Cause of Action Institute v. Internal Revenue Service

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.)

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 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).

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 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).

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 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]

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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).

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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

29