                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA


 MAURICE A. PISCIOTTANO, et al.,

                Plaintiffs,

        v.                                             Civil Action No. 17-1138 (DLF)

 UNITED STATES,

                Defendant.


                              MEMORANDUM OPINION

       Plaintiffs Maurice and Laurel Pisciottano, proceeding pro se, filed this action

seeking a refund of federal taxes for the 2007 tax year. Before the Court is

Defendant United States’ Motion to Dismiss, pursuant to Rule 12(b)(1) and Rule

12(b)(6) of the Federal Rules of Civil Procedure. Dkt. 7.

        In its motion to dismiss, the United States argues that the Pisciottanos’ refund

claim is meritless and that the Pisciottanos failed to submit the claim to the IRS within

the statutory limitations period. Id. The United States contends that because the IRS

claim was untimely, the government has not waived sovereign immunity with respect to

the claim, and the Court is jurisdictionally barred from considering the suit. Id. at 5–9.

       When the motion to dismiss was filed, the Court issued a Fox-Neal order

requiring the Pisciottanos to respond to the motion by January 5, 2018. Dkt. 8 at 1; see

Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988); Neal v. Kelly, 963 F.2d 453 (D.C. Cir.

1992). The Court advised the Pisciottanos that it would treat the motion as conceded if
they failed to respond by the deadline. Dkt. 8 at 1; see Local Civil Rule 7(b) (providing

that “the Court may treat [a] motion as conceded” if the nonmoving party fails to timely

respond). Despite that warning, the Pisciottanos failed to respond to the motion. Local

Rule 7(b) thus allows the Court to consider the motion conceded.

       Although the D.C. Circuit recently criticized Local Rule 7(b) in two cases,

neither case applies here. In Winston & Strawn, LLP v. McLean, the Circuit held that a

district court cannot deem an unopposed summary-judgment motion conceded. 843

F.3d 503, 508 (D.C. Cir. 2016). The Circuit expressly limited that holding, however, to

summary-judgment motions. Id. In Cohen v. Board of Trustees of the University of the

District of Columbia, the Circuit acknowledged that it had “upheld district courts’

application of Local Rule 7(b) to grant unopposed motions to dismiss complaints with

prejudice under Federal Rule 12(b)(6)” but expressed a desire to revisit that precedent

en banc. 819 F.3d 476, 480, 483 (D.C. Cir. 2016). The Circuit was troubled that Local

Rule 7(b) “effectively places the burden of persuasion on the non-moving party,” while

Rule 12(b)(6) requires the moving party to bear that burden. Id. at 481. Reluctantly

affirming the district court’s dismissal of the complaint, the Circuit urged district courts

to avoid merits dismissals under Local Rule 7(b). Id. at 480, 483.

       This dicta carries no import here, however, because the United States has based

its motion to dismiss partly on jurisdictional grounds. The burden of establishing

jurisdiction rests with the plaintiff, U.S. ex rel. Doe v. Staples, Inc., 773 F.3d 83, 88

(D.C. Cir. 2014), and a Rule 12(b)(1) dismissal is not a merits decision.




                                              2
       Because the Pisciottanos have constructively conceded that the Court lacks

subject-matter jurisdiction, the Court grants the United States’ motion to dismiss the

complaint under Rule 12(b)(1). A separate order consistent with this decision

accompanies this memorandum opinion.




                                                           ________________________
                                                            DABNEY L. FRIEDRICH
                                                            United States District Judge
Date: January 29, 2018




                                            3
