Painting Ind. of Hawaii v. US Dept. of Air Force, Civ. No. 89-00713 ACK.

• Decision Date: 31 July 1990
• Docket Number: Civ. No. 89-00713 ACK.
• Parties: PAINTING INDUSTRY OF HAWAII MARKET RECOVERY FUND, Plaintiff, v. UNITED STATES DEPARTMENT OF the AIR FORCE, Defendant.
• Court: U.S. District Court — District of Hawaii

756 F. Supp. 452

PAINTING INDUSTRY OF HAWAII MARKET RECOVERY FUND, Plaintiff, v. UNITED STATES DEPARTMENT OF the AIR FORCE, Defendant.

Civ. No. 89-00713 ACK.

United States District Court, D. Hawaii.

July 31, 1990.

Michael A. Lilly, Green Ning Lilly & Jones, Honolulu, Hawaii, Pauline M. Sloan, San Francisco, Cal., for plaintiff.

Daniel Bent, Theodore G. Meeker, Honolulu, Hawaii, Elizabeth Pugh, David Shaneyfelt, Washington, D.C., for defendant.

ORDER DENYING MOTION FOR RECONSIDERATION

KAY, District Judge.

PROCEDURAL HISTORY

Defendant United States Department of the Air Force, ("Air Force"), moved this Court, pursuant to Rule 60(b)(6), Fed.R. Civ.P., to reconsider its Order of May 25, 1990, partially granting and partially denying cross-motions for summary judgment. 751 F.Supp. 1410. The underlying cause of action was Plaintiff's suit filed under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to compel disclosure by the Air Force of copies of certified payroll records of RG & B Contractors, Inc. ("RG & B"), a painting contractor on a military housing maintenance contract for the 15th Air Base Wing at Hickam Air Force Base, and for a declaratory judgment that contractor's payroll records are not exempt from disclosure. The military housing maintenance contract is subject to (i) the Davis-Bacon Act, 48 C.F.R. §§ 22.403-1, 22.403-2; (ii) Federal Acquisition Regulations, 48 C.F.R. §§ 22.000-22.407; and, (iii) the Copeland (Anti-Kickback) Act, 18 U.S.C. § 874 and 40 U.S.C. § 276c.

The contractor payroll records contain, inter alia, the names, addresses, phone numbers, and social security numbers of RG & B's employees, and also their work classification, hourly rates of pay, daily hours, fringe benefits, and such deductions as union dues.

The Air Force claimed exemption from disclosure under three statutory exemptions—Exemptions 4, 6, and 7(C). Plaintiff, on the other hand, claimed that the Air Force had failed to meet its burden of proving that the requested payroll records were nondisclosable pursuant to any statutory exemption and, accordingly, moved this Court to enjoin the Air Force from withholding the requested records. Both parties moved for summary judgment claiming that there existed no genuine issues of material fact and that they should prevail as a matter of law.

This Court denied the Air Force's motion for summary judgment as to all claimed exemptions. Plaintiff's motion, on the other hand, was partially granted and partially denied. As to Exemption 4, Plaintiff's motion for summary judgment was denied because there existed a genuine issue of material fact. As to Exemptions 6 and 7(C), summary judgment was granted in favor of the Plaintiff, with the exception that should Plaintiff ultimately prevail as to Exemption 4, any order issued by this Court enjoining the Air Force from withholding contractor payroll records would require the Air Force to edit from the requested payroll records the Social Security numbers of the subject contractor's employees.

The Air Force has presented a three-point argument in support of its motion for reconsideration: (i) one of the cases cited in support of the Court's opinion has been subsequently partially vacated, (ii) the Court "is under the belief that this case is a names and addresses case, not an employee wage information case," and (iii) the Court should have considered "what contractor payrolls would reveal about the conduct of the Air Force."

DISCUSSION

It is now well established that in the Ninth Circuit a successful motion for reconsideration brought under Rule 60(b) must accomplish two goals. First, a motion for reconsideration must demonstrate some reason why the Court should reconsider its prior decision. Second, the motion must set forth facts or law of a "strongly convincing" nature to induce the Court to reverse its prior decision. Decker Coal Co. v. Hartman, 706 F.Supp. 745, 750 (D.Mont. 1988), citing, All Hawaii Tours v. Polynesian Cultural Center, 116 F.R.D. 645, 649 (D.Haw.1987), partially rev'd on other grounds, 855 F.2d 860 (9th Cir.1988); see also, Great Hawaiian Financial Corp. v. Aiu, 116 F.R.D. 612, 616 (D.Hawaii 1987), citing, Kern-Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal. 1986), aff'd in part and rev'd in part on other grounds, 828 F.2d 514 (9th Cir.1987), cert. denied, 486 U.S. 1015, 108 S.Ct. 1752, 100 L.Ed.2d 214 (1988).

Courts have established three grounds justifying reconsideration: (i) an intervening change in controlling law, (ii) the availability of new evidence, and (iii) the need to correct clear error or prevent manifest injustice. Decker Coal, 706 F.Supp. at 750; All Hawaii Tours, 116 F.R.D. at 649; Great Hawaiian Financial Corp., 116 F.R.D. at 616; Kern-Tulare Water Dist., 634 F.Supp. at 665; see also, Wright, Miller & Cooper, Federal Practice and Procedure, Law of the Case § 4478 at 790 (1981).

While the Air Force has failed to address these well-established criteria, its arguments may be construed as alleging grounds one and three, i.e., an intervening change in controlling law and the need to correct clear error. The Air Force has made no allegation of newly discovered evidence nor has it alleged manifest injustice.

Intervening Change in Controlling Law

One of the decisions cited by this Court in support of its May 25, 1990 Order partially granting and partially denying cross-motions for summary judgment, was the decision in Retired Officers Ass'n v. Department of the Navy, 716 F.Supp. 662 (D.D.C.1989), partially vacated, 744 F.Supp. 1 (D.D.C.1990) ("Retired Officers"). Upon a motion for reconsideration, the District Court for the District of Columbia subsequently partially vacated its decision in that case. The Air Force apparently contends that that partial vacatur constitutes an intervening change in controlling law requiring reversal of this Court's previous decision. This Court does not agree.

The decision in Retired Officers was cited in support of this Court's decision regarding Exemption 6 to the general requirement of disclosure under Title 5 U.S.C. § 552.

Title 5 U.S.C. § 552(b)(6) provides in relevant part:

This section does not apply to matters that are —

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Title 5 U.S.C. § 552(b)(6) (1976).

The Air Force argued in its previous motion for summary judgment that the requested payroll records are exempt from disclosure because they are personnel or "similar files," the disclosure of which would constitute a "clearly unwarranted invasion of personal privacy."

This Court noted that an Exemption 6 inquiry requires a three step analysis consisting of (i) identification and evaluation of the specific privacy interest implicated, (ii) identification and evaluation of the specific public interest implicated, and (iii) balancing of these two interests. Painting Industry of Hawaii v. U.S. Dept. of the Air Force, 751 F.Supp. 1410, 1415-16 (D.Haw.1990), citing, Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 1476-80, 103 L.Ed.2d 774 (1989) ("Reporters Committee").

This Court noted that one post-Reporters Committee decision, National Ass'n of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990), held that names and addresses of retired and disabled federal employees were nondisclosable under the FOIA's Exemption 6 because no public interest whatsoever had been demonstrated in favor of disclosure and only a modest personal privacy interest had been demonstrated against disclosure. The court concluded, therefore, that the balancing test tipped in favor of non-disclosure. The appellate court, nevertheless, recognized that disclosure of names and addresses presented only a modest privacy interest and that disclosure would be appropriate under some circumstances.¹ In the case before it, however, the court had been presented with no public interest to balance against the modest privacy interest:

We have been shown no public interest in, and a modest personal privacy interest against, disclosure of the names and addresses of individuals receiving federal employee retirement benefits. We need not linger over the balance; something, even a modest privacy interest, outweighs nothing every time. National Ass'n of Retired Federal Employees, 879 F.2d at 879.

This Court reasoned, therefore, that if the court in National Ass'n of Retired Federal Employees had been presented with more than a modest public interest, it would have decided in favor of disclosure of the names and addresses.

This Court also cited Retired Officers, a district court decision, which held that any minimal privacy interest that the retired officers might have had in their names and home addresses was outweighed by the public interest of disclosure to the Retired Officers Association. The district court stated that "when the relatively minor privacy interest at stake is balanced against the public interest in disclosure, the scale tilts in favor of disclosure." Retired Officers, 716 F.Supp. at 667.

This Court concluded that the Air Force had presented no evidence that disclosure of names and addresses of the employees of public works painting contractors involved any more than the modest privacy interests found in Retired Officers and National Association of Retired Federal Employees.

This Court then proceeded to consider the public interest in disclosure of the requested payroll records. Plaintiff posited, as a counterbalance to the Air Force's assertion of the privacy interests of painting contractors' employees in keeping their names, addresses, and social security numbers from disclosure, the public's interest in assuring compliance with Davis-Bacon.

The District Court of the District of Columbia, in an analogous factual...