The opinion of the court was delivered by: FRIEDMAN
On November 20, 1997, four separate complaints and motions for preliminary injunctions were filed in this Court. The facts and complaints in the four cases are essentially identical except that each has a different named plaintiff or plaintiffs.
On December 11, 1997, Judge William Bryant dismissed Lake v. Rubin, Civil Action No. 97-2767, for lack of subject matter jurisdiction. On December 24, 1997, this Court issued an order consolidating the three remaining cases, setting a briefing schedule on the issue of permanent injunctive relief and setting a date for a motions hearing. The consolidated cases are before the Court on the government's motion to dismiss. After careful consideration of the extensive briefs and memoranda filed by both sides and the arguments presented by counsel at the hearing, the Court concludes that it does not have subject matter jurisdiction over these cases, and the cases therefore shall be dismissed.
Plaintiff Lawrence Maxwell brought this case under the Privacy Act, 5 U.S.C. § 552a.
He alleges that he has "been the recipient of threatening correspondence and numerous documents purportedly created and forwarded via United States mail by agents of the United States Department of the Treasury -- Internal Revenue Service." Complaint at P 12. On August 12, 1997, Mr. Maxwell sent a letter to the Internal Revenue Service requesting:
1) any and all records containing information about Lawrence Stephen Maxwell relevant and necessary to accomplish a purpose of the Department of Treasury required to be accomplished by statute or by executive order of the President . . .
2) any and all records containing information about Lawrence Stephen Maxwell that determined that Lawrence Stephen Maxwell was subject to the enforcement authority of the Department of the Treasury . . .
3) any and all records containing information about Lawrence Stephen Maxwell that determined that Lawrence Stephen Maxwell was required by statute or executive order to pay, or cause to be paid, a "tax" to the Department of the Treasury . . .
4) any and all records containing information about Lawrence Stephen Maxwell that determined that Lawrence Stephen Maxwell was required by statute or executive order to file a "form" that has been promulgated by the Office of Management and Budget (OMB) pursuant to the SF-83 request filed with the OMB by the Department of the Treasury . . .
Complaint, Exh. 1 at 2.
Mr. Maxwell alleges that he was trying to "obtain records that would explain adverse determinations made by the Department of the Treasury - IRS with regard to Plaintiff." Complaint at P 5. In his letter to the IRS, Mr. Maxwell claimed that he was entitled to the records "under the provisions of the Privacy Act of 1974 codified at 5 U.S.C. 552a." Complaint at P 12. Mr. Maxwell alleges that he received no response from the IRS, so he sent a follow-up letter on October 2, 1997. Complaint, Exh. 3. By letter stamped November 18, 1997, the IRS informed Mr. Maxwell that his request for records was being denied because he had not followed the published procedure for making a request under the Privacy Act. Defendant's Opposition to Motion for Preliminary Injunction, Exh. 1.
On November 20, 1997, Mr. Maxwell, Mr. Davis and Mr. Wydner filed these suits to obtain the requested records.
After the Court consolidated the three cases and set a briefing schedule on the issue of permanent injunctive relief, the government responded with a motion to dismiss on a variety of jurisdictional grounds. At the February 5, 1998 hearing, the Court asked the parties to address whether the relevant provision of the Internal Revenue Code, 26 U.S.C. § 7852(e) deprived the Court of jurisdiction over these cases.
Plaintiffs took the position that Section 7852(e) did not apply to this case. Counsel for the government represented that the government was not relying on Section 7852(e) as grounds to dismiss the cases for lack of jurisdiction. After the hearing, the Court informed the parties that it had an independent obligation to consider whether it had subject matter jurisdiction regardless of whether the parties wished to argue the matter and that "the plain language of Section 7852(e) appears to prevent this Court from exercising jurisdiction in this case." Memorandum and Order of February 6, 1998 at 2. The Court therefore directed the parties to file supplemental memoranda "addressing the applicability of Section 7852(e) to this case." Id. at 3. The government now argues that Section 7852(e) applies to these cases and prevents the Court from exercising jurisdiction, while plaintiffs maintain, among other things, that Section 7852(e) is invalid.
Plaintiff has stated that his suit "is COMPLETELY pursuant and ONLY under the authority of the Privacy Act." Plaintiff's Reply to Defendant's Opposition to Preliminary Injunction at 10. Because the Court concludes that the Privacy Act does not provide jurisdiction in this Court over these cases, ...