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August 29, 2000


The opinion of the court was delivered by: Lamberth, District Judge.


This matter comes before the Court on defendant United States Department of Treasury's ("Treasury") Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Upon consideration of that motion, plaintiff Lyndon LaRouche's opposition thereto, defendant's reply, the entire record herein, and the relevant law, the Court has determined that it lacks jurisdiction to rule on Treasury's motion because Treasury has filed a Notice of Appeal. However, if this Court had jurisdiction, it would grant Treasury's motion.


In 1991, plaintiff Lyndon LaRouche ("LaRouche") filed a Freedom of Information Act ("FOIA") request with the Internal Revenue Service ("IRS"), an agency of defendant Treasury. LaRouche requested records from the IRS pertaining to his criminal conviction. Over the next two years, the IRS released some records, withheld other records, and referred LaRouche's request to other agencies that may have had records responsive to his request.

LaRouche filed this suit, alleging that the IRS conducted inadequate searches for records responsive to his request and that the IRS improperly withheld documents. Although the case was dismissed in 1994, the plaintiff requested that the case be reopened. The Court granted that request and each side filed a motion for summary judgment. By order dated May 22, 1998, the Court granted in part and denied in part each party's motion for summary judgment. Two issues remained unresolved: first, whether the search for records conducted at IRS headquarters was adequate and second, whether the IRS was improperly withholding records from LaRouche pursuant to FOIA Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e). Accordingly, the Court's May 22, 1998 order directed defendant IRS to file memoranda explaining the adequacy of the search and a Vaughn Index describing the documents it withheld.

With respect to the adequacy of the search, Treasury filed a Notice of Compliance With Order on June 22, 1998. The Notice of Compliance included seven declarations by IRS employees pertaining to the scope of the search. In response to defendant's Notice of Compliance, the Court granted the remainder of defendant's motion for summary judgment regarding the adequacy of the search by order dated August 26, 1998. On September 10, 1998, LaRouche filed a Motion to Reconsider and Vacate the Court's August 26, 1998 Order.

With respect to the withheld documents, the Court granted a Consent Order Concerning Vaughn Index on August 3, 1998 (that order was filed on August 13, 1998). The Consent Order stipulated that Treasury would be relieved of its obligation to prepare a Vaughn index of the grand jury documents which are in the possession or control of the FBI and which are the subject of another case pending before this Court, Lyndon LaRouche, Jr. v. United States Department of Justice, Civil Action No. 90-2753 (D.D.C.) ("LaRouche v. Justice"). The Consent Order also stipulated that the IRS shall process and either release or index the documents it had withheld pursuant to FOIA exemption (b)(3) and Rule 6(e) of the Federal Rules of Criminal Procedure. On September 11, 1998, the IRS submitted the required Vaughn Index in which it renewed its motion for summary judgment. On November 9, 1998, LaRouche filed a cross-motion for summary judgment, arguing for disclosure of the withheld documents described in defendant's Vaughn Index.

This case was reassigned from Judge Harold H. Greene to the undersigned judge on September 9, 1999. On March 31, 2000, this Court 1) denied plaintiff's Motion to Reconsider and Vacate the Court's August 26, 1998 Order, 2) granted in part and denied in part LaRouche's November 9, 1998 cross-motion for summary judgment, and 3) granted Treasury's motion to strike a declaration presented in support of LaRouche's cross-motion for summary judgment.

On May 2, 2000, Treasury filed its Motion for Relief from Judgment. Treasury asserts that the judgment entered on March 31, 2000, contravened two earlier Orders of the Court which were issued by Judge Greene, one in the instant case and one in a related case, and was contrary to established law in one respect. LaRouche filed an opposition memorandum on May 26, 2000. Also on May 26, 2000, Treasury filed a Notice of Appeal from the Court's March 31, 2000 Order and Judgment. The Clerk transmitted the preliminary record on appeal to Court of Appeals for the District of Columbia Circuit on June 1, 2000. Subsequently, Treasury filed a reply memorandum with this Court in support of its motion for relief from judgment. In light of Treasury's appeal and subsequent filing with this Court, this Court requested, by order dated June 20, 2000, a supplemental memorandum from Treasury and an optional reply from LaRouche, discussing whether this Court still had jurisdiction to rule on Treasury's Rule 60 (b) motion for relief from judgment. Treasury and LaRouche each filed supplemental memorandum on June 23, and July 13, respectively. The litigants agreed that although this Court presently lacks jurisdiction to grant Treasury's Rule 60(b) motion, a procedure exists whereby the case could be remanded for the Court to rule on Treasury's motion, if this Court would grant any part of the motion.


As a result of the procedural posture, the Court faces two issues. First, in light of Treasury's Notice of Appeal, whether the Court has jurisdiction to rule on Treasury's motion for relief from judgment, or whether the Court could be vested with jurisdiction. Second, if the Court has jurisdiction, or if it were vested with jurisdiction, whether the Court would grant Treasury relief from judgment on any or all of the three grounds that it seeks.

I. Jurisdiction

Rule 60(b) of the Federal Rules of Civil Procedure allows a district court to relieve a party from a judgment for various reasons, including "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b). The filing of a notice of appeal, however, "confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." United States v. DeFries, 129 F.3d 1293, 1302 (D.C.Cir. 1997) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). When a Rule 60(b) motion and an appeal are pending simultaneously, appellate review may continue and "the District Court may consider the 60(b) motion, and, if the District Court indicates that it will grant relief, the appellant may move the appellate court for a remand in order that relief may be granted." Hoai v. Vo, 935 F.2d 308, 312 (D.C.Cir. 1991), cert. denied, 503 U.S. 967, 112 S.Ct. 1578, 118 L.Ed.2d 220 (1992) (citing Reuber v. United States, 750 F.2d 1039, 1051 n. 16 (D.C.Cir. 1984) (as amended Jan. 23, 1985); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 280 n. 22 (D.C.Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972)); see Smith v. Pollin, 194 F.2d 349, 350 (D.C.Cir. 1952). Further, although a district court does not have jurisdiction to grant a Rule 60(b) motion while the appeal is pending, it does have authority to deny such a motion while the appeal is pending. Smith, 194 F.2d at 350

When Treasury filed its Notice of Appeal on May 26, 2000, this Court was divested of jurisdiction. Jurisdiction was conferred on the Court of Appeals for the District of Columbia Circuit. Under the procedure described in Hoai, this Court may consider Treasury's Rule 60(b) motion while Treasury's appeal is pending and determine whether it would grant that motion assuming the Court had jurisdiction. The Court has considered Treasury's Rule 60(b) motion and, for the reasons set forth below, has determined that it would grant that ...

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