PETER A. NOWINSKI, Magistrate Judge
Plaintiffs Bill E. Fish and Deborah A. Fish sue the Internal Revenue Service ("IRS") for failing to adequately respond to Mr. Fish's request for documents under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq. On July 20, 2000, the IRS filed a motion to dismiss plaintiffs' complaint for lack of subject maffer jurisdiction based on plaintiffs' failure to file an administrative appeal before filing suit. On August 8, pursuant to Local Rule 78-230(e), plaintiffs filed a counter-motion for summary judgment. On September 27, the motions were submitted without oral argument.
The preliminary issue is whether plaintiffs have established this court's subject matter jurisdiction. Where a jurisdictional issue is separable from the merits of a case, the court may determine jurisdiction under Rule 12(b)(1). Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). If the 12(b)(1) motion is a "speaking motion" that attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiffs' allegations and plaintiffs have the burden of proof that jurisdiction in fact exists. Thornhill Pub. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979). The court may consider evidence on the jurisdictional issue, resolving factual disputes if necessary. Id. The following facts are not disputed. On March 17, 2000, Mr. Fish submitted a FOIA request to the IRS for a "copy of the actual, duly signed and certified, under seal of your agency, Lawful Assessment which complies with Treasury Regulation, 26 C.F.R. § 301.6203-1, for the years above [1997]." Mr. Fish also requested that "[i]f there is no Assessment Certificate, please state there is no assessment on file." The IRS's Fresno Service Center Disclosure Office received Mr. Fish's request on March 31, 2000. On April 3, Senior Disclosure Specialist Pamela Blake reviewed plaintiffs' file for the tax year requested and obtained summary records for each day on which plaintiffs were assessed. On April 7, 12 working days after receipt of Mr. Fish's request, Blake sent the summary records and supporting transcripts to Mr. Fish, along with a letter explaining the form of the records, highlighting the specific dates and amounts of plaintiffs' individual assessments.
Plaintiffs filed this action on May 12. In their complaint, plaintiffs allege that to date they have not received a copy of the "Lawful Assessment" that complies with 26 C.F.R. § 301.6203-1 as required by the FOIA. Plaintiffs allege that they have "exhausted [their] administrative remedies pursuant to 5 U.S.C. § 552 (a)(6)(C)(I) since no lawful answer has been received" from the IRS. In support of their motion, plaintiffs aver that the IRS cannot provide a response that complies with 26 C.F.R. § 301.6203-1 because no Lawful Assessment exists. This regulation provides:
The district director and the director of the regional service center shall appoint one or more assessment officers. The district director shall also appoint assessment officers in a Service Center servicing his district. The assessment shall be made by an assessment officer signing the summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment. The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record. The date of the assessment is the date the summary record is signed by an assessment officer. If the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.
On June 15, Gene Cox, an attorney with the IRS Office of Assistant Chief Counsel, requested a search of his office's computerized tracking system in which the office records all FOIA Administrative Appeals and was unable to locate any administrative appeal filed by plaintiffs.
5 U.S.C. § 552 (a)(4)(B) confers jurisdiction upon the district court "to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly held from the complainant." 5 U.S.C. § 552 (a)(4)(B). "This vests the district court with all the powers of an equity court to issue injunctive relief from withholding of agency records." In re Steele, 799 F.2d 461, 465 (9th Cir. 1986). Exhaustion of a party's administrative remedies is required under the FOIA, however, before that party can seek redress from the district court. Id. at 465-466. Prior to instituting suit in district court, the complainant must request specific information from the agency in accordance with published administrative procedures, 5 U.S.C. § 552 (a)(1), (2) (3); have the request improperly refused, 5 U.S.C. § 552 (a)(4)(B); file available administrative appeals, Taylor v. Appleton, 30 F.3d 1365, 1369 (11th Cir. 1994); McDonnell v. United States, 4 F.3d 1227, 1240 (3d Cir. 1993); Oglesby v. United States Department of the Army, 920 F.2d 57, 63-64 (D.C. Cir. 1990); and present proof that he or she has exhausted all administrative remedies. Hedley v. United States, 594 F.2d 1043, 1044 (5th Cir. 1979). Failure to exhaust administrative remedies before filing suit operates as a jurisdictional bar to judicial review of a plaintiff's claims. Hyman v. Merit Systems Protection Board, 799 F.2d 1421, 1423 (9thCir. 1986).
Pursuant to 5 U.S.C. § 552 (a)(1), the IRS published guidelines in the Federal Register explaining its FOIA procedures. See 26 C.F.R. § 601.702. The time limit for the IRS to respond to a FOIA request is ten working days. 5 U.S.C. § 552 (a)(6)(A)(i); 26 C.F.R. § 601.702 (c)(7)(i). If the request is not granted in full, the IRS must advise the person making the request of the right to appeal to the Commissioner in accordance with 26 C.F.R. § 601.702 (c)(8). 26 C.F.R. § 601.702 (c)(7)(iii). Pursuant to section 601.712 (c)(8), the requester may file an administrative appeal to the Commissioner at any time within 35 days after the date of any adverse notification identified therein. Id. § 601.702(c)(8).
Generally, the exhaustion requirement is deemed waived if the agency fails to respond to the FOIA request within the statutory time limit. 5 U.S.C. § 552 (a)(6)(C); 26 C.F.R. § 601.702 (c)(10). The ten-day constructive exhaustion under section 552(a)(6)(C) allows immediate recourse to the courts to compel the agency's response to a FOIA request where a response is not forthcoming within the time allowed. See id. However, if the agency cures its failure to respond within the statutory period by responding to the request before suit is filed, the requester must exhaust his administrative remedies before seeking judicial review, and hence an administrative appeal is mandatory. See Taylor, supra, 30 F.3d at 1369; McDonnell, supra, 4 F.3d at 1240-41; Oglesby, supra, 920 F.2d at 63-64.
The IRS failed timely to respond to Mr. Fish's FOIA request but cured its failure by responding to the request before plaintiffs filed suit. In its response to Mr. Fish, the IRS provided the pertinent parts of the summary assessment records for the tax year requested, as required by 26 C.F.R. § 301.6203-1, highlighting the date and amounts of Mr. Fish's individual assessments.
Plaintiffs contend that they exhausted their administrative remedies because they never received a "Lawful Assessment that is responsive and complies with 26 C.F.R. § 301.6203-1." But plaintiffs' disappointment in the quality of the records provided does not dispense with the administrative appeal requirement of the FOIA. See 5 U.S.C. § 552 (a)(6)(A)(i)-(ii), (c)(i). I find that Fish was required to bring an administrative appeal prior to filing suit. See Taylor, supra, 30 F.3d at 1369; McDonnell, supra, 4 F.3d at 1240-41; Oglesby, supra, 920 F.2d at 63-64; see also U.S.C. § 552(a)(6)(C); 26 C.F.R. § 601.702 (c)(8), (10). Plaintiffs do not allege that they filed an administrative appeal and the IRS submits evidence that it has no record of any appeal by plaintiffs. Accordingly, I find that plaintiffs failed to meet their burden to demonstrate that they exhausted their administrative remedies. See Hedley, supra, 594 F.2d at 1044. Consequently, I find that this court lacks jurisdiction. See Steele, supra, 799 F.2d at 465-466; Hyman, supra, 799 F.2d at 1423.
The IRS's motion to dismiss should be granted and plaintiff's motion for summary judgment should be denied.