UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAM E. POWELL,

Plaintiff, v. Civil Action No. 18-2675 (JEB) INTERNAL REVENUE SERVICE,

Defendant.

MEMORANDUM OPINION

In its latest Opinion in this case, this Court granted Defendant Internal Revenue Service’s

Partial Motion to Dismiss and granted in part its Partial Motion for Summary Judgment,

foreclosing many of pro se Plaintiff William E. Powell’s claims for certain tax records under the

Freedom of Information Act. See Powell v. IRS, No. 18-2675,

(D.D.C. July

2, 2020). Plaintiff now moves for partial reconsideration with respect to four of those claims. He

first argues that two should not have been dismissed on collateral-estoppel grounds. He also

contends that Defendant failed to meet its summary-judgment burden of proving that it had

performed an adequate search for certain other documents. Because the Court ultimately finds

Powell’s arguments unavailing, it will deny the Motion.

I. Background

Plaintiff has engaged in long-running FOIA litigation to locate various tax records

relating to his family’s printing business. Because the Court’s most recent Opinion on the matter

sets out the history of these efforts, see Powell,

, at *1–2, it will briefly

discuss only those claims relevant to the present Motion.

1 Powell initially filed this action under FOIA and the Privacy Act on October 29, 2018,

seeking from the IRS various tax records regarding family members and his family’s business,

the Powell Printing Company. See ECF No. 1 (Complaint). He has since amended or

supplemented his original Complaint three times with additional requests for tax records

submitted to the IRS. See ECF Nos. 9, 31, 34. In its latest Opinion, the Court granted

Defendant’s Partial Motion to Dismiss claims relating to certain requests and Partial Motion for

Summary Judgment with respect to others. Powell,

, at *5–6, 9, 11.

Powell now seeks reconsideration of the Court’s Opinion with respect to the following

four records requests: (1) various non-master file transcripts for William A. Powell, William E.

Powell, and Andrew Powell; (2) William A. Powell’s Form 706; (3) Andrew Powell’s Form 706;

and (4) the Powell Printing Company’s Forms 813. See ECF No. 61 (Pl. Mot. to Recon.). For

those not fully versed in IRS procedure, a Form 706 estate-tax return is a “one-time submission

[filed] by the executor to determine the contents of an estate.” Powell v. IRS (Powell V), No.

17-278,

, at *3 (D.D.C. Sept. 6, 2019). A taxpayer’s non-master file (NMF)

contains information regarding “certain types of tax assessments that cannot be implemented by

[processing the Master File],” I.R.S. IRM 21.2.1.5(1), Non-Master File (Apr. 12, 2011), which

primarily holds all major categories of taxpayer data.

IRM 21.2.1.2, Master File (Oct. 1,

2011); see also ECF No. 39-12 (Declaration of Delphine Thomas), ¶ 7 (“Most taxpayers do not

have NMF transcripts associated with their accounts . . . .”). Finally, Form 813 is “an ‘internal

IRS document’ that lists ‘payment transactions’ for taxpayers.” Powell,

, at

*11 (quoting Thomas Decl., ¶ 42).

2 II. Legal Standard

Because Plaintiff seeks reconsideration of an interlocutory order granting in part

Defendant’s dispositive motions, Federal Rule of Civil Procedure 54(b) governs the Court’s

analysis. “The standard of review for interlocutory decisions differs from the standards applied

to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b).” Williams v. Savage,

(D.D.C. 2008). Plaintiff has a lower bar to clear, as “reconsideration of

an interlocutory decision is available under the standard ‘as justice requires.’” Judicial Watch v.

Dep’t of Army,

(D.D.C. 2006) (quoting Childers v. Slater,

(D.D.C. 2000)); accord Lemmons v. Georgetown Univ. Hosp.,

, 21–23

(D.D.C. 2007).

The “as justice requires” standard may be met where, for example, the court has patently

misunderstood the parties, strayed far afield from the issues presented, or failed to consider a

controlling or significant change in the law or facts since the submission of the issue. See Cobell

v. Norton,

(D.D.C. 2004). “These considerations leave a great deal of room

for the court’s decision and, accordingly, the ‘as justice requires’ standard amounts to

determining ‘whether [relief upon] reconsideration is necessary under the relevant

circumstances.’” Lewis v. District of Columbia,

(D.D.C. 2010) (quoting

Cobell,

). The court’s discretion under Rule 54(b), however, is “subject to the

caveat that where litigants have once battled for the court’s decision, they should neither be

required, nor without good reason permitted, to battle for it again.” Singh v. George Washington

Univ.,

(D.D.C. 2005) (internal citations and quotation marks omitted).

“Ultimately, the moving party has the burden to demonstrate ‘that reconsideration is appropriate

and that harm or injustice would result if reconsideration were denied.’” United States v. All

3 Assets Held at Bank Julius, Baer & Co., Ltd.,

(D.D.C. 2018) (quoting

FBME Bank Ltd. v. Mnuchin,

(D.D.C. 2017)).

III. Analysis

The Court addresses each of Plaintiff’s four sets of records requests, turning first to the

two claims dismissed on collateral-estoppel grounds, then examining the two on which the Court

granted summary judgment for Defendant.

A. Requests Subject to Dismissal

In seeking reconsideration, Plaintiff contends that his claims relating to various family

members’ non-master file transcripts and for his father William A. Powell’s Form 706 federal-

estate-tax return should not have been dismissed on collateral-estoppel grounds.

“Under collateral estoppel, once a court has decided an issue of fact or law necessary to

its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of

action involving a party to the first case.” Allen v. McCurry,

(1980). In other

words, “an issue of fact or law that was actually litigated and necessarily decided is conclusive in

a subsequent action between the same parties or their privies.” Johnson v. Duncan,

(D.D.C. 2010). When the determination of that factual or legal issue “is essential to

the judgment, [it] is conclusive in a subsequent action between the parties, whether on the same

or a different claim.” Consol. Edison Co. of N.Y. v. Bodman,

(D.C. Cir.

2006) (internal citation omitted).

For collateral estoppel — also known as issue preclusion — to apply, (1) “the same issue

now being raised must have been contested by the parties and submitted for judicial

determination in the prior case”; (2) “the issue must have been actually and necessarily

determined by a court of competent jurisdiction in that prior case”; and (3) “preclusion in the

4 second case must not work a basic unfairness to the party bound by the first determination.”

Martin v. Dep’t of Justice,

(D.C. Cir. 2007) (quoting Yamaha Corp. of Am. v.

United States,

(D.C. Cir. 1992)).

Non-Master File Transcripts

The Court begins with the NMF transcripts for William A. Powell, William E. Powell,

and Andrew Powell for various tax years. Powell does not dispute that he seeks the same

documents previously adjudicated in prior suits, but instead argues that preclusion is improper

because, whereas his past claims were brought under FOIA, his current claims are based on

requests made pursuant to separate statutes and procedures. Specifically, Plaintiff contends that

he submitted the NMF-transcript requests at issue here under

. See Pl. Mot. to

Recon. at 9–12. He relatedly suggests that he requested these NMF-transcript records through a

“non-FOIA process,” and, as a result, they should not have been barred by collateral estoppel.

at 10–12.

Plaintiff’s arguments, which he also raised in various places throughout his prior

Opposition, confuse the relationship between FOIA and Section 6103. As this Court most

recently explained, Section 6103 “does not ‘provide an independent basis for subject matter

jurisdiction’ over claims seeking the disclosure of return information.” Powell,

, at *5 (quoting Maxwell v. O’Neill, No. 00-1953,

, at *4 (D.D.C.

Sept. 12, 2002), aff’d, Maxwell v. Snow,

, 357–58 (D.C. Cir. 2005)). Instead,

Section 6103 sets out the IRS’s disclosure duties and exemptions for tax returns, “allow[ing] the

IRS to disclose certain tax records . . . which records, in turn, are subject to FOIA.” Elec.

Privacy Info. Ctr. v. IRS,

(D.C. Cir. 2018) (emphasis added). Thus,

“§ 6103 ‘operates as part of the larger FOIA framework’” and does not provide plaintiffs with a

5 separate cause of action. See Powell,

, at *5 (quoting Maxwell,

, at *3).

Similarly, the fact that Powell originally submitted his records requests through a “non-

FOIA procedure” does not mean that they remain outside of FOIA’s framework. Plaintiff is

correct that IRS regulations set out routine “non-FOIA” procedures for parties seeking certain

tax-return and tax-transcript information, which direct them to submit requests via Form 4506 to

the IRS’s Return and Income Verification Systems (RAIVS) unit. Goldstein v. IRS,

(D.D.C. 2016). In processing these requests, RAIVS must comply with the

disclosure requirements of Section 6103.

But a party dissatisfied with the Service’s response

to its RAIVS requests must then follow the Service’s specified FOIA procedures, see Powell v.

IRS, No. 18-453,

, at *3 (D.D.C. May 3, 2019), and the Service’s responses to

these requests are ultimately subject to judicial review under FOIA. See Goldstein,

(“[E]ven though the IRS has established a separate ‘non-FOIA’ process for requesting

tax returns, . . . the IRS must defend [its disclosure decisions] under the procedural and

substantive rules of FOIA.”). Indeed, “[t]o invoke the jurisdiction of a federal district court [in

the first place], requests for tax-return information . . . must comply with the procedures set forth

under FOIA.” Powell,

, at *5. Therefore, even if Powell had originally

utilized the “non-FOIA” RAIVS process to make his requests, his claims challenging the IRS’s

failure to fulfill those requests are correctly construed as causes of action under FOIA.

As a result, FOIA governs Plaintiff’s present requests for the NMF-transcript documents,

which are the same records he sought under the same statute in one of his prior suits. For this

reason, the Court properly held that the doctrine of collateral estoppel precludes him from

relitigating his claims here. As the Court found, and Plaintiff does not contend otherwise, his

6 NMF-transcript requests in this case “are clearly duplicative of those adjudicated in Powell V.”

Powell,

, at *5 (concluding that Plaintiff’s 2017 requests for NMF transcripts

for Form 1040 and his current requests for NMF transcripts using the command code MFT 30

“are for the same record”). In that suit, the Court granted summary judgment for Defendant as to

William A. Powell’s and William E. Powell’s NMF transcripts, Powell v. IRS,

(D.D.C. 2018), and Andrew Powell’s NMF transcript. Powell,

, at

*5.

Finally, Plaintiff’s Motion suggests that the Court failed to address new evidence that was

unavailable in prior litigation — namely, a handwritten “NMF” under William A. Powell’s name

apparently made by Defendant in response to a separate request submitted in August 2018, see

Pl. Mot. to Recon. at 11 (citing ECF No. 42-3) — thus rendering preclusion inappropriate as to

those transcripts. Even if this evidence warranted turning to the underlying merits of

Defendant’s search, it falls well short of upending the Court’s finding on the adequacy of the

IRS’s previous efforts. Powell,

.

William A. Powell’s Form 706

Next up is Plaintiff’s request for William A. Powell’s Form 706. Here, Powell asserts

that preclusion is inappropriate because he “never stated a claim” for William A. Powell’s Form

706 in any of his previous suits. See Pl. Mot. to Recon. at 3, 5–6, 8. Instead, the Court

previously required Defendant to search for Form 706 only because that form was relevant in

determining the adequacy of the Service’s search for a separate record (a Form K-1), which may

have been attached to Form 706. Powell, 317 F. Supp. 3d at 280–81; see also Powell,

, at *1.

7 Powell’s contention that he has never sought relief for this Form 706 in his prior FOIA

litigation misunderstands the difference between claim preclusion and issue preclusion. “Claim

preclusion ‘forecloses successive litigation of the very same claim, whether or not relitigation of

the claim raises the same issues as the earlier suit.’” Proctor v. District of Columbia,

(D.D.C. 2014) (quoting Taylor v. Sturgell,

(2008)). Issue

preclusion, by contrast, “prevents the relitigation of any issue that was raised and decided in a

prior action.” Alford v. Providence Hosp.,

(D.D.C. 2014) (internal

quotation marks and citations omitted). Thus, “issue preclusion may conclusively establish facts

such that the plaintiff’s [subsequent] claim must fail as a matter of law.” Proctor,

.

Applying the three elements of issue preclusion, this Court directly decided the same

issue — namely, whether Defendant conducted an adequate search for William A. Powell’s

Form 706 — when it decided the adequacy of the Service’s search for his Form K-1 in a prior

suit between the same parties. See Powell,

, at *3–5. Finding that the “IRS’s

updated explanation shows that its search for the Form 706 was adequate,” id. at *4, the Court

concluded that the search for the requested K-1 information was “reasonably calculated to

uncover all responsive documents” and therefore entered summary judgment for Defendant on

that claim. Id. (quoting Truitt v. Dep’t of State,

(D.C. Cir. 1990)). Because a

“final outcome” in that suit — that is, the adequacy of the Form K-1 search — “hinge[d]” on the

adequacy of the Form 706 search, the Form 706 issue was “actually and necessarily determined”

by the Court in a prior proceeding. Proctor,

(first quoting Bobby v. Bies,

(2009), then quoting Martin,

).

8 Finally, applying issue preclusion in this case does not work a “basic unfairness” against

Plaintiff.

at 450-51 (quoting Martin,

). As the Court observed in its Opinion,

Powell’s arguments against preclusion in his Opposition papers, which focus on the adequacy of

the IRS’s search, “miss[] the mark” because he could have raised them when the parties

previously litigated the Service’s search for the Form. Powell,

, at *6. His

only newly asserted evidence is a June 9, 2020, email received from Wanda Williams, a FOIA

Archivist at the National Archives and Records Administration, attaching a Standard Form 135

that purportedly confirms the existence of a Form 706 for William A. Powell at a specific

Document Location Number (DLN). See Pl. Mot. to Recon. at 6–8 (citing ECF Nos. 57-1 (Pl.

Sur-reply) at 5–6; 57-4). Although such evidence was unavailable in 2019 when the Court

decided the Form 706 search in Powell V, it does not suggest that Plaintiff was denied “a fair

opportunity procedurally, substantively, and evidentially to pursue his claim the first time.”

Canonsburg Gen. Hosp. v. Sebelius,

(D.D.C. 2013) (quoting Blonder–

Tongue Labs., Inc. v. Univ. of Ill. Found.,

(1971)), aff’d sub nom.

Canonsburg Gen. Hosp. v. Burwell,

(D.C. Cir. 2015); cf. Paulo v. Holder,

(9th Cir. 2011) (citing 18 James W. Moore et al., Moore’s Federal Practice §

132.02[2][c] (3d ed. 2010) (“If a new . . . factual assertion raised in the second action is relevant

to the issues that were litigated and adjudicated previously, the prior determination of the issue is

conclusive on the issue despite the fact that new evidence . . . [was not] introduced into evidence,

or otherwise urged.”)).

Even if preclusion is not appropriate, the SF-135 fails to cast doubt on the adequacy of

the IRS’s search that the Court evaluated in Powell V. This is because the Service’s efforts to

track down Form 706 using multiple DLNs were sufficient and led to the ultimate conclusion

9 “that the record sought was not found in the location where the [Federal Records Center] would

expect to find [the] document.” ECF No. 66 (Def. Opp.) at 7–8 (quoting Powell V, No 17-278,

ECF No. 78-4 (Declaration of Joy E. Gerdy Zogby), ¶ 20); see Iturralde v. Comptroller of

Currency,

(D.C. Cir. 2003) (adequacy of FOIA search determined “not by the

fruits of the search, but by the appropriateness of the methods”). The Court thus declines to alter

its prior finding in Powell V or reconsider its Opinion here.

B. Requests Subject to Summary Judgment

Powell also challenges the Court’s grant of partial summary judgment to Defendant with

respect to two requests, disputing its finding that the Service adequately searched for Andrew

Powell’s Form 706 and the Powell Printing Company’s Form 813 for multiple tax years.

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009) (citing Bigwood v.

U.S. Agency for Int’l Dev.,

(D.D.C. 2007)). For an agency to prevail on

summary judgment, it must demonstrate that it performed an adequate search for the requested

records,

, and did not improperly withhold any responsive documents.

at 87 (quoting

Military Audit Project v. Casey,

(D.C. Cir. 1981)). “An agency fulfills its

obligations under FOIA if it can demonstrate beyond material doubt that its search was

‘reasonably calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast

Guard,

(D.C. Cir. 1999) (quoting Truitt,

). In reviewing the

reasonableness of an agency’s search, courts focus their inquiry on “the methods used to carry

out the search, not . . . the search results.” Rodriguez v. Dep’t of Def.,

(D.D.C. 2017). For that reason, “the failure of an agency to turn up” specific records “does not

alone render a search inadequate.” Iturralde,

. Instead, to satisfy this standard,

10 an agency “must show that it made a good faith effort to conduct a search for the requested

records, using methods which can be reasonably expected to produce the information requested.”

Oglesby v. U.S. Dep’t of Army,

(D.C. Cir. 1990). “[A]n agency is only required

to search those record systems that are likely to turn up the information requested.” Schoenman

v. FBI.,

(D.D.C. 2011) (internal quotation marks and citation omitted).

Andrew Powell’s Form 706

In seeking reconsideration of the Court’s determination on his request for Andrew

Powell’s Form 706 federal-estate-tax return, Plaintiff does not directly challenge the IRS’s

search methods. See Powell,

, at *9 (citing Thomas Decl., ¶¶ 71–74).

Instead, he identifies various other tax documents, including a 2015 business-master file (BMF)

transcript for the Andrew Powell Trust and a 1993 individual-master file (IMF) transcript for

Amelia Powell, in an apparent attempt to contradict the Service’s conclusion that a master file

for Andrew Powell, where a Form 706 would be stored, does not exist. See Pl. Mot. to Recon. at

13; ECF No. 71 (Pl. Reply) at 10. Neither of these cited documents, however, calls into question

the adequacy of Defendant’s search. As the Service reasonably explains, the existence of the

Andrew Powell Trust BMF transcript, which was previously produced to Plaintiff, does not

indicate the existence of a Form 706, a different tax record, for Andrew Powell, a taxpayer

different from the trust entity. See Def. Opp. at 12. Similarly, it is unclear — and Plaintiff does

not offer any explanation — how an IMF transcript for Amelia Powell bears on Defendant’s

search for the Andrew Powell Form 706 at issue.

Additionally, Plaintiff maintains that Defendant failed to search the FRC, see Pl. Mot. to

Recon. at 13, and points to what he maintains are the first two pages of a Form 706 filed for

Andrew Powell, see Pl. Reply at 10 (citing ECF No. 42-7 at 1–2), to refute the sufficiency of the

11 Service’s efforts. These arguments simply rehash Plaintiff’s summary-judgment Opposition and

do not provide any valid reason to alter the Court’s decision. See ECF No. 42 (Pl. MTD/MSJ

Opp.) at 15. Plaintiff does, however, identify a small factual discrepancy that bears correcting.

In its Opinion, the Court expressly considered the partial Form 706 for Andrew Powell, but

appears to have erroneously noted that Plaintiff had received the document from the FOIA

Officer at NARA in June 2020, Powell,

, at *9, when, as discussed above,

those June 2020 NARA communications related to the Form 706 for William A. Powell. The

details of how Powell obtained his abridged copy remain unknown to the Court. See Pl.

MTD/MSJ Opp. at 15; ECF No. 42-7; see also ECF No. 47 (Def. MSJ Reply) at 8 (“Powell does

not explain where or how he located those two pages or why he does not have a complete

copy.”). In any case, this error does not alter the Court’s determination that the two pages fail to

cast doubt on the adequacy of the IRS’s search. See Powell,

, at *9 (finding

reasonable IRS’s explanation that even if Form 706 still existed, it remained unable to locate it).

The Court concludes that its findings are supported by the factual record, and

reconsideration is thus unwarranted.

Powell Printing Company’s Form 813

Powell last contends that the IRS never established the adequacy of its search for certain

Forms 813 for the Powell Printing Company. See Pl. Mot. to Recon. at 14. Such a contention

overlooks the Court’s explicit mention of the Company in its discussion of the Forms 813

requests more broadly. Powell,

, at *11. Perhaps Powell is calling attention

to the fact that the Opinion there, but not elsewhere, mischaracterized the relevant tax years of

his Powell Printing Company request as 1987–1997,

not 1987–2007. Id. at *3, *11; ECF No.

9-19 (Nov. 26, 2018, Document Request). To the extent that this typo caused confusion, the

12 Court now clarifies that its consideration of Defendant’s search for the Powell Printing Company

Forms 813 covered those documents for the full 1987–2007 period — as requested by Powell

and searched for by the IRS. See Thomas Decl., ¶¶ 50, 61–65.

Plaintiff’s additional challenges to the Court’s Forms 813 ruling echo arguments

previously raised in his Opposition papers, and they once again fall short. Contrary to Powell’s

claims, see Pl. Mot. to Recon. at 14; Pl. Reply at 11, the IRS did set out a “detailed account of

[its] searches for [this form].” Powell,

, at *11; see Thomas Decl., ¶¶ 41–54,

61–65. Thomas first searched for the Forms by looking for associated non-master file transcripts

in the Information Data Retrieval System (IDRS). Powell,

, at *11 (citing

Thomas Decl., ¶ 52). When her search failed to identify any responsive documents, she turned to

an Automated Non-Master File (ANMF) System specialist, whose search of that database also

came up empty.

(citing Thomas Decl., ¶¶ 52–53). Thomas then searched the IDRS for

master-file payment transactions using various command codes and the two employer

identification numbers (EINs) provided by Plaintiff. See Thomas Decl., ¶¶ 61–62 (describing

how first EIN produced information results for Powell Printing Company, but second one did

not). Although these searches returned several forms for the Powell Printing Company, based on

the IRS’s retention schedules, none of these forms contained or attached any associated Forms

813.

¶¶ 63–65.

Powell also takes issue with the description of the ANMF specialist’s search, arguing that

the IRS omitted the identity of the person and more specific details about the search parameters

and findings. See Pl. Reply at 11. The Court, however, explicitly rejected this same argument

when raised by Plaintiff in relation to a separate request, explaining that “FOIA does not require

this level of detail” to deem a search reasonably specific enough. Powell,

, at

13 *9 (citing Dillon v. DOJ,

(D.D.C. 2015)). Indeed, “an agency’s

declarant need not have participated directly in the actual processing of a FOIA request” as long

as she has “personal knowledge of the procedures used in handling [the] request and . . .

familiarity with the documents in question.” Dugan v. DOJ,

(D.D.C.

2015) (internal quotation marks and citation omitted); see also SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (crediting affidavit of SEC employee that recounted efforts of

other employees because she was “in charge of coordinating” agency’s search efforts and

therefore was “the most appropriate person to provide a comprehensive affidavit”).

Finally, the Court already addressed Powell’s contention that the IRS failed to adequately

search additional databases for the Form, see Powell,

, at *11–12, and credits

Defendant’s conclusion that there was no other way to search for the requested records. See

Thomas Decl., ¶ 67. The Court consequently sees no good reason to disturb its finding that the

IRS’s search here was reasonably tailored to yield any responsive documents.

IV. Conclusion

For the reasons stated above, the Court will deny Plaintiff’s Motion for Reconsideration.

A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: November 30, 2020

14