Tax Analysts v. I.R.S., No. 96-2285 (CKK).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtKollar-Kotelly
Citation152 F.Supp.2d 1
PartiesTAX ANALYSTS, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
Docket NumberNo. 96-2285 (CKK).
Decision Date26 March 2001

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152 F.Supp.2d 1
TAX ANALYSTS, Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant.
No. 96-2285 (CKK).
United States District Court, District of Columbia.
March 26, 2001.
Opinion on reconsideration in part, May 21, 2001.

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COPYRIGHT MATERIAL OMITTED

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William Aaron Dobrovir, Warrenton, VA, for Tax Analysts.

Samuel Alvin Mitchell, U.S. Department of Justice, Tax Division/Ben Franklin, Washington, DC, Jason S. Zarin, Michael Joseph Salem, U.S. Department of Justice, Washington, DC, for Internal Revenue Service.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.


(Reconsideration of Earlier Opinion and Renewed Cross-Motions for Summary Judgment)

This case was brought pursuant to the Freedom of Information Act, 5 U.S.C. § 552, as amended, by Plaintiff Tax Analysts ("Plaintiff") seeking disclosure of various documents produced by the Internal Revenue Service's Office of Chief Counsel. Pending before the Court are Renewed Cross-Motions for Summary Judgment filed by Plaintiff and Defendant Internal Revenue Service ("Defendant" or "IRS"). In addition, Plaintiff has filed a Motion for Reconsideration of this Court's Order and Opinion of March 31, 2000. For the reasons stated below, the Court denies Plaintiff's Motion for Reconsideration and grants in part and denies in part Plaintiff's and Defendant's Renewed Cross-Motions for Summary Judgment.

I. BACKGROUND

When Plaintiff first filed this Freedom of Information Act ("FOIA") suit, it sought full disclosure of six categories of documents produced by the IRS's Office of Chief Counsel: Legal Memoranda ("LMs"), Litigation Guideline Memoranda ("LGMs"), Tax Litigation Bulletins ("TLBs"), Technical Assistances ("TAs"), Field Service Advice Monthly Reports ("FSA Reports"), and Pending Issue Reports ("PIRs"). This case has since been narrowed by the parties via stipulations and/or concessions as to certain issues. Congress further narrowed the case by enacting the Internal Revenue Service Reform and Restructuring Act of 1998 ("IRSRRA"), Pub.L. 105-206, 112 Stat. 685, 772 (codified as I.R.C. § 6110 (West Supp. 1999)), which deprives the Court of jurisdiction over Plaintiff's claims to the extent that they pertain to TLBs, TAs "to the field," and post-1985 LGMs. As a result of these developments, when cross-motions for summary judgment were first filed before the Court, the summary judgment record was quite complex.

Nevertheless, on March 31, 2000, this Court found that some of Plaintiff's claims were amenable to summary disposition and granted summary judgment in part ("March Order"). The Court granted IRS's motion for summary judgment and denied Plaintiff's motion for summary judgment as to those categories of documents that were unaffected by Congress' enactment of IRSRRA: LMs, PIRs and FSA Reports. Both parties' motions were denied as moot with respect to TLBs, post-1985 LGMs, and TAs to the field, all three of which had been dismissed from the case in the context of the IRS's IRSRRA motion to dismiss. This left two remaining categories of documents: pre-1986 LGMs and TAs other than TAs to the field. As for the pre-1986 LGMs, because the motions for summary judgment were filed at a time when neither party could have anticipated that the Court would be forced to narrow its ruling along these lines, the Court denied without prejudice this portion of the motions for summary judgment with the expectation that the parties would renew their motions in light of the changed landscape of this litigation. As to TAs other than TAs to the field, the portion of the motions pertaining to TAs

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was granted in part, denied in part, and remanded to the IRS for an enhanced Vaughn index that would enable the Court to fully evaluate the claimed exemptions.

Subsequent to the Court's ruling, Defendant has conceded that as to the pre-1986 LGM's, the case is moot because these documents have already been released to Plaintiff. See Def. Praecipe Withdrawing Portion of Def's Renew. Summ. J. Brief. Therefore, the only remaining category of documents pending before the Court at this time is TAs other than TAs to the field. Accordingly, complying with the Court's request in the March Order, the IRS has submitted supplemental Vaughn indexes and both parties have now further briefed the Court on the remaining issue of TAs other than TAs to the field in their respective Renewed Cross-Motions for Summary Judgment. In addition, however, Plaintiff has also filed a Motion for Reconsideration of the Summary Judgment Order of March 31, 2000, in regard to the Court's ruling that IRS is not bound by the so-called "harm" rule.

II. DISCUSSION
A. Reconsideration of March Order for Summary Judgment

Plaintiff asks this Court to reconsider its ruling in its March Order that IRS's foreseeable "harm" rule, articulated in the Internal Revenue Manual ("IRM") Part 1230 § 293(2), is not binding on IRS. Before addressing the merits of Plaintiff's motion, the Court will first consider whether it is timely. Plaintiff filed its Motion for Reconsideration almost seven months after this Court's Order on March 31, 2000. The question of whether the motion is timely is determined by whether it is governed by Federal Rule of Civil Procedure Rule 54(b) ("Rule 54(b)") or Federal Rule of Civil Procedure Rule 59(e) ("Rule 59(e)").

Defendant argues that Plaintiff's motion is untimely because it is subject to the ten—day limitation of Rule 59(e). See Defendant's Opposition to Plaintiff's Motion for Reconsideration ("Def. Opp. to Recons.") at 2-3. Under Rule 59(e), a party seeking reconsideration of a final or appealable judgment has ten days from the judgment in which to file and serve the opposing party with the motion to reconsider. See Fed. R. Civ. Pro. 59(e).1 Plaintiff argues that its motion is timely because it falls within Rule 54(b). See Plaintiff Reply to Defendant's Opposition to Plaintiff's Motion for Reconsideration ("Pl. Reply for Recons.") at 1. Under Rule 54(b), a court may reconsider any order not certified for appeal when the order in question did not resolve all the claims of all parties in the action. See Fed.R.Civ.P. 54(b).2 However, this Court cannot agree with Plaintiff that its Motion for Reconsideration is governed by Rule 54(b).

Motions to reconsider are governed by Rule 54(b) when such motions are filed after an interlocutory order and before the

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entry of a "final judgment." See Pivot Point International, Inc. v. Charlene Products, Inc., 816 F.Supp. 1286, 1287 (N.D.Ill.1993) (citing Gridley v. Cleveland Pneumatic Co., 127 F.R.D. 102, 103 (M.D.Pa.1989)). Motions to reconsider made after a final judgment or after a trial are governed by Rules 59(e) and 60(b).3 See Pivot Point International, Inc., 816 F.Supp. at 1287. Therefore, the timeliness of Plaintiff's Motion for Reconsideration turns on whether this Court's March Order granting partial summary judgment was a final judgment. See id. If the March Order was final, the motion is governed by Rule 59(e) and is thus untimely. See id. at 1288. In contrast, if the March Order was not a final judgment, then the motion is governed by Rule 54(b) and although filed seven months after the Order, it may be timely.4 See id.

Judgment is defined for the purposes of the Federal Rules of Civil Procedure in Rule 54(a): "`Judgment' as used in these rules includes a decree and any order from which an appeal lies." Fed. R.Civ.P. 54(a). Accordingly, at issue is whether this Court's March Order was appealable. Defendant argues that a FOIA suit constitutes a request for injunctive relief and thus an order granting partial summary judgment for the Government and denying Plaintiff's request for injunctive relief may be appealable under 28 U.S.C. § 1292(a)(1). See Def. Opp. to Recons. at 2 (citing Safe Flight Instrument Corp. v. McDonnell-Douglas Corp., 482 F.2d 1086, 1093 (9th Cir.1973) (denial of injunctive relief constitutes an order subject to an interlocutory appeal)). Section 1292 carves out a limited category of interlocutory orders that can be subject to appellate review. In particular, the provision allows appellate review of orders by a district judge "granting, continuing, modifying, refusing or dissolving injunctions...." 28 U.S.C. § 1292(a)(1). However, not every order of a district court denying injunctive relief is reviewable through an interlocutory appeal. See Center for National Security Studies v. Central Intelligence Agency, 711 F.2d 409, 411 (D.C.Cir.1983). If the district judge's order has the practical effect of denying injunctive relief, an appeal is available under Section 1292(a)(1) when the order involves a decision directly addressing the merits of the case. See id. at 412. If the injunctive order fails to address the merits of the case, appeal will lie only if appellant can show some serious, perhaps irreparable,

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harm resulting from delay caused by denial of review. See id.

The initial question is whether the March Order granting partial summary judgment for IRS was a denial of injunctive relief. In Center for National Security Studies, the D.C. circuit court held that a court's function in a FOIA case, determining whether to order disclosure or to permit an agency to withhold requested documents, is clearly injunctive in nature. 711 F.2d at 412. Therefore, the March Order, granting summary judgment to IRS as to all categories of requested documents except for TAs other than TAs to the field, plainly had the practical effect of denying Plaintiff an injunction requiring the disclosure of the requested documents. See id. Furthermore, in granting summary judgment for IRS, this Court ruled on the merits as to the various requested documents. The Court conducted the weighing process of all evidence as required under Rule 56 of the Federal Rules of Civil Procedure and determined that no material issue of fact was in dispute. Clearly, in so doing, the Court ruled on the merits as to all documents except for...

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  • 100Reporters LLC v. U.S. Dep't of Justice, Civil Action No.: 14–1264 (RC)
    • United States
    • U.S. District Court — District of Columbia
    • June 13, 2018
    ...monitorship team—to decision makers at the DOJ and SEC, which further indicate their predecisional nature. See Tax Analysts v. IRS , 152 F.Supp.2d 1, 24–25 (D.D.C. 2001) (protecting memoranda "written by a component office without decision-making authority to a different component office" t......
  • Am. Civil Liberties Union of N. Cal. v. U.S. Dep't of Justice, No. 14-17339
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 18, 2018
    ...privilege." Tax Analysts v. IRS , 294 F.3d 71, 76 (D.C. Cir. 2002) (affirming and adopting the reasoning of Tax Analysts v. IRS , 152 F.Supp.2d 1, 18–25 (D.D.C. 2001), which held that, under Merrill , "as long as ... documents ... were prepared in anticipation of litigation or for trial, th......
  • Am. Civil Liberties Union v. U.S. Dep't of Justice, 1:13-cv-7347-GHW
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 27, 2016
    ...5 still protects the book from disclosure.") (citing Merrill ), aff'd , 829 F.3d 741 (D.C. Cir.2016) ; Tax Analysts v. I.R.S. , 152 F.Supp.2d 1, 29 (D.D.C.2001) (noting that in a prior ruling, the "Court simply followed the Supreme Court's express direction that agency working law is exempt......
  • Tax Analysts v. I.R.S., No. CIV.A. 99-0372(RMU).
    • United States
    • U.S. District Court — District of Columbia
    • August 5, 2002
    ...no genuine issue of material fact by proving the validity of the exemptions it asserts. Weisberg, 705 F.2d at 1350; Tax Analysts v. IRS, 152 F.Supp.2d 1, 9 (D.D.C.2001), rev'd in part on other grounds,1 294 F.3d 71 (D.C.Cir. 2002). Exemption 3 specifically allows an agency to withhold or re......
  • Request a trial to view additional results
9 cases
  • 100Reporters LLC v. U.S. Dep't of Justice, Civil Action No.: 14–1264 (RC)
    • United States
    • U.S. District Court — District of Columbia
    • June 13, 2018
    ...monitorship team—to decision makers at the DOJ and SEC, which further indicate their predecisional nature. See Tax Analysts v. IRS , 152 F.Supp.2d 1, 24–25 (D.D.C. 2001) (protecting memoranda "written by a component office without decision-making authority to a different component office" t......
  • Am. Civil Liberties Union of N. Cal. v. U.S. Dep't of Justice, No. 14-17339
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 18, 2018
    ...privilege." Tax Analysts v. IRS , 294 F.3d 71, 76 (D.C. Cir. 2002) (affirming and adopting the reasoning of Tax Analysts v. IRS , 152 F.Supp.2d 1, 18–25 (D.D.C. 2001), which held that, under Merrill , "as long as ... documents ... were prepared in anticipation of litigation or for trial, th......
  • Am. Civil Liberties Union v. U.S. Dep't of Justice, 1:13-cv-7347-GHW
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 27, 2016
    ...5 still protects the book from disclosure.") (citing Merrill ), aff'd , 829 F.3d 741 (D.C. Cir.2016) ; Tax Analysts v. I.R.S. , 152 F.Supp.2d 1, 29 (D.D.C.2001) (noting that in a prior ruling, the "Court simply followed the Supreme Court's express direction that agency working law is exempt......
  • Tax Analysts v. I.R.S., No. CIV.A. 99-0372(RMU).
    • United States
    • U.S. District Court — District of Columbia
    • August 5, 2002
    ...no genuine issue of material fact by proving the validity of the exemptions it asserts. Weisberg, 705 F.2d at 1350; Tax Analysts v. IRS, 152 F.Supp.2d 1, 9 (D.D.C.2001), rev'd in part on other grounds,1 294 F.3d 71 (D.C.Cir. 2002). Exemption 3 specifically allows an agency to withhold or re......
  • Request a trial to view additional results

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