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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THOMAS MONTGOMERY and 

BETH MONTGOMERY,

Plaintiffs,

v. Civil Action No. 17-918 (JEB)

INTERNAL REVENUE SERVICE,

Defendant.

MEMORANDUM OPINION

In a 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. 

I. Background

The 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 
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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 suit. 

After an initial round of briefing on several procedural issues, the parties filed crossmotions 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. 

II. Legal Standard

“The 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. 
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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. 2017)).

III. Analysis

The 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.

A. Facts

The 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 
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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). 

Plaintiffs 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. 

B. In Camera Declarations

Next up 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 
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had met its burden of justifying its Glomar response based on Exemption 7(D). See

Montgomery, 330 F. Supp. 3d at 170–71. The Montgomerys offer three objections to these 

declarations, none of which justifies reconsideration.

The first is that such declarations are not appropriate in a FOIA case involving 

Exemption 7(D). See Mot. at 6–7. But courts have expressly sanctioned the use of such 

declarations where “no additional information . . . may be publicly disclosed without revealing 

precisely the information that the agency seeks to withhold.” Barnard v. DHS, 598 F. Supp. 2d 

1, 16 (D.D.C. 2009); see also Life Extension Found., Inc. v. IRS, 915 F. Supp. 2d 174, 185–86 

(D.D.C. 2013) (relying on in camera declarations to uphold withholding under Exemption 7(D)). 

As the Court explained, an agency’s Glomar response based on Exemption 7(D) can be just such 

a situation:

The difficulty here is that if the Government describes its 

interactions with a specific source, it would thereby undercut the 

protection that Glomar provides. In other words, because a Glomar

response is meant to obscure the very existence of the source (or 

attempted source), the Government cannot offer any public 

statement concerning the confidentiality assurances given to that 

source (or a statement that no source exists). As the Service 

persuasively argues, even though the identity of an informant may 

not be at risk in every case, to protect whistleblowers in cases where 

disclosure of the existence of records could lead to their 

identification, it must assert Glomar whenever an informant is 

involved. 

Montgomery, 330 F. Supp. 3d at 170–71. In such circumstances, the agency must still explain in 

a public declaration why, as a general matter, the information requested would reveal the identity 

of a confidential source if one existed. For example, if the purported source were part of an 

agency’s whistleblower program, as in this case, it is required to explain publicly that such 

sources are given assurances of confidentiality. But that’s not all. The agency must also explain 

whether such records in fact exist, and, if they do, why disclosure of their existence would reveal 
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the identity of a specific confidential source in this case. Id. at 171. Where that very explanation 

may reveal information protected by a FOIA exemption, like here, it can be provided to the 

Court via in camera declarations and paired with a Glomar response.

In camera declarations, properly understood, thus safeguard plaintiffs’ rights to 

government records, at least in this context. Were the Court, as Plaintiffs wish, to refuse to grant 

Defendant leave to file declarations in camera and responsive documents were to exist, the Court 

could not confirm that the records’ disclosure would in fact implicate a FOIA exemption — viz., 

that disclosure would compromise the identity of a specific source for whom the agency “either 

has given an express grant of confidentiality or satisfied the Roth factors to show an implicit 

grant” of confidentiality. Id. It would simply have to take the Government at its word that this is 

the case. By reviewing such in camera materials, conversely, the Court can closely evaluate the 

Government’s reasoning and then order as much of the materials released as is consistent with 

the exemption the agency has invoked. See Roth v. Dep’t of Justice, 642 F.3d 1161, 1185 (D.C. 

Cir. 2011). Such a procedure is assuredly second best to a full-throated debate about the specific 

records in question. But that is why such declarations may be relied on only in the rare 

circumstance, like here, where such debate would “reveal[] precisely the information that the 

agency seeks to withhold.” Life Extension, 915 F. Supp. 2d at 186 (citation omitted). 

The second objection to the Court’s consideration of in camera declarations is that they

should not be believed given that “Defendant’s track record with Plaintiffs is marked by 

fundamental dishonesty and contradictions.” Mot. at 7. Of course, this complaint applies as 

much to public declarations as in camera ones. To the extent Plaintiffs think any declaration 

must be entirely public because of the agency’s alleged misconduct, the Court disagrees. It has 
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not observed here the sort of bad-faith conduct Plaintiffs allege the IRS committed several years 

ago and has seen nothing to make it question the veracity of the declarations in this case. 

The Montgomerys last assert that consideration of these declarations is “contrary to the 

Court’s Minute Order of April 26, 2018[,] in which the Court stated that, ‘[t]o the extent the 

Court considers any ex parte materials, it will ensure that Plaintiffs are given an opportunity to 

be heard such that they are not thereby prejudiced.” Mot. at 1. Not so. Plaintiffs have now filed 

three sets of briefs addressing this matter — their opposition to the Government’s request to file 

these declarations, their cross-motion for summary judgment and opposition to the Government’s 

motion, and this Motion for Reconsideration. They have voiced their concerns about the 

declarations and the Court has heard — and rejected — them. 

Having considered this briefing, the Court has done much of what Plaintiffs themselves 

requested and all of what this Circuit requires. “[A]fter reviewing the declarations submitted by 

Defendant,” the Court has “ma[d]e available” to Plaintiffs “as much as possible of [any such] in 

camera submission[s].” ECF No. 33 (Mot. for Leave to File Opposition) at 10 (citation omitted). 

That is to say, none of the in camera submissions could be released without compromising 

information protected by Exemption 7(D). That conclusion coheres with the Circuit’s approach 

to such materials. See Arieff v. U.S. Dep’t of Navy, 712 F.2d 1462, 1470–71 (D.C. Cir. 1983) 

(holding that consideration of ex parte affidavits appropriate where “(1) the validity of the 

government’s assertion of exemption cannot be evaluated without information beyond that 

contained in the public affidavits and in the records themselves, and (2) public disclosure of that 

information would compromise the secrecy asserted”); Life Extension, 915 F. Supp. 2d at 185–

86 (upholding agency withholding under Exemption 7(D) based on in camera declarations); 

Barnard, 598 F. Supp. 2d at 16 n.10 (declining to make available any portion of defendant’s in 
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camera submissions because “no portion of the declarations may be disclosed without revealing 

the information Defendant seeks to protect”).

C. Glomar and Exemption 7(D)

In addition to the aforementioned largely procedural issues, Plaintiffs also maintain that 

the Court’s decision upholding the agency’s Glomar response based on Exemption 7(D) is 

substantively wrong. In so arguing, they make many of the same points they raised the first time 

around. The Court runs through them again, clarifying why the agency’s response was legally 

satisfactory.

1. Official Acknowledgement

The Montgomerys root their first set of objections in a species of waiver doctrine known 

as “official acknowledgement.” See Mot. at 9–12. Under that doctrine, an agency may be barred 

from asserting Glomar or a FOIA exemption if doing so would be irreconcilable with its 

previous official statements. See Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007). Plaintiffs 

argue that this is the case here, as the IRS’s past statements have waived its right to assert both 

Glomar and Exemption 7(D). Take the Glomar-waiver argument first. An agency waives 

Glomar under this doctrine when it has officially acknowledged the existence (or nonexistence) 

of responsive documents. “[T]o overcome an agency’s Glomar response when relying on an 

official acknowledgement, ‘the requesting plaintiff must pinpoint an agency record that both 

matches the plaintiff’s request and has been publicly and officially acknowledged by the 

agency.’” James Madison Project v. Dep’t of Justice, 302 F. Supp. 3d 12, 21 (D.D.C. 2018)

(quoting Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011)).

As the Court has explained before, Plaintiffs have not met this standard. The IRS’s prior 

statements about the absence of a confidential informant in the Montgomerys’ tax case, 
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discussed in greater depth below, do not mean there were no responsive documents. See

Montgomery, 330 F. Supp. 3d at 168–69. Neither did the Service’s clerical error during the 

administrative process — apparently recognizing the existence of documents — constitute an 

official acknowledgement. Id. at 169; see also Mobley v. CIA, 806 F.3d 568, 584 (D.C. Cir. 

2015) (holding that “simple clerical mistake in FOIA processing” is not official 

acknowledgement). The agency’s general ability to assert Glomar therefore remains intact.

That leaves the Montgomerys’ second official-acknowledgement argument: that the 

agency has officially and publicly acknowledged the information it now seeks to protect under 

Exemption 7(D), thereby rendering that Exemption inapplicable. “A three-part test determines 

whether an item is officially acknowledged: (1) the information requested must be as specific as 

the information previously released; (2) the information requested must match the information 

previously disclosed; and (3) the information requested must already have been made public 

through an official and documented disclosure.” Mobley, 806 F.3d at 583 (quoting Fitzgibbon v. 

CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)) (internal quotation marks omitted). The plaintiff bears 

the initial burden of showing that “the specific information” is already “in the public domain by 

official disclosure.” Wolf, 473 F.3d at 378. 

Plaintiffs maintain that the IRS has officially acknowledged that there was no 

confidential informant in this case, so it cannot assert an exemption whose sole purpose is to 

protect against the disclosure of the identity of a confidential source. Once again, the Court finds 

that Plaintiffs have not borne their burden. As to the first and second prongs, the Court has 

explained why the information requested sweeps more broadly than, and does not match, the 

information previously disclosed. To wit, the whistleblower forms requested may contain 

substantial information about any persons who have provided information to the IRS or any
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details those persons may have provided. Of course, the general statements by the IRS in prior 

litigation that that there was no informant do not match such information and thus are not official 

acknowledgements of that information. 

Plaintiffs rejoin that such information, if it exists, could not implicate Exemption 7(D). 

See Mot. at 9–10. (To the extent the Court did not directly address this argument in its prior 

Opinion, id., it does so now.) But they are wrong. The scattered statements in the previous 

litigation do not rule out the presence of Exemption 7(D)-protected information in the requested 

records. A brief refresher: Several IRS officials in previous litigation involving partnerships 

managed by Plaintiff Thomas Montgomery stated that “there had been no whistleblower” and 

that “there was not . . . an informant who put the Internal Revenue Service on notice” of certain 

tax conduct. See ECF No. 38, Attach. 2 (Plaintiffs’ Statement of Undisputed Material Facts), 

¶¶ 34–38. The context of those statements is critical. A number were specific to particular 

partnerships; several did not address whether there might have been an informant as to Plaintiff 

Beth Montgomery. See, e.g. ECF No. 13, Attach. 9 (Plaintiffs’ Motion for Disclosure in 

Southgate Litigation) at ECF pp. 25–26; ECF No. 13, Attach. 11 (Gee Deposition and Thurber 

Testimony) at ECF pp. 5, 26–28. Some were also limited in time — e.g., “And we did not have 

any informants involved in any of the returns we classified during that week of December, 

2005.” Thurber Testimony at ECF p. 28. 

Plaintiffs have not shown that these statements mean there could be no confidential 

source whose identity would be compromised if responsive documents were revealed. There 

may have been such a source during a different time period from that addressed in the 

statements, yet still within the eight-year period subject to Plaintiffs’ requests. See Compl., ¶ 16. 

Or there may have been a source reporting on conduct or persons outside the scope of that 
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litigation. Or it is possible that someone might be a confidential source within the meaning of 

Exemption 7(D) but not have been considered an informant or whistleblower in the

investigations that were subject of prior litigation — perhaps because the IRS did not rely upon 

their information. See Montgomery, 330 F. Supp. 3d at 170–71. Indeed, Thomas Montgomery 

himself argued that the Government’s prior statements left open the question of whether there 

was a confidential informant. See Southgate Motion for Disclosure at ECF pp. 25–30; see also

ECF No. 19 (Opp. to First MSJ), Attach. 1 (Plaintiffs’ Statement of Disputed Material facts) at 

ECF p. 6 (describing IRS statements on informant issue as “immaterial, incomplete, inaccurate, 

and misleading”). All those possibilities, which Plaintiffs have done little to dispel, demonstrate 

the Montgomerys have not met their burden of showing that “the specific information” subject to 

their requests and protected by Exemption 7(D) is “in the public domain by official disclosure.” 

See Wolf, 473 F.3d at 378.

2. Estoppel

Plaintiffs’ next argument was that a prior judicial decision collaterally estopped the IRS 

from now asserting that there might have been a confidential source. Recall that the district 

court in Bemont Investments, LLC v. United States, 2010 WL 3057437 (E.D. Tex. Aug. 2, 

2010), aff’d in part and rev’d in part, 679 F.3d 339 (5th Cir. 2012), stated that “[t]here was no 

informant [t]here.” Id. at *13. This one fails for the same reason the official-acknowledgement 

argument did: The issue the Bemont court decided does not resolve the question of whether there 

are responsive records protected by Exemption 7(D). In particular, that court’s remark was 

focused on that litigation during that time period. So even if the court’s understanding of the 

terms “informant” or “whistleblower” mapped onto Exemption 7(D)’s term “confidential 
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source,” which is far from clear, its determination did not address the field of possibilities of

such sources as applied to Thomas and Beth Montgomery. 

3. Exemption 7(D)

The Montgomerys last contend that the Court’s decision is contrary to the terms of FOIA 

Exemption 7(D), which applies only to “records or information compiled for law enforcement 

purposes” that “could reasonably be expected to disclose the identity of a confidential source.” 5 

U.S.C. § 552(b)(7)(D). They maintain that the decision expands that exemption to persons who 

provided information without assurances of confidentiality, who may not even be “sources,” and 

whose identities are not at risk of disclosure. See Mot. at 11–15. But the Opinion did nothing 

of the sort. 

Take the issue of confidentiality first. For Exemption 7(D) to apply, the source must 

have “provided information based upon an express grant of confidentiality or ‘in circumstances 

from which such an assurance could reasonably be inferred.’” Montgomery, 330 F. Supp. 3d at 

170 (quoting U.S. Dep’t of Justice v. Landano, 508 U.S. 165, 172 (1993)). As the Court 

explained, in the particular circumstances of the Glomar response here, the IRS met this 

standard. It explained publicly why the records, if they exist, would reveal the identity of a 

source given either an express or implied grant of confidentiality. See Second MSJ, Attach. 6 

(Declaration of Amy Mielke), ¶¶ 8–10. Then it submitted information in camera for the Court to 

confirm that, if responsive documents existed, they in fact implicated such a confidential source. 

Further explanation of the assurances given to a source, if any, would realize the harm the 

agency seeks to avoid because it would reveal whether any such source existed. See

Montgomery, 330 F. Supp. 3d at 170. Contrary to Plaintiffs’ assertion, the IRS thus fully 

complied with Roth’s requirement that “an agency ‘publicly explain[] to the extent it can why it 
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has concluded that certain sources provided information under an express or implied assurance 

of confidentiality.’” Mot. at 14 (quoting Roth, 642 F.3d at 1185). 

What about Plaintiffs’ argument that Exemption 7(D) does not cover “attempted” 

sources? See Mot. at 11. The Court’s Opinion, for starters, did not depend on the exemption 

reaching persons who, in Plaintiffs’ parlance, merely attempt to become confidential sources. As 

explained above, notwithstanding the Government’s prior statements about informants, any 

responsive records may well contain information about what Plaintiffs refer to as actual

confidential sources. See supra Section III.C.1. The Court notes, however, that the terms of 

Exemption 7(D) comfortably include persons who provided information to the Government 

under an assurance of confidentiality where such information was never actually relied upon in a 

particular investigation or prosecution. To wit, the exemption protects the identity of a “source,” 

a term ordinarily understood to include persons who merely provide information. See American 

Heritage Dictionary 1674 (5th ed. 2011) (defining source as “one . . . that supplies information”). 

The upshot is that, either way you understand the exemption, the whistleblower forms Plaintiffs 

request, if they exist, are likely to contain information from and about protected sources. 

The Montgomerys last insist that Exemption 7(D) only protects the identities of 

confidential sources and thus cannot be invoked to shield from disclosure the existence of a 

confidential source. See Mot. at 12–14. The Court agrees with the former but disagrees with the 

latter. As explained, there are some circumstances in which the divulging of the existence of a 

confidential source will also reveal that source’s identity. See Montgomery, 330 F. Supp. 3d at 

170–71. Those circumstances, as the IRS explains, obtain here. See Mielke Decl., ¶ 13. The 

Court’s decision thus does not broaden the scope of Exemption 7(D) — it respects it and the 

harms it is intended to prevent. See FBI v. Abramson, 456 U.S. 615, 630 (1982) (emphasizing 
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that exemption aims to prevent “potential disruption in the flow of information to law 

enforcement agencies by individuals who might be deterred from speaking because of the 

prospect of disclosure”). 

IV. Conclusion

For the foregoing reasons, the Court will deny the Motion for Reconsideration. A 

separate Order consistent with this Opinion will issue this day.

/s/ James E. Boasberg 

 JAMES E. BOASBERG

 United States District Judge

Date: January 10, 2019