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N.Y.C. Apparel F.Z.E. v. U.S. Customs and Border Protection Bureau

May 27, 2009

N.Y.C. APPAREL F.Z.E., PLAINTIFF,
v.
U.S. CUSTOMS AND BORDER PROTECTION BUREAU, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

N.Y.C. Apparel F.Z.E. initiated this civil lawsuit on December 3, 2004, seeking to compel the disclosure of certain records requested from the United States Customs and Border Protection Bureau pursuant to the Freedom of Information Act (the "FOIA"), 5 U.S.C. §§ 552-552b (2006). Currently before the Court is the plaintiff's motion for reconsideration of the Court's order denying its request for an award of attorney's fees in the amount of $21,722.50 (the "Pl.'s Mot."). After carefully reviewing the plaintiff's motion and the defendant's opposition to that motion (the "Def.'s Opp'n"), along with the Court's prior order, its accompanying memorandum opinion, and all motions, memoranda of law, and exhibits previously considered by the Court in reaching its prior decision, the Court concludes that it must deny the plaintiff's motion for the reasons that follow.

As this Court has noted in the past, motions for reconsideration under Rule 59(e) are "disfavored" and "should be granted only under extraordinary circumstances." Ctr. for Sci. in the Pub. Interest v. FDA, No. Civ. A. 03-1962, 2004 WL 2218658, at *2 (D.D.C. Sept. 17, 2004) (Walton, J.). Indeed, such a motion "need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (internal citation and quotation marks omitted). The plaintiff does not contend that there has been a "change of controlling law" since the Court denied its motion for attorney's fees, that there is any "new evidence" that merits the Court's attention, or that some form of "manifest injustice" will result from the Court's order. Thus, the only possible basis for reconsideration of the Court's order denying the plaintiff's request for attorney's fees would be a "clear error" in the legal reasoning leading to the entry of the order.

In its memorandum opinion addressing the merits of the plaintiff's motion for attorney's fees, the Court held that § 4 of the OPEN Government Act of 2007 (the "OGA"), Pub. L. 110-175, 121 Stat. 2524 (2007), which amends 5 U.S.C. § 552(a)(4)(E) to permit attorney's fee awards where, inter alia, there is "a voluntary or unilateral change in position by [an] agency" that refuses a FOIA request and "the complainant's claim is not insubstantial," Pub. L. 110-175, § 4(a), 121 Stat. at 2525, does not have retroactive effect and therefore does not apply to the plaintiff's motion for attorney's fees, see N.Y.C. Apparel F.Z.E. v. U.S. Customs and Border Prot. Bureau, 563 F. Supp. 2d 217, 220 (D.D.C. 2008) (concluding that "§ 4 of the OGA cannot be applied retroactively to the circumstances of this case"). Under the standard governing requests for attorney's fees under the FOIA in effect prior to § 552(a)(4)(E)'s amendment, "the plaintiff must have secured either a judgment on the merits of its claim or a court-ordered consent decree to qualify" for attorney's fees under the FOIA pursuant to the Supreme Court's ruling in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Services, 532 U.S. 598 (2001), and the District of Columbia Circuit's application of that ruling to the FOIA context in Oil, Chemical & Atomic Workers International Union v. Department of Energy, 288 F.3d 452 (D.C. Cir. 2002). N.Y.C. Apparel, 563 F. Supp. 2d at 221. "[B]ecause there was no judgment or consent decree compelling the defendant to undertake" the search giving rise to the plaintiff's attorney's fee request, id. at 221-22, and because the OGA does not have retroactive effect, the Court concluded that it had no choice but to deny the plaintiff's motion for attorney's fees, id. at 227.

The plaintiff argues that the Court should reconsider its decision based upon two decisions (one from another member of this Court) issued contemporaneously with this Court's prior memorandum opinion holding that the OGA has retroactive force. Pl.'s Mot. at 2-3. The plaintiff also repeats its argument, previously rejected by the Court, that the amended version of § 552(a)(4)(E) should govern its attorney's fee request because its motion for reconsideration of a prior order from the Court granting summary judgment in favor of the defendant was still pending when that amendment went into effect. Id. at 3; see also N.Y.C. Apparel, 563 F. Supp. 2d at 227 (reasoning that "it was the defendant's voluntary decision to renew its search for documents," which occurred prior to the passage of the OGA, not the plaintiff's "utterly frivolous" motion for reconsideration, "that led to the production of the five documents that serve[d] as the basis for the plaintiff's attorney fee request" (internal citation and quotation marks omitted)).*fn1 The defendant counters that "[t]he fact that other district courts reached different conclusions" from this Court "is not grounds to alter or amend the judgment" in this case, Def.'s Opp'n at 3, and that "[t]o impose upon [the d]efendant a liability that it was not subject to during the course of the substantive litigation in this case would be a manifest injustice," id. at 4.

The Court agrees with the defendant that a disagreement between two district courts, or even two members of the same district court, over a specific legal issue does not necessarily warrant reconsideration under Rule 59(e). See Messina, 439 F.3d at 758 (requiring reconsideration only where "there is an intervening change of controlling law" (emphasis added) (internal citation and quotation marks omitted)). Nevertheless, the Court has carefully reviewed the two decisions cited by the plaintiff in his motion. Having completed this review, the Court remains convinced that its initial ruling was correct.

The first decision cited by the plaintiff in his motion, Wildlands CPR v. United States Forest Service, 558 F. Supp. 2d 1096 (D. Mont. 2008), barely addresses the issue of retroactivity. In that case, Wildlands CPR filed a suit under the FOIA against the United States Forest Service. Id. at 1097. "After a year of pretrial litigation, the parties participated in a court-mediated settlement conference," which resulted in an amended consent decree. Id. Thereafter, the plaintiff filed a motion for costs and attorney's fees. Id. The defendant opposed this motion, arguing, inter alia, "that the [OGA] [did] not apply" to the plaintiff's motion "because [the p]laintiff filed its suit [eighteen] months prior to the passage of the [a]ct." Id. at 1098.

The district court found this argument to be "easily dispatched" by the Supreme Court's decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994), where the Supreme Court found that a prior case permitting the retroactive application of an attorney's fees statute, Bradley v. School Board of City of Richmond, 416 U.S. 696 (1974), "did not resemble the cases in which [it] ha[d] invoked the presumption against statutory retroactivity" in part because "[a]attorney's fee determinations . . . are collateral to the main cause of action and uniquely separable from the cause of action to be proved at trial," Landgraf, 511 U.S. at 277 (internal citation and quotation marks omitted) (quoted in Wildlands, 563 F. Supp. 2d at 1099). Based upon this language in Landgraf, the district court in Wildlands concluded that "[t]he presumption against retroactivity does not apply here." Wildlands, 563 F. Supp. 2d at 1099.

This reasoning coincides with an argument made by the plaintiff in his original motion for attorney's fees in this case. See N.Y.C. Apparel, 563 F. Supp. 2d at 223 ("The plaintiff argues that § 4 of the OGA does not have any retroactive effect on the substantive rights of the defendant because the statute affects only attorney's fee[s] awards, which are collateral to the main cause of action." (internal citation and quotation marks omitted)). As this Court explained in rejecting that argument, neither Bradley nor Landgraf stand for the proposition "that all statutory provisions regarding attorney's fees awards (as opposed to the specific provision at issue in Bradley) should be deemed not to have any substantively retroactive effect." Id. at 224. Rather, "Bradley . . . turned in large part on the lack of any prejudice to the substantive rights of the defendant, coupled with the fact that the defendant was already on notice that it might have to pay attorney['s] fees before Congress passed" the attorney's fee statute at issue in that case. Id.

As for Landgraf, the Supreme Court's passing observation in that case about the supposedly "collateral" nature of attorney's fee statutes was never intended to be and should not be construed as crafting "'an exception to the rule'" against interpreting statutes to have retroactive effect. Id. (quoting Hughes Aircraft Co. v. United States, 520 U.S. 939, 951-52 (1997)). Indeed, the Supreme Court has subsequently observed that labeling a type of statute as "'collateral'" or "'procedural'" is "'not enough'" to determine "'whether a new statute operates retroactively,'" and that "[a]ttaching the label 'collateral' to attorney's fees questions does not advance the retroactivity inquiry.'" Id. at 225-26 (quoting Martin v. Hadix, 527 U.S. 343, 258-59 (1999)). The perfunctory reliance of the Wildlands court on the language in Landgraf quoted above does not accord with this observation. The Court thus finds Wildlands no more persuasive than the plaintiff's original argument to the same effect, and rejects it for the same reasons that it rejected the plaintiff's argument in its prior memorandum opinion.

The second case cited by the plaintiff, Judicial Watch, Inc. v. Bureau of Land Management, 562 F. Supp. 2d 159 (D.D.C. 2008), addressed the issue of retroactivity in greater detail. In that case, Judicial Watch, Inc., "a not-for-profit organization dedicated to promoting transparency and accountability in government through investigation and dissemination to the public of information regarding official misconduct," initiated a civil lawsuit against the Bureau of Land Management under the FOIA seeking the "release of all documents regarding the activities of three high-ranking federal officials in connection with land transactions in Coyote Springs Valley, Nevada." Id. at 162. After the defendant produced thirty-five pages of documents in response to the plaintiff's lawsuit and conducted a supplemental search at the plaintiff's behest without locating any additional documents, the parties agreed to enter into a stipulated judgment. Id. at 163. Thereafter, the plaintiff filed a motion for attorney's fees. Id. The defendant opposed this motion in part on the grounds that "the [OGA] amendments to the FOIA fee-shifting provision [could not] be applied retroactively," and that the plaintiff's attorney's fee request "fail[ed] when subject[ed] to the 'prevailing party' analysis" preceding those amendments. Id. at 166.

Faced with the same issue presented here-whether the OGA can be applied retroactively to attorney's fee requests based on conduct occurring prior to the bill's enactment-another member of this Court reached a conclusion contrary to that of this member of the Court. The Court reached this result in two stages. First, it concluded that interpreting § 552(a)(4)(E), as amended by the OGA, to have retroactive application did not run afoul of the presumption against interpreting statutes to have retroactive effect articulated in Landgraf. Id. at 167-70.

Second, it found that interpreting the statute in this manner did not violate the normal presumption in favor of the narrowest possible construction of statutes waiving sovereign immunity based upon the District of Columbia Circuit's ruling in Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982). Judicial Watch, 562 F. Supp. 2d at 170-72. This member of the Court reached the exact opposite conclusion with respect to both of these issues. See N.Y.C. Apparel, 563 F. Supp. 2d at 223-26 (reasoning that "[b]ecause Congress did not specify whether § 4 of the OGA should apply retroactively, and because the statute, if applied in such a fashion, would retroactively affect the substantive rights of the defendant, the 'traditional presumption' against retroactivity applies" (quoting Landgraf, 511 U.S. at 280)); see also id. at 226-27 (reasoning that § 4 of the OGA cannot be applied retroactively even if it did not violate the presumption against retroactivity because it "expands the scope of the government's waiver of sovereign immunity by broadening the circumstances under which a plaintiff in a FOIA case can recover attorney's fees").

The analysis in Judicial Watch with respect to the issue of retroactivity differs from the reasoning employed by this member of the Court chiefly in its treatment of Martin. That case involved a dispute over whether certain attorney's fees provisions enacted by the Prison Litigation Reform Act of 1995 (the "PLRA"), Pub. L. 104-134, 110 Stat. 1321 (1996), that limited the amount of fees that attorneys who litigated prisoner lawsuits could recover applied retroactively to work performed by attorneys prior to the statute's enactment. Martin, 527 U.S. at 347-51. The Supreme Court concluded that the attorney's fees provisions, if interpreted to apply retroactively, would have an impermissible retroactive effect on the substantive rights of the attorneys seeking full recovery for work performed in prisoner lawsuits prior to the statute's enactment because they "would alter the fee arrangement post hoc by reducing the rate of compensation" for those attorneys, thereby "attach[ing] new legal consequences to completed conduct." Id. at 358 (internal citation and quotation marks omitted). The Court also distinguished the case before it from Bradley on the grounds that in Bradley "attorney's fees were available, albeit under different principles, before passage of the statute [providing for an award of attorney's fees], and because the [d]istrict [c]court had in fact already awarded fees invoking these different principles" prior to ...


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