judge. Any questions should be directed to Judge Jackson's former deputy clerk, Gwendolyn Franklin, at 202-354-3145 or gwen_franklin@dcd.uscourts.gov. (rj) (Entered: 06/28/2021)
2021-08-13	46	NOTICE of Service of Motion for Summary Judgment by INTERNAL REVENUE SERVICE re 21 Order,, Order,,,, Set Deadlines,,, (McMonagle, Ryan) (Entered: 08/13/2021)
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