United States District Court, District of Columbia
RONALD E. BYERS, Plaintiff,
UNITED STATES TAX COURT, Defendant.
MEMORANDUM OPINION RE DOCUMENT NO. 5
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Defendant's Motion to Dismiss
Ronald E. Byers, proceeding pro se, brings this
action against the United States Tax Court ("Tax
Court" or "Defendant") pursuant to the Freedom
of Information Act ("FOIA"), 5 U.S.C. § 552.
Relying predominately on the D.C. Circuit's recent
decision in Kuretski v. Commissioner, 755 F.3d 929
(D.C. Cir. 2014), cert, denied, 135 S.Ct. 2309
(2015), Mr. Byers argues that, for the purposes of FOIA, the
Tax Court is an agency of the federal government's
Executive Branch. See generally Compl., ECF No. 1.
Thus, Mr. Byers asks this Court to order the Tax Court to
turn over a wide range of records identified in his FOIA
request. The Tax Court moves to dismiss the Complaint. Courts
of the United States are specifically exempted from FOIA, and
the Tax Court argues that Mr. Byers's Complaint should be
dismissed because the Tax Court is a court, not an agency.
The resolution of the Tax Court's motion to dismiss turns
on a single legal question: Is the Tax Court a court or an
agency for the purposes of FOIA?
Court's motion to dismiss is ripe and ready for decision.
See generally Def's Mot. Dismiss, ECF No.5;
Pl.'s Obj. Def's Mot. Dismiss ("Pl.'s
Opp'n"), ECF No. 9; Def's Reply Mem. Supp.
Def's Mot. Dismiss ("Def's Reply"), ECF No.
11; see also infra note 3 (addressing Mr.
Byers's initial intention to file a supplemental brief).
First, the Court rejects Mr. Byers's argument that the
term "courts of the United States" encompasses only
the Judicial Branch, and nothing more. Next, the Court finds
that Mr. Byers's reliance on Kuretski is
misplaced. Although the D.C. Circuit held that the Tax Court
is a part of the Executive Branch for the purposes of
constitutional separation of powers, that outcome does not
determine whether the Tax Court is subject to FOIA. Instead,
a number of factors, including congressional intent, Supreme
Court interpretation, and the function of the Tax Court, all
suggest that the Tax Court is best understood as a court, not
an agency, for the purposes of FOIA. Thus, the Court will
grant the Tax Court's motion, and dismiss Mr. Byers's
STATUTORY AND FACTUAL BACKGROUND
The Freedom of Information Act
enacted FOIA so that citizens could discover "what their
government is up to." Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749,
773 (1989) (quoting EPA v. Mink, 410 U.S. 73, 105
(1973)). Congress intended for the statute "to pierce
the veil of administrative secrecy and to open agency action
to the light of public scrutiny." Dep 't of Air
Force v. Rose, 425 U.S. 352, 361 (1976); see also
Mink, 410 U.S. at 80. Among other provisions, FOIA
requires "each agency" to respond to appropriate
requests and "make the [requested] records promptly
available to any person." 5 U.S.C. § 552(a)(3)(A);
see also Milner v. Dep't of Navy, 562 U.S. 562,
565 (2011) ("FOIA thus mandates that an agency disclose
records on request, unless they fall within one of nine
exemptions."). To define the term "agency, "
FOIA relies on the existing definition found in the
Administrative Procedure Act ("APA"). See
5 U.S.C. § 552(f)(1) (citing id. §
551(1)). The APA states that "'agency' means
each authority of the Government of the United States . . .
but does not include ... the courts of the United
States." Id. § 551(1)(B).
The United States Tax Court
has made periodic changes to the name and nature of what is
now the United States Tax Court. Congress created the
original precursor to the Tax Court in 1924. See
Kuretski, 755 F.3d at 933 (first citing Harold Dubroff,
The United States Tax Court: An Historical Analysis,
40 Alb. L. Rev. 7, 64-66 (1975); and then citing John
Kelley Co. v. Comm 'r, 326 U.S. 521, 527-28 (1946)).
That entity, known as the Board of Tax Appeals (the
"Board"), was created as "an independent
agency in the executive branch of the Government."
Revenue Act of 1924, Pub. L. No. 68-175, § 900(a), (k),
43 Stat. 253, 336, 338 (1924). Two years later, Congress
amended the President's authority to remove members of
the Board-guaranteeing the members a public hearing before
they could be removed-and made the Board's decisions
reviewable by the United States Courts of Appeals.
See Revenue Act of 1926, Pub. L. No. 69-20,
§§ 1000-01, 44 Stat. 9, 105-06, 109-10 (1926).
changed the name of the Board to the Tax Court of the United
States in 1942 and stated that its members would be known as
judges. See Revenue Act of 1942, Pub. L. No. 77-753,
§ 504(a), 56 Stat. 798, 957 (1942). Aside from this
change, Congress did not upset the authority or status of the
former Board. Id. § 504(b). For the purposes of
this Court's analysis, the most important change came in
1969, when Congress next addressed the status of what is now
the Tax Court. The Tax Reform Act of 1969 declared:
There is hereby established, under article I of the
Constitution of the United States, a court of record to be
known as the United States Tax Court. The members of the Tax
Court shall be the chief judge and the judges of the Tax
Tax Reform Act of 1969, Pub. L. No. 91-172, § 951, 83
Stat. 487, 730 (1969) (codified at 26 U.S.C. § 7441).
The Senate Report accompanying the 1969 Act stated that,
because "the Tax Court has only judicial duties, the
committee believes it is anomalous to continue to classify it
with quasi-judicial executive agencies that have rulemaking
and investigatory functions." S. Rep. No. 91-552 (1969),
reprinted in 1969 U.S.C.C.A.N. 2027, 2341.
D.C. Circuit recounted the history of the Tax Court in
Kuretski. 755 F.3d at 933. In that case, the court
considered a challenge to the constitutionality of the Tax
Court, based on the theory that the President's power to
remove Tax Court judges, see 26 U.S.C. §
7443(f), violates the separation of powers guaranteed by the
Constitution. Kuretski, 755 F.3d at 939. The court
concluded, however, that the Tax Court is a part of the
Executive Branch, meaning that "removal of a Tax Court
judge . . . would constitute an intra-not inter-branch
removal." Id. at 932. In response to
Kuretski, Congress passed a brief
"clarification" that states in full, "The Tax
Court is not an agency of, and shall be independent of, the
executive branch of the Government." Consolidated
Appropriations Act, 2016, Pub. L. No. 114-113, § 441,
129 Stat. 2242, 3126 (2015) (codified at 26 U.S.C. §
Byers initially submitted his FOIA request to the Tax Court
in March 2015. See Compl. ¶¶ 19-21; Compl.
Ex. A ("Pl.'s FOIA Request") at 16-21, ECF No.
Mr. Byers requested "24 categories of records"
related to the Tax Court's internal practices and
procedures. Compl. ¶ 20; see also Pl.'s
FOIA Request at 18-20. In his request, Mr. Byers argues that
the Tax Court is subject to FOIA because it "exercises
Executive authority as part of the Executive Branch."
Pl.'s FOIA Request at 16 (quoting Kuretski, 755
F.3d at 932).
letter responding to Mr. Byers's request, the Tax Court
refused to turn over any records and stated that "the
Tax Court is not an 'agency' subject to FOIA."
Compl. Ex. B at 23, ECF No. 1; see also Compl.
¶¶ 22-23. Mr. Byers sent another letter to the Tax
Court that appealed the denial of his FOIA request.
See Compl. Ex. C at 24-28, ECF No. 1; see
also Compl. ¶¶ 24-25. In a brief response, the
Tax Court denied Mr. Byers's appeal for the same reasons
it enumerated in its prior letter. See Compl. Ex. D
at 30, ECF No. 1; see also Compl. ¶ 27.
Byers brought this lawsuit on September 29, 2015.
See Compl. at 1. Mr. Byers alleges that the Tax
Court is a federal agency subject to FOIA that "has
unlawfully withheld from Mr. Byers each of its records that
he has duly requested." Compl. ¶ 35. Mr. Byers asks
this Court to conclude that FOIA applies to the Tax Court, to
order the Tax Court to comply with his FOIA request, and to
award him costs incurred in this litigation. See
Compl. ¶ 37. The Tax Court moves to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim, arguing that
"[a]ll indications are that the Tax Court is properly
considered a court of the United States, " and is thus
exempt from FOIA. Def.'s Mem. Supp. Def.'s Mot.
Dismiss ("Def.'s Mem.") at 1, ECF No. 5-1.
Relying primarily on Kuretski, Mr. Byers maintains
that that Tax Court "is an Executive Branch
'agency' that must disclose its records to the
American public under the Freedom of Information Act."
Pl.'s Opp'n at 1; see also
Pl.'s (Initial) Mem. P. & A. Supp. Pl.'s Objection
Def.'s Mot. Dismiss ("Pl.'s Mem.") at 1-5,
ECF No. 9.
se complaint is held to "less stringent standards
than formal pleadings drafted by lawyers." Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). But
even pro se litigants "must comply with the
Federal Rules of Civil Procedure." Idrogo v.
Foxx, 990 F.Supp.2d 5, 6 (D.D.C. 2013) (citing
Jarrell v. Tisch, 656 F.Supp. 237, 239 (D.D.C.
1987)). The Federal Rules of Civil Procedure require a
complaint to contain "a short and plain statement of the
claim" to give the defendant fair notice of the claim
and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2);
accord Erickson, 551 U.S. at 93. A motion to dismiss
under Rule 12(b)(6) does not test a plaintiffs ultimate
likelihood of success on the merits; rather, it tests whether
a plaintiff has properly stated a claim. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). A
court considering such a motion presumes that the
complaint's factual allegations are true and construes
them liberally in the plaintiffs favor. See, e.g., United
States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135
"[t]o 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 BellAtl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This means that a plaintiffs factual
allegations "must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact)." Twombly, 550 U.S. at 555-56 (citations
omitted). "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
" are therefore insufficient to withstand a motion to
dismiss. Iqbal, 556 U.S. at 678. A court need not
accept a plaintiffs legal conclusions as true, nor must a
court presume the veracity of the legal conclusions that are
couched as factual allegations. See id.; see also
Twombly, 550 U.S. at 555.
cannot consider matters outside the pleadings in deciding a
Rule 12(b)(6) motion, but it may consider "documents
attached as exhibits or incorporated by reference in the
complaint." Ward v. B.C. Dep 't of Youth Rehab.
Servs.,768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal
quotation marks omitted) (quoting Gustave-Schmidt v.
Chao,226 F.Supp.2d 191, 196 (D.D.C. 2002)). Further,
a pro se plaintiffs pleadings must be
"considered in toto" to determine whether
they "set out allegations sufficient to survive
dismissal." Brown v. Whole Foods Mkt. Grp.,
Inc.,789 F.3d 146, 151 (D.C. Cir. 2015) ...