Individual Seeks Reversal of Crypto Data Seizure Suit Dismissal

JAMES HARPER,
Plaintiff-Appellant,
v.
CHARLES P. RETTIG,
IN HIS OFFICIAL CAPACITY AS COMMISSIONER
OF THE INTERNAL REVENUE SERVICE,
&
INTERNAL REVENUE SERVICE,
&
JOHN DOE IRS AGENTS 1-10,
Defendants-Appellees.

United States Court of Appeals
for the First Circuit

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE, CASE NO. 1:20-CV-00771-JD (HON. JOSEPH A. DICLERICO, JR.)

APPELLANT'S OPENING BRIEF

ADITYA DYNAR (1198447)
CALEB KRUCKENBERG (1198414)
NEW CIVIL LIBERTIES ALLIANCE
1225 19th St. NW, Suite 450
Washington, DC 20036
(202) 869-5210
Adi.Dynar@NCLA.legal
Caleb.Kruckenberg@NCLA.legal
Counsel for Plaintiff-Appellant

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

REASONS WHY ORAL ARGUMENT SHOULD BE HEARD

GLOSSARY

INTRODUCTION

JURISDICTIONAL STATEMENT

QUESTIONS PRESENTED

STATEMENT OF THE CASE

SUMMARY OF THE ARGUMENT

ARGUMENT

I. STANDARD OF REVIEW

II. SOVEREIGN IMMUNITY DOES NOT DIVEST FEDERAL COURTS' SUBJECT-MATTER JURISDICTION IN SUITS FOR SPECIFIC, NONMONETARY RELIEF AGAINST IRS AND ITS OFFICERS

III. NEITHER THE ANTI-INJUNCTION ACT NOR THE DECLARATORY JUDGMENT ACT LIMITS SUBJECT-MATTER JURISDICTION IN A SUIT THAT DOES NOT SEEK TO RESTRAIN THE ASSESSMENT OR COLLECTION OF TAXES

IV. MR. HARPER HAS PLAUSIBLY PLED THAT IRS VIOLATED HIS CONSTITUTIONAL AND STATUTORY RIGHTS

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM TO APPELLANT'S OPENING BRIEF

TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009)

Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation v. Board of Oil & Gas Conservation, 792 F.2d 782 (9th Cir. 1986)

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)

Boyd v. United States, 116 U.S. 616 (1886)

California v. Ciraolo, 476 U.S. 207 (1986)

Carpenter v. United States, 138 S. Ct. 2206 (2018)

Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir. 1996)

CIC Services, LLC v. IRS, 141 S. Ct. 1582 (2021)

Clark v. Library of Congress, 750 F.2d 89 (D.C. Cir. 1984)

Coeur d'Alene Tribe of Idaho v. Idaho, 42 F.3d 1244 (9th Cir. 1994), reversed in part on other grounds, 521 U.S. 261 (1997)

Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011)

Commonwealth of Puerto Rico v. United States, 490 F.3d 50 (1st Cir. 2007)

Delano Farms Co. v. California Table Grape Com'n, 655 F.3d 1337 (Fed. Cir. 2011)

Dugan v. Rank, 372 U.S. 609 (1963)

Ecclesiastical Order of the ISM of Am., Inc. v. IRS, 725 F.2d 398 (6th Cir. 1984)

Entick v. Carrington, 19 How. St. Tr. 1029 (1765)

Ex Parte Jackson, 96 U.S. 727 (1878)

Florida v. Jardines, 569 U.S. 1 (2013)

Foisie v. Worcester Polytechnic Institute, 967 F.3d 27 (1st Cir. 2020)

Fothergill v. United States, 566 F.3d 248 (1st Cir. 2009)

Grapentine v. Pawtucket Credit Union, 755 F.3d 29 (1st Cir. 2014)

Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006)

In re Leckie Smokeless Coal Co., 99 F.3d 573 (4th Cir. 1996)

Kremen v. Cohen, 337 F.3d 1024 (9th Cir. 2003)

Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949)

Lepelletier v. FDIC, 164 F.3d 37 (D.C. Cir. 1999)

Liddle v. Salem Sch. Dist. No. 600, 619 N.E.2d 530 (Ill. App. 1993)

Malone v. Bowdoin, 369 U.S. 643 (1962)

Mathews v. Eldridge, 424 U.S. 319 (1976)

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012)

McCarthy v. Marshall, 723 F.2d 1034 (1st Cir. 1983)

Perlowin v. Sasse, 711 F.2d 910 (9th Cir. 1983)

Pollack v. Hogan, 703 F.3d 117 (D.C. Cir. 2012)

Resolution Tr. Corp. v. Thornton, 41 F.3d 1539 (D.C. Cir. 1994)

Robbins v. BLM, 438F.3d 1074 (10th Cir. 2006)

Sargent v. Gile, 8 N.H. 325 (1836)

Sea-Land Serv., Inc. v. Alaska, 659 F.2d 243 (D.C. Cir. 1981)

Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996)

The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir. 1989)

Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310 (1985)

Tomlinson v. Smith, 128 F.2d 808 (7th Cir. 1942)

Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006)

United States v. Boruff, 909 F.2d 111 (5th Cir. 1990)

United States v. Coinbase, Inc., No. 17-cv-1431, 2017 WL 3035164 (N.D. Cal. July 18, 2017)

United States v. Dorais, 241 F.3d 1124 (9th Cir. 2001)

United States v. Gertner, 65 F.3d 963 (1st Cir. 1995)

United States v. Jacobsen, 466 U.S. 109 (1984)

United States v. Jones, 565 U.S. 400 (2012)

United States v. Miller, 425 U.S. 435 (1976)

United States v. Ritchie, 15 F.3d 592 (6th Cir. 1994)

United States v. Warshak, 631 F.3d 266 (6th Cir. 2010)

Wilson v. HSBC Mortgage Services, Inc., 744 F.3d 1 (1st Cir. 2014)

Wyoming Trucking Ass'n v. Bentsen, 82 F.3d 930 (10th Cir. 1984)

Z St. v. Koskinen, 791 F.3d 24 (D.C. Cir. 2015)

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV

U.S. Const. amend. V (Due Process Clause)

STATUTES

5 U.S.C. § 702

5 U.S.C. § 704

26 U.S.C. § 501(c)(3)

26 U.S.C. § 6213

26 U.S.C. § 6671(a)

26 U.S.C. § 7203

26 U.S.C. § 7421(a)

26 U.S.C. § 7422

26 U.S.C. § 7428

26 U.S.C. § 7602

26 U.S.C. § 7609(a)

26 U.S.C. § 7609(f)

28 U.S.C. § 1291

28 U.S.C. § 1331

28 U.S.C. § 2201

28 U.S.C. § 2201(a)

28 U.S.C. § 2202

28 U.S.C. § 2409a

An Act to Amend the Customs-Revenue Laws and to Repeal Moieties, ch. 391 § 5, 18 Stat. 187 (1874)

Pub. L. 94-574, § 1, 90 Stat. 2721 (1976)

RULES

FRAP 4(a)(1)(B)

FRAP 32(a)(5)

FRAP 32(a)(6)

FRAP 32(a)(7)

FRCP 12(b)(1)

FRCP 12(b)(6)

Local Rule 34.0(a)

OTHER AUTHORITIES

Carla Mozée, IRS Chief Asks Congress for More Authority to Regulate the Crypto Industry (Jun 8, 2021), https://bit.ly/3yqqrna (visited July 9, 2021)

Donald A. Dripps, “Dearest Property”: digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure, 103 J. Crim. L. & Criminology 49 (2013)

IRS Form CP2566R, https://www.irs.gov/pub/notices/cp2566r_english.pdf

IRS Notice 2016-66, https://www.irs.gov/pub/irs-drop/n-16-66.pdf

Philip Hamburger, Is Administrative Law Unlawful? (2014)

Understanding Your CP504 Notice, https://www.irs.gov/individuals/understanding-your-cp504-notice

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REASONS WHY ORAL ARGUMENT SHOULD BE HEARD

Pursuant to Local Rule 34.0(a), Appellant respectfully requests that the Court schedule oral argument in this case. This case presents important legal questions about whether the sovereign immunity of the United States bars suits challenging the government's illegal information-gathering practices and whether injunctive or declaratory relief is available in such situations. Oral presentation will aid the Court in seeking clarification from counsel for all parties and in its resolution of the weighty jurisdictional issues.

GLOSSARY

APA	Administrative Procedure Act (Pub. L. 79-404 (1946), codified at 5 U.S.C.)
AIA	Anti-Injunction Act (26 U.S.C. § 7421(a))
DJA	Declaratory Judgment Act (28 U.S.C. §§ 2201-2202)
FRAP	Federal Rules of Appellate Procedure
FRCP	Federal Rules of Civil Procedure
IRS	Internal Revenue Service

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INTRODUCTION

The IRS and its officers obtained the private financial information of Mr. James Harper from digital-currency exchanges or from some other source without complying with the constitutional and statutory limitations on its power to gather information.¹ IRS gathered this information despite Mr. Harper's having contracted with the digital-currency exchanges to protect his private records against, among other things, unlawful government seizure.

IRS's actions violated core constitutional protections under the Fourth and Fifth Amendments. Assuming IRS took his information from one or more exchanges, Mr. Harper's contracts recognized that his data is his property, not that of the exchanges, and supplied him with a reasonable expectation of privacy in his personal information. The contracts made clear that he did not voluntarily surrender his Fourth Amendment rights by doing business with them. IRS seized his information without due process. IRS did not provide Mr. Harper with any notice or opportunity to contest its lawless information gathering. That lack of process violates the Fifth Amendment's due-process guarantee. IRS's third-party collection of Mr. Harper's information is also a Fourth Amendment trespass against Mr. Harper because it seized his personal papers without a warrant. IRS also failed to protect Mr. Harper's statutory rights when it obtained his personal papers from third parties.

The district court, basing its opinion on sovereign immunity, the Anti-Injunction Act, the Declaratory Judgment Act, and Bivens,² concluded that, taking IRS's constitutional violations as a given, Mr. Harper has no means to challenge IRS's illegal behavior. The court made up a tenuous relationship between IRS's dragnet information-gathering and tax collection to rationalize its decision. That decision is wrong. This action is not an effort to avoid tax liability. Mr. Harper has paid his taxes. Rather, this suit is a challenge to IRS's unlawful data collection under the Fourth and Fifth Amendments, and 26 U.S.C. § 7609(f).

This Court should reverse, conclude that the district court has subject-matter jurisdiction, decide that Mr. Harper has stated a claim on which relief can be granted, and remand the case so that the parties can proceed to discovery.

JURISDICTIONAL STATEMENT

On March 23, 2021, the District of New Hampshire dismissed the case for lack of jurisdiction and for failure to state a claim on which relief can be granted. Appx98-99. Plaintiff James Harper filed a timely notice of appeal, Appx7-8, on April 20, 2021. See FRAP 4(a)(1)(B). This Court has appellate jurisdiction under 28 U.S.C. § 1291.

QUESTIONS PRESENTED

1. Does sovereign immunity divest federal courts of subject-matter jurisdiction in suits for specific, nonmonetary relief alleging that the actions of IRS and its officers are unconstitutional or beyond statutory authority?

2. Does the Anti-Injunction Act or the Declaratory Judgment Act limit the subject-matter jurisdiction of federal courts in suits that do not seek to restrain the assessment or collection of taxes?

3. Has Mr. Harper stated a plausible claim that his rights were violated by IRS and its officers under the Fourth and Fifth Amendments, and 26 U.S.C. § 7609(f)?

STATEMENT OF THE CASE

In August of 2019, James Harper, a New Hampshire resident, Appx3, received a letter from IRS. Appx22-23, Appx67-69. The letter stated:

We have information that you have or had one or more accounts containing virtual currency but may not have properly reported your transactions involving virtual currency, which include crypto-currency and non-crypto virtual currencies. . . . If you do not accurately report your virtual currency transactions, you may be subject to future civil and criminal enforcement activity.

Appx22, Appx67. In closing, the letter stated, “You do not need to respond to this letter. Note, however, we may send other correspondence about potential enforcement activity in the future.” Appx69. The letter was signed by an IRS Program Manager, Bryan Stiernagle. Appx69.

IRS contemporaneously issued a press release, stating, “Taxpayers should take these letters very seriously” and “correct past errors.” Appx70. The press release identified the form letter Mr. Harper received — “6174-A” — as one of three versions of letters it sent to “more than 10,000 taxpayers.” Appx24, Appx28, Appx67-69, Appx70.

The IRS letter did not assess taxes against Mr. Harper.³ IRS did not commence a tax-collection action against Mr. Harper.⁴ In this suit, Mr. Harper does not seek a tax refund. Instead, Mr. Harper challenges IRS's gathering of information about his personal finances without a hint of suspicion that he has failed to pay taxes.

IRS obtained Mr. Harper's private financial information from somewhere — Mr. Harper does not know which digital-currency exchange provided the information, and IRS has not disclosed its identity. Yet he does know that IRS did not follow statutory and constitutional limits on information gathering, because the agency did not follow lawful process with respect to any party that holds his private information.

Mr. Harper has paid all applicable taxes on his bitcoin income and capital gains for all relevant tax years, accurately disclosing all that the law requires. Appx16-17, Appx22-23. He will continue to declare and pay any capital gains and other applicable taxes for his bitcoin holdings for each tax year in the future. Appx22.

Mr. Harper has owned accounts containing bitcoin or other digital currency with Abra, Coinbase, and Uphold. Appx23. Abra, Coinbase, and Uphold are digital currency exchanges that facilitate transactions in digital currencies such as bitcoin. Appx13, Appx20. Each of these companies has contractually agreed to provide robust privacy protections to Mr. Harper's private financial records. Appx13-22, Appx36-66. Uphold confirmed via a notarized affidavit attached to the amended complaint that it did not provide Mr. Harper's private financial information to IRS. Appx23, Appx72-73. Mr. Harper alleges, therefore, that IRS likely obtained his records from Abra, Coinbase, or both — possibly some other third party. Appx23.

Via the 2019 letter, IRS accuses Mr. Harper of not having “properly reported” his “transactions involving virtual currency.” Appx67. IRS must have obtained some information from some third party to accuse Mr. Harper so confidently. Mr. Harper, therefore, filed suit against (1) IRS Commissioner Rettig, in his official capacity, (2) IRS, a federal agency, and (3) John Doe IRS Agents in their personal capacities. Appx11.

In this suit, Mr. Harper challenges IRS's information-gathering practices as violating the Fourth and Fifth Amendments to the United States Constitution, and 26 U.S.C. § 7609(f). Appx25-34. To remedy those violations, Mr. Harper requests declaratory and injunctive relief, including an order expunging Mr. Harper's private financial information from IRS's records if it was obtained in violation of the Constitution or federal statute. Appx25-34. Mr. Harper also requested compensatory damages that would “reasonably and properly compensate him for injuries together with delay damages, interest, costs, and attorneys' fees” to remedy the violations of his Fourth and Fifth Amendment rights, but not for violations of 26 U.S.C. § 7609(f). Appx29, Appx32, Appx34.

The government filed an FRCP 12(b)(1) and 12(b)(6) motion to dismiss. Appx76. Mr. Harper responded to that motion and the government filed a reply. Appx81. No oral argument was conducted. The district court granted the motion to dismiss as follows:

Counts I [Fourth Amendment violation] and II [Fifth Amendment violation], to the extent injunctive or declaratory relief is sought from any defendant or money damages are sought from Commissioner Rettig and the IRS, are dismissed for lack of jurisdiction. Counts I and II, to the extent money damages are sought from John Does 1 through 10, are dismissed for failure to state a claim upon which relief can be granted. Count III [26 U.S.C. § 7609(f) violation] is dismissed for lack of jurisdiction.

Appx98. This appeal ensues. Appx7-8.

SUMMARY OF THE ARGUMENT

The district court's FRCP 12(b)(1) dismissal for lack of subject-matter jurisdiction of all three Counts in the amended complaint (to the extent injunctive or declaratory relief is sought) against all defendants is reversible error. Appx98.

Mr. Harper does not challenge the district court's FRCP 12(b)(1) dismissal of Counts I and II to the extent money damages are sought from IRS and its Commissioner. Appx98. Nor does Mr. Harper challenge the district court's FRCP 12(b)(6) dismissal of Counts I and II to the extent money damages are sought from John Doe IRS Agents 1 through 10. Appx98.

Mr. Harper asks this Court to reverse only the district court's FRCP 12(b)(1) dismissal of all Counts for declaratory and injunctive relief against all defendants — IRS, IRS's Commissioner, and John Doe IRS Agents 1 through 10.

The district court labored under the mistaken notion that a waiver of sovereign immunity is necessary. Appx82. No waiver of sovereign immunity is necessary. Even if it is necessary, 5 U.S.C. § 702 or the ultra vires doctrine have eliminated or waived the sovereign-immunity defense in suits for specific, nonmonetary declaratory and injunctive relief. The district court should be reversed on this point. Appx82-84.

The Anti-Injunction Act and the Declaratory Judgment Act do not bar suits like Mr. Harper's that do not seek to restrain the assessment or collection of taxes. Indeed, in a decision handed down after the district court's dismissal here, the Supreme Court explained that where, as here, there is no “tax penalty” at issue, then the case is a “cinch,” and “the suit c[an] proceed.” CIC Services, LLC v. IRS, 141 S. Ct. 1582, 1589 (2021). The district court should also be reversed on this point. Appx85-90.

The procedural posture of this case is notable. In the district court, IRS filed a motion to dismiss, Appx4, presenting several bases for dismissing the case. The district court's decision addressed only IRS's sovereign-immunity, the Anti-Injunction Act, the Declaratory Judgment Act, and Bivens defenses. The court did not address the other FRCP 12(b)(6) arguments IRS had presented.

The Court should conclude that the district court has subject-matter jurisdiction, Mr. Harper has stated claims on which relief could be granted, reverse the decision below, and remand for further proceedings consistent with the Court's decision.

ARGUMENT

I. STANDARD OF REVIEW

This Court reviews de novo the district court's grant of an FRCP 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction because the existence of subject-matter jurisdiction is a question of law. Grapentine v. Pawtucket Credit Union, 755 F.3d 29, 31 (1st Cir. 2014). The Court “take[s] as true all well-pleaded facts in the plaintiffs' complaints, scrutinize[s] them in the light most hospitable to the plaintiffs' theory of liability, and draw[s] all reasonable inferences therefrom in the plaintiffs' favor.” Fothergill v. United States, 566 F.3d 248, 251 (1st Cir. 2009) (cleaned up).

This Court also reviews de novo the district court's grant of an FRCP 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Wilson v. HSBC Mortgage Services, Inc., 744 F.3d 1, 7 (1st Cir. 2014). The Court “construe[s] all factual allegations in the light most favorable to the [plaintiff] to determine if there exists a plausible claim upon which relief may be granted.” Id. “The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In such a posture, the Court “may not stray beyond the facts averred in the complaint and its attachments . . . [and] official public records.” Foisie v. Worcester Polytechnic Institute, 967 F.3d 27, 34 n.1 (1st Cir. 2020).⁵

II. SOVEREIGN IMMUNITY DOES NOT DIVEST FEDERAL COURTS' SUBJECT-MATTER JURISDICTION IN SUITS FOR SPECIFIC, NONMONETARY RELIEF AGAINST IRS AND ITS OFFICERS

The district court dismissed Mr. Harper's claims because it concluded that he “has not demonstrated the applicability of any exception to the United States's sovereign immunity and because the Anti-Injunction Act prohibits the court from granting” injunctive and declaratory relief. Appx90. This ruling was in error because no such waiver of sovereign immunity was necessary for suits brought to enjoin unconstitutional or otherwise ultra vires government actions. Of course, even if a waiver were necessary, the Administrative Procedure Act constituted the necessary waiver.

A. Sovereign Immunity Does Not Attach in the First Place in Suits Alleging that Officials' Actions Are Unconstitutional or Beyond Statutory Authority

A sovereign-immunity waiver is not necessary in this case. When a suit asks for specific nonmonetary relief “against government officials where the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority,” then “[i]t is well-established that sovereign immunity does not bar [such] suits.” Clark v. Library of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984). In official-capacity suits alleging officials' actions are unconstitutional or beyond statutory authority, “there is no sovereign immunity to waive — it never attached in the first place.” Chamber of Commerce v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996); see also Gros Ventre Tribe v. United States, 469 F.3d 801, 808 n.8 (9th Cir. 2006) (same). No waiver of sovereign immunity is necessary for lawsuits attacking unconstitutional actions. Cf. Coeur d'Alene Tribe of Idaho v. Idaho, 42 F.3d 1244, 1252 n.6 (9th Cir. 1994), reversed in part on other grounds, 521 U.S. 261 (1997) (“Although cases against federal officials are no longer necessary because the United States has waived its sovereign immunity to actions to quiet title, 28 U.S.C. § 2409a, the underlying principle remains valid.”).

Mr. Harper alleges that IRS's gathering of his information from third parties violates the Fourth and Fifth Amendments and 26 U.S.C. § 7609(f). His official-capacity suit alleging officials' actions “to be unconstitutional or beyond statutory authority,” Clark, 750 F.2d at 102, is precisely the type of suit in which “there is no sovereign immunity to waive” because “it never attached in the first place.” Reich, 74 F.3d at 1329.

This ultra vires doctrine comes from Larson. The Supreme Court has said that sovereign immunity does not attach to federal officials' actions in suits alleging that such actions are unconstitutional or beyond statutory authority. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90 (1949). Federal officials can be sued for “specific relief” for ultra vires actions because actions that are either unconstitutional or undertaken without statutory authority do not implicate the sovereign immunity of the federal government. Id. at 689. There are three reasons, as “set out in [the] complaint,” id. at 690, for why the officials sued here acted unconstitutionally or without statutory authority: the Fourth Amendment, the Fifth Amendment, and 26 U.S.C. § 7609(f). Id. at 690. Mr. Harper “claim[s] an invasion of his recognized legal rights.” Id. at 693. That is sufficient to conclude that the district court had subject-matter jurisdiction that was not divested by the sovereign-immunity doctrine. See also Dugan v. Rank, 372 U.S. 609 (1963) (applying the ultra vires doctrine).

In Pollack v. Hogan, the plaintiff alleged that the federal officers acted unconstitutionally, and requested injunctive and declaratory relief. 703 F.3d 117, 119 (D.C. Cir. 2012) (per curiam). The court concluded that the suit “falls within the Larson-Dugan exception.” Id. at 120. The federal officers had argued that the complainant must also “have a viable” unconstitutionality claim. Id. at 120. The court concluded that the ultra vires doctrine is not limited in that fashion. Id. The government's argument in Pollack failed to consider the full context of Larson's explanation that such an argument “confuses the doctrine of sovereign immunity with the requirement that a plaintiff state a cause of action.” 337 U.S. at 692-93. Larson stated:

It is a prerequisite to the maintenance of any action for specific relief that the plaintiff claim an invasion of his legal rights, either past or threatened. . . . If he does not, he has not stated a cause of action. This is true whether the conduct complained of is sovereign or individual. In a suit against an agency of the sovereign, as in any other suit, it is therefore necessary that the plaintiff claim an invasion of his recognized legal rights. If he does not do so, the suit must fail even if he alleges that the agent acted beyond statutory authority or unconstitutionally.

Id. at 693 (emphasis added).

Here, Mr. Harper has “claimed” an invasion of his legal rights — specifically the constitutional right to secure his papers against unreasonable searches and seizures, the constitutional right to due process of law, and the statutory right to a valid summons. Whether Mr. Harper has these rights, and whether the officials sued have violated any of these rights, goes to the merits of his claim and not to sovereign immunity. See also Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996) (concluding, under the ultra vires doctrine, that no waiver of sovereign immunity is necessary in “suits alleging that an officer's actions were unconstitutional or beyond statutory authority”).

Subsequent cases, such as Clark, rely on Larson to conclude that the 1976 amendment to 5 U.S.C. § 702 endorsed the ultra vires doctrine. Sovereign immunity is not a bar to suits challenging federal officials' actions as unconstitutional or beyond statutory authority under either the ultra vires doctrine or 5 U.S.C. § 702. The district court, therefore, erred in concluding otherwise.

B. APA Section 702 Eliminates or Waives the Sovereign-Immunity Defense

The second sentence of Section 702 says, “An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.” That sentence “eliminated” the sovereign-immunity defense. Clark, 750 F.2d at 102. That is, a waiver of sovereign immunity is not necessary for suits seeking nonmonetary relief against a federal agency or officer. This 1976 amendment to APA Section 702, Pub. L. 94-574, § 1, 90 Stat. 2721 (1976), “eliminated the sovereign immunity defense in virtually all actions for non-monetary relief against a [United States] agency or officer acting in an official capacity.” Clark, 750 F.2d at 102. Clark interpreted the second sentence of APA Section 702 as dictating this conclusion.

Mr. Harper alleges that IRS illegally obtained his private financial records. Appx11. He was informed via the 2019 letter of IRS's unlawful collection of his private information from some unknown-to-him third party. Appx22, Appx67. The letter said that IRS “ha[s] information” about Mr. Harper that it received from somewhere.

Appx67. That letter accused him of not “properly report[ing]” his “transactions involving virtual currency” based on that “information.” Appx67. The letter warned him that if he does “not accurately report [his] virtual currency transactions,” IRS “may” bring “civil and criminal enforcement” action against him. Appx67. The letter also invited Mr. Harper to “not . . . respond to this letter.” Appx69.

IRS's false accusation of Mr. Harper and its collection of his private records from third parties are complete. Mr. Harper “is entitled to judicial review thereof.” 5 U.S.C. § 702. He alleges that he has suffered a “legal wrong because of agency action.” Id. And he seeks declaratory and injunctive relief to correct that wrong. Appx25-34. His action “seek[s] relief other than money damages and stat[es] a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S.C. § 702. Such suits “shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.” Id.

Some cases have used the phrase “eliminate the defense of sovereign immunity” interchangeably with “waive[r] of sovereign immunity.” Delano Farms Co. v. California Table Green Com'n, 655 F.3d 1337, 1345 (Fed. Cir. 2011); see also Robbins v. BLM, 438 F.3d 1074, 1081 (10th Cir. 2006) (“[T]he 1976 amendments to the APA to a large extent superseded the restrictions on injunctive relief set forth in Larson by inserting into 5 U.S.C. § 702 the language quoted above, waiving sovereign immunity for suits seeking 'relief other than money damages.'”) (citing Clark); The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525-526 (9th Cir. 1989) (“Congress' plain intent in amending § 702 was to waive sovereign immunity[.]”); Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation v. Board of Oil & Gas Conservation, 792 F.2d 782, 793 (9th Cir. 1986) (“This Court has held that section 702 does waive sovereign immunity in non-statutory review actions for non-monetary relief brought under 28 U.S.C. § 1331.”); Z St. v. Koskinen, 791 F.3d 24, 32 (D.C. Cir. 2015) (“[S]ection 702 of the [APA] waives sovereign immunity with respect to suits for nonmonetary damages that allege wrongful action by an agency or its officers or employees, and the instant lawsuit [against IRS's Commissioner] fits precisely those criteria.”); Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 57-58 (1st Cir. 2007) (“[APA Section 702] waiver is for all equitable actions for specific relief against a Federal agency or officer acting in an official capacity, . . . and thus applies to any suit whether under the APA or not.”) (cleaned up; emphasis in original). Under either formulation, the analysis is the same. Whether “eliminated” or “waived,” sovereign immunity does not bar suits for “specific, nonmonetary relief.” Sea-Land Serv., Inc. v. Alaska, 659 F.2d 243, 244-45 (D.C. Cir. 1981) (R.B. Ginsburg, J., panel opinion). Mr. Harper's is such a suit.

C. Either APA Section 702 or the Ultra Vires Doctrine Dispatches the Sovereign-Immunity Bar for APA and Non-APA Cases Alike

Even before Congress amended APA Section 702, plaintiffs could “maintain an action for equitable relief against unconstitutional government conduct, whether or not such conduct constituted 'agency action' in the APA sense.” Presbyterian, 870 F.2d at 526. And Clark relied on Supreme Court cases predating the 1976 amendment to APA Section 702. 750 F.2d at 102 (citing Dugan, 372 U.S. at 621-23 (1963); Malone v. Bowdoin, 369. U.S. 643, 646-48 (1962); Larson, 337 U.S. at 689-91 (1949)).

The APA therefore is not the sole basis for dispatching IRS's sovereign-immunity defense. “[S]overeign immunity does not bar suits for specific relief against government officials where,” as here, “the challenged actions of the officials are alleged to be unconstitutional or beyond statutory authority.” Clark, 750 F.2d at 102. But should the Court deem a waiver of sovereign immunity necessary, the APA contains a general waiver of sovereign immunity for cases involving “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. See also Presbyterian, 870 F.2d at 525-526 (“[P]laintiffs could, even before Congress amended § 702 in 1976, maintain an action for equitable relief against unconstitutional government conduct, whether or not such conduct constituted 'agency action' in the APA sense. . . . Congress' plain intent in amending § 702 was to waive sovereign immunity for all such suits, thereby eliminating the need to invoke the Young fiction.”). The rule in this circuit is the same. Puerto Rico, 490 F.3d at 57-58 (the Section 702 waiver applies to “any suit whether under the APA or not”).

Trudeau v. FTC held that the waiver of immunity in Section 702 “is not limited to APA cases” and applies “regardless of whether the elements of an APA cause of action are satisfied.” 456 F.3d 178, 187 (D.C. Cir. 2006). The plaintiff had challenged FTC's issuance of a press release regarding him. Trudeau acknowledged that the press release was not “agency action” as defined in the APA, let alone “final agency action.” Id. at 189. But that was irrelevant, according to the court, because neither of the plaintiff's causes of actions sought judicial review under APA Section 704. In short, “the APA's waiver of sovereign immunity applies to any suit whether under the APA or not.” 456 F.3d at 186.

Delano also reached the same conclusion. 655 F.3d at 1345. The 1976 amendment to Section 702, Delano explained, “was designed to eliminate the defense of sovereign immunity with respect to any action in a court of the United States seeking relief other than money damages and based on an assertion of unlawful official action by a Federal officer or employee”; it was not “meant to be limited to actions arising under the APA itself or under a statute directed at the review of 'agency action' as that term is defined in the APA.” 655 F.3d at 1345 (citations omitted).

Presbyterian concluded: “It would be anom[a]lous — inexplicable in terms of the structure of the APA, and in evident conflict with the plain language and legislative history of the amendment to § 702 — to read § 702 as preserving sovereign immunity in claims for equitable relief against government investigations alleged to violate First and Fourth Amendment rights.” 870 F.2d at 526.

Sovereign immunity does not bar APA and non-APA cases alike if those cases allege unconstitutional government conduct or actions taken without statutory authority. Mr. Harper's is such a case. It alleges that IRS violated Mr. Harper's Fourth and Fifth Amendment rights and 26 U.S.C. § 7609(f).

The district court seemed to recognize that the “APA generally waives the Federal Government's immunity from a suit 'seeking relief other than money damages[.]'” Appx84 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012)). Nevertheless, the district court dismissed, in part, because of sovereign immunity. Appx89. That conclusion was error. The Court should conclude — under either the ultra vires doctrine, or under 5 U.S.C. § 702 — that the district court has subject-matter jurisdiction that is not barred by the sovereign-immunity doctrine.

III. NEITHER THE ANTI-INJUNCTION ACT NOR THE DECLARATORY JUDGMENT ACT LIMITS SUBJECT-MATTER JURISDICTION IN A SUIT THAT DOES NOT SEEK TO RESTRAIN THE ASSESSMENT OR COLLECTION OF TAXES

A. The Anti-Injunction Act Does Not Bar This Suit

IRS argued and the district court concluded that the Anti-Injunction Act, 26 U.S.C. § 7421(a), bars this suit. Appx90. Under 5 U.S.C. § 702's last sentence, which leaves other jurisdictional limitations untouched, the court concluded that the AIA is “another limitation on judicial review.” Appx84-85. The district court was wrong to conclude that the AIA limits the district court's subject-matter jurisdiction, however. This Court should reverse the decision below, and remand the case so that it can proceed to the merits.

The district court did not have the benefit of the Supreme Court's recent decision in CIC Services, LLC v. IRS, 141 S. Ct. 1582 (May 17, 2021), but that case settles the issue beyond cavil. See Appx98-99 (decision and judgment entered on Mar 23, 2021). CIC concluded that the Anti-Injunction Act, 26 U.S.C. § 7421(a), does not prohibit a suit “seeking to set aside an information-reporting requirement that is backed by both civil tax penalties and criminal penalties.” Id. at 1586. This is so because the AIA states in relevant part only that, “[N]o suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.”

In CIC, a company challenged IRS's Notice 2016-66, which identified certain reportable transactions. Id. at 1587; https://www.irs.gov/pub/irs-drop/n-16-66.pdf.

The notice compelled certain persons to give IRS certain information. Id. Failure to provide information to the IRS could result in “civil monetary penalties” and “criminal penalties.” Id. IRS argued that such civil penalties for noncompliance are deemed to be taxes for purposes of the Internal Revenue Code, including the AIA, but the criminal liability is not deemed a tax. Id. at 1587-88 (citing 26 U.S.C. §§ 6671(a), 7203).

CIC Services, LLC, a company subject to Notice 2016-66, challenged it and sought declaratory and injunctive relief. Id. at 1588. IRS moved to dismiss arguing based on the AIA that the requested relief would prevent IRS from “assessing” taxes. The Court concluded, “A reporting requirement is not a tax; and a suit brought to set aside such a rule is not one to enjoin a tax's assessment or collection. That is so even if the reporting rule will help the IRS bring in future tax revenue.” Id. at 1588-89.

Because “[i]nformation gathering” is “a phase of tax administration procedure that occurs before assessment or collection,” for purposes of the AIA, “it d[oes] not matter” that such information-gathering practices would “facilitate collection of taxes.” Id. at 1589 (cleaned up). The AIA's limit on injunctions is “not keyed to all activities that may improve [IRS's] ability to assess and collect taxes.” Id. The AIA is “keyed to the acts of assessment and collection themselves.” Id. (cleaned up). Therefore, “a suit directed at ordinary reporting duties can go forward, unimpeded by the Anti-Injunction Act.” Id.

In the course of reaching its conclusion that the AIA did not bar the suit in CIC, the Court also noted that other cases that did not have a “downstream tax penalty,” were “a cinch,” and “[t]he Anti-Injunction Act would not apply and the suit could proceed.” Id. at 1588. In other words, in cases where the challenge was simply to “set aside” agency action, not challenge an eventual penalty, the AIA had no arguable bearing on the claim. Id.

CIC is on all fours with Mr. Harper's suit. Mr. Harper challenges an IRS letter that told him IRS had obtained his private information from some third party. Appx67. Based on that information, IRS accused him of not properly reporting his digital-currency transactions, and stated that if Mr. Harper does not file accurate reports, he “may be subject to civil and criminal enforcement activity.” Id. IRS did not assess any tax against Mr. Harper, and he does not challenge a tax assessment. IRS did not commence a tax-collection action against Mr. Harper. Mr. Harper does not seek a tax refund. He seeks injunctive and declaratory relief challenging IRS's information-gathering practices as violating Mr. Harper's Fourth and Fifth Amendment rights and 26 U.S.C. § 7609(f). Mr. Harper's suit, brought to set aside IRS's illegal information gathering and false accusation of Mr. Harper, is not a suit brought to enjoin a tax's assessment or collection. That remains so even if IRS views the letter it sent Mr. Harper as one that might “improve [its] ability to assess and collect taxes.” 141 S. Ct. at 1589.

In evaluating the AIA defense, this Court should focus on “the relief the suit requests,” i.e., “the face of the taxpayer's complaint.” 141 S. Ct. at 1589. CIC looked to “the claims brought and injuries alleged” “to determine the suit's object,” “most especially, . . . the relief requested.” Id. at 1589-90. In CIC, the complaint described the relief requested as “setting aside IRS Notice 2016-66, enjoining the enforcement of Notice 2016-66 as an unlawful IRS rule, and declaring that Notice 2016-66 is unlawful.” Id. at 1590.

Again, CIC resolves this aspect of the case in Mr. Harper's favor. Mr. Harper seeks “declaratory and injunctive relief [against Defendants], including an order expunging Mr. Harper's private financial information from IRS's records.” Appx29, Appx32, Appx34. According to CIC, such relief cannot be viewed “as blocking the downstream tax penalty that may sanction the Notice's breach.” 141 S. Ct. at 1590. Just like the notice at issue in CIC, the IRS letter that forms the basis of this suit “levies no tax.” Id. at 1591. The letter Mr. Harper received is “several steps removed” from any tax Mr. Harper owes. Id. First, Mr. Harper would have to “withhold required information about” his cryptocurrency transactions — information that he has not withheld and will continue to disclose. Id. Then, IRS “must determine . . . that a violation” of tax laws “has in fact occurred.” Id. IRS must then make the “entirely discretionary” “decision to impose a tax penalty.” Id. “[O]nly if all of those things occur does tax liability attach.” Id. CIC concluded that this “threefold contingency matters in assessing whether the [AIA] applies.” Id.

Having already paid all relevant taxes, Mr. Harper “stands nowhere near the cusp of tax liability: Between the upstream [letter] and the downstream tax, the river runs long.” Id. In CIC, as here, it is “hard to characterize this suit's purpose as enjoining a tax.” Id. Therefore, this case should be a “cinch.” Id. at 1588.

Overpaying taxes and then bringing a refund suit is not a substitute for Mr. Harper's suit. Mr. Harper does not claim that he is owed a refund; he only claims that IRS collected his private records from third parties by disregarding his constitutional and statutory rights. Meanwhile, Mr. Harper has disclosed all his digital-currency transactions and paid applicable taxes, and he will continue to do so for all future tax years. Appx22. IRS does not claim otherwise. In short, Mr. Harper's suit is not one that seeks “to foreclose tax liability”; it seeks to challenge IRS's illegal information-gathering practices that violate Mr. Harper's constitutional and statutory rights. 141 S. Ct. at 1593.

Given CIC's plain statement as to the scope of the AIA, the district court erred in concluding that the AIA bars Mr. Harper's claims “because they implicate provisions of the Internal Revenue Code and would restrain the assessment or collection of a tax.” Appx86. While the court below recognized that Mr. Harper's suit “challenges the validity of nontax activity,” it concluded that “the effect of Harper's requested declaratory and injunctive relief would be to prevent the IRS from assessing Harper's or others' taxes using the information it has obtained through the John Doe third-party process.” Appx86. The court's assumption is incorrect because IRS's assessment or collection of taxes is several steps removed from the information-gathering practice sought to be enjoined and declared illegal here.

IRS itself is unsure whether IRS currently has the authority to gather information about cryptocurrency transactions. IRS has sought but not yet obtained Congress's permission to collect routine cryptocurrency transaction information. Carla Mozée, IRS Chief Asks Congress for More Authority to Regulate the Crypto Industry (Jun 8, 2021), https://bit.ly/3yqqrna (visited July 9, 2021). IRS, by its own recent actions before Congress, first would have to obtain authority to regulate digital-currency transactions. Depending on the precise wording of the statute Congress enacts, IRS then might have to issue notice-and-comment regulations requiring third-party disclosure of digital-currency transactions. None of these things has happened.

It suffices for the AIA analysis here that there is no such regime in place currently. Mr. Harper accurately self-reported and disclosed his digital-currency transactions and capital gains, and he paid applicable taxes. IRS has never said that his reporting or payment of taxes is inaccurate. Instead, IRS informed Mr. Harper in 2019 that it had obtained some information from some third party; based on that (inaccurate) information, IRS wrongly accused Mr. Harper of not properly reporting his digital-currency transactions. Appx67 (“you . . . may not have properly reported your transactions involving virtual currency”). This suit is therefore far removed from “the assessment or collection of any tax.” 26 U.S.C. § 7421(a). If IRS possesses potentially incriminating information against Mr. Harper that it obtained from third parties, the AIA does not bar a suit in which he seeks a declaration whether IRS obtained such information without violating his right to secure his papers from unreasonable searches and seizures or without denying him the due process of law or without disregarding statutory requirements outlined in 26 U.S.C. § 7609(f).

After CIC, it is no longer sufficient (if it ever was) for IRS to claim that the information it possesses “may culminate in the assessment or collection of taxes.” Appx87. By that logic, all information that comes into IRS's possession — whether obtained by following proper procedures or otherwise — could culminate in the assessment or collection of taxes. But the Fourth and Fifth Amendments to the Constitution do not contain an IRS exception. Congress has specifically laid out in 26 U.S.C. § 7609(f) that where, as here, IRS issues a summons that “does not identify the person with respect to whose liability the summons is issued,” IRS must affirmatively establish that (1) “the summons relates to the investigation of a particular person,” (2) “there is a reasonable basis for believing that such person . . . may fail or may have failed to comply with any provision of any internal revenue law,” and (3) “the information sought to be obtained from the examination of the records . . . and the identity of the person or persons with respect to whose liability the summons is issued . . . is not readily available from other sources.” Id. Congress further prohibited IRS from issuing “any summons . . . unless the information sought to be obtained is narrowly tailored to information that pertains to the failure (or potential failure) of the person . . . referred to in paragraph (2) to comply with one or more provisions of the internal revenue law which have been identified for purposes of such paragraph.” Id.

IRS did not seek any information from Mr. Harper — had it done so, there is no indication that Mr. Harper's cooperation would have been deficient in any way. Mr. Harper never received any notice of a third-party summons from IRS pursuant to 26 U.S.C. § 7609(a). Appx31, Appx33. He had no notice and no opportunity to challenge the seizure of his property. Appx31. IRS's decision to seek any information at all from third parties therefore has dubious footing. There is no “reasonable basis for believing” that Mr. Harper “failed to comply with any provision of the internal revenue law.” 26 U.S.C. § 7609(f). There is no indication that the information IRS now has was “not readily available from other sources.” Id. Nor has IRS shown whether the information it sought and has now obtained is “narrowly tailored to information that pertains to” Mr. Harper's “failure (or potential failure) . . . to comply with” tax laws. Nor is it clear whether IRS identified any specific “provisions of the internal revenue law” that Mr. Harper failed or potentially failed to comply with before obtaining his information from third parties. Id. The letter Mr. Harper received from IRS did not present any particularized suspicion that Mr. Harper violated any specific internal revenue laws; it did not mention any validly obtained judicial warrant or subpoena as the method by which IRS obtained Mr. Harper's records. The letter contains none of the information that a tax-collection or a refund-denial letter contains. In short, the causal chain between information currently in IRS's possession and a tax-assessment or tax-refund action is so attenuated that Mr. Harper's suit cannot be viewed as one barred by the AIA. The IRS letter sent to thousands of taxpayers including Mr. Harper saying that IRS has some “information” that gives it reason to think that the recipients “may” have violated tax reporting requirements, Appx67, has all the hallmarks of a dragnet operation and a fishing expedition, which are antithetical to a judicially approved subpoena based on particularized suspicion.

The district court erred in concluding otherwise. Appx87. The district court assumed that an injunction “expunging” the records IRS has in its possession would “preemptively stop assessment or collection of [Mr. Harper's] taxes” and that his allegation that he has “paid all taxes that were due is an unsupported conclusory statement.” Appx88. The district court was simply wrong in characterizing Mr. Harper's undisputed statement as “unsupported” or “conclusory.” Appx88. Throughout this suit, IRS has not said that Mr. Harper owes any taxes. No party disputes that Mr. Harper has paid all taxes. IRS has not accused Mr. Harper of tax delinquency, and Mr. Harper has not sought a tax refund. The injunctive and declaratory relief Mr. Harper seeks has no connection to the assessment or collection of taxes. If the records IRS claims it possesses were illegally collected, a declaration to that effect and an injunction requiring IRS to expunge those records would not prevent IRS from lawfully obtaining Mr. Harper's information through legal channels and from legitimate sources.

The district court suggests that Mr. Harper could have “intervene[d] and challenge[d] enforcement of the [Coinbase] summons,” and that “additional processes are available.” Appx89-90 (citing United States v. Coinbase, No. 17-cv-1431, 2017 WL 3035164 (N.D. Cal. July 18, 2017); 26 U.S.C. §§ 6213 (tax-assessment notice), 7422 (tax-refund suit)). The AIA does not turn on whether other remedies are available. The Act, by its plain terms, states only that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” 26 U.S.C. §7421(a). The Act does not say that a declaratory-and-injunctive-relief suit may proceed only if no other relief is obtainable via other channels. It is also odd to suggest that the AIA bars this suit because IRS's information-gathering practices can potentially be challenged in a tax-assessment or tax-refund suit when the individual discretionary acts that are necessary to build up to such a fact pattern are simply absent here. Also, Mr. Harper cannot even bring such a suit if IRS never does anything with the information it has illegally seized. To challenge IRS's illegal information-gathering Mr. Harper must “bring an action in just this form, framing [the] requested relief in just this way.” CIC, 141 S. Ct. at 1592. Put differently, a long chain of potentialities leading up to some other hypothetical suit that can be brought does not show why this suit is barred by the AIA. Furthermore, that misreading of the AIA would leave taxpayers whose records have been seized in violation of the Constitution or federal law without relief if the IRS never uses those records. Yet federal courts should be particularly concerned to protect the papers of innocent taxpayers.

B. The Declaratory Judgment Act Does Not Bar This Suit

In the court below, IRS argued that both the AIA and the DJA, 28 U.S.C. §§ 2201-2202, divested the court's subject-matter jurisdiction. The district court concluded that the DJA “includes a similar carve out for declaratory judgments 'with respect to Federal taxes.'” Appx87. However, that conclusion is also wrong for the same reasons as is its conclusion that the AIA bars jurisdiction. The DJA states, in relevant part:

In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under [26 U.S.C. § 7428 (declaratory judgments relating to status and classification of organizations under section 501(c)(3))], . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.

28 U.S.C. § 2201(a).

The legislative history behind DJA's tax exception and its relationship to the AIA have led numerous courts of appeals, including this Court, to conclude that the scope of DJA's tax exception should be read coextensively with the AIA. See McCarthy v. Marshall, 723 F.2d 1034, 1038 (1st Cir. 1983); Cohen v. United States, 650 F.3d 717, 730-31 (D.C. Cir. 2011) (DJA's tax exception is “coterminous” or “coextensive” with the AIA's prohibition); In re Leckie Smokeless Coal Co., 99 F.3d 573, 583 (4th Cir. 1996) (“the two statutory texts are, in underlying intent and practical effect, coextensive”); Wyoming Trucking Ass'n v. Bentsen, 82 F.3d 930, 933 (10th Cir. 1996) (same); Ecclesiastical Order of the ISM of Am., Inc. v. IRS, 725 F.2d 398, 404-05 (6th Cir. 1984) (same); Perlowin v. Sasse, 711 F.2d 910, 911 (9th Cir. 1983) (same); Tomlinson v. Smith, 128 F.2d 808, 811 (7th Cir. 1942) (same).

To decide whether a lawsuit is barred by either the AIA or the DJA, this Court asks whether “the primary purpose of th[e] action is to prevent [IRS] from assessing and collecting income taxes and to restore advance assurance of tax advantages under the Internal Revenue Code.” McCarthy, 723 F.2d at 1038. A court should also ask whether the exercise of jurisdiction over the case would “obstruct the collection of revenue” or “alter Appellants' future tax liabilities” or “shift the risk of insolvency.” Cohen, 650 F.3d at 725. If IRS would still be able to collect and assess taxes, then the suit should not be barred. Id. Indeed, even a suit that “merely inhibit[s]” the collection of taxes, is not barred. Z St., 791 F.3d at 31.

Even before the Supreme Court's recent watershed CIC decision, federal courts had emphasized that although “IRS envisions a world in which no challenge to its actions is ever outside the closed loop of its taxing authority,” AIA's prohibition does not sweep broadly: “[a]ssessment is not synonymous with the entire plan of taxation, but rather with the trigger for levy and collection efforts, and the 'collection' is the actual imposition of a tax against a plaintiff.” Cohen, 650 F.3d at 726 (cleaned up). It is not surprising that courts “allowed constitutional claims against the IRS to go forward in the face of the AIA” and refused to “rea[d] the AIA to reach all disputes tangentially related to taxes.” Id. at 726-27. The key question is whether the action is fundamentally a “tax collection claim,” which courts determine based upon “a careful inquiry into the remedy sought, the statutory basis for that remedy, and any implication the remedy may have on assessment and collection.” Id. at 727.

Congress framed the AIA as a barricade to jurisdiction, and the DJA as an entryway. But courts of appeals view the DJA analysis to be coterminous and coextensive with the AIA analysis (including this Court, under McCarthy, 723 F.2d at 1038). Now is not the occasion to read the two statutes separately. After the Supreme Court's decision in CIC, this Court should conclude that because the AIA does not bar Mr. Harper's suit, the DJA does not bar it either.

Mr. Harper has already paid all applicable taxes. Mr. Harper challenges IRS's unlawful collection of his private information through its abuse of subpoenas related to his use of digital currencies. Appx22. Mr. Harper has fully complied with all his tax obligations. Appx16. Fundamentally, this suit cannot seek to prevent the assessment and collection of income taxes as those actions are uncontested and “long-since completed.” Cohen, 650 F.3d at 726. “This suit does not seek to restrain the assessment or collection of any tax. The IRS previously assessed and collected the excise tax at issue. The money is in the U.S. treasury; the legal right to it has been previously determined. . . . Hearing [this suit] — whatever its merit — will not obstruct the collection of revenue . . . alter . . . future tax liabilities . . . or shift the risk of insolvency.” Id. at 725. Notably, IRS has not audited Mr. Harper, nor has it assessed any additional tax liability against Mr. Harper based on its illegally obtained information. Nor can it if it were to rely solely on that illegally obtained information.

Further, neither the DJA nor the AIA bars this suit because of the remedy Mr. Harper seeks. This suit is not about the amount of money Mr. Harper or anyone else owes the IRS. Tax liability has no role whatsoever here. Rather, the lawsuit targets IRS's illegal collection of private data. Appx25-34. Mr. Harper does not seek a refund or a recalculation of his tax liability. He seeks injunctive and declaratory relief for the constitutional and statutory violations of his protected privacy interests. Appx25-34 (prayer for relief). This is not a “tax collection claim”; it is a constitutional challenge to unlawful actions that IRS took. The nature of the suit would not change had those actions been taken by any other federal agency or officer. Mr. Harper's suit thus cannot be barred by either the AIA or the DJA. Cohen, 650 F.3d at 727.

Mr. Harper does not seek a system-wide injunction. Mr. Harper does not seek injunctive relief requiring IRS to expunge from its records information about potentially thousands of taxpayers. Instead, Mr. Harper seeks injunctive relief as to his private information, and expungement of his private information that IRS obtained illegally. Appx25-34 (prayer for relief). Perhaps other similarly situated persons might seek similar relief; perhaps not. Presumably, declaratory relief from this court will deter IRS from unlawful information-gathering in the future as well. This suit is merely about IRS's violation of Mr. Harper's rights and has nothing at all to say about his tax liability.

The Court should conclude that the district court has subject-matter jurisdiction because neither the AIA nor the DJA bars this suit, reverse the decision below, and remand so that the parties can proceed to discovery.

IV. MR. HARPER HAS PLAUSIBLY PLED THAT IRS VIOLATED HIS CONSTITUTIONAL AND STATUTORY RIGHTS

IRS had argued below that all counts should be dismissed under FRCP 12(b)(6) because they fail to state a claim on which relief could be granted. The district court did not reach IRS's arguments regarding the merits of Mr. Harper's claims that IRS violated his constitutional and statutory rights.

The Court should decide that Mr. Harper has plausibly alleged that his rights were violated under the Fourth and Fifth Amendments, and 26 U.S.C. § 7609(f), and remand the case so that parties can proceed to discovery. IRS did not defend its actions as having been authorized by statute — it simply said that IRS's violations do not matter under the third-party doctrine. But the third-party doctrine does not give IRS a free pass. IRS frustrated Mr. Harper's reasonable expectations of privacy founded in contractual agreements with digital-currency exchanges, and IRS has trespassed by seizing Mr. Harper's private information without any lawful process.

A. IRS Acquired Mr. Harper's Information Without a Lawful Subpoena

IRS did not argue below that it complied with 26 U.S.C. § 7609(f). Appx32-34. This may have been because IRS appears not to have complied with the requirements set out in 26 U.S.C. § 7609(f), as the third-party subpoena it issued to obtain Mr. Harper's records (assuming that is how IRS obtained his records) was not supported by a reasonable basis to suspect he had violated the tax laws. Appx32-34. IRS probably obtained Mr. Harper's private information either from an unlawful John Doe subpoena issued to Coinbase or without any subpoena issued to Abra or a comparable exchange. Appx33-34.

IRS has statutory authority to issue a John Doe subpoena only “where the IRS does not know the identity of the taxpayer under investigation.” Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 317 (1985) (interpreting 26 U.S.C. § 7609(f)). “Congress passed section 7609(f) specifically to protect the civil rights, including the privacy rights, of taxpayers subjected to the IRS's aggressive use of third-party summonses.” United States v. Gertner, 65 F.3d 963, 971 (1st Cit. 1995). Section 7609(f) authorizes IRS to issue John Doe summonses for financial records only if the Secretary establishes that “(1) the summons relates to the investigation of a particular person or ascertainable group or class of persons, (2) there is a reasonable basis for believing that such person or group or class of persons may fail or may have failed to comply with any provision of any internal revenue law, and (3) the information sought to be obtained from the examination of the records (and the identity of the person or persons with respect to whose liability the summons is issued) is not readily available from other sources.”

As pled in the Complaint, IRS obtained Mr. Harper's information either from Abra without any subpoena at all, which would violate 26 U.S.C. § 7609(f), or from Coinbase based on a legally inadequate subpoena. Appx33-34. The Coinbase subpoena fails at least the second prong of Section 7609(f). The magistrate who approved the Coinbase subpoena, a decision not binding on this Court, decided that the subpoena was minimally relevant under the lesser standard applicable to Section 7602. The information sought related to “14,335 Coinbase account holders” and a single IRS agent had attested that “only 800 to 900 tax-payers reported gains related to bitcoin in each of the relevant years.” Coinbase, 2017 WL 5890052, at *4 (Scott Corley, U.S.M.J.). The magistrate judge concluded that the users who had a series of transactions that aggregated to “at least $20,000 worth of bitcoin in a given year” may have been more likely to not have properly filed their taxes. Id.

This information hardly shows a reasonable basis for believing that all bitcoin users — or Mr. Harper particularly — had violated the tax laws. Transfers of cryptocurrency away from an exchange do not imply a sale or other taxable event, as many cryptocurrency users move their holdings to privately held wallets. Even if one assumes that most Coinbase users largely failed to report transactions related to bitcoin, it does not follow that they or Mr. Harper likely failed to comply with the tax laws. One must receive gains to report them, and the class also includes people who merely engaged in aggregate transactions — even if they only held small amounts of bitcoin for short periods of time and never realized any gain.

IRS's subpoena for Coinbase records was unlawful. The Coinbase subpoena may not have been how IRS got Mr. Harper's data; IRS neither confirms nor denies. Mr. Harper was given no notice of either the Coinbase or any other subpoena IRS used to seize Mr. Harper's private papers. Mr. Harper has stated a plausible claim for declaratory and injunctive relief in Count III that is sufficient to overcome an FRCP 12(b)(6) motion. Appx32-34.

B. IRS Violated the Fourth Amendment

IRS argued below that Mr. Harper did not have an expectation of privacy in his financial information and therefore that no unreasonable search in violation of the Fourth Amendment occurred. Mr. Harper has stated a claim that IRS violated his Fourth Amendment rights in two ways: an unreasonable search, and a trespassory search and seizure. IRS's possible defense based on the third-party doctrine does not overcome Mr. Harper's reasonable expectation of privacy in his private information and his property interest in that information. IRS's warrantless search and seizure, therefore, intruded on Mr. Harper's Fourth Amendment rights.

1. The Fourth Amendment Restrains the Types of Searches IRS Conducts

The Fourth Amendment protects “the right of the people to be secure in their . . . papers . . . against unreasonable searches and seizures.” The Fourth Amendment is violated when (1) the government trespasses upon a person's property, or (2) intrudes against a person's reasonable expectation of privacy. United States v. Jones, 565 U.S. 400, 405-06 (2012). Either test suffices. Even if there is no reasonable expectation of privacy, a trespass akin to one understood at the founding constitutes a search. Id. at 405, 406, 411.

There is a strong preference for warrants before government agents may intrude on a person's papers. “[T]he founders understood the seizure of papers to be an outrageous abuse distinct from general warrants.” Donald A. Dripps, “Dearest Property”: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure, 103 J. Crim. L. & Criminology 49, 52 (2013). “If one goes back to the early Republic . . . it is difficult to find any federal executive body that could bind subjects to appear, testify, or produce records.” Philip Hamburger, Is Administrative Law Unlawful? 221 (2014). “[P]rivately owned papers were peculiarly protected: They were not subject even to general disclosure requirements, it being only government-owned records that were open to inspection.” Id.

Congress initially gave the Treasury Secretary the authority in all revenue actions “other than criminal” the power to serve an investigative demand on a defendant. An Act to Amend the Customs-Revenue Laws and to Repeal Moieties, ch. 391 § 5, 18 Stat. 187 (1874). Boyd v. United States, 116 U.S. 616, 638 (1886) concluded that subpoenas issued under the statute were “unconstitutional and void” under the Fourth Amendment because they are akin to general warrants. Boyd relied on Entick v. Carrington, 19 How. St. Tr. 1029 (1765). 116 U.S. at 626.

In Entick, Lord Camden wrote:

Papers are the owner's goods and chattels; they are his dearest property, and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and erried away the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect.

Boyd, 116 U.S. at 627-28 (quoting Entick, 19 How. St. Tr. at 1029). The “principles laid down” in Entick “affect the very essence of constitutional liberty and security.” Id. at

630. The Court equated “a compulsory production of a man's private papers” with “[b]reaking into a house and opening boxes and drawers.” Id. at 622, 630. Both constitute “the invasion of his indefeasible right of personal security, personal liberty, and private property.” Id. at 630.

Jones also relied heavily on Entick, “a case we have described as a 'monument of English freedom' 'undoubtedly familiar' to 'every American statesman' at the time the Constitution was adopted, and considered to be 'the true and ultimate expression of constitutional law' with regard to search and seizure” to determine the proper contours of what constituted a trespass at common law. 565 U.S. at 405 (citations omitted).

Carpenter v. United States, 138 S. Ct. 2206 (2018) concluded that the Fourth Amendment requires a warrant based on probable cause for seizure of sensitive personal information from third parties. In Carpenter, federal investigators subpoenaed wireless carriers' cell-site location information records without a warrant. Id. at 2212. The Court concluded, the government “must generally obtain a warrant supported by probable cause before acquiring such records.” Id. at 2221. Carpenter clarified that the Court had “never held that the Government may subpoena third parties for records in which the suspect has a reasonable expectation of privacy.” Id. at 2221. If the government subpoenas “records held by a third party,” it must first obtain a warrant “where the suspect has a legitimate privacy interest” in the records. Id. at 2222.

Justice Gorsuch offered “another way” to resolve the case, surpassing the much-derided reasonable-expectation-of-privacy test in favor of a test more rooted in constitutional text and the common law. Id. at 2267-68 (Gorsuch, J., dissenting). Justice Gorsuch would have treated the records as a “bailment.” Id. “A bailment is the delivery of personal property by one person (the bailor) to another (the bailee) who holds the property for a certain purpose. . . . A bailee normally owes a legal duty to keep the item safe, according to the terms of the parties' contract if they have one. . . . A bailee who uses the item in a different way than he's supposed to, or against the bailor's instructions, is liable for conversion.” Id. at 2268-69. This approach would accord with the common law approach to subpoenas. Id. at 2271. Citing Ex Parte Jackson, 96 U.S. 727, 723 (1878), which “held that sealed letters placed in the mail are 'as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles,'” Justice Gorsuch said: “no one thinks the government can evade Jackson's prohibition on opening sealed letters without a warrant simply by issuing a subpoena to a postmaster for 'all letters sent by John Smith' or, worse, 'all letters sent by John Smith concerning a particular transaction.'” 138 S. Ct. at 2269, 2271. The relevant question is: “What other kinds of records are sufficiently similar to letters in the mail that the same rule should apply?” Id. at 2271.

Mr. Harper did not voluntarily convey his information to government eyes. He contracted with Coinbase and Abra, inter alia, to ensure that they would not share his personal information without a lawful directive from the government. Appx36-66. In the court below, IRS parried by citing United States v. Miller, 425 U.S. 435, 439 (1976). In Miller, treasury agents obtained facially invalid grand-jury subpoenas for Miller's bank records and obtained account information from a financial institution. The subpoenaed documents did not “fall within a protected zone of privacy” because they were not Miller's “private papers” but were “business records of the banks.” Id. at 440. Carpenter declined to extend Miller, diminished it, saying that the “third-party doctrine partly stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another. But the fact of diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.” 138 S. Ct. at 2219. The voluntary-exposure rationale of Miller does not justify intrusions when the intrusion was so pervasive that “in no meaningful sense” did the “user voluntarily assume the risk of turning over” the data. Id. at 2220.

Mr. Harper had very different expectations. He contracted with the relevant platforms to protect his personal information. Coinbase promised so. Appx14-15. As did Abra, Appx20-21, and Uphold, Appx21-22. Uphold has now categorically said it did not give IRS Mr. Harper's information. Appx23. Mr. Harper could not have expected any of his information would be disclosed to the government contrary to these agreements. The voluntary-exposure rationale does not apply.

Carpenter recognizes that the third-party doctrine no longer applies “for records in which the suspect has a reasonable expectation of privacy.” 138 S. Ct. at 2221. The contracts are strong evidence that Mr. Harper expected his personal information to be kept private except for limited and defined intrusions, which demonstrate his reasonable expectation of privacy.

2. Mr. Harper Has a Reasonable Expectation of Privacy in His Records

A search occurs when the government infringes upon “an expectation of privacy that society is prepared to consider reasonable.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). There are two distinct inquiries under this standard: “has the [target of the investigation] manifested a subjective expectation of privacy in the object of the challenged search?” “[I]s society willing to recognize that expectation as reasonable?” California v. Ciraolo, 476 U.S. 207, 211 (1986).

On the first question, Mr. Harper did expect his information to remain private according to the contracts he entered into with cryptocurrency exchanges (Abra, Coinbase, and Uphold). He had a subjective expectation of privacy that his information would only be shared according to the terms of the agreements.

Mr. Harper's expectation was also reasonable. Personal papers are a person's “dearest property,” and even private financial records have been jealously protected since well before the Bill of Rights was written. See Boyd, 116 U.S. at 627-28. In 1791, the concept of administrative subpoenas was so foreign to the Republic that even a statute requiring distillers to keep records of “their production of spirits” on books supplied to them for that purpose by “treasury officers” were “privately owned records or papers” that were “peculiarly protected.” Hamburger, supra, at 224-25. Mr. Harper's personal financial information is at least as “dear” as a distiller's production records.

Mr. Harper's personal information, which included identifying information, detailed transaction information, and payment and routing information, is akin to personal papers. An agency “is less free to subpoena personal financial information” than “corporate financial information” in reliance on “the Fourth Amendment's protection of the privacy interest that inheres in personal papers.” Resolution Tr. Corp. v. Thornton, 41 F.3d 1539, 1544-45 (D.C. Cir. 1994).

Courts look to contractual agreements or policies to ascertain whether a person has a reasonable expectation of privacy. See, e.g., United States v. Dorais, 241 F.3d 1124, 1130 (9th Cir. 2001) (hotel's checkout procedures granted person reasonable expectation of privacy in a room); United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990) (an individual not listed as a driver on a rental agreement did not have a legitimate expectation of privacy in a car). A limited right of access to information given in a privacy policy does not defeat the general expectation of privacy in email. A protective privacy policy (like the ones Mr. Harper entered into with Coinbase, Abra, and Uphold) is relevant to the Fourth Amendment inquiry. United States v. Warshak, 631 F.3d 266, 287 (6th Cir. 2010).

Mr. Harper contracted with all three platforms to protect his personal information, and all three agreed to safeguard his information from government intrusion unless lawfully compelled to disclose it. Appx14-16, Appx20-22. Uphold even insisted on a warrant or a specific type of subpoena in an active criminal investigation. Appx21-22. These common contractual provisions show that society recognizes a reasonable expectation of privacy here.

IRS violated Mr. Harper's reasonable privacy expectations. IRS did not use lawful process to obtain Mr. Harper's information from Coinbase, Abra, or other sources. Without a lawful warrant, the search and seizure were unlawful. Carpenter, 138 S. Ct. at 2221.

3. IRS Violated the Fourth Amendment by Trespassing on Mr. Harper's Private Property

New Hampshire, where Mr. Harper resides, has long held that a bailee may not “delive[r] the [bailor's] goods to others” because the “goods still remained the property of the [bailor].” Sargent v. Gile, 8 N.H. 325, 328-29 (1836). Both “tangible and intangible property” can be the subject of a bailment. Liddle v. Salem Sch. Dist. No. 600, 619 N.E.2d 530, 531 (Ill. App. 1993). Many courts recognize that one may wrongly convert intangible property. Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2003) (collecting cases). The Supreme Court has said, “The Katz reasonable-expectations test has been added to, not substituted for, the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas.” Florida v. Jardines, 569 U.S. 1, 11 (2013).

IRS converted Mr. Harper's personal information. As per the contracts, Mr. Harper was a bailor and expected that the exchanges he contracted with at personal expense would not violate the terms of their agreement with him and hand over his information to the government except by lawful process. But the process was not lawful because, having come about either through a disclosure by Abra with no process, the improper Coinbase subpoena, or a third irregular way, IRS's acquisition of Mr. Harper's information did not pass muster under the Fourth Amendment warrant requirement. Appx26-28. Coinbase's agreement not to divulge his information without being “compelled” to do so implies that it was lawfully compelled to act, and, as pled and not challenged by IRS, the Coinbase subpoena was not a lawful demand for information. Appx26. IRS, of course, never subpoenaed Abra, as far as it is known, so disclosure of information to IRS would have violated Abra's agreement with Mr. Harper. Appx27.

If the search were a trespass, then it required a warrant. Jones, 565 U.S. at 405.

IRS never got a warrant, so the search was unlawful.

In sum, Mr. Harper has stated a plausible claim for declaratory and injunctive relief under the Fourth Amendment that is sufficient to defeat an FRCP 12(b)(6) motion to dismiss. Appx25-29.

C. IRS Violated Mr. Harper's Fifth Amendment Rights

Mr. Harper is entitled under the Fifth Amendment's Due Process Clause to a notice and an opportunity to protect his private information from unreasonable searches and seizures. It is a Fifth Amendment due-process violation if a person is deprived of the right to be heard “at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). IRS deprived Mr. Harper of due-process rights. IRS misapplied the applicable statutes, 26 U.S.C. § 7602 et seq., which constitutes a due-process violation. Because it misapplied the statutes that require IRS to afford a defined process to the owners of records, IRS violated the Due Process Clause when it failed to adhere to the set process for obtaining and then keeping Mr. Harper's private papers.

Through 26 U.S.C. § 7609(f), Congress attempted to approximate the requirements of the Due Process Clause: a notice and an opportunity to contest at a meaningful time in a meaningful manner. But the statutory violation is distinct from the Fifth Amendment violation. In other words, if there were no 26 U.S.C. § 7609(f), Mr. Harper would still have this notice-and-opportunity due-process right. IRS violated the Fifth Amendment's Due Process Clause by seizing Mr. Harper's intangible property from Abra, Coinbase, or some other source, without first providing him notice and an opportunity to challenge the seizure of his property. Appx31.

It is not sufficient to say that Mr. Harper could have sought intervention in the Coinbase matter in the Northern District of California. “In the case of a John Doe summons, the Doe has no right to intervene in the hearing on the summons's issuance required by [26 U.S.C.] § 7609(f) . . . and the Doe has no right to file a motion to quash the summons once it has been issued.” United States v. Ritchie, 15 F.3d 592, 597 (6th Cir. 1994). The IRS third-party summons procedure is an ex parte process. Mr. Harper did not receive any notice of a third-party summons from IRS pursuant to 26 U.S.C. § 7609(a).⁶

A straightforward Mathews three-factor analysis demonstrates the plausibility of Mr. Harper's Fifth Amendment claim. Mathews lays out three factors to ascertain whether the procedures used by government actors comport with the Due Process Clause: “private interest[s] that will be affected by the official action,” “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” “the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” 424 U.S. at 335.

Mr. Harper has a recognized privacy interest in his private information. See Lepelletier v. FDIC, 164 F.3d 37, 49 (D.C. Cir. 1999). He also has a recognized property interest in his private papers. Boyd, 116 U.S. at 627-28. The risk of erroneously depriving him of his privacy and property interests is especially high because IRS did not even follow statutory procedures to provide Mr. Harper of notice and an opportunity to contest IRS's third-party subpoenas before it intruded upon his protected interests. Additional or substitute procedural safeguards are readily available: IRS could give Mr. Harper constitutionally adequate notice and opportunity to contest; IRS could follow 26 U.S.C. § 7609(f). Meanwhile, past violations can be readily corrected by expunging Mr. Harper's records in IRS's possession that it obtained through illegal channels. As to the third factor, the government has no interest in violating the Constitution or federal statutes. IRS's interest should be aligned with Mr. Harper's: obtain private records in compliance with the Fourth and Fifth Amendments, and 26 U.S.C. § 7609(f).

Mr. Harper has plausibly pled a claim for declaratory and injunctive relief in Count II that is sufficient to defeat an FRCP 12(b)(6) motion. Appx29-32.

CONCLUSION

The Court should conclude that the district court has subject-matter jurisdiction, and that Mr. Harper has stated a claim upon which relief can be granted. Consequently, the Court should reverse the decision below and remand for further proceedings consistent with the Court's decision.

Respectfully submitted on July 9, 2021, by:

ADITYA DYNAR (1198447)
CALEB KRUCKENBERG (1198414)

NEW CIVIL LIBERTIES ALLIANCE
1225 19th St. NW, Suite 450
Washington, DC 20036
(202) 869-5210
Adi.Dynar@NCLA.legal
Caleb.Kruckenberg@NCLA.legal

Counsel for Plaintiff-Appellant