Kehmeier v. United States Department of Justice Tax Division

Filing 18

ORDER granting Defendant's 9 Motion to Dismiss for Lack of Jurisdiction. See document for details. Signed by Magistrate Judge David K Duncan on 02/17/2017. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomas L. Kehmeier,

No. CV-16-4257-PHX-DKD

Plaintiff,

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v.

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United States Department of Justice Tax
Division,

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ORDER

Defendant.

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Defendant U.S. Department of Justice, Tax Division (“DOJ”) moved to dismiss

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under Federal Rule of Civil Procedure 12(b)(1) because the Court does not have subject

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matter jurisdiction over Plaintiff Thomas Kehmeier’s complaint. (Doc. 9) Because the

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Court agrees with this analysis, DOJ’s motion will be granted.

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jurisdiction pursuant to 42 U.S.C. § 405(g) and, with the parties’ consent to Magistrate

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Judge jurisdiction, pursuant to 28 U.S.C. § 636(c).

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This Court has

Background. Kehmeier, an experienced pro per litigant1, submitted the following
request for records under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”):
All records identifying a federal statute imposing a tax that
expressly authorizes the Secretary, under Title 26 U.S.C. §
3402(a)(1), to prescribe tax tables or computational
procedures to use in measuring a tax.

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In the District of Arizona alone, Kehmeier has filed three other lawsuits against
the United States. Kehmeier v. U.S., 2:16-CV-03318-BSB; Kehmeier v. U.S., 2:13-CV02257-SRB; Kehmeier v. U.S., 2:10-cv-02684-NVW.

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(Doc. 1 at ¶ 5) After DOJ did not respond to his request, Kehmeier filed this suit alleging

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that he is entitled to the requested documents. (Doc. 1) DOJ’s motion to dismiss argues

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that his request is for research not an “agency record” covered by FOIA. (Doc. 9)

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Analysis. This Court’s jurisdiction over Kehmeier’s complaint “is dependent on a

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showing that an agency has (1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.’”

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Spurlock v. F.B.I., 69 F.3d 1010, 1015 (9th Cir. 1995) (quoting Kissinger v. Reporters

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Committee for Freedom of the Press, 445 U.S. 136, 150 (1980)). FOIA does not define

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“agency record.” 5 U.S.C. § 551(1). However, the case law is clear that “[a]n agency is

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not required to provide copies of federal regulations or perform legal research for the

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requester.” West v. Jackson, 448 F.Supp.2d 207, 212 (D.D.C. 2006) (citing Landmark

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Legal Found. v. EPA, 272 F.Supp.2d 59, 64 (D.D.C. 2003)). See also Lawyers’ Comm.

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for Civil Rights of San Francisco Bay Area v. U.S. Dept. of Treasury, 534 F.Supp.2d

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1126, 1135 (N.D.Cal. 2008) (information or answers are not proper FOIA requests);

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Lamb v. I.R.S., 871 F.Supp. 301, 304 (E.D.Mich. 1994) (“requests for legal research” are

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outside the scope of FOIA).

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DOJ argues that Kehmeier’s request is for research and the Court agrees. The

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request is for “records identifying a federal statute.” (Doc. 1 at ¶ 5) This “seem[s] to be

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nothing more than an effort to secure legal research regarding the Internal Revenue Code

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from the I.R.S.” Hudgins v. I.R.S., 620 F.Supp. 19, 21 (D.C.D.C., 1985). This is outside

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the scope of FOIA and, accordingly, outside the scope of the Court’s jurisdiction.

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Conclusion.

Because Kehmeier’s requested documents were not “agency

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records,” the Court does not have jurisdiction over his complaint and it must be

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dismissed.

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IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss For Lack
of Subject Matter Jurisdiction is granted. (Doc. 9)
Dated this 17th day of February, 2017.

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