United States District Court, District of Columbia
August 8, 2000
MCDONNELL DOUGLAS CORPORATION, PLAINTIFF,
NATIONAL AERONAUTICS & SPACE ADMINISTRATION, DEFENDANT.
The opinion of the court was delivered by: Lamberth, District Judge.
This matter comes before the Court on Plaintiff McDonnell Douglas
Aerospace Corporation's ("MDA") Rule 59(e) Motion to Alter or Amend
Judgment. For the following reasons, Plaintiff's motion is denied.
On June 9, 2000, this Court dismissed as moot this reverse-Freedom of
Information Act ("FOIA") litigation. Although neither party had argued
that the case was moot, and MDA requested an opportunity to address the
mootness issue if the Court intended to consider it, the Court determined
that Circuit caselaw is clear — withdrawal of a FOIA request that
is the underlying basis for a reverse-FOIA suit renders the suit moot.
Gulf Oil Corp. v. Brock, 778 F.2d 834, 838-40, 843 (D.C.Cir. 1985).
A trial court has broad discretion to grant or deny a motion for
reconsideration. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
233-34, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995); Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 864, 108 S.Ct. 2194, 100
L.Ed.2d 855 (1988); Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.
1996). The trial court may invoke its discretion and deny a motion to
reconsider unless it finds 1) an intervening change in controlling law,
2) the availability of new evidence, or 3) the need to correct clear
error or manifest injustice. McDonnell Douglas Corp. v. NASA, No. 96-2611
(D.D.C. May 1, 1998), Mem.Op. at 1 (citing Riggs Inv. Management Corp.
v. Columbia Inv. Partners, 975 F. Supp. 14, 15 (D.D.C. 1997) (citing
Firestone, 76 F.3d at 1206; EEOC v. Lockheed Martin Corp., 116 F.3d 110,
112 (4th Cir. 1997))). As discussed below, Plaintiff has failed to
demonstrate the existence of any of these three criteria. Further,
Plaintiff is seeking a broad advisory opinion from this Court, in
contravention to Article III of the Constitution.
A. Intervening Change in Controlling Law
Plaintiff has not established that there has been an intervening change
in controlling law. The Court is unaware of any new law that has arisen
since this Court's June 9, 2000 decision that would warrant a different
result in this case. In addition, Plaintiff incorrectly asserts that the
controlling law has changed since this Circuit issued Gulf Oil, the case
this Court relied on when deeming the instant case moot.
Plaintiff argues that two Supreme Court decisions issued this year, and
one D.C. Circuit decision issued three years ago, render this Court's
reliance on Gulf Oil, a fifteen year-old case, incorrect. The Court will
briefly discuss these three cases and explain why they do not control the
First Plaintiff cites recent Supreme Court language stating that
the standard we have announced for determining whether
a case has been mooted by the defendant's voluntary
conduct is stringent: "A case might become moot if
subsequent events made it absolutely clear that the
alleged wrongful behavior could not reasonably be
expected to recur." United States v. Concentrated
Phosphate Export Ass'n, Inc., 393 U.S. 199, 203, 89
S.Ct. 361, 21
L.Ed.2d 344 (1968). The "heavy burden of persuad[ing]"
the court that the challenged conduct cannot
reasonably be expected to start up again lies with the
party asserting mootness. Ibid.
Friends of Earth, Inc. v. Laidlaw Envtl. Serva (TOC), Inc., 528 U.S. 167
120 S.Ct. 693
, 708, 145 L.Ed.2d 610 (2000).
Second, Plaintiff MDA cites another Supreme Court case involving the
voluntary cessation doctrine. There, the plaintiff had argued that the
case was moot because it had closed its business, a nude dancing club.
City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 1390, 146
L.Ed.2d 265 (2000). The Court rejected this argument because the club was
still incorporated under the state's law and could therefore again decide
to operate a nude dancing club in the same area. Id. The Court also noted
its "interest in preventing litigants from attempting to manipulate the
Court's jurisdiction . . . ." Id.
Third, Plaintiff points out that this Circuit has held that the EPA's
issuance of written guidance reversing its position was insufficient to
moot a case because the guidance could be "ignored by local EPA
officials" or withdrawn. American Iron & Steel Inst v. EPA, 115 F.3d 979,
1007 (D.C.Cir. 1997).
The three cases cited by Plaintiff share a common thread that is absent
from the instant case. In all three, the courts held that a defendant's
voluntary cessation of an action did not moot the case. This Court's June
9 decision does not contradict those cases. Here, the case was not deemed
moot because any voluntary cessation by Defendant National Aeronautics &
Space Administration ("NASA"). Rather, it is moot because of the conduct
of a third party, namely the withdrawal of the FOIA request underlying
Because the instant case is not governed by the voluntary cessation
doctrine, Plaintiff's arguments on that score are misplaced. For
example, Plaintiff, citing Friends of Earth, argues that NASA failed to
shoulder the "heavy burden" of persuading this Court that "it is
absolutely clear that the alleged wrongful behavior could not reasonably
be expected to recur." See Friends of Earth, 528 U.S. at ___, 120 S.Ct.
at 708. However, NASA is not required to shoulder this burden because
this case is not controlled by the voluntary cessation doctrine.
Plaintiff also stressed the Supreme Court's "interest in preventing
litigants from attempting to manipulate the Court's jurisdiction . . . ."
Pap's A.M., 529 U.S. at ___, 120 S.Ct. at 1390. However, neither litigant
in the instant case manipulated jurisdiction. The lack of jurisdiction is
due to action by a third party.
B. Availability of New Evidence
Plaintiff has not provided any new evidence which would warrant the
Court to grant the motion to reconsider. Further, Plaintiff would be
precluded from presenting new evidence in this case. Circuit caselaw
indicates that the only relevant evidence in a reverse-FOIA proceeding is
the administrative record. E.g., CNA Financial Corp. v. Donovan,
830 F.3d 1132, 1162 (D.C.Cir. 1987).
C. Clear Error or Manifest Injustice
Plaintiff has not presented any evidence of clear error or manifest
injustice. The Court of Appeals issued its opinion overturning NASA's
decision to release information in response to the FOIA request at
issue, and this Court's June 9, 2000, decision recognized NASA's
assurances that it will comply.
The Court rejects Plaintiff's argument that this case is governed by a
group of cases holding that a defendant's voluntary cessation of an
action does not moot the case. This case, at this point in the
litigation, is governed by Gulf Oil. When the underlying FOIA request in
this matter was withdrawn, a case or controversy ceased to exist and the
case was rendered
moot. Accordingly, this Court lacks jurisdiction to provide Plaintiff
with any relief, regardless of Plaintiff's concerns that NASA may seek to
disclose the information at issue in the future. Plaintiff's motion to
alter or amend judgment is denied. A separate order shall issue this
Upon consideration of Plaintiff's Rule 59(e) Motion to Alter or Amend
Judgment, Defendant's opposition thereto, and the entire record herein,
it is hereby
ORDERED that Plaintiff's motion is DENIED.
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