United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-3138

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Stanbury Law Firm, P.A., *

*

Plaintiff/Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Internal Revenue Service, *

* [PUBLISHED]

Defendant/Appellee. *

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Submitted: June 14, 2000

Filed: August 9, 2000

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Before LOKEN, BRIGHT, and ROSS, Circuit Judges.

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PER CURIAM.

After the Page Education Foundation ("Foundation") refused to disclose the

names of its contributors voluntarily, the Stanbury Law Firm ("Stanbury") sued the

Internal Revenue Service ("IRS") under the Freedom of Information Act ("FOIA"), 5

U.S.C. § 552. Stanbury's suit sought to force the release of certain tax records

containing the names of the Foundation's contributors and to mandate further IRS

investigation into whether Alan Page ("Page"), a Justice of the Minnesota Supreme

Court, can serve as the Foundation's President.
1

 At the time he created the Foundation, Page was a deputy attorney general.

Subsequently, in 1992, Page was elected to the Minnesota Supreme Court.

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The IRS made a motion to dismiss under Rule 12(b)(6), and the district court

granted it. In so doing, the court ruled that 26 U.S.C. § 6103(a) exempts the requested

tax records from disclosure under FOIA, and, as a result, that no claim existed upon

which relief could be granted. In addition, acting sua sponte, the district court used

its power under Rule 12(f) of the Federal Rules of Civil Procedure to strike Stanbury's

pleadings of "irrelevant" information that, in the court's view, "could only have been

included to impugn Justice Alan Page." Stanbury appeals.

Although we agree with the district court that FOIA does not furnish a basis for

the release of the documents requested by Stanbury, we vacate that portion of the

court's order striking Stanbury's pleadings as an abuse of discretion. We therefore

affirm in part and reverse in part.

I. BACKGROUND

In 1988, Page1 established the Foundation as a 501(c)(3), tax-exempt, public

charity. The Foundation was, and is, dedicated to the laudable goal of promoting

opportunities for minority education through the implementation of scholarship

programs and other endeavors. Although Page contributed some of its seed money,

the Foundation has been primarily funded by contributions from many of Minnesota's

largest, most prominent businesses and law firms.

During the first eight years of its existence, the Foundation voluntarily filed a

copy of its annual IRS Form 990 with the Minnesota Attorney General's office. By so

doing, the Foundation made the information contained therein available for public

inspection; it thus disclosed, indirectly, the identities of the Foundation's contributors

and the amounts contributed by each. Beginning with tax year 1997, however, the
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Foundation ceased this voluntary practice and opted to keep the names of its supporters

secret.

Apparently concerned that frequent appearances by many Foundation

contributors before the Minnesota Supreme Court could result in a conflict of interest

and the violation of ethical canons, Stanbury asked the Foundation to voluntarily

disclose a detailed list showing the names of its contributors. The Foundation did not

respond to Stanbury's request.

On October 9, 1998, Stanbury asked that the IRS release the Foundation's 1997

Form 990, pursuant to FOIA. When this request too met with no response, Stanbury

filed suit in the district court on December 7, 1998. Invoking 5 U.S.C. § 552,

Stanbury's suit sought an order which would (1) compel the IRS to release the

Foundation's Form 990, Schedule A, for the tax year 1997, and (2) force the IRS to

"investigate this situation to see if Alan Page became ineligible to be an organizer and

officer of a § 501(c)(3) foundation upon his election to the Minnesota Supreme Court."

The IRS moved to dismiss, under Rule 12(b)(6), and in an order dated June 29,

1999, the district court made two significant rulings. First, the court found that 26

U.S.C. § 6103(a) precluded the IRS from releasing the requested documents. On that

basis, the court granted the IRS's motion and dismissed Stanbury's suit. Second, acting

on its own motion, the district court struck Stanbury's pleadings. In a single, short

paragraph, the court stated only that:

Under Rule 12(f) of the Federal Rules of Civil Procedure, this

Court has the authority to "order stricken from any pleading . . . any

redundant, immaterial, impertinent, or scandalous matter." In this case,

Plaintiff's [Stanbury's] complaint and brief in opposition to the IRS'

motion to dismiss contain information that is not relevant to the FOIA

request and that could only have been included to impugn Justice Page.
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Justice Page is not a party to this suit, and his conduct is not at issue here.

As a result, Plaintiff's [Stanbury's] pleadings will be stricken. 

Add. at 3.

Stanbury has timely appealed, and he challenges both aspects of the district

court's order.

II. DISCUSSION

A. The Application of FOIA to a Request for IRS Form 990.

Stanbury's primary argument on appeal is that the district court erred in

dismissing its suit for failure to state a claim upon which relief could be granted.

Although we review a district court's dismissal for failure to state a claim de novo, see

Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995), in this case we conclude

that the district court properly dismissed Stanbury's suit.

The FOIA requires that the government make its "records promptly available to

any person," 5 U.S.C. § 552(a)(3), unless such documents are "specifically exempted

from disclosure by statute . . . ." 5 U.S.C. § 552(b)(3). Nevertheless, despite the broad

availability of government records under FOIA generally, virtually all tax documents

are excluded from release by precisely the type of statutory exemption mentioned in

§ 552(b)(3). Specifically, § 6103(a) of the tax code requires that all tax returns and

return information be kept confidential unless some other specific provision of the code

permits release. See 26 U.S.C. § 6103(a) ("Returns and return information shall be

confidential . . . except as authorized by this title . . . ."). As a result, tax documents

are, as a rule, not subject to disclosure under FOIA.

Stanbury argues that the documents he requested are outside § 6103 because the

following section, 26 U.S.C. § 6104, permits the release of certain information that tax-
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exempt private foundations are required to provide. Specifically, 26 U.S.C. § 6104(b)

states that "[n]othing in this subsection shall authorize the Secretary [or his delegate]

to disclose the name or address of any contributor to any organization or trust (other

than a private foundation, as defined in section 509(a)) . . . ." (Emphasis added.)

Stanbury contends that this language permits the disclosure of the documents he

requests with respect to the Foundation, but we disagree.

As the last phrase of the foregoing parenthetical indicates, a tax-exempt

organization is not automatically classified as a private foundation. Indeed, if a §

501(c)(3) organization does not meet the distinct requirements provided by § 509(a),

the organization is treated as public charity. From the Foundation's inception, the IRS

determined that the Foundation failed to meet the criteria established for private

foundations and therefore classified it as a public charity. At all times the IRS has

treated the Foundation as such. No exception to the general confidentiality provision

of § 6103 applies to public charities. Thus, because § 6103 applies to public charities

and the Foundation is a public charity, the IRS was correct to conclude, as an

administrative matter, that the documents requested by Stanbury could not be released

under the FOIA, and the district court properly recognized this fact.

Stanbury argues that the district court should have taken it upon itself to

reclassify the Foundation as a private foundation. Nevertheless, it does not appear that

the court had jurisdiction to do so because reclassification would require the court to

effectively issue a declaratory judgment. Although 26 U.S.C. § 7428(b)(1) permits

organizations to challenge IRS determinations with respect to their own tax-exempt

status, all other actions seeking declaratory judgments with respect to federal taxes

appear to be barred by the Declaratory Judgment Act. See Ingham v. Turner, 596 F.2d

315 (8th Cir. 1979); 28 U.S.C. § 2201. The court was therefore correct when it

declined to substitute its judgment for that of the IRS.
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Because the Foundation has been classified as a public charity, any possible

disclosure obligation on the part of the IRS under § 6104 is inapposite. As a public

charity, and no other exception appearing applicable, § 6103's confidentiality

requirement specifically exempts the Foundation's tax documents from disclosure under

FOIA. Thus, as a matter of law, Stanbury has not stated a claim, and the district court

was correct to dismiss. 

B. Rule 12(f) Issues.

Stanbury also contends that the district court abused its discretion by striking

Stanbury's pleadings as irrelevant. First, as a factual matter, Stanbury argues that

certain basic information about Justice Page and his relationship to the Foundation was

essential to the suit, particularly insofar as the complaint specifically asked that the

court order further investigation by the IRS into Justice Page's eligibility to serve as a

Foundation officer. Second, as a procedural matter, Stanbury argues that the court's

action was deficient because it struck Stanbury's submissions in their "entirety[,]

without specifically describing the particular sentences or phrases which supposedly

justified that precipitous action."

This court has rarely been called upon to interpret Rule 12(f), which states, in

pertinent part, that: "Upon motion made by a party . . . or upon the court's own initiative

at any time, the court may order stricken from any pleading any insufficient defense or

any redundant, immaterial, impertinent, or scandalous matter." Because the rule is

stated in the permissive, however, it has always been understood that the district court

enjoys "liberal discretion" thereunder. Thor Corp. v. Automatic Washer Co., 91

F.Supp. 829, 832 (D.C. Iowa 1950). See also, F.D.I.C. v. Niblo, 821 F.Supp. 441, 449

(N.D. Tex. 1993). Despite this broad discretion however, striking a party's pleadings

is an extreme measure, and, as a result, we have previously held that "[m]otions to

strike under Fed.R.Civ.P. 12(f) are viewed with disfavor and are infrequently granted."

Lunsford v. United States, 570 F.2d 221, 229 (8th Cir.1977) (citing 5 Wright & Miller,
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Federal Practice and Procedure: Civil § 1380 at 783 (1969)). See also, Resolution

Trust Corp. v. Gibson, 829 F.Supp. 1103, 1106 (W.D. Mo. 1993); 2 James Wm.

Moore et al., Moore's Federal Practice § 12.37[1] (3d ed. 2000) ("Courts disfavor the

motion to strike, because it 'proposes a drastic remedy.'").

In this case, the district court struck both Stanbury's complaint and its

memorandum in opposition to defendant's motion to dismiss, in their totality, because

in the court's view those documents "contain[ed] information that is not relevant to the

FOIA request and that could only have been included to impugn Justice Page." Yet the

court made no attempt to detail the specific passages, if any, to which it referred.

Moreover, in our view, the documents Stanbury filed in no way impugn the integrity

of Justice Page.

After reading Stanbury's submissions to the district court, we see no impropriety

which warrants the court's decision to strike them. Although Stanbury does detail

Justice Page's relationship with the Foundation at some length, and indicates that this

relationship could create conflict of interest issues, that information also provides

important context and background to Stanbury's suit. It is true that this information

may not be strictly relevant to the FOIA portion of Stanbury's action per se, but the

release of documents under FOIA was not the sole object of Stanbury's complaint:

Stanbury also sought to compel specific action by the IRS to determine "whether Page

became ineligible to be an organizer and officer of a § 501(c)(3) foundation upon his

election to the Minnesota Supreme Court." Although this portion of Stanbury's lawsuit

was summarily dismissed for lack of jurisdiction—and properly so in our view—that

fact does not vitiate the relevance of information included in Stanbury's complaint and

memorandum which was designed to advance it. Therefore, Stanbury's submissions

to the court were not irrelevant, and the district court abused its discretion when it

found them to be so.
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III. CONCLUSION

The district court properly resolved the issues before it on the merits: The IRS

was not required to release the Foundation's tax documents to Stanbury under the

Foundation's current tax classification, and the court was without power to reform the

IRS's classification. The district court's order of dismissal is therefore affirmed.

However, because the district court abused its discretion when it ordered Stanbury's

pleadings to be stricken, that limited portion of the court's order is hereby reversed. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.