Opinion
CIV 5-00-1046 LKK PAN PS
August 31, 2000
FINDINGS AND RECOMMENDATION
Plaintiff William Baker ("Baker") sues the Internal Revenue Service ("IRS") for failing adequately to respond to his request for documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. On July 5, 2000, Baker moved for summary judgment. On July 19, pursuant to Local Rule 78-230(E), the IRS filed a counter-motion to dismiss Baker's complaint for lack of subject matter jurisdiction on the ground that Baker did not file an administrative appeal before filing suit. On August 9 the motions were submitted without oral argument.
The first question is whether Baker has established this court's subject matter jurisdiction. Where a jurisdictional issue is separable from the merits of a case, the court may determine jurisdiction under Rule 12(b)(1). Roberts v. Corrothers, 812 P.2d 1173, 1177 (9th Cir. 1987). If the challenge is a facial attack, the factual allegations of the complaint are presumed true and the motion granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Thornhill Pub. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979). If the motion is a "speaking motion" that attacks the existence of subject matter jurisdiction in fact no presumption of truthfulness attaches to the plaintiff's allegations, the plaintiff has the burden of proof that jurisdiction in fact exists and the court may consider evidence on the jurisdictional issue, resolving factual disputes if necessary. Id.
The following facts are not disputed. On March 10, 2000, Baker submitted a FOIA request to the IRS for "a copy of the actual, duly signed and certified, under seal of your agency, Lawful Assessment which complies with Treasury Regulation, 26 C.F.R. § 301.6203-1, for the years above [1988, and 1990-1997]." Baker also requested that "[i]f there is no Assessment Certificate, please state there is no assessment on file." On March 17 the IRS's Fresno Service Center received the request. On March 22 disclosure specialist Ellen Bell reviewed Baker's file for the tax years requested and ordered summary records of assessments against Baker. On April 12, 18 days after receipt of plaintiffs request, Bell sent the summary records and supporting transcripts to Baker along with a letter explaining the form of the records, identifying portions redacted pursuant to FOIA exceptions, and indicating how, for a fee, Baker could get the documents certified. In addition, Bell stated in the letter that she enclosed a notice explaining Baker's right of appeal regarding information withheld.
Baker filed this action on May 12. In his complaint Baker alleges that to date he has not received a copy of the "lawful Assessment" as required by the FOIA. Baker alleges that he "has exhausted his administrative remedies pursuant to 5 U.S.C. 552(a)(6)(C)(I) since no lawful answer has been received" from the IRS. In support of his motion Baker avers that the IRS failed to provide a response that complies with 26 C.F.R. § 301.6203-1. This regulation provides:
The district director and the director of the regional service center shall appoint one or more assessment officers. The district director shall also appoint assessment officers in a Service Center servicing his district The assessment shall be made by an assessment officer signing the summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record. The date of the assessment is the date the summary record is signed by an assessment officer. If the taxpayer requests a copy of the record of assessment he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.
On June 15, Gene Cox, an attorney with the IRS Office of Chief Counsel, requested a search of his office's computerized tracking system in which the office records all FOIA administrative appeals and was unable to locate any administrative appeal filed by Baker.
5 U.S.C. § 552 (a)(4)(B) confers jurisdiction upon the district court "to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly held from the complainant." 5 U.S.C. § 552 (a)(4)(B). "This vests the district court with all the powers of an equity court to issue injunctive relief from withholding of agency records." In re Steele, 799 F.2d 461, 465 (9th (Dir. 1986). However, exhaustion of a party's administrative remedies is required under the FOIA before that party can seek judicial review. Id. at 465-466. Prior to seeking judicial review, the complainant must request specific information in accordance with published administrative procedures, 5 U.S.C. § 552 (a)(1), (2) (3); have the request improperly refused, 5 U.S.C. § 552 (a)(4)(B); file available administrative appeals, Taylor v. Appleton, 30 F.3d 1365, 1369 (11th (Dir. 1994); McDonnell v. United States, 4 F.3d 1227, 1240 (3d Cir. 1993); Oglesby v. United States Department of the Army, 920 F.2d 57, 63-64 (D.C. Cir. 1990); and present proof that he or she has exhausted all administrative remedies. Hedley v. United States, 594 F.2d 1043, 1044 (5th (Dir. 1979). Failure to exhaust administrative remedies before filing suit operates as a jurisdictional bar to judicial review of a plaintiff's claims. Hyman v. Merit Systems Protection Board, 799 F.2d 1421, 1423 (9th (Dir. 1986).
Pursuant to 5 U.S.C. § 552 (a)(1), the IRS published guidelines in the Federal Register explaining its FOIA procedures. See 26 C.F.R. § 601.702. The time limit for the IRS to respond to a FOIA request is ten working days. 5 U.S.C. § 552 (a)(6)(A)(i); 26 C.F.R. § 601.702 (c)(7)(i). If the request is not granted in full, the IRS must advise the person making the request of the right to appeal to the Commissioner in accordance with 26 C.F.R. § 601.702 (c)(8). 26 C.F.R. § 601.702 (c)(7)(iii). Pursuant to section 601.712 (c)(8), the requester may file an administrative appeal to the Commissioner at any time within 35 days after the date of any adverse notification identified therein. RI. § 601.702(c)(8).
Generally, the exhaustion requirement is deemed waived if the agency fails to respond to the FOIA request within the statutory time limit. 5 U.S.C. § 552 (a)(6)(C); 26 C.F.R. § 601.702 (c)(10). The ten-day constructive exhaustion under section 552(a)(6)(C) allows immediate recourse to the courts to compel the agency's response to a FOIA request where a response is not forthcoming within the time allowed. See id. However, if the agency cures its failure to respond within the statutory period by responding to the request before suit is filed, the requester must exhaust his administrative remedies before seeking judicial review, and hence an administrative appeal is mandatory. See Taylor, supra, 30 F.3d at 1369; McDonnell, supra, 4 F.3d at 124041; Oglesby, supra, 920 F.2d at 63-64.
The IRS failed timely to respond to Baker's FOIA request but cured its failure by responding to the request before Baker filed suit. In its response to Baker, the IRS provided certain information, withheld other information and notified Baker of his right to appeal regarding information withheld.
Baker contends that he was not required to exhaust administrative remedies because he never received a "lawful answer," viz, the record of assessment prescribed by 26 C.F.R. § 301.6203-1. But Baker's disappointment in the quality of the records provided does not dispense with the administrative appeal requirement of the FOIA. See 5 U.S.C. § 552 (a)(6)(A)(i)-(ii), (c)(i). I find that Baker was required to bring an administrative appeal prior to filing suit. See Taylor, supra, 30 F.3d at 1369; McDonnell, supra, 4 F.3d at 1240-41;Oglesby, supra, 920 F.2d at 63-64; see also 5 U.S.C. § 552 (a)(6)(C); 26 C.F.R. § 601.702 (c)(8), (10). Baker does not allege that he filed an administrative appeal and the IRS submits evidence that it has no record of any appeal by Baker. Accordingly, I find that Baker failed to meet his burden to demonstrate that he exhausted his administrative remedies. See Hedley, supra, 594 F.2d at 1044. Consequently, I find that this court lacks jurisdiction. See Steele, supra, 799 F.2d at 465-466; Hyman, supra, 799 F.2d at 1423.
The IRS's motion to dismiss should be granted and Baker's motion for summary judgment should be denied.