                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


GREGORY BOWYER, et al.,


                         Plaintiffs,
                                                       Civil Action No. 09-0319 (BAH)
                         v.                            Judge Beryl A. Howell

DISTRICT OF COLUMBIA, et al.,

                         Defendants.


                                       MEMORANDUM OPINION

          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.


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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, 1 any retaliation claims under the WPA contained in Count I of the

Complaint 2 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. 3 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. 4

         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

1
 In its October 14, 2009 Order, the Court also dismissed the plaintiffs’ WPA claims against defendants Dennis
Rubin and Gary Palmer because the WPA did not create a private right of action against the plaintiffs’ individual
supervisors; and also struck the plaintiffs’ claim for punitive damages, which were not allowed against the District.
Memorandum Opinion and Order, Oct. 14, 2009, ECF Nos. 9-10 (Collyer, J.).
2
  Count I of the Complaint incorporates “each of the allegations stated in paragraphs 1 through 49.” Compl. ¶ 50.
While the Court’s October 14, 2009 dismissal Order does not specify the paragraphs dismissed from Count I, the
allegedly retaliatory actions held to be time-barred are described in paragraphs 18 through 22, and 29 through 37.
3
  The pre-suit notice requirement in D.C. CODE § 12-309 operates broadly as a six-month statute of limitations for
any claim asserted against the District of Columbia. It provides that “an action may not be maintained against the
District of Columbia for unliquidated damages to person or property unless, within six months after the injury or
damage was sustained, the claimant . . . has given notice in writing . . .” D.C. CODE § 12-309. Prior to the most
recent amendment, the WPA required compliance with the notice requirements of Section 12-309. The plaintiffs
sent a letter to the District of Columbia dated December 23, 2008 notifying the District of their claims, which was
received by the defendants on December 30, 2008. Defs.’ Mem. Supp. Mot. Dismiss, ECF No. 3, at 30. Due to the
plaintiffs’ failure to provide the District with appropriate notice, the Court dismissed the plaintiffs’ WPA claims
arising from conduct prior to June 30, 2008, the date six months prior to the District’s receipt of the plaintiffs’ letter.
4
 On April 26, 2011, the Court granted plaintiffs’ Motion to Reset the Scheduling Order Deadlines, ECF No. 35, and
extended the discovery period from its original March 31, 2011 deadline to September 30, 2011. Minute Order
dated April 26, 2010.

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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.

I.       STANDARD

         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).” 5 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



5
  Rule 60(b)(1) through (5) allow a party to seek relief from final judgment for the following reasons: “(1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable.” FED. R. CIV. P. 60(b).

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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.

II.    DISCUSSION

       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.



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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.”).



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       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



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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.”

COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON GOVERNMENT OPERATIONS AND THE

ENVIRONMENT, RE: BILL 18-233, THE WHISTLEBLOWER PROTECTION AMENDMENT ACT OF 2009

(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 § 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 indicates that the Council enacted this provision to ensure that WPA claims were

not unnecessarily barred by technical requirements.

       The defendants contend, however, that elimination of the pre-suit notice requirement

should not apply retroactively because compliance with the notice requirement was a “condition

precedent to the District’s waiver of sovereign immunity,” Defs.’ Opp’n Pls.’ Amended Mot. for

Relief, ECF No. 31, at 2-3, and waivers of sovereign immunity must be “unequivocally

expressed.” United States v. King, 395 U.S. 1, 4 (1969); Floyd v. District of Columbia, 129 F.3d

152, 156 (D.C. Cir. 1997). The defendants are correct that waivers of sovereign immunity must

be clearly expressed, but the District waived such immunity when it first enacted the WPA in

1998, allowing aggrieved District employees to file civil actions and seek relief and damages

under a new WPA cause of action. D.C. CODE § 1-615.54(a). The 2010 elimination of the pre-

suit notice requirement for WPA claims does not enlarge the scope of this cause of action, alter

the District’s responsibilities, or increase the District’s liability under the WPA. Cf. Brown v.



                                                  7
Sec’y of the Army, 78 F.3d 645, 654 (D.C. Cir. 1996) (refusing to retroactively apply award of

interest on attorney’s fees because to do so “would be to impose upon the United States a

liability to which it has not explicitly consented.”); Nichols v. Pierce, 740 F.2d 1249, 1255-56

(D.C. Cir. 1984) (same).

       The Court therefore concludes that the elimination of the pre-suit notice provision in the

Whistleblower Protection Amendment Act is a procedural change, which must therefore be

applied to pending actions and claims. This conclusion is supported by another court in this

District and two D.C. Superior Court rulings, which considered the precise question currently

before the Court and held that the elimination of the pre-suit notice requirement for WPA claims

should be applied retroactively. Winder v. Erste, No. 03-cv-2623, slip op. (D.D.C. Mar. 7, 2011)

(Bates, J.); Davis v. District of Columbia, No. 2005-CA-8772-B, slip op. (D.C. Super. Ct. Nov.

23, 2010) (Edelman, J.); Cusick v. District of Columbia, No. 2008-CA-6915-B, slip op. (D.C.

Super. Ct. Aug. 17, 2010) (Braman, J.).

       Accordingly, the Court modifies its prior Order pursuant to Federal Rule of Civil

Procedure 60(b)(6), and reinstates the plaintiffs’ WPA claims that predated June 30, 2008.

Although Rule 60(b)(6) should rarely be used to reconsider prior rulings based on intervening

changes in law, the Court believes that reinstatement of the plaintiffs’ previously barred claims is

necessary to accomplish justice, particularly given that the plaintiffs’ remaining WPA claims are

still pending, the parties have yet to conclude discovery, and the D.C. Council has indicated that

elimination of the pre-suit notice requirement for WPA claims was intended to facilitate such

claims. See 2009 Council Report, at 7 (“the proposed legislation also explicitly waives the notice

provision, such that § 12-309 does not preempt claims against the District.”). Moreover,

although over thirteen months have passed since the Whistleblower Protection Amendment Act



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became effective, the Court concludes that the plaintiffs’ Rule 60(b)(6) motion was brought

within a reasonable time since the parties are still in discovery and the defendants have not

claimed that they are prejudiced by reinstatement of the plaintiffs’ claims. See Salazar, 633 F.3d

at 1119 (in long-running and complex cases “it would be an abuse of discretion to rule that a

Rule 60(b)(6) motion is not filed within a reasonable time without finding that the movant’s

delay has prejudiced the non-moving party.”).

III.   CONCLUSION

       For the reasons stated above, the plaintiffs’ Amended Motion for Relief is GRANTED;

and the plaintiffs’ claims brought pursuant to the D.C. Whistleblower Protection Act arising

from conduct predating June 30, 2008 are hereby reinstated. An Order consistent with this

Memorandum Opinion will be entered.


DATED: April 29, 2011

                                                             /s/Beryl A. Howell
                                                             BERYL A. HOWELL
                                                             United States District Judge




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