Roe v. Internal Revenue Service

Filing 77

ORDER denying 73 Motion to Alter Judgment; denying 74 Motion for Costs. By Judge Christine M. Arguello on 04/16/2014.(athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-02344-CMA-MJW
KELLY ROE,
Plaintiff,
v.
COMMISSIONER OF INTERNAL REVENUE SERVICE,
Defendant.

ORDER DENYING MOTIONS TO ALTER JUDGMENT AND FOR COSTS

This case is before the Court on Plaintiff Kelly Roe’s Motion to Alter Judgment
(Doc. # 73) and Motion for Costs (Doc. # 74.) For the reasons stated below, the Court
denies both motions.
I.

BACKGROUND

The facts and background of this case are set forth in detail in Roe v. Comm’r of
I.R.S., No. 12-cv-02344-CMA-MJW, 2014 WL 252102 (D. Colo. Jan. 22, 2014), the order
from which Plaintiff seeks relief. In that decision, the Court adopted Magistrate Judge
Michael J. Watanabe’s Recommendation to grant Defendant’s Omnibus Cross-Motion
for Partial Summary Judgment and Motion to Dismiss and to Deny Plaintiff’s Motion for
Summary Judgment.
Plaintiff filed the present Motion to Alter Judgment (Doc. # 73) pursuant to Federal
Rule of Civil Procedure 59(e) on February 4, 2014. Plaintiff alleges that this Court

committed error “regarding: 1) the fact that defendant clearly specifies in its procedural
manual the search terms and type of search performed when processing Form 4506-T
requests; and 2) this Court’s failure to recognize that plaintiff’s “interpretation” of Oglesby
has been followed by other courts within the Tenth Circuit and by courts within the
majority of other circuits.” (Id. at 1.)
Plaintiff subsequently filed a Motion for Costs pursuant to 5 U.S.C. §§ 552(a)(4)(E)
and 552a(g)(3)(B) on February 21, 2014, asking for an award for the cost of the litigation
because she “substantially prevailed” in the previous action. (Doc. # 74.) The Court
addresses each motion in turn.
II.
A.

LAW AND DISCUSSION

MOTION TO ALTER JUDGMENT
A litigant who seeks reconsideration of an adverse judgment can justify

reconsideration under Rule 59(e) on three grounds: “(1) an intervening change in
controlling law, (2) new evidence previously unavailable; and (3) the need to correct clear
error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000). Put simply, a motion to reconsider is appropriate when “the court
has misapprehended the facts, a party’s position, or the controlling law.” Id. It is not
appropriate to revisit issues already addressed or advance arguments that could have
been raised in prior briefing. Id.
In her motion, Plaintiff registers two complaints about a footnote in the Court’s
original order. (Doc. # 77, at 6 n.4.) First, she claims the Court committed a clear error
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of fact when it noted that, in light of declarations submitted by the government, it was not
readily apparent that the government used specific search terms in attempting to satisfy
Plaintiff’s requests. Second, she argues that this Court committed clear legal error by
failing to endorse her interpretation of a twenty-five-year-old case that is not binding on
this Court.
Neither of these arguments satisfies the strictures of Rule 59(e). First, as this
Court stated in its original order, the declarations themselves established that the
government had performed a search adequate for purposes of FOIA, notwithstanding
the fact that the government did not detail any search terms it used in fulfilling Plaintiff’s
request. Second, Plaintiff’s argument about non-binding case law is nothing more than
an attempt to revisit issues already addressed by this Court and is therefore inappropriate
under Rule 59(e).
B.

MOTION FOR COSTS
Next, Plaintiff seeks an award of “out-of-pocket costs of litigation because she

has substantially prevailed in this litigation. Rule 54(d) of the Federal Rules of Civil
Procedure provides that “costs against the United States, its officers, and agencies
shall be imposed only to the extent permitted by law.” In the context of FOIA, under both
5 U.S.C. § 552(a)(4)(E) and § 552a(g)(3)(B), the Court may award reasonable litigation
costs to a complainant who has “has substantially prevailed,” meaning that he or she has
“obtained relief through either a judicial order, or an enforceable written agreement or

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consent decree” or “a voluntary or unilateral change in position by the agency.” 5 U.S.C.
§ 552(a)(4)(E)(ii).
Plaintiff argues that she substantially prevailed in her case against Defendant
because Defendant’s counsel emailed her copies of transcripts she had previously
requested after she commenced this FOIA litigation. (Doc. # 74 at 3-4.) Plaintiff’s claim
fails because none of the documents were released pursuant to a “voluntary change in
position” by the agency. Rather, as Defendant explains, the documents at issue were
either accessible to Plaintiff prior to the commencement of litigation, not released by
Defendant pursuant to a FOIA request, or could not be located by Defendant until after
litigation began. (Doc. # 76 at 2.)
III.

CONCLUSION

Accordingly, it is hereby ORDERED that Plaintiff’s Motion to Alter Judgment (Doc.
# 73) is DENIED. It is
FURTHER ORDERED that Plaintiff’s Motion for Costs (Doc. # 74) is DENIED.
DATED: April

16

, 2014
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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