Baas et al v. Fewless et al

Filing 50

ORDER denying 48 Motion for Reconsideration. Signed by Judge Roy B. Dalton, Jr. on 2/17/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LESLIE BAAS; TRACY OSTEEN; and
DOYLE NAPIER,
Plaintiffs,
v.

Case No. 6:15-cv-565-Orl-37KRS

MICHAEL A. FEWLESS; and JOHN
MCMAHON,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Plaintiffs’ Motion for Rehearing and/or Reconsideration (Doc. 48), filed
December 19, 2016; and

2.

Defendants’

Response

to

Plaintiffs’

Motion

for

Rehearing

and

Reconsideration (Doc. 49), filed December 21, 2016.
BACKGROUND
On April 7, 2015, Plaintiffs initiated this action against Defendants for alleged
violations of the Driver’s Privacy Protection Act (“DPPA”). Finding that Defendants’ use
of the photographs on Plaintiffs’ drivers licenses (“DL Photos”) in lobbying members of
the Florida Senate Judiciary Committee (“Committee”) did not violate the DPPA (see
Doc. 46 (“Summary Judgment Order”)), the Court entered judgment in favor of
Defendants and against Plaintiffs (Doc. 47 (“Judgment”)). Plaintiffs now move to alter or
amend the Judgment under Federal Rule of Civil Procedure 59(e) (Doc. 48 (“Motion to
Reconsider”).) Defendants oppose the motion. (Doc. 49.)

STANDARDS
Reconsideration under Federal Rule of Civil Procedure 59(e) is appropriate on the
basis of: (1) an intervening change in controlling law; (2) newly discovered evidence; or
(3) clear error or manifest injustice. See Beepot v. JP Morgan Chase Nat’l Corp. Servs.,
626 F. App’x 935, 939 (11th Cir. 2015); Sussman v. Salem, Saxon & Nielsen, P.A.,
153 F.R.D. 689, 694 (M.D. Fla. 1994). But Rule 59 is not an appropriate device to
“relitigate old matters, raise argument or present evidence that could have been raised
prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d
757, 763 (11th Cir. 2005). Indeed, “[t]he Court’s reconsideration of a previous order is an
extraordinary remedy, to be employed sparingly,” Mannings v. Sch. Bd. of Hillsborough
Cty., 149 F.R.D. 235, 235 (M.D. Fla. 1993), and “the decision to grant such relief is
committed to the sound discretion of the district judge . . . .” Region 8 Forest Serv. Timber
Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993).
DISCUSSION
In their Motion to Reconsider, Plaintiffs assert that the Court should alter or amend
the Judgment to “correct clear error or manifest injustice.” (Doc. 49.) Specifically, Plaintiffs
argue that the Court erred by failing to: (1) consider a notice of disciplinary action
(Doc. 42-3 (“Notice”)) against Defendant John McMahon (“Agent McMahon”) for
distributing the DL Photos to Defendant Michael Fewless (“Captain Fewless”)
(“Evidentiary Argument”); and (2) employ a balancing test in determining whether
Defendants’ actions violated the DPPA (“Balancing Argument”). (Id.)
I.

Evidentiary Argument
In its Summary Judgment Order, the Court found that Defendants’ actions

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constituted law enforcement agency functions and thus fell within the government function
exception of the DPPA. (Doc. 46; see also 18 U.S.C. 2721(b)(1) (“Government Function
Exception”).) To rebut this conclusion, Plaintiffs argue that the disciplinary action taken
against Agent McMahon by issuance of the Notice negates the argument that he was
“carrying out [law enforcement agency] functions” when he distributed the DL Photos to
Captain Fewless for use in lobbying. (Doc. 48, pp. 2–3.) In support, Plaintiffs contend that
“law enforcement agencies do not discipline their employees for proper conduct that falls
within the course and scope of their duties.” (Id. at 3.) The Evidentiary Argument finds no
basis in law. Plaintiffs cite no decisional law, nor has the Court found any, to support the
proposition that a violation of a state agency’s internal policy is relevant to or alters the
application of federal law in determining the boundaries of the Government Function
Exception. As such, the Court did not err in declining to consider the Notice.
II.

Balancing Argument
As a second ground for reconsideration, Plaintiffs contend that, after concluding

that Defendants’ actions fit within the Government Function Exception, the Court was
required to balance the competing interests at play here—that is, Plaintiffs’ privacy
interests in the DL Photos and the governmental interest in disclosing the DL Photos.
(Doc. 48, pp. 5, 7.) But as Plaintiffs readily admit, Congress has already struck that
balance. (See id. at 5.) As noted by U.S. District Judge Stanwood R. Duval, “[i]n enacting
the DPPA, Congress intended to strike ‘a critical balance between legitimate
governmental and business needs for this information, and the fundamental right of our
people to privacy and safety.’” See Russell v. ChoicePoint Servs., 300 F. Supp. 2d 450,
456 (E.D. La. 2004) (quoting 139 Cong. Rec. S15, 763 (1993)). To suggest that the Court

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should revisit the congressional balancing analysis would improperly encroach on the
legislative prerogative of Congress. That is not the role of the judiciary.
In making this argument, Plaintiffs also contend that Captain Fewless’s true
purpose for disclosing the DL Photos was not to lobby the Committee, but rather to
propagate a “counter-stereotype” to the lobbying efforts of a pro-gun lobbyist. (Doc. 48,
p. 5 (citing Captain Fewless’s deposition testimony).) Plaintiffs imply that this hidden
motive prevents Defendants’ actions from falling within the Government Function
Exception. But nothing in the record suggests that Defendants obtained or used the
DL Photos for anything other than lobbying. The use of the DL Photos falls within the
Government Function Exception established by Congress. There is no further balancing
to be done.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that Plaintiffs’ Motion for
Rehearing and/or Reconsideration (Doc. 48) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on February 17, 2017.

Copies:
Counsel of Record

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