United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE.
September 6, 2018, Opinion, this Court granted Defendant
Internal Revenue Service's Motion for Summary Judgment as
to certain Freedom of Information Act requests made by
Plaintiffs Thomas and Beth Montgomery. In now seeking
reconsideration, Plaintiffs argue that the Court misstated
certain facts, improperly relied on in camera
declarations, and misconstrued the scope of a FOIA exemption.
As none of their objections calls the prior Opinion into
question, the Court denies the Motion.
Court has recounted the facts underlying this suit in several
previous Opinions, see, e.g., Montgomery v.
IRS, 292 F.Supp.3d 391, 393-94 (D.D.C. 2018), so just a
brief summary will do. In the mid-2000s, the IRS disallowed
certain tax losses and issued certain tax penalties against
several partnerships associated with the Montgomerys. See
Bemont Invests., LLC ex. rel. Tax Matters Partner v. United
States, 679 F.3d 339, 341-42 (5th Cir. 2012),
abrogated by United States v. Woods, 571 U.S. 31
(2013). After several years of subsequent litigation, the
parties reached a global settlement agreement. See
ECF No. 13 (First MSJ), Exh. B (Global Settlement) at 2, 4-5.
This did not end the war, however, as the Mongtomerys then
filed a number of FOIA requests aimed at gathering
information about how they might have originally come to the
IRS's attention. See ECF No. 1 (Compl.), Exh. A
(FOIA Request) at 1-2. At issue here are five of those
requests, which seek forms the IRS may have in its possession
in connection with whistleblower activity related to the
Montgomerys. Id. Defendant eventually issued a
Glomar response as to those requests, refusing to
confirm or deny the existence of responsive records. It based
that response on a number of FOIA exemptions including
Exemption 7(D), which protects information that “could
reasonably be expected to disclose the identity of a
confidential source.” 5 U.S.C. § 552(b)(7)(D).
Dissatisfied with that response, the Montgomerys filed this
an initial round of briefing on several procedural issues,
the parties filed cross-motions for summary judgment. The
Court rendered a mixed verdict, siding with Defendant as to
the five requests at issue here and with Plaintiffs as to the
others. While the Court required the IRS to conduct a further
search on the latter group of requests - a process now
underway - it agreed with the Service that disclosure of the
existence of records responsive to the first five requests
under these circumstances could, as a general matter, be
reasonably expected to reveal the identity of a confidential
source. The Glomar response based on Exemption 7(D)
was thus appropriate. The Court rejected Plaintiffs'
arguments that the Service's past litigating positions or
public statements were inconsistent with its current
position. See Montgomery v. IRS, 330 F.Supp.3d 161,
168-70 (D.D.C. 2018). This Motion to Reconsider followed.
Federal Rules of Civil Procedure do not specifically address
motions for reconsideration, ” United States v. All
Assets Held at Bank Julius, Baer & Co., Ltd., 315
F.Supp.3d 90, 95 (D.D.C. 2018), but Rule 54(b) allows a court
to revise any interlocutory “order . . . at any time
before the entry of a judgment.” While the judicial
interest in finality typically disfavors reconsideration, a
court may do so “as justice requires.”
Wannall v. Honeywell Int'l, Inc., 292 F.R.D. 26,
30 (D.D.C. 2013) (citation omitted). This standard is
flexible and allows a district court to exercise broad
discretion, but there must be some “good reason”
to reconsider an issue already litigated by the parties and
decided by the court, such as new information, a
misunderstanding, or a clear error. See Bank Julius,
315 F.Supp.3d at 96; Alliance of Artists & Recording
Cos., Inc. v. Gen. Motors Co., 306 F.Supp.3d 413, 415-16
(D.D.C. 2016); Estate of Klieman v. Palestenian
Auth., 82 F.Supp.3d 237, 242 (D.D.C. 2015) (stating that
district court has broad discretion to decide whether to
grant motion for reconsideration). “Ultimately, the
moving party has the burden to demonstrate ‘that
reconsideration is appropriate and that harm or injustice
would result if reconsideration were denied.'”
Bank Julius, 315 F.Supp.3d at 96 (quoting FBME
Bank Ltd. v. Mnuchin, 249 F.Supp.3d 215, 222 (D.D.C.
Court understands Plaintiffs to offer three general bases to
reconsider its prior Opinion: (A) the Opinion misstates
facts; (B) it improperly relies on in camera
declarations; and (C) it improperly upheld Defendant's
Glomar response based on FOIA Exemption 7(D). Each
concern is addressed in turn.
Montgomerys first take issue with the Court's description
of the factual background of the case. In particular, they
say the Opinion wrongly stated that they owed penalties to
the IRS as a result of their role in several businesses
subject to IRS enforcement proceedings. See ECF No.
51 (Mot.) at 8 (citing Montgomery, 330 F.Supp.3d at
166). To the extent the Court may have improperly
characterized the Montgomerys' personal income-tax
history from the morass of factual disputes that marked the
parties' prior litigation, this had no effect on its
decision upholding the IRS's response to several of their
FOIA requests. Reconsideration on this ground is thus
unnecessary. See Stewart v. FCC, 189 F.Supp.3d 170,
173 (D.D.C. 2016) (reconsideration based on alleged factual
error necessary only if court failed to consider “data
that might reasonably be expected to alter the conclusion
reached by the Court”) (citation omitted).
themselves point to no nexus between these statements and the
Court's analysis of the FOIA issues in this case. They
instead appear to rely on more general allegations that the
Court is somehow prejudiced against them. See Mot.
at 2. Such assertions are not well founded. Recall that in
the most recent round of briefing, the Court sided with the
Montgomerys as to more than half of their requests; in the
previous procedural round, it sided with them in whole.
See Montgomery, 292 F.Supp.3d 391. Today,
furthermore, it has issued an Order granting Plaintiffs'
most recent motion challenging the sufficiency of the
Government's search for responsive records. See
ECF No. 62. How those decisions, which are equally related -
or, more accurately, equally unrelated - to the
statements Plaintiffs mention, fit with their allegation of
prejudice here is unclear. In any event, this complaint does
not warrant reconsideration.
In Camera Declarations
is Plaintiffs' argument that the Opinion improperly
relied on in camera declarations. The IRS did submit
declarations or portions of declarations for in
camera review in support of its withholdings.
See ECF No. 31 (Def. Second MSJ), Attach. 4
(Declaration of Patricia Williams). The Court then referenced
those materials when explaining that the agency had met its
burden of justifying its Glomar response based on
Exemption 7(D). SeeMontgomery, 330