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Gregory Bowyer, et al v. District of Columbia

April 29, 2011


The opinion of the court was delivered by: Judge Beryl A. Howell


In this case, two District of Columbia firefighters seek reconsideration of a Court Order barring them from asserting certain Whistleblower claims arising from their criticism of the handling of fire investigations in the District of Columbia, including criticism of the investigation into the 2007 fire that destroyed the Eastern Market, a historic D.C. landmark. The plaintiffs argue that since the date of the Court's Order, an intervening change in law no longer precludes the plaintiffs from litigating their previously dismissed claims. The Court holds that the intervening change in law eliminated a procedural rule, which had been the basis for the dismissal, and therefore grants the plaintiffs' motion to reinstate their previously dismissed claims.

On February 19, 2009, plaintiffs Gregory Bowyer and Gerald Pennington filed a Complaint against the District of Columbia, Dennis Rubin, Chief of the District of Columbia Fire and Emergency Medical Services ("DCFEMS"); and Gary Palmer Jr., Deputy Fire Chief of the DCFEMS, alleging violations of their First Amendment rights, racial discrimination, and retaliation in violation of the D.C. Whistleblower Protection Act (hereinafter "WPA"), D.C. CODE § 1-615.51 et seq. Shortly after the plaintiffs filed their Complaint, on March 24, 2009, the defendants filed a motion to dismiss, ECF No. 3, which the Court granted in part and denied in part. Memorandum Opinion and Order, Oct. 14, 2009, ECF Nos. 9-10 (Collyer, J.). The Court dismissed, inter alia,*fn1 any retaliation claims under the WPA contained in Count I of the Complaint*fn2 that were predicated on retaliatory acts occurring before June 30, 2008 because the plaintiffs failed to provide notice of the claim to the District of Columbia within six months of their injury, as required by D.C. CODE § 12-309.*fn3 Since the date of that Order, the parties have proceeded with discovery on the plaintiffs' remaining claims. Discovery is scheduled to conclude on September 30, 2011.*fn4

On February 24, 2011, sixteen months after the Court dismissed the plaintiffs' WPA claims that predated June 30, 2008, the plaintiffs moved for reconsideration of the dismissal of those claims due to an intervening change in law. Pls.' Amended Mot. for Relief, ECF No. 28. The intervening change of law cited by the plaintiffs is the Whistleblower Protection Amendment Act of 2009, D.C. Act 18-265, which became effective on March 11, 2010. This amendment to the WPA eliminated the requirement that plaintiffs comply with D.C. CODE § 12- 309, which mandated that plaintiffs provide notice of claims to the District of Columbia within six months of their injury. In their motion for reconsideration, the plaintiffs contend that the amendment repealing the pre-suit notice requirement for WPA claims should be applied retroactively, and request the Court to modify its October 14, 2009 order, pursuant to Federal Rule of Civil Procedure 60(b), to allow the plaintiffs to revive their previously barred WPA claims. The Court discusses below whether the Whistleblower Protection Amendment Act's elimination of the pre-suit notice requirement alters procedural rules, and should apply to reinstate the plaintiffs' previously barred claims.


Pursuant to Federal Rule of Civil Procedure 60(b)(6), the court may amend a prior ruling if requested to do so by a party for "any [] reason that justifies relief." This rule "grants federal courts broad authority to relieve a party from a final judgment 'upon such terms as are just,' provided that the motion is made within a reasonable time and is not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5)."*fn5 Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 (1988). Given that the rule is "essentially boundless," it applies only in "extraordinary" situations and is to be "sparingly used." Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C. Cir. 1988) (citing Ackermann v. United States, 340 U.S. 193, 202 (1950) and Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). Rule 60(b)(6) "may not be used as a substitute for an appeal not taken" but may be used in "circumstances that essentially made the decision not to appeal an involuntary one." Id. at 1141. Although "[i]ntervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)," Agostini v. Felton, 521 U.S. 203, 239 (1997) (commenting on plaintiff moving under Rule 60(b)(5) for relief from injunction twelve years after it was entered), "the Rule does not particularize the factors that justify relief, but . . . provides courts with authority adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." Liljeberg, 486 U.S. at 863-64 (internal quotation and citation omitted). Nonetheless, Rule 60(b)(6) includes a requirement that the motion "be made within a reasonable time." FED. R. CIV. P. 60(c). The D.C. Circuit "has not identified a standard for assessing 'reasonable time' under Rule 60(b) . . . [but] has [] considered prejudice to the non-moving party." Salazar ex rel. Salazar v. District of Columbia, 633 F.3d 1110, 1118 (D.C. Cir. 2011). In long-running cases, where the non-moving party has not demonstrated that it would be prejudiced, it would "be an abuse of discretion to rule that a Rule 60(b)(6) motion is not filed within a reasonable time." Id. at 1119.


The plaintiffs urge the Court to reconsider dismissal of the plaintiffs' WPA claims that arose before June 30, 2008 because the Whistleblower Protection Amendment Act of 2009 no longer requires litigants asserting claims under the WPA to provide pre-suit notice of their claims to the District of Columbia and this amendment should apply retroactively. As a general matter, laws are not applied retroactively and "the presumption against retroactive legislation is deeply rooted in our jurisprudence." Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994). Courts, however, have drawn a distinction between laws that affect substantive rights and laws that change procedural rules. Id. at 275; Moore v. Agency for Int'l Dev., 994 F.2d 874, 878-79 (D.C. Cir. 1993). Laws that affect substantive rights are presumed to operate only prospectively, but for "statutes that affect prospective relief, change procedural rules, or confer or oust jurisdiction, retroactive application is proper." Lee v. Reno, 15 F. Supp. 2d 26, 44 (D.D.C. 1998) (citing Landgraf, 511 U.S. 273-75); Lacek v. Washington Hosp. Ctr. Corp., 978 A.2d 1194, 1197 (D.C. 2009) ("[L]aws which provide for changes in procedure may properly be applied to conduct which predate their enactment." (quotation and citation omitted)). As the Supreme Court noted, "[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity" because there are "diminished reliance interests in matters of procedure." Landgraf, 511 U.S. at 275.

To determine whether a law is procedural, the Court must assess "whether the new provision attaches new legal consequences to events completed before its enactment." Id. at 269-270; see also id. at 280 ("the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed."). Procedural laws generally only "relate to the modes of procedure or confirm or clarify existing rights." See Davis v. District of Columbia, No. 2005-CA-8772-B, slip op. at 4-5 (D.C. Super. Ct. Nov. 23, 2010) (quoting Edwards v. Lateef, 558 A.2d 1144, 1146-47 (D.C. 1989)). Unless contrary legislative intent appears, "[w]here a statute deals only with procedure, prima facie it applies to all actions -- to those which have accrued or are pending, and to future actions." Moore, 994 F.2d at 879 (quoting NORMAN J. SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 41.04, at 349 (4th ed. 1986)); see also SINGER AND SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION, § 41.4 (7th ed. 2009) ("Courts presume that procedural statutes apply retroactively.").

To ascertain whether elimination of the pre-suit notice requirement of the Whistleblower Protection Amendment Act is procedural, and may thus be applied retroactively to reinstate the plaintiffs' pre-June 30, 2008 WPA claims, the Court must assess whether the provision affects substantive rights and "attaches new legal consequences" to completed conduct. See Landgraf,511 U.S. at 269-270. The Court concludes that it does not. The only change resulting from the elimination of the pre-suit notice requirement is that it authorizes plaintiffs to assert WPA claims against the District of Columbia without prior notice within six months of their injury. The amendment does not affect the substantive rights of the parties, nor does it alter the legal obligations of the defendants, who still must refrain from retaliating against whistleblowers.

The defendants argue that a notice of claim requirement is not procedural because retroactive application of the law would have substantive consequences, and cites for that proposition Bank of America, N.A. v. Griffin, 2 A.3d 1070 (D.C. 2010). In that case, however, the court considered retroactive application of a lis pendens statute regarding real property, which, according to the court, "upended the common-law rule regarding rights of priority in the District of Columbia." Id. at 1071. That case is not analogous to the present situation. The elimination of the pre-suit notice requirement for WPA claims does not affect property rights or have consequences for other substantive rights. Cf. Landgraf, 511 U.S. at 271. ("The largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights."). The statute merely removes a procedural hurdle to assertion of WPA claims that previously applied. See Winder v. Erste, No. 03-cv-2623, slip op. at 4 (D.D.C. Mar. 7, 2011) (Bates, J.) ("Notice of claim requirements are plainly procedural and not substantive in nature.").

Further, the legislative history of the Whistleblower Protection Amendment Act supports the conclusion that the elimination of the pre-suit notice requirement for WPA claims is, and was intended to be, a procedural change. The 2009 D.C. Council Committee Report on the Act identified the notice of claim requirement as among the "procedural barriers to recovery."


(NOV. 19, 2009) (hereinafter "2009 Council Report"), at 6. Specifically, the D.C. Council noted that "[b]eyond the substantive changes . . . the Committee recommends that the procedures be amended . . . ." Id. This included amending the WPA to "explicitly waive[] the notice provision, such that ยง 12-309 does not preempt claims against the District." Id. at 7. The D.C. Council report indicates not only that the Council believed it was enacting a procedural change to the WPA, but also ...

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