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Case number 22-5200.

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William Edward Bowell, a balance versus Janet L. Yellen in her official capacity as Secretary of the United States Department of Treasury at L. Mr. Shelley, Amicus Cariali for the balance.

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Mr. Christensen for the employees.

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Mr. Shelley, good morning.

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Good morning, may it please the court.

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I'm Anthony Shelley, the court appointed Amicus

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court of Helen William Powell.

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I've reserved two minutes for rebuttal.

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This appeal requires the court to address three of its prior precedent involving the Internal Revenue Code provision authorizing taxpayers to obtain their own tax returns, their own taxpayer information.

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The three cases are Church of Scientology, Lake Maxwell,

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There are three ways to deal with these precedents, two of which lead to Mr. Powell winning this appeal, and a third, which is favored by the government but that is foreclosed by the court's obligation to seek to harmonize precedents rather than discard them.

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So first option one, that would be to hold the Church of Scientology fine FOIA procedures, such as the time and manner of making a disclosure request that they apply to the disclosure of information at the administrative level, but that under Lake, a judicial action to compel disclosure is governed by 6103.

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That's the reading I put forth in my amicus, the opening brief,

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And it follows from the exact wording of Maxwell, which indeed tried to harmonize Church of Scientology and Lake, or took a first pass at that.

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It also follows from Judge Henderson's concurrence in essential information versus

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USIA where Judge Henderson noted that specific statutes authorizing disclosure override FOIA, whereas the non disclosure parts of a statute do not override.

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And here Mr. Powell sues to enforce disclosure aspects 6103.

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Should the court adopt this first option to read the cases that way, Mr. Powell wins this appeal.

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The district court's decision holding that he had to use

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Is there any precedent that supports this kind of bifurcated or different approach FOIA at one level and APA in a different level?

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Like I've never seen this before.

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There isn't, but there isn't, but you have to try to make sense of three cases here, but also under 6103.

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But why doesn't what Maxwell said make three cases?

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Maxwell just says that Lake said just dealt with the Privacy Act versus FOIA.

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and held that the Privacy Act is not operative of that FOIA, or 6103 is, I'm sorry, 6103 instead of, so I think that Lake can be read, as we said in Maxwell, to just say that Lake was looking at whether 6103 is applicable versus the Privacy Act, and it held that 6103

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103 is the way to go.

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But then when you harmonize that with Church of Scientology, 16103 is an exemption under Exemption 3 of FOIA.

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It seems that Maxwell has done the work here.

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Well, Judge Penn, you're, I think, looking at one paragraph in Maxwell where Judge Santel did note that

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Lake was a privacy act case but the next paragraph then tries to is the part that really tries to harmonize them by saying they're easily harmonized and Lake does not to whether FOIA requirements should apply to the processing of appellant section 6103 requests.

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So Church of Scientology clearly controls this case and requiring FOIA procedures.

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The district court was thus correct in holding that FOIA still applies to section 6103 claims and in fact

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In Maxwell, the- But so if FOIA applies to 6103 claims, why can't that be all the way through?

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Well, because a 6103 claim is not a FOIA claim.

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It's a 6103 claim.

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And in fact, in Maxwell, the plaintiff invoked only 6103 in the APA.

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And it was in the court affirmed part of disclosure of information.

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Um, and so the court wasn't saying you must raise a FOIA cause of action.

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In fact, it was saying the opposite that in affirming aspects of the district court where the district court said when you sue under 6103, the IRS at least has to make sure your request.

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But the district court in Maxwell construed the 6103 request as a FOIA request.

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So when we affirmed that, we affirmed treating it as a FOIA request.

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And indeed, Maxwell goes through kind of the FOIA analysis when it gets to the substance of what should or shouldn't be disclosed, right?

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Well, two other aspects of that then that I want to address and interplay the two questions, Judge Wilkins and Judge Kant.

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And one is that bifurcation theory does make sense because under 6103 P, it is the IRS supposed to determine the administrative procedures that apply.

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And the IRS has determined that its FOIA procedures will apply in these circumstances.

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So 6103 can be read at least at the administrative level to leave it to the IRS to pick how is a person to

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seek to collect their own information.

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How do you make the request?

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And the IRS hasn't issued separate 6103 regulations.

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Wait, but the case law doesn't say we left it to the IRS and the IRS chose FOIA.

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As a matter of statutory construction, we said that in our prior cases that this is part of FOIA Exemption 3, that 6103 is part of FOIA Exemption 3.

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This doesn't involve, I think, the FOIA Exemption, the death FOIA Exemption.

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What we're having here in the Church of Scientology, there's an additional exemption contained in 6103 that's not at issue here.

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The other thing I want to mention is that Mr. Powell's requests are really privacy act-like requests.

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They're not FOIA requests.

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They look like exactly the ones that were made in Lake.

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And the court there said, if you're seeking your own information, that's a 6103 claim, which then is picked up, at least in the language, not the district court's way of looking at it, at least in the language of Maxwell at the court of appeals level.

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If you look at his, he didn't cite any of these, he didn't cite the Privacy Act, he didn't cite FOIA and he didn't cite the APA.

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You have to look at the substance of his claim and it's really for his own information that he's seeking, which is actually a Privacy Act sort of cause of action, not a FOIA cause of action.

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This isn't the request for public information in general to determine if the government is acting well.

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It's instead a request, a specific request under a specific statute for his own information that looks like a Privacy Act kind of claim.

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So you have to turn most to Lake then, where Lake says we displace FOIA, we displace the Privacy Act, and so therefore if we accept that... I don't think that Lake says anything about displacing

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FOIA that we can really kind of read that broadly.

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When I looked at the briefing in Lake, the appellants in Lake explicitly said, we don't want to use FOIA and we're not making FOIA requests.

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And like the reply brief on appeal in Lake, they said FOIA isn't the right statute

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to provide this type of information to the American people, et cetera, et cetera.

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Like the appellants in Lake, for whatever reason, didn't want to have FOIA be considered at all with respect to their requests for their tax information.

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So naturally, our court, in disposing of their claim, wasn't deciding anything about FOIA

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because they weren't relying on FOIA.

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I mean, the way that I read these cases in the statutes is that, look, we said in Scientology, the FOIA disclosure statute has these nine different exemptions.

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One of them is if something can't be disclosed by statute, well, 6103 marries completely with Exemption 3.

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And what we said in Lake was,

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the Privacy Act to the extent that it has substantive non-disclosure kind of specifications, those are overridden or superseded for tax purposes by the standards, the substantive standards in 6103.

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And so if we're not gonna follow those substantive standards, then we're not gonna follow

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the cause of action under Privacy Act.

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And so I think based on that and based on our decision in Gardner, you bring an APA claim to if you were challenging wrongful disclosure of your tax information,

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In violation of 6103, I think there you have an APA claim because there's no Privacy Act claim.

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But if you want disclosure of your own tax information, Church of Scientology and Maxwell says it's FOIA.

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What I would point out though is that in Lake there is a discussion of FOIA.

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And it's a discussion of FOIA to support the Privacy Act.

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privacy act aspect of the privacy act being displaced and says we displaced the privacy act because, in fact, we would displace FOIA here as well.

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And that's where Judge Henderson's occurrence was cited, for instance, for the prospect that if you're seeking the disclosure of your information, then you must rely on the specific statute.

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If you're seeking to

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but if you're seeking to avoid non-disclosure.

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So for instance, in Church of Scientology, that was really about an exemption from disclosure.

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And that was then, the extra exemption in 6103 wasn't grafted onto FOIA, but here, this really isn't about that exemption.

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This is about seeking disclosure of your own information rather than prohibiting disclosure.

[00:11:15] Speaker 05:
Well, the Church of Scientology, the California Church was seeking

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their own tax records, but they were also seeking records related to the National Church and L. Ron Hubbard, the founder of the church.

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And so we treated all of that as FOIA and said, well, under execution three and 6103, you can have your own records from your California church, but you can't have these other records.

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And Church of Scientology, the cases don't mesh perfectly.

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That's why we're here with a fourth case, really.

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They have to be harmonized.

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Church of Scientology does have two parts to it, taking your own information and seeking information about other entities.

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And as a result, it was largely the latter.

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Therefore, that's very consistent with our theory that if you're seeking information that's not yours, that's not the part that 6103 specifically concerns disclosure about it.

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That's the part that concerns non-disclosure.

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It seems to me, Council, that your argument relies on the assertion that Lake

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It's really relying on Lake and saying that Lake says there's a 6103 cause of action and to the exclusion of FOIA.

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But Lake doesn't talk about FOIA.

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Like it just doesn't mention it.

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So isn't the more logical way to read this as Lake just compares Privacy Act cause of action to 6103 cause of action doesn't address FOIA.

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And then FOIA comes in in Maxwell and Church of Scientology and says that that's what we're doing here.

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Well, with due respect, I think Lake does discuss FOIA.

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After the court talked about the Privacy Act being displaced, it says a comparison of the precise treatment of return information under 6103 and the imprecise regulation of agency

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of agency records in the Privacy Act reveals many other differences.

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In analogous circumstances, we have held that the Freedom of Information Act does not govern the disclosure of information when, in another statute, Congress has dealt with it.

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But it didn't apply FOIA.

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It just mentioned FOIA as an example, right?

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Well, correct.

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Well, it used FOIA, Judge Henderson's concurrence, all to support what it did.

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But I will agree with you that a Privacy Act claim was made there, not a FOIA claim.

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But my point would be, well, Mr. Powell has a Privacy Act.

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The facts of his case and what he stated in his Second Amendment complaint are closest to a Privacy Act claim.

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The court has to determine the proper characterization of the complaint.

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It's not a FOIA claim.

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It's not seeking general information about the government.

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He's seeking information about himself, his own tax returns, the tax returns of companies in which he is the heir essentially, and the

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tax information about a state that he administers.

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And so when you're seeking information about yourself, that's more so a Privacy Act claim as opposed to a FOIA.

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So if we think that he can't bring a Privacy Act claim, where does that lead to?

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Section 6103 with an APA.

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As Lake says, that was what should have happened in that case.

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And because

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The plaintiff didn't want to do that because they feared that an exception not relevant here from 6103 would be invoked against them if they brought the 6103 action.

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So they wanted to use the Privacy Act instead.

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And the court said, no, it must be 6103.

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You get the good parts and the warts with it, and you go through the APA.

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You can't use a Privacy Act claim and avoid the specific things Congress said in 6103.

[00:15:00] Speaker 01:
Go on over, Mike.

[00:15:01] Speaker 01:
All right.

[00:15:01] Speaker 01:
If there are no more, we'll give you a couple of minutes in reply.

[00:15:04] Speaker 01:
Thank you.

[00:15:04] Speaker 01:
Thank you.

[00:15:07] Speaker 01:
Mr. Christensen.

[00:15:15] Speaker 03:
Good morning.

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May it please the court, Jacob Christensen, and I represent the appellees in this case, the commissioner of internal revenue, secretary of the treasury department and their respective agencies.

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This court has already twice decided the very issue that is being raised in this case, which is that section 6103 of the Internal Revenue Code displaced or superseded the disclosure provisions of the Freedom of Information Act.

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Church of Scientology, and then again in Maxwell, this court rejected that argument, holding that section 6103 instead gave rise to an exemption under FOIA.

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but that FOIA's procedures continued to apply to requests for tax records from the Internal Revenue Service.

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This court decision in Lake versus Rubin did not upset that precedent.

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In fact, Mr. Powell's reliance on that case is misplaced for the very same reasons that this court explained in Maxwell.

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Same argument was raised in Maxwell's reliance on Lake.

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that Lake provided a cause of action under Section 6103.

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This court... Aren't we a minority of one among the circuits to see this dichotomy between the Privacy Act and FOIA?

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Didn't the Seventh Circuit, at least the Seventh Circuit, come to a different conclusion?

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I'm not sure what the question is.

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I'm sorry, could you repeat?

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Well,

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6103 displaces the Privacy Act we've held.

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And we may, I think we've held that it does not displace FOIA.

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We're stuck with that.

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And what I'm asking you is, isn't that a minority view of one among the circuits?

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particularly the seventh or whether the lake decision is a minority decision and holding that section 6103 supersedes the Privacy Act.

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No, that 6103 either supersedes both or neither.

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That is what the seventh circuit held.

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I don't have the case in front of me.

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I think that is correct.

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The Seventh Circuit has held that Section 6103 superseded both FOIA and the Privacy Act.

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In holding that Section 6103 supersedes the FOIA Act, however, the Seventh Circuit is certainly in the minority.

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It's only the Sixth and Seventh Circuits that have come to that conclusion.

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This Court and other cases that we've cited in our brief

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come to the opposite conclusion.

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But then what is your best argument for why we should have this dichotomy between the Privacy Act and FOIA, as far as 16.103 displacing one but not the other?

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Well, FOIA, as this court held in Church of Scientology, provides a full and complete

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adequate remedy for requests for disclosure of tax records.

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And so there's the adequate remedy there, which would certainly preclude any review under.

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So is Lake wrong?

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Not that we could do anything about it, but why is Lake right?

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I don't necessarily think that Lake is incorrect.

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As to the Privacy Act, the court held that 6103 governs because the Privacy Act did not give

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any judicial remedy in certain circumstances.

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And so in Lake, this court said 6103 would apply.

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But Lake did not address the interplay between section 6103 and FOIA, which is the issue in this case.

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And under Church or Scientology and Maxwell, the FOIA procedures apply to any request for the disclosure of tax records.

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And that is the way that Maxwell harmonized Lake

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and Church of Scientology.

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It seems that the law is muddled even in other circuits, because I had the same concern or question that Judge Henderson did.

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Lake, I think, cites a Seventh Circuit case called Cheek versus IRS, which is a one-page opinion.

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But Cheek, in turn, relies on a case called King versus IRS.

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And King says at the very end, after going through a whole bunch of language that seems to say that 6103 displaces FOIA, their final paragraph is that they say, we conclude that the provisions of Section 6103 apply either independently or through FOIA Exemption B3.

[00:20:38] Speaker 05:
So that's about as clear as mud.

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So, so I don't know that any of the circuits have kind of covered themselves in glory here and how they like.

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describe this, but I guess the way that I've looked at it is that when Lake says that the Freedom of Information Act does not govern the disclosure of information, just as the Privacy Act does not govern the disclosure of information, when they were talking about FOIA, they were saying, well, the other Freedom of Information Act exemptions

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Because there are exemptions about protecting privacy, et cetera, right?

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But rather than use those, there is a statutory exemption here under B3, under 6103, that's going to govern the disclosure.

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And that's all that Lake was saying.

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in that's consistent with Maxwell, and that's consistent with Church of Scientology, and it's consistent with another case we decided called Gardner.

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What's your view of that?

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I think that's right.

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I think that that's the way that Maxwell harmonized Lake and Church of Scientology.

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The Lake decision was a privacy act case, did not address the interplay between Section 6103 and FOIA.

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which Maxwell pointed out is instead controlled by this court's decision in Church of Scientology.

[00:22:18] Speaker 05:
Even if all of that is correct, then that means that the district court, you concede in your brief that the district court had subject matter jurisdiction.

[00:22:32] Speaker 05:
So then it was error then for district court to dismiss the case on 12B1 grounds.

[00:22:41] Speaker 05:
That's right.

[00:22:42] Speaker 05:
So why then should we send the case back for the district court to sort it out given that Mr. Powell says in his pleadings that he made FOIA requests?

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for some of this information.

[00:23:00] Speaker 05:
Maybe he's collaterally stopped.

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Maybe he's not.

[00:23:04] Speaker 05:
Maybe he exhausted.

[00:23:05] Speaker 05:
Maybe he didn't.

[00:23:06] Speaker 05:
We don't know from this record.

[00:23:09] Speaker 05:
And the district court didn't reach any of that.

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So why should we affirm?

[00:23:14] Speaker 03:
Well, any FOIA claims that Powell may have made have certainly at this point been waived by not arguing in the opening brief or in the reply brief on appeal

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claim stated a claim under FOIA.

[00:23:28] Speaker 03:
That has not been the argument.

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It's not been made to the extent that.

[00:23:32] Speaker 05:
Well, why in this opening brief would he argue anything about whether he stated a claim when he's challenging the wrongful dismissal for lack of subject matter jurisdiction?

[00:23:48] Speaker 03:
Well, Mr Powell joined in the amicus brief opening brief

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under review now.

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And that brief asserts the argument that the APA provides a cause of action to enforce section 6103.

[00:24:04] Speaker 03:
There is no assertion or argument that the complaint stated a claim under FOIA.

[00:24:10] Speaker 03:
So the government hasn't addressed that argument in the briefing.

[00:24:14] Speaker 03:
And frankly, it's either been abandoned or waived because it's not been included in the briefing before this court.

[00:24:22] Speaker 03:
It'd be too late at this point.

[00:24:24] Speaker 03:
to assert a FOIA claim, I would submit.

[00:24:25] Speaker 03:
And so for that reason, this court, as it has done in other cases, that were dismissed wrongfully on the basis of lack of subject matter jurisdiction, can instead affirm for failure of the complaint to state a claim under rule 12.6.

[00:24:41] Speaker 05:
And that- I thought in his pro se brief, his opening brief, he says words to the effect of, like, I made a FOIA request, which was proper.

[00:24:52] Speaker 05:
He didn't lay it all out, but he at least says that or says words to that effect.

[00:24:58] Speaker 05:
Am I wrong about that?

[00:25:01] Speaker 03:
To that extent, I believe Mr. Powell was referring to requests made to the IRS administratively.

[00:25:08] Speaker 03:
He was applying the FOIA procedures that governed in making a request to the IRS.

[00:25:14] Speaker 03:
But in the litigation, he's never asserted a FOIA claim back

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government counsel early on in the case recognizing this sent an email to Mr. Powell asking him whether he wished to amend the complaint because the complaint did not mention FOIA or the Privacy Act and Mr. Powell declined to do that.

[00:25:36] Speaker 05:
Well I guess what I'm trying to figure out is let's suppose I'm a district court judge and someone whose pro se leads a set of facts

[00:25:51] Speaker 05:
that appears to be a plausible breach of contract claim.

[00:26:01] Speaker 05:
And the defendants say, you know, your Section 1983 claims and your other claims aren't plausible.

[00:26:12] Speaker 05:
You should plead a breach of contract claim.

[00:26:14] Speaker 05:
And pro se plaintiff says, well, I'm leaving my pleading as it is.

[00:26:21] Speaker 05:
Is the district court judge at that point when they get the 12 B six motion supposed to just not construe the plausible breach of contract claim and just say, well, you've waived it.

[00:26:39] Speaker 05:
I mean, isn't that like counter to the way that we deal with pro se plaintiffs?

[00:26:45] Speaker 03:
No, but here there's an explicit

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denial of reliance on the FOIA, which the district court found.

[00:26:53] Speaker 03:
And the reason seemed to be that Mr. Powell has many prior FOIA cases, and therefore perhaps the strategy was to avoid collateral estoppel defenses, whatever his reasons.

[00:27:06] Speaker 03:
But even assuming that the complaint had alleged a FOIA claim, certainly by now on appeal, Mr. Powell has either abandoned or waived that argument by not

[00:27:17] Speaker 03:
raising it in the opening brief on appeal.

[00:27:19] Speaker 03:
We're in the reply brief or yet here argument.

[00:27:26] Speaker 03:
If I may speak briefly, Mr. Powell is seeking to draw a distinction between

[00:27:34] Speaker 03:
individuals seeking records about themselves as opposed to public seeking tax records and is arguing that the Privacy Act applies to former while FOIA only applies to the latter.

[00:27:47] Speaker 03:
That very argument was also made in the Maxwell case and this court held that the appellants claim without citing any support that FOIA requirements cannot be applicable to their requests for personal information.

[00:28:02] Speaker 03:
but only to request for public information.

[00:28:05] Speaker 03:
All of these arguments fail for the reasons already articulated by the district court.

[00:28:10] Speaker 03:
Boya clearly does provide a remedy to a taxpayer seeking disclosure of his own tax records and would apply and provided an adequate remedy for Mr. Powell in this case.

[00:28:23] Speaker 03:
There are no further questions.

[00:28:25] Speaker 01:
We have your thank you.

[00:28:28] Speaker 01:
Mr. Shelley, why don't you take two minutes?

[00:28:33] Speaker 02:
Your honor, I'd just like to make three points.

[00:28:35] Speaker 02:
One is that, yes, the Seventh Circuit has adopted an approach that Privacy Act is displaced and the FOIA is displaced.

[00:28:48] Speaker 02:
The circuit would be alone saying Privacy Act is displaced, but FOIA is not.

[00:28:55] Speaker 02:
And I know, Judge Wilkins, you mentioned the Cheek case is just one page long, but it is a published decision.

[00:29:00] Speaker 02:
It's also one page long because the court was summarizing what it thought it did in King and holding that FOIA was displaced.

[00:29:08] Speaker 02:
And they said it would be extremely anomalous to have one displaced, but not the other, and particularly because the legislative history.

[00:29:14] Speaker 04:
I'm sorry.

[00:29:14] Speaker 04:
Can you just clarify the state of play with the other circuits?

[00:29:17] Speaker 04:
Because my understanding was that the 3rd, 5th, 10th, 11th and our circuits say that 6103 does not

[00:29:24] Speaker 04:
supersede FOIA.

[00:29:27] Speaker 02:
Procedures.

[00:29:29] Speaker 02:
Procedures, but.

[00:29:30] Speaker 04:
Well, you already said that there's no precedent for this bifurcated approach that you're proposing, so no other SCUD has adopted that.

[00:29:37] Speaker 02:
Well, correct, but what I was.

[00:29:39] Speaker 04:
So when they say it doesn't supersede FOIA, they're not saying we should bifurcate.

[00:29:44] Speaker 02:
Well, but those circuits are holding it.

[00:29:48] Speaker 02:
FOIA is displaced.

[00:29:50] Speaker 02:
But the separate question is whether, if the Privacy Act is displaced, would we be the only circuit to say that FOIA is not displaced in that sense?

[00:30:00] Speaker 02:
But he didn't raise a FOIA claim.

[00:30:02] Speaker 02:
Claims are closer to Privacy Act claims to begin with.

[00:30:06] Speaker 04:
But previously, he's already filed numerous FOIA claims, and it seemed,

[00:30:13] Speaker 04:
Correct me if I'm wrong, it seemed like he was purposefully avoiding FOIA because he didn't get what he wanted under FOIA.

[00:30:19] Speaker 04:
So we thought maybe if I try the privacy 6103, maybe I'll get something different.

[00:30:25] Speaker 02:
I think Mr. Powell has been at this for 10 years trying to get tax records and he feels like he's gotten the run around from the government that they can't find them and that actual tax returns for various corporations are unable to be found is distressing and frustrating to him.

[00:30:39] Speaker 02:
He did try a different tack in this case, but it's not my understanding that if we had, for instance, a reversal here because it shouldn't have been dismissed for lack of jurisdiction to send it back to the district court to sort out whether he does want to bring a FOIA claim and try once more with the government to try to get what he wants.

[00:30:56] Speaker 02:
It is not my understanding that he would object to that.

[00:31:00] Speaker 04:
But the issue is what happened in the district court is not sort of like the hypothetical that Judge Wilkins raised where

[00:31:09] Speaker 04:
a pro se claimant isn't sure what the cause of action is and perhaps chose the wrong one.

[00:31:16] Speaker 04:
This is a litigant who has used FOIA, understands FOIA, has filed FOIA requests and purposefully avoided filing a FOIA request in this instance because it seems that perhaps he thought he could get something different if he filed a 6103 claim.

[00:31:34] Speaker 04:
That's what it seems like because

[00:31:36] Speaker 04:
On this record, the agency council actually said to him, don't you mean to file a FOIA claim?

[00:31:41] Speaker 04:
And he said, no, no, I don't want to.

[00:31:43] Speaker 04:
So it seems like a little different from the typical pro plain if it seems that this was strategic.

[00:31:49] Speaker 02:
I can't really speak to his motivation, but I can't say he did file a FOIA request.

[00:31:55] Speaker 02:
Uh, he thinks he did.

[00:31:56] Speaker 02:
He filed, he thought he was following FOIA procedures using the FOIA administrative process.

[00:32:01] Speaker 02:
He did get to court.

[00:32:02] Speaker 02:
He didn't raise FOIA.

[00:32:04] Speaker 02:
He didn't raise the privacy act.

[00:32:05] Speaker 02:
He just stated his, stated his facts.

[00:32:07] Speaker 02:
I will admit that he at that point said, look, I'm frustrated.

[00:32:11] Speaker 02:
FOIA hasn't helped me.

[00:32:12] Speaker 02:
I want to go under 6103, but he is a pro se litigant.

[00:32:15] Speaker 02:
And I believe that if we went back to the district court, I think at council, this could be sorted out.

[00:32:21] Speaker 02:
and his tenure dismay could perhaps come to an end.

[00:32:27] Speaker 01:
All right.

[00:32:30] Speaker 01:
Mr. Shelley, you were appointed by the court to represent the client.

[00:32:35] Speaker 01:
And we thank you for your very able assistance.

[00:32:39] Speaker 02:
Thank you.