TAITZ v. ASTRUE
Filing
39
MEMORANDUM AND ORDER denying 36 Motion for Reconsideration. Signed by Chief Judge Royce C. Lamberth on October 17, 2011. (lcrcl2)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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ORLY TAITZ,
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Plaintiff,
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v.
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Civil Action No. 11-402 (RCL)
MICHAEL ASTRUE,
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COMMISSIONER OF THE SOCIAL
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SECURITY ADMINISTRATION,
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Defendant.
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MEMORANDUM AND ORDER
Before the Court is plaintiff’s Motion for Reconsideration [36]. Upon consideration of
plaintiff’s motion, defendant’s opposition [37], the reply thereto [38], the entire record herein,
and the applicable law, the Court will deny the motion for the reasons set forth below.
I.
BACKGROUND
An extensive description of the factual background underlying this litigation and related
lawsuits appears in this Court’s August 30, 2011 Memorandum Opinion [33]. Plaintiff filed suit
under the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”), to compel the defendant to
disclose the Form SS-5 for Social Security number xxx-xx-4425 in an attempt to confirm her
belief that President Barack Obama is using a fraudulent Social Security number. The SSA
denied the request under FOIA Exemption 6, which guards against release of documents when
such release “would constitute a clearly unwarranted invasion of privacy.” 5 U.S.C. § 552(b)(6).
This Court in granting summary judgment for the defendant upheld that decision. This Court
determined that even public figures retain a privacy interest in personal information, see, e.g.,
Kidd v. Dept. of Justice, 362 F. Supp. 2d 291, 297 (D.D.C. 2005), and that no legitimate public
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interest would be served by disclosure in absence of any reasonable substantiation of plaintiff’s
allegations of impropriety. Plaintiff then filed the instant motion for reconsideration.
II.
DISCUSSION
While district courts enjoy discretion over the decision whether to grant a motion for
reconsideration under Federal Rule of Civil Procedure 59(e), such motions are “disfavored” and
are reserved for “extraordinary circumstances.” Liberty Prop. Trust v. Republic Props. Corp.,
570 F. Supp. 2d 95, 97 (D.D.C. 2008) (quoting Niedermeir v. Office of Baucus, 153 F. Supp. 2d
23, 28 (D.D.C. 2001)). In seeking reconsideration, a party must show that “there has been an
intervening change of controlling law, that new evidence is available, or that granting the motion
is necessary to correct a clear error or to prevent manifest injustice.” Id.
Plaintiff first argues for reconsideration based on new evidence that purportedly
undermines President Obama’s privacy interest in the Form SS-5 for the Social Security number
at issue. The primary piece of new evidence upon which plaintiff relies is President Obama’s
posting of his 2009 tax return to the Web site http://www.whitehouse.gov. Plaintiff alleges that
users of the computer program Adobe Illustrator can remove the redaction of the President’s
Social Security number in the document and display the number xxx-xx-4425; therefore, plaintiff
argues, the President relinquished any privacy interest he held in his association to that number.
Assuming arguendo that plaintiff is correct, the document is no grounds for reconsideration.
Rule 59(e) does not permit reconsideration solely because a party wishes to submit previously
available evidence. Messina v. Krakower, 439 F.3d 755, 759 (D.C. Cir. 2006). The President
posted his tax return on April 15, 2010 – well before plaintiff filed her complaint on February 16,
2011. Accordingly, the document is not “new evidence” under Rule 59(e) and cannot serve as
the basis for reconsideration.
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Plaintiff also argues that the Court erred in declining to consider as evidence her
allegation that she used the Selective Service System’s online registration verification service to
confirm the President’s use of the Social Security number xxx-xx-4425. Even if true, this
evidence would not undermine the President’s privacy interest in the Form SS-5, and does
nothing to “warrant a belief by a reasonable person that the alleged government impropriety,”
namely the President’s purportedly fraudulent use of the number, “might have occurred.” Nat’l
Archives and Records Admin. v. Favish, 541 U.S. 157, 174 (2004). 1 Similarly, plaintiff submits
an affidavit that an individual used the U.S. Citizenship and Immigration Services’ E-Verify Self
Check system, which returned an error message showing an unexplained discrepancy between
the President and the Social Security number at issue. Apparently, plaintiff is arguing that, if one
online database confirms the President’s use of the number, and another database shows some
mismatch between the President and this number, the President must be engaging in fraud. This
constitutes nothing more than an unsubstantiated “bare suspicion” of wrongdoing. 2 Id. Finally,
plaintiff tries to submit as new evidence newspaper reports regarding the allegedly illegal use, by
two relatives of the President, of other Social Security numbers. The Court will not give
credence to plaintiff’s attempt to impugn the President with the alleged misconduct of others.
Next, plaintiff argues four sources of clear error. First, plaintiff suggests that because
FOIA Exception 6 only applies to living individuals, and because defendant did not explicitly
state that the Social Security number at issue corresponds to a living individual, defendant has
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The Court is loath to dignify plaintiff’s allegations of fraud with a response on the merits. However, suffice it to
say that plaintiff’s argument is premised on the incorrect assumption that Social Security numbers assigned prior to
1973 have any correlation to the recipient’s residence, see Employer Filing Instructions and Information,
http://www.socialsecurity.gov/employer/stateweb.htm (“Prior to 1973, social security numbers were assigned by our
field offices. The [first three] number[s] merely established that his/her card was issued by one of our offices in that
State.”). Plaintiff’s entire premise is totally defeated by a cursory examination of this site, which demonstrates that
plaintiff’s allegations lack any basis in fact.
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Furthermore, the Court notes that individuals may only use the E-Verify Self Check service to check their own
employment eligibility, and that to do so an individual must answer a series of private questions before gaining
access to the system. See Self Check : Terms of Use, https://selfcheck.uscis.gov/SelfCheckUI.
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failed to meet his burden to show the applicability of the exemption. But defendant did in fact
state that the individual associated with the Social Security number is living, see Def. Mem. in
Supp. of Mot. for Summ. J. 1 [21-2]. Second, plaintiff argues that the amount of comments on
an online version of a magazine article regarding this Court’s August 30, 2011 Memorandum
Opinion displays a public interest in the Form SS-5. But, as noted in that Opinion, there is no
legitimate public interest where the plaintiff submits no evidence giving rise to a reasonable
belief that impropriety has occurred, Favish, 541 U.S. at 174. Third, plaintiff alleges that this
Court erred in failing to take into account various affidavits submitted by investigators. These
affidavits only restate the assertions made elsewhere by plaintiff and add no credibility to her
claims. Fourth, plaintiff submits purported evidence of forgery in the President’s birth certificate
wholly unrelated to the issue of whether a Form SS-5 is subject to FOIA disclosure.
Finally, plaintiff alleges manifest injustice by repeating her claims of fraud and
misconduct, but against fails to substantiate them in any way whatsoever, much less to the
degree required to overcome an individual’s privacy interest in the information contained in a
Form SS-5. None of plaintiff’s arguments provides this Court any doubt that reconsideration
would be inappropriate.
III.
CONCLUSION AND ORDER
For the reasons discussed above, it is hereby
ORDERED that the plaintiff’s motion for reconsideration is DENIED.
SO ORDERED.
Signed by Royce C. Lamberth, Chief Judge, on October 17, 2011.
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