Case Detail
| Case Title | CAUSE OF ACTION INSTITUTE v. INTERNAL REVENUE SERVICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2016cv02354 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2016-12-01 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | Open | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Ketanji Brown Jackson | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | CAUSE OF ACTION INSTITUTE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Cause of Action Institute submitted two FOIA requests to the IRS for records pertaining to communications and transmittals from the IRS to the Congress' Joint Committee on Taxation. Cause of Action Institute requested the documents after the Chief Counsel of the IRS issued guidance that such records should be considered congressional records, not agency records subject to FOIA. The agency denied Cause of Action Institute's requests based on its determination that such records were not agency records. Cause of Action Institute filed an administrative appeal and the agency upheld its initial decision. Cause of Action Institute then filed suit. Complaint issues: Litigation - Attorney's fees | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | INTERNAL REVENUE SERVICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Complaint attachment 3 Complaint attachment 4 Complaint attachment 5 Complaint attachment 6 Complaint attachment 7 Complaint attachment 8 Complaint attachment 9 Complaint attachment 10 Complaint attachment 11 Complaint attachment 12 Complaint attachment 13 Complaint attachment 14 Complaint attachment 15 Complaint attachment 16 Complaint attachment 17 Opinion/Order [18] 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 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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