BYERS v. UNITED STATES TAX COURT
Filing
13
MEMORANDUM OPINION granting 5 Defendants motion to dismiss. See document for details. Signed by Judge Rudolph Contreras on 9/30/2016. (lcrc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RONALD E. BYERS,
Plaintiff,
v.
UNITED STATES TAX COURT,
Defendant.
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Civil Action No.:
15-1605 (RC)
Re Document No.:
5
MEMORANDUM OPINION
GRANTING DEFENDANT’S MOTION TO DISMISS
I. INTRODUCTION
Plaintiff 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?
The Tax 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 Complaint.
II. STATUTORY AND FACTUAL BACKGROUND
A. The Freedom of Information Act
Congress 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
2
each authority of the Government of the United States . . . but does not include . . . the courts of
the United States.” Id. § 551(1)(B).
B. The United States Tax Court
Congress 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. 6920, §§ 1000–01, 44 Stat. 9, 105–06, 109–10 (1926).
Congress 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
Court.
3
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.
The 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. § 7441).1
C. Factual Background
Mr. 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. 1.2 Mr. Byers
1
The report of the Senate Finance Committee accompanying the legislation explicitly
referenced Kuretski. See S. Rep. No. 114-14, at 10 (2015) (“The Committee is concerned that
statements in Kuretski v. Commissioner may lead the public to question the independence of the
Tax Court. . . . The Committee wishes to remove any uncertainty caused by Kuretski v.
Commissioner, and to ensure that there is no appearance of institutional bias.”).
2
To avoid confusion, the Court will cite the page numbers automatically generated by the
Court’s ECF system when referring to the exhibits of Mr. Byers’s Complaint, even where an
exhibit contains pre-existing page numbers.
4
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).
In a 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.
Mr. 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
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also Pl.’s (Initial) Mem. P. & A. Supp. Pl.’s Objection Def.’s Mot. Dismiss (“Pl.’s Mem.”) at 1–
5, ECF No. 9.3
III. LEGAL STANDARD
A pro 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 plaintiff’s 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 plaintiff’s favor. See, e.g., United States v. Philip
Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
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In his opposition to the Tax Court’s motion, Mr. Byers explains that he “expects to
supplement his accompanying points and authority memorandum soon because he was unable to
afford representation.” Pl.’s Opp’n at 2. The Tax Court responds that “no authority exists” for
Mr. Byers to file multiple briefs, and argues that the Court “should treat Defendant’s motion to
dismiss as fully briefed.” Def.’s Reply at 3 n.1. The Court notes that no attorney has appeared
on Mr. Byers’s behalf and that Mr. Byers has not filed any supplementary briefing. Furthermore,
Mr. Byers states in his opposition to the motion that, “[a]lthough rushed, the memorandum . . .
file[d] with this objection alone should cause the Court to deny Defendant’s motion to dismiss.”
Pl.’s Opp’n at 2. Because of the lack of authority Mr. Byers presents in support of filing serial
briefs, as well as Mr. Byers’s failure to file an additional brief and his position that his initial
brief “alone” is sufficient, the Court finds that the Tax Court’s motion is fully briefed and ripe
for decision.
6
Nevertheless, “[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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This means that a plaintiff’s 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 plaintiff’s 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.
A court 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. D.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 plaintiff’s 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) (reversing the district court because it failed to
consider allegations found in a pro se plaintiff’s opposition to a motion to dismiss).
IV. ANALYSIS
The Court begins its analysis with the statutory definitions found in FOIA and the APA.
First, the Court considers Mr. Byers’s proposition that the term “courts of the United States”
encompasses only the Judicial Branch, but no entity outside of it. The Court is not persuaded by
Mr. Byers’s argument. Next, the Court turns to Kuretski and finds that Mr. Byers’s reliance on
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that case is misplaced. While it is true that Kuretski held that the Tax Court is a part of the
Executive Branch—at least for the purposes of a separation-of-powers analysis—that holding is
not dispositive here. Instead, a number of factors, including the intention of Congress, the
Supreme Court’s analysis of the Tax Court, and the Tax Court’s functions and procedures
support this Court’s conclusion that the Tax Court is a court, not an agency, for the purposes of
FOIA. For the following reasons, the Court will therefore grant the Tax Court’s motion to
dismiss the Complaint.
A. Statutory Definitions
The task of resolving whether the Tax Court is subject to FOIA “begins where all such
inquiries must begin: with the language of the statute itself.” United States v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 241 (1989). Thus, the Court first turns to the relevant statutory
definitions.
FOIA makes clear that its mandate applies to “agencies.” See, e.g., 5 U.S.C.
§ 552(a)(3)(A). FOIA also provides a definition of “agency,” which incorporates the APA’s
definition of the same term. See 5 U.S.C. § 552(f)(1) (citing id. § 551(1)). FOIA’s definition
states:
“[A]gency” as defined in [5 U.S.C. § 551(1)] includes any executive department,
military department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the Government
(including the Executive Office of the President), or any independent regulatory
agency. . . .
Id. The incorporated APA definition is narrowed, however, by a list of exemptions. The APA
states that “‘agency’ means each authority of the Government of the United States, whether or
not it is within or subject to review by another agency, but does not include . . . the courts of the
United States.” Id. § 551(1)(B). Because of Congress’s clear statement, Article III courts are
exempt from the reach of FOIA. See, e.g., United States v. Mitchell, No. 03-6938, 2003 WL
8
22999456, at *1 (4th Cir. Dec. 23, 2003) (per curiam) (“[F]ederal courts do not fall within the
definition of ‘agency’ under FOIA . . . .”); Gaydos v. Mansmann, No. 98-5002, 1998 WL
389104, at *1 (D.C. Cir. June 24, 1998) (per curiam) (“[T]he district court correctly determined
that a Freedom of Information Act claim may not be brought against the federal judiciary.”); see
also Maydak v. U.S. Dep’t of Justice, 254 F. Supp. 2d 23, 40 (D.D.C. 2003) (“[A] United States
probation office is not subject to the FOIA’s disclosure requirements because it is an arm of the
federal courts.”).
1. Mr. Byers’s Argument that “Courts of the United States” Means Only the Judicial Branch
Mr. Byers argues that the language “courts of the United States” found in the APA
“means that this FOIA exemption applies to the entire Article III judicial branch of government,”
but that it extends no further. Pl.’s Mem. at 4. Mr. Byers concludes that “[b]ecause the Tax
Court is not a part of, or is not an adjunct to, the Article III Judicial Branch, it cannot be one of
the ‘courts of the United States’ under [FOIA].”4 Id. at 5. In support of his position, Mr. Byers
relies on the D.C. Circuit’s opinion in Washington Legal Foundation v. United States Sentencing
Commission, 17 F.3d 1446 (D.C. Cir. 1994), and two citations to Title 28 of the United States
Code. See Pl.’s Mem. at 4.
First, Mr. Byers’s reliance on Washington Legal Foundation is not convincing. In that
case, the court considered whether the United States Sentencing Commission was an agency for
the purposes of the Federal Advisory Committee Act (“FACA”). See 17 F.3d at 1147–48. Like
FOIA, FACA incorporates the APA’s definition of agency. 5 U.S.C. app. 2 § 3(3). The court
4
This argument is closely related to Mr. Byers’s argument that the Tax Court must be
subject to FOIA because the D.C. Circuit has held that the Tax Court is part of the Executive
Branch, at least for the purposes of a constitutional separation-of-powers analysis. See infra Part
IV.A.2.
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surveyed past cases and determined that “virtually every case interpreting the APA exemption
for ‘the courts of the United States’ has held that the exemption applies to the entire judicial
branch.” Washington Legal Found., 17 F.3d at 1449. Nevertheless, the Court ultimately did not
reach the issue Mr. Byers relies on, because the court found that it “need not decide whether the
APA excludes the entire judicial branch from the definition of ‘agency.’” Id. at 1450; see also
id. (“[W]e need not interpret the APA at all.”). Even if the court had decided that the term “the
courts of the United States” encompasses the entire Judicial Branch, it would not necessarily
follow that the definition excludes any other entities outside of the Judicial Branch. The court
did not address that issue, and it would seem strange if Washington Legal Foundation, which
expanded the FOIA exemption beyond Article III courts alone, would be used in this case to
limit the scope of the same exemption.
Second, Mr. Byers relies on two provisions of Title 28 of the United States Code. Mr.
Byers argues that Congress “has defined the phrase ‘courts of the United States’ for the entire
United States Judicial Code.” Pl.’s Mem. at 4. The provision Mr. Byers refers to defines the
term to “include[] the Supreme Court of the United States, courts of appeals, district courts . . .,
and any court created by Act of Congress the judges of which are entitled to hold office during
good behavior.” 28 U.S.C. § 451. In contrast, Mr. Byers asserts that when Congress means to
refer to Article I courts, “it identifies them as the ‘courts established by Act of Congress.’” Pl.’s
Mem. at 4 (quoting 28 U.S.C. § 1651(a)).5
5
Mr. Byers’s reference to the All Writs Act also raises two additional problems. See 28
U.S.C. § 1651(a) (“The Supreme Court and all courts established by Act of Congress may issue
all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law.). First, all inferior Article III courts, not just Article I courts, are
created by Congress. See U.S. Const. art. III. In other words, “courts established by Act of
Congress” include both Article I courts like the Tax Court, and all district courts and circuit
courts. Second, Mr. Byers’s reading would mean the All Writs Act applies only to Article I
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Mr. Byers’s reliance on these provisions is misplaced. The definition of “court of the
United States” found in Title 28 is explicitly limited to that Title. See 28 U.S.C. § 451 (“As used
in this title: The term ‘court of the United States’ includes . . . .”). The Supreme Court has held
that definitions found in Title I of the Employee Retirement Income Security Act (“ERISA”)
were “not necessarily applicable to Title IV, because they are limited by the introductory phrase,
‘For the purposes of this title.’” Nachman Corp. v. Pension Ben. Guar. Corp., 446 U.S. 359, 370
(1980). The logic of Nachman is even more powerful in this case, because the definition put
forward by Mr. Byers appears not in a separate part of the same Act, but in an entirely different
Title of the United States Code. See also Comm’r v. Bedford's Estate, 325 U.S. 283, 291–92
(1945) (“The definition of a ‘partial liquidation’ in [§] 115(i) is specifically limited to use in [§]
115. To attempt to carry it over to [§] 112 would distort its purpose.”). Furthermore, the list of
definitions found in 28 U.S.C. § 451 also includes a definition of “agency,” as that term is used
in Title 28. The definition of “agency” found in FOIA (including that definition’s incorporation
of the APA) should certainly control this case, not the definition of the same term found in
another Title. For the same reasons, the Court is not persuaded that the definition of “court of
the United States” found in Title 28 should be dispositive here.
Finally, the Court notes that there is no direct link between the definition of the term
“courts of the United States” and anything found in Article III. The Supreme Court has held that
the term “Courts of Law” found in the Appointments Clause is “not limit[ed] . . . to those courts
established under Article III of the Constitution.” Freytag v. Comm’r, 501 U.S. 868, 888–89
(1991); see also American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 546 (1828) (holding that
courts, contrary to Article III courts’ longstanding reliance on the Act. See, e.g., In re al-Nashiri,
791 F.3d 71, 75–76 (D.C. Cir. 2015); Nixon v. Sirica, 487 F.2d 700, 707 (D.C. Cir. 1973).
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the judicial power of the United States is not limited to the judicial power defined under Article
III); Williams v. United States, 289 U.S. 553, 565–567 (1933) (same). It would be a strange
result if, as Mr. Byers’s argument implies, these Courts of Law, sanctioned by the government of
the United States, were not considered “courts of the United States.” For all of these reasons, the
Court is not persuaded by Mr. Byers’s argument that the term “courts of the United States”
includes only the Judicial Branch, and nothing more.6
2. Mr. Byers’s Reliance on Kuretski
Mr. Byers’s FOIA request and Complaint are largely motivated by the D.C. Circuit’s
decision in Kuretski. See, e.g., Compl. ¶¶ 1, 30; Pl.’s FOIA Request at 16. In that case, the court
held that the Tax Court is part of the Executive Branch, at least in the context of a separation-ofpowers analysis. Kuretski, 755 F.3d at 943. Mr. Byers argues that because Kuretski placed the
Tax Court in the Executive Branch, the Tax Court is necessarily subject to FOIA. See Compl.
¶¶ 30–33. The Court finds that Mr. Byers’s reliance on Kuretski is overbroad and misreads the
definition of agency found in FOIA.
Kuretski involved a constitutional challenge to the structure of the Tax Court filed by
Peter and Kathleen Kuretski. See 755 F.3d at 932. The plaintiffs argued that the President’s
authority to remove Tax Court judges, see 26 U.S.C. § 7443(f), violates the constitutional
6
Although the argument does not appear in his Complaint or his opposition to the Tax
Court’s motion, Mr. Byers relied on a citation to 26 U.S.C. § 7457 in his administrative appeal.
See Compl. Ex. C at 26–27. Section 7457 provides for witness fees and mileage in the Tax
Court that are the same as those provided for “witnesses in courts of the United States.” 26
U.S.C. § 7457(a). Mr. Byers argues that this statute shows that the Tax Court is not one of the
“courts of the United States.” See Compl. Ex. C at 27. But the Court is persuaded by the Tax
Court’s argument that this provision was enacted when the precursor to the Tax Court was still
an “independent agency,” thus requiring the comparison to existing courts. See Def.’s Mem. at
16–17; see also Internal Revenue Code of 1954, Pub. L. No. 83-591, § 7457, 68A Stat. 730, 886
(1954); supra Part II.B (explaining that the Tax Court was not “established” as an Article I court
until 1969).
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guarantee of the separation of powers, see Kuretski, 755 F.3d at 938–39. The D.C. Circuit
rejected that challenge and held that the Tax Court is a part of the Executive Branch and thus the
“removal of a Tax Court judge . . . would constitute an intra—not inter—branch removal.” Id. at
932. To reach that conclusion, the court first concluded that the Tax Court was not a part of the
Judicial Branch because “its judges do not exercise ‘the judicial Power of the United States’
under Article III.” Id. at 940. Next, the court found that the Tax Court is “not in the business of
making . . . laws” and, although it is called a legislative court, that nomenclature does not place
an entity in the Legislative Branch. Id. at 942–943; see also Williams v. United States, 289 U.S.
553, 565–66 (1933). Logically, the court concluded, the Tax Court must therefore be a part of
the Executive Branch. Id. at 942–43.
Mr. Byers also points to other cases that hold that the Tax Court is a part of the Executive
Branch of the federal government. See S.C. State Ports Auth. v. Fed. Mar. Comm’n, 243 F.3d
165, 171 (4th Cir. 2001) (considering Freytag and stating that “the Tax Court is a Court of Law
despite being part of the Executive Branch), aff’d, 535 U.S. 743 (2002); Samuels, Kramer & Co.
v. Comm’r, 930 F.2 975, 991 (2d Cir. 1991) (concluding that the Tax Court is an Executive
Department), abrogated by Freytag, 501 U.S. 868. Next, Mr. Byers points to FOIA’s definition
of “agency,” which, “as defined in [5 U.S.C. § 551(1)] includes any . . . other establishment in
the executive branch of the Government.” 5 U.S.C. § 552(f)(1). Mr. Byers’s argument, in other
words, is that because Kuretski places the Tax Court in the Executive Branch, it is an
“establishment in the executive branch” that is necessarily subject to FOIA. See Compl. ¶¶ 1,
30; Pl.’s FOIA Request at 16.
In Kuretski, the D.C. Circuit alluded to the issue presented in this case. Although the
court had “no need to reach the issue,” it noted that “Congress, in establishing . . . entities [such
13
as the Tax Court] as a ‘court’ rather than an ‘agency,’ perhaps also exempted them from statutes
that apply solely to executive ‘agencies.’” Id. at 944 (citing Megibow v. Clerk of the U.S. Tax
Court, No. 04–3321, 2004 WL 1961591 at *4–6 (S.D.N.Y. Aug. 31, 2004), aff’d, 432 F.3d 387
(2d Cir. 2005) (per curiam).
Now that the issue has been properly raised, this Court is not persuaded by Mr. Byers’s
argument. First, Section 552(f) incorporates the APA’s definition of agency found in Section
551, and that provision expressly exempts the courts of the United States. See 5 U.S.C. §
552(f)(1) (citing id. § 551(1)). The Court is not convinced that the definition is limited only to
Article III courts. See supra Part IV.A.1. Thus, FOIA’s exemption for courts should apply here
as well. Second, the root of Mr. Byers’s argument—that all Executive Branch entities are
subject to FOIA—is overbroad. Many parts of the Executive Branch, notably entities within the
Office of the President, are exempt from FOIA. See, e.g., Kissinger v. Reporters Comm. for
Freedom of the Press, 445 U.S. 136, 156 (1980); Citizens for Responsibility & Ethics in Wash. v.
Office of Admin, 566 F.3d 219 (D.C. Cir. 2009); Armstrong v. Exec. Office of the President, 90
F.3d 553 (D.C. Cir. 1996); Rushforth v. Council of Econ Advisers, 762 F.2d 1038 (D.C. Cir.
1985). For these reasons, the Court finds that, although Kuretski held that the Tax Court is a part
of the Executive Branch for the purposes of a separation-of-powers analysis, that conclusion is
not dispositive here. If the Tax Court is one of the “courts of the United States,” it must be
exempt from FOIA, even if it is part of the Executive Branch.
B. The Tax Court is a Court
This case is not resolved by the Court’s conclusion that the statutory term “courts of the
United States” encompasses more than Article III courts and that the Tax Court’s status as a part
of the Executive Branch does not necessarily subject it to FOIA. The Court must resolve an
14
additional question of statutory interpretation. In order to determine whether the Tax Court is a
court or an agency for the purposes of FOIA, the Court will consider the characteristics of the
Tax Court, including its authorizing statute, interpretation by the Supreme Court, and the
functions it performs. Each of those factors weighs in favor of treating the Tax Court as a court,
not an agency, for the purposes of FOIA.
1. Congress’s Treatment of the Tax Court
A review of Congress’s treatment of the Tax Court and the limited, relevant case law on
the issue suggests that Congress intended the Tax Court to be considered a court for the purposes
of FOIA. A recent clarification, despite raising some additional questions, appears to confirm
Congress’s view that the Tax Court is not an agency.
As previously described, the original precursor to the Tax Court was known as the Board
of Tax Appeals, and was enacted 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). The Board was renamed the Tax Court of the United States in 1942, but Congress made
clear that the new court’s “jurisdiction, powers, and duties . . . shall be the same as by existing
law.” See Revenue Act of 1942, Pub. L. No. 77-753, § 504(b), 56 Stat. 798, 957 (1942). In
contrast, the 1969 restructuring made clear that instead of simply modifying the existing agency,
Congress “established, under article I of the Constitution of the United States, a court of record.”
Tax Reform Act of 1969, Pub. L. No. 91-172, § 951, 83 Stat. 487, 730 (1969) (emphasis added)
(codified at 26 U.S.C. § 7441).
Accompanying legislative history noted that “the Tax Court has only judicial duties” and
confirms that the 1969 Act gives the Tax Court “the same powers regarding contempt, and the
carrying out of its writs, orders, etc., that Congress has previously given to the District Courts.”
15
S. Rep. No. 91-552 (1969), reprinted in 1969 U.S.C.C.A.N. 2027, 2341, 2343. One of the only
two courts to have considered this issue relied heavily on the 1969 legislation to determine that
the Tax Court was a court, not an agency, and thus exempt from FOIA. See Ostheimer v.
Chumbley, 498 F. Supp. 890, 892 (D. Mont. 1980) (“Congress intended that the Tax Court
operate as a court and considered it to have only judicial functions . . . .”), aff’d, 746 F.2d 1487
(9th Cir. 1984) (unpublished table opinion). The Ninth Circuit affirmed that decision without
comment in an unpublished opinion. Id. Congress’s treatment of the Tax Court, especially the
evolution of the precursor entities, shows that, as of the 1969 restructuring, the legislature
understood that the Tax Court is a court. This conclusion bolsters the Court’s interpretation that
“courts of the United States” includes the Tax Court.
The parties dispute the effect of recent legislation addressing the status of the Tax Court.
Following the D.C. Circuit’s Kuretski decision, Congress passed a brief “clarification” that
states, “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. § 7441). An accompanying report from the Senate
Finance Committee raised concerns that Kuretski could “lead the public to question the
independence of the Tax Court” and stated the Committee’s intention to “remove any uncertainty
. . . , and to ensure that there is no appearance of institutional bias.” See S. Rep. No. 114-14, at
10 (2015).
The Tax Court argues that this clarification “codifies what was already quite plain”—that
the Tax Court is a court, not an agency. Def.’s Mem. at 1; see also id. at 7 (addressing the
clarification). Mr. Byers also believes that Congress merely restated existing law. See Pl.’s
Mem. at 13. In contrast, of course, he argues for a different status quo ante—that the Tax Court
16
has been subject to FOIA at least since Kuretski. Id. at 12–13. Mr. Byers suggests that the
clarification only addressed “the public’s possible perception that Kuretski meant the Tax Court
was not an independent entity.” Id. at 13. Mr. Byers also argues that if Congress had meant to
exempt the Tax Court from FOIA, it could have been more specific, either explicitly stating that
the Tax Court is not part of the Executive Branch or defining the Tax Court as one of the “courts
of the United States.” Id. at 13–14. Finally, Mr. Byers argues that Congress “used the term
‘agency’ merely in its generic sense, not in its FOIA sense.” Id. at 13.
The Court finds the Tax Court’s interpretation of the clarification to be more persuasive.
When Congress states that the Tax Court “is not an agency of . . . the executive branch of the
Government,” 26 U.S.C. § 7441, the Court should take the legislature at its word. See Consumer
Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) (“[T]he starting point for
interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative
intention to the contrary, that language must ordinarily be regarded as conclusive.”). In
administrative law, “agency” is a term of art. See, e.g., 5 U.S.C. §§ 552(f)(1), 551(1). Mr. Byers
has provided no authority in support of his argument that “agency” should be interpreted in its
“generic sense.” Pl.’s Mem. at 13. In fact, the most common use of “agency” in this context
would seem to be the same as the definition found in the APA. Although the Court is aware of
possible contradictions in the recent legislation,7 the Court finds that Congress’s clarification that
7
See, e.g., Chris Walker, The Tax Court and the Administrative State: Congress
Responds to the D.C. Circuit’s Decision in Kuretski, Yale J. on Reg.: Notice & Comment (Dec.
29, 2015), http://yalejreg.com/nc/the-tax-court-and-the-administrative-state-congress-respondsto-the-d-c-circuit-s-decision-in-kurets/; Kristin Hickman, What is the Tax Court? Congress
Speaks, TaxProf Blog (Dec. 28, 2015), http://taxprof.typepad.com/taxprof_blog/2015/12/
hickmanwhat-is-the-tax-court-congress-speaks.html. Specifically, the recent legislation also
enacted 26 U.S.C. § 7470 which grants the Tax Court certain powers to the same degree as a
“court of the United States.” Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, §
432, 129 Stat. 2242, 3126 (2015) (codified at 26 U.S.C. § 7470).
17
the Tax Court is “not an agency” provides further support for the conclusion that the Tax Court
should be considered a court, not an agency, for the purposes of FOIA.8
2. Supreme Court Interpretation
The Court will next turn to the Supreme Court’s interpretation of the role and
constitutional status of the Tax Court. Although not dispositive of the issue before the Court, the
Supreme Court’s analysis of the Tax Court suggests that it should be treated as a court, not an
agency, for the purposes of FOIA.
The Supreme Court explored the status of the Tax Court in Freytag v. Commissioner, 501
U.S. 868 (1991). In Freytag, taxpayers challenged a statute that allows the Chief Judge of the
Tax Court to appoint “special trial judges” for certain purposes. See 26 U.S.C. § 7443A. The
taxpayers argued that the statute violated the Appointments Clause of Article II, which gives
Congress the power to “vest the Appointment of . . . inferior Officers . . . in the President alone,
in the Courts of Law, or in the Heads of Departments.” U.S. Const. art. II, § 2, cl. 2. The
Supreme Court rejected the argument that “the Chief Judge of the Tax Court does not fall within
any of the Constitution’s three repositories of the appointment power,” and therefore cannot
appoint “a special trial judge.” Freytag, 501 U.S. at 878. Instead, the majority held that, at least
for the purposes of the Appointments Clause, the Tax Court is a “Court of Law,” and thus, the
Chief Judge does have the authority to appoint inferior officers. See id. at 892. Central to the
Court’s analysis was the conclusion that the Tax Court “exercises a portion of the judicial power
8
As the Tax Court notes, Congress surely has the power to determine whether the Tax
Court is subject to FOIA, even if it cannot independently dictate the branch of government where
an entity sits. See Def.’s Reply at 8 n. 5 (citing Dept. Transp. v. Ass’n Am. Railroads, 135 S. Ct.
1225, 1233 (2015)).
18
of the United States”9 and that its “function and role in the federal judicial scheme closely
resemble those of the federal district courts.” Id. at 891.
The Tax Court argues that Freytag “confirms that the Tax Court is a court.” Def.’s Mem.
at 10. On the other hand, Mr. Byers argues that the Court was not presented with the option of
finding that the Tax Court “was only an executive component, rather than a higher executive
department.” Pl.’s Mem. at 6. Mr. Byers also notes that four justices would have held that the
Tax Court is an executive department, and he argues that Freytag should be limited to the
context of the Appointments Clause. Id. at 5–6.
Again, the Court finds the Tax Court’s argument more persuasive. The Supreme Court
has made clear that the Tax Court is a “Court of Law” for the purposes of the Appointments
Clause. Freytag, 501 U.S. at 892. That holding is not dispositive in this case—the precise
question at issue here, of course, was not before the Court—but the majority opinion’s reasoning
and analysis are relevant and persuasive. Because the Tax Court “exercises a portion of the
judicial power of the United States . . . to the exclusion of any other function,” Freytag, 501 U.S.
at 891, the Tax Court is best understood as one of the “courts of the United States.” 5 U.S.C. §
551(1). This conclusion is not disturbed by Kuretski, which maintained that the Tax Court “may
be considered a ‘Court of Law’ for purposes of the Appointments Clause” and that it exercises
the judicial power of the United States, even if only in the “enlarged,” non-Article-III sense of
that term. Kuretski, 755 F.3d at 940–41 (quoting Murray’s Lessee, 59 U.S. at 280). Thus, the
9
The D.C. Circuit interpreted this language to mean the judicial power of the United
States only in an “enlarged sense” that is distinct from the judicial power described in Article III.
See Kuretski, 755 F.3d at 941 (quoting Murray’s Lessee v. Hoboken Land & Improvement Co.,
59 U.S. 272, 280 (1856)).
19
Court finds that Freytag provides additional support for the view that the Tax Court is a court,
not an agency, for the purposes of FOIA.
3. The Functions and Procedures of the Tax Court
The Tax Court asserts that it “operates as a court in every respect.”10 Def.’s Mem. at 7.
This Court agrees. A functional analysis of the Tax Court suggests that it should be considered
one of the “courts of the United States” for the purposes of FOIA. In fact, one of the two other
courts to consider whether the Tax Court is subject to FOIA relied predominately on an
examination of the Tax Court’s functions and procedures to determine that it is a court, not an
agency. See Megibow v. Clerk of U.S. Tax Court, No. 04-3321, 2004 WL 1961591, at *4
(S.D.N.Y. Aug. 31, 2004), aff’d, 432 F.3d 387 (2d Cir. 2005) (per curiam).
The Tax Court is made up of nineteen judges, who are appointed by the President with
the advice and consent of the Senate. See 26 U.S.C. § 7443(a)–(b). The judges, who receive the
same salaries as district court judges, sit for fifteen year terms and may only be removed by the
President “for inefficiency, neglect of duty, or malfeasance in office.” Id. § 7443(c), (e)–(f).
Congress mandated that the Tax Court conduct its proceedings in accordance with the Federal
Rules of Evidence, but otherwise permitted it to prescribe its own rules of practice and
procedure. Id. § 7453. Proceedings before the Tax Court “in all respects resemble the rules of
other courts.” See Megibow, 2004 WL 1961591, at *4. The Tax Court’s rules provide for the
commencement of a case, Tax Ct. R. 20, the types of pleadings permitted, Tax Ct. R. 30, the
filing of motions, Tax Ct. R. 50–58, discovery, Tax Ct. R. 70–74, and trial, Tax Ct. R. 140-152.
Tax Court decisions are appealable to the United States Courts of Appeals and ultimately to the
Supreme Court through a petition for a writ of certiorari. See 26 U.S.C. § 7482(a)(1). The
10
Mr. Byers does not appear to address this argument.
20
Supreme Court has stated that the Tax Court “exercises judicial, rather than executive,
legislative, or administrative, power.” Freytag v. Comm’r, 501 U.S. 868, 890–91 (1991).
Legislative history also suggests that the Tax Court’s function is purely adjudicative. See
generally S. Rep. No. 91-552 (1969), reprinted in 1969 U.S.C.C.A.N. 2027, 2341 (“[T]he Tax
Court has only judicial duties, [therefore] the committee believes it is anomalous to continue to
classify it with quasi-judicial executive agencies that have rulemaking and investigatory
functions.”).
In Megibow, one of two decisions to consider FOIA’s applicability to the Tax Court, the
court held that “FOIA’s application to a particular governmental entity depends not on the label
attached to that entity but on an examination of its functions.” 2004 WL 1961591, at *5. After
considering the functions and procedures of the Tax Court, the Megibow court found that it is
“absolutely clear that the Tax Court is not an agency. Functionally, the Tax Court acts as a
judicial body—a court.” Id. The Second Circuit affirmed in a brief opinion that commended the
“thorough and well-reasoned opinion” of the district court. Megibow v. Clerk of U.S. Tax Court,
432 F.3d 387, 388 (2d Cir. 2005) (per curiam).
The Court is persuaded by the reasoning of Megibow. The Tax Court’s functions and
procedures are purely adjudicative and mirror other courts, such as this one. See Freytag, 501
U.S. at 891. The similarities between the Tax Court and other courts, as well as its obvious
differences from agencies conducting rulemaking or enforcement, provide further support for the
Court’s conclusion that the Tax Court should be considered a court, not an agency, for the
purposes of FOIA.
Thus, all of the factors considered by the Court support the conclusion that the Tax Court
is best understood as a court. Because the Tax Court is a “court of the United States,” it is
21
exempt from FOIA. Mr. Byers’s Complaint, therefore, cannot state a claim for relief and must
be dismissed.
V. CONCLUSION
For the foregoing reasons, Defendant United States Tax Court’s Motion to Dismiss (ECF
No. 5) is GRANTED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: September 30, 2016
RUDOLPH CONTRERAS
United States District Judge
22
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