Bowyer v. District of Columbia
779 F. Supp. 2d 159
D.D.C.2011Background
- Bowyer and Pennington, DC firefighters, sued the District and DCFEMS officials for First Amendment retaliation, WPA violations, and discrimination.
- The WPA claims pre-date June 30, 2008 and were dismissed for failing to provide pre-suit notice under DC Code §12-309.
- The court granted partial dismissal on October 14, 2009, barring pre-June 30, 2008 WPA retaliation claims for lack of notice.
- Discovery proceeded on remaining claims; notice issue remained the primary procedural obstacle.
- Plaintiffs moved on Feb. 24, 2011 to reinstate the barred WPA claims based on the Whistleblower Protection Amendment Act of 2009, effective March 11, 2010.
- Court must decide whether the 2009 amendment’s notice-elimination is procedural and retroactive and whether Rule 60(b)(6) relief is appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2009 WPA amendment eliminating pre-suit notice is procedural and retroactive. | Bowyer/Pennington argue the change is procedural and retroactive. | District contends the change is substantive or not retroactive and would expand liability. | Yes; retroactive procedural change reinstates pre-June 30, 2008 WPA claims. |
| Whether Rule 60(b)(6) relief is appropriate to reinstate barred claims. | Motion is timely and needed to accomplish justice given ongoing discovery. | Rule 60(b)(6) should be used sparingly and not for changes in law. | Yes; Rule 60(b)(6) relief granted to reinstate the claims. |
| Whether the retroactive application would affect sovereign immunity waivers or District liabilities. | Elimination of notice does not enlarge the WPA waiver or District liability. | Waiver must be unequivocally expressed; retroactivity could expand liability. | Retroactive procedural change does not enlarge the District’s waiver or substantive rights. |
Key Cases Cited
- Landgraf v. USI Film Prod., 511 U.S. 244 (1994) (test for retroactivity differentiating procedural vs substantive changes)
- Moore v. Agency for Intl. Dev., 994 F.2d 874 (D.C.Cir.1993) (procedural changes may apply retroactively absent contrary intent)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) (Rule 60(b)(6) relief is extraordinary and sparingly used)
- Bank of America, N.A. v. Griffin, 2 A.3d 1070 (D.C.2010) (retroactivity of procedural changes in DC with official reporter)