Opinion
No. 3:03cv2080.
November 2, 2004
MEMORANDUM
Before the Court for disposition is the Defendants Internal Revenue Service's ("IRS") and Dennis Parizek's motion to dismiss Plaintiff Brian Thomas' complaint, which seeks to compel the IRS to produce records under the Freedom of Information Act ("FOIA"). This motion has been fully briefed and is ripe for disposition. For the reasons that follow, we will grant Defendants' motion to dismiss the case.
Background
Plaintiff filed suit in this Court on November 14, 2003, seeking to compel the IRS to produce various records of any IRS surveillance or investigation of the Plaintiff and any other IRS files pertaining to him. Plaintiff averred that he exhausted his administrative remedies by filing a FOIA request with the IRS and a FOIA appeal. On April 16, 2004 the IRS filed the instant motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6) and for lack of subject matter jurisdiction under Rule 12(b)(1). The IRS claims that this Court lacks subject matter jurisdiction because Plaintiff has not exhausted his administrative remedies in this case. On September 22, 2004, we issued an Order (Doc. 16) instructing Plaintiff to file evidence pertaining to exhaustion of remedies and subject matter jurisdiction. In response, Plaintiff filed a document containing his notarized signature asserting that he has exhausted his administrative remedies.
Standard of Review
On a motion to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) the plaintiff has the burden of establishing that the court has jurisdiction. Gould Electronics Inc. v. United States, 220 F.3d 169 (3d Cir. 2000). When considering a factual attack on subject matter jurisdiction, the court may consider evidence outside the pleadings. Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000). No presumption of truthfulness attaches to the plaintiff's allegations.Mortensen v. Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir. 1977). Unlike a Rule 56 summary judgment motion, a court reviewing a motion to dismiss for lack of jurisdiction is not required to deny the motion upon a finding of a genuine issue of material fact. Id. Instead, the court is free to weigh the evidence for itself to evaluate the merits of the jurisdictional claims. Id.
Discussion
We find that the evidence plainly demonstrates that Plaintiff did not exhaust his administrative remedies, and that therefore, we have no jurisdiction over this case.
FOIA provides processes and procedures under which individuals seeking information from federal governmental agencies can request information. See 5 U.S.C. § 552. FOIA provides administrative remedies, including an appeals process, for individuals seeking information. Id. If the individual does not exhaust his administrative remedies prior to filing suit, the district court may, as a prudential matter, decline to exercise jurisdiction over his FOIA claim. McConnell v. United States, 4 F.3d 1227, 1240-41 (3d Cir. 1993) (adopting rule in Oglesby v. Department of the Army, 920 F.2d 57 (D.C. Cir. 1990) that a district court may decline to exercise jurisdiction over a FOIA claim if the claimant did not exhaust the FOIA administrative remedies). "Exhaustion of remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision." Id. at 1241 (quotingOglesby 920 F.2d at 64).
Thomas asserts in his complaint that he submitted a FOIA request and exhausted all available administrative remedies. Amend. Compl. ¶ 1 (Doc. 11). He has attached a certified mail receipt to his complaint, which he asserts proves that the IRS received his complaint. The certified mail receipt has the name Dennis Parizek on the address, but no signature from the recipient. Plaintiff also asserts that he appealed and sent a letter, which he stated was attached as Exhibit C, although he failed to attach an Exhibit C to either his original complaint or his amended complaint. He claims that the IRS lost or ignored his request and appeal, and never issued a response. Additionally, he filed a document wherein he again asserts that he exhausted his administrative remedies, and he affirms that all of his claims, statements, and allegations are true. This document contains his notarized signature.
Defendants argue that Plaintiff has not exhausted his administrative remedies and has not even filed a complaint. Defendants have submitted the sworn declarations of the Ralph Epstein ("Epstein"), a Disclosure Specialist with the IRS, and Heidi Peterson ("Peterson"), an Appeals Officer with the IRS. Epstein declares that the IRS files all FOIA requests on the day they are received in a database called the "Electronic Disclosure Information Management System," and that a search of this database indicated that the IRS has never received a FOIA request from Plaintiff. Epstein Decl. ¶ 2-6. Peterson declares that the IRS files all FOIA appeals on the day they are received in a database called the "Appeals Centralized Database System," and a search of this database indicated that the IRS never received an appeal from Plaintiff. Peterson Decl. ¶ 2-6.
Epstein and Peterson issued their declarations pursuant to 28 U.S.C. § 1746, which provides a format for submitting an unsworn statement that shall have the same effect as a sworn statement.
Furthermore, the IRS argues that Plaintiff's attached exhibits are not valid FOIA requests. Initially, the IRS notes that the Plaintiff's certified mail receipt bears no recipient signature. The IRS further argues that FOIA requests must be addressed and mailed to the IRS official who is responsible for the control of the requested records. 26 CFR § 601.702(c)(4)(C). Plaintiff's return receipt is addressed to Dennis Parizek, who is a Service Exam Support Operations Manager in Utah and is not an official who is responsible for the control of records.
We find that Plaintiff has not satisfied his burden of proving that the Court has jurisdiction over his claims because he has not shown that he has exhausted his administrative remedies. First, we find that Plaintiff has not properly filed a FOIA request. Even if Dennis Parizek received Plaintiff's request, he is not a proper officer to receive Plaintiff's FOIA requests. As Plaintiff resides in Pennsylvania, he should have sent his FOIA request to the FOIA request office in Pennsylvania closest to his address.See 26 CFR § 601.702(h)(2) (providing the appropriate addresses for FOIA requests for individuals in each state, as required by 601.702(c)(4)(C)); http://www.irs.gov/foia/article/0, id=120681,00.html (providing the proper FOIA request addresses). Furthermore, Mr. Parizek is not the proper recipient for requests from citizens from Utah or any other state. See 26 CFR § 601.702(h)(2) (stating that Utah residents should send FOIA requests to the Denver, Colorado disclosure office).
Furthermore, Plaintiff has not shown that he has filed a proper appeal. While he has provided two letters that request documents, he has not provided a document that could be construed as an appeal. Neither document contains the word appeal, or any reference to a prior request or proceeding. Moreover, Plaintiff has provided no evidence that he actually sent any document other than the one to Mr. Parizek in Utah.
Therefore, we find that Plaintiff did not properly file a FOIA request or appeal, and we will dismiss his suit. Filing suit in federal court to compel a government agency to produce documents under FOIA, without first properly submitting a request to the government agency, contravenes Congress' purpose in creating a comprehensive administrative system for FOIA requests and disclosures. We therefore will decline to exercise jurisdiction and will dismiss the case. An appropriate order follows.