Sardarian v. Federal Emergency Management Agency

          RULING ON PLAINTIFF'S MOTION FOR RECONSIDERATION [DOC. 37]

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Pro se plaintiff Arkady Sardarian commenced this action pursuant to the Stafford Act, 42 U.S.C. §§ 5133, et seq., the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq., and the Civil Rights Act of 1871, 42 U.S. Code § 1983, to void the decision by the Federal Emergency Management Agency ("FEMA") in July 2018 to terminate previously awarded Hazard Mitigation Grant Program ("HMGP") funding for the elevation of the lowest living area of his raised-ranch slab-on-grade residence located in Westport, Connecticut. Doc. 1, ¶ 1. Defendants in the action include FEMA, the Department of Emergency Services and Public Protection ("A Division of Connecticut, Emergency Management and Homeland Security"), the Town of Westport, and a list of individual defendants who are governmental officials in the aforementioned and other agencies, in their official capacities.

         Pending before the Court is Plaintiff's motion for reconsideration [Doc. 37] of the Court's prior Ruling [Doc. 34], denying without prejudice his motion to redact personal information [Doc. 19], which he submitted in support of his motion for appointment of counsel [Doc. 7].

         II. DISCUSSION

         A. Standard for Reconsideration

         "A motion for reconsideration is an extraordinary request that is granted only in rare circumstances, such as where the court failed to consider evidence or binding authority." Van Buskirk v. United Grp. of Companies, Inc., 935 F.3d 49, 54 (2d Cir. 2019). "The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Id. (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Accordingly, "[t]he major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790).^[1]

         It is well-settled that a motion for reconsideration "is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a 'second bite at the apple.'" Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012), as amended (July 13, 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). "Denials of motions for reconsideration are reviewed only for abuse of discretion." Id. (quoting Empresa Cubana del Tabaco v. Culbro Corp., 541 F.3d 476, 478 (2d Cir.2008) (per curiam)).

         B. Plaintiff's Motion for Reconsideration

         In the case at bar, Plaintiff moves the Court to reconsider its denial, without prejudice, of his motion to redact personal information he presented to the Court in support of his motion for appointment of counsel. He presents what he terms "clarifications and explanations" that he hopes will convince the Court that his privacy interests in the information "outweigh the public's interest in obtaining [that] information." Doc. 37, at 1.

         Essentially, Plaintiff seeks to reargue his motion for redaction. He requests once again that the Court redact information bearing on the issue of whether he lacked sufficient funds to obtain his own counsel and the circumstances he believed supported his motion for appointed counsel. The Court declined to appoint counsel for Plaintiff on June 19, 2019, because the financial information he presented established plainly that he was not indigent or "unable to afford counsel" under the applicable statute, 28 U.S.C. § 1915(e)(1). Doc. 12, at 9-10. He then moved to redact much of the personal information he had presented. This information related to his financial status, including: general sums for his salary as a project engineer, earned income, taxes, interest, dividends, rents, investments, savings, property, and loans. Doc. 19-1, ¶¶ 3-7. He also sought to redact his statements regarding certain family members who rely on him for support, the fact that no member in his household over age 18 is presently employed, his projections for his financial status in future years, and the reasons he attempted to secure counsel on a contingency basis. Id. ¶¶ 8-10. Finally, Plaintiff requested to redact the circumstances which he believed supported his application for appointment of counsel, including, inter alia, his need for a suitable attorney who is familiar with court rules and procedure and his belief that his work overseas will prevent him from attending to court-related matters on a timely basis. Id. ¶ 15. Plaintiff characterized all of this information he designated for redaction as "personal" but failed to provide the Court with a basis to redact or seal.

         In its Ruling denying redaction, the Court explained the standard to seal, noting that there is "a strong, long-established presumption of public access to judicial documents, those documents that are 'relevant to the performance of the judicial function and useful in the judicial process.'" Doc. 34, at 3 (quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) and collecting cases).^[2] The presumption of public access is at its strongest when the documents at issue have "been submitted as a basis for judicial decision making." Id. (quoting Greater Miami Baseball Club Ltd. P'ship v. Selig, 955 F.Supp. 37, 39 (S.D.N.Y. 1997)). A federal court may only seal a document if "specific, on the record findings are made demonstrating that 'closure is essential to preserve higher values and is narrowly tailored to serve that interest.'" Id. at 4 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13-14 (1986) ("Press Enterprise II")).

         It was Plaintiff's burden, as the party requesting sealing, to demonstrate the grounds to seal each requested portion of his documents. Id. (citing DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 826 (2d Cir. 1997)). To do so, he was required to establish the particular prejudice or harm resulting if the designated portions of his documents were not sealed. Only then could the Court make the requisite "particularized findings demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored to serve those reasons." D. Conn. L. Civ. R. 5(e)3.

         Plaintiff, however, failed to present specific grounds to seal the information at issue. The Court thus denied his motion to seal, explaining that the information had been central to the Court's ruling denying appointment of counsel. The financial data presented had shown that Plaintiff did not lack sufficient funds to obtain his own counsel. Plaintiff had simply requested his information to be sealed as "personal," perhaps due to his discomfort in knowing that his finances had been exposed to public view. The Court explained that "[t]he mere fact that some level of discomfort, or even embarrassment, may result from the dissemination of [the particular material] is not in and of itself sufficient to establish good cause to support the issuance of [a] protective order." Id. at 6 (quoting Flaherty v. Seroussi, 209 F.R.D. 295, 299 (N.D.N.Y. 2001)). In denying Plaintiff's motion to seal without prejudice, the Court clarified that Plaintiff may re-file his motion for redaction "with the particularized grounds to seal any requested paragraph in a supporting memorandum of law." Id. at 8.

         Rather than filing such an amended motion to redact, setting forth the requisite particularized grounds for sealing designated information, Plaintiff has filed the present motion for reconsideration, asserting that the Court is mistaken in its "current understanding" of the Plaintiff's reason for submitting his financial information in the first place. Doc. 37, at 2. He states that he is "well aware that he is not indigent" and is "willing to pay reasonable attorney[s'] fees from the proceeds of the lawsuit along with reasonable retaining fee[s]." Id. However, he moved for appointed counsel based on language he read in the Court-issued "Guide for Self-Represented Litigants"(revised Mar. 8, 2018) (herein "Guide"). Id. at 2-3.

         In particular, Plaintiff notes that the Guide states that "Counsel is appointed in a few select cases where the court determines that representation by an attorney is particularly appropriate or necessary"; and to qualify, a self-represented litigant must "demonstrate that he has made attempts to obtain representation or legal assistance on his own, but was unsuccessful." Id. at 2 (quoting Guide, at 16-17). Plaintiff thus explains that he applied for appointment of counsel because his "efforts to obtain qualified representation did not yield any result." Id. He argues that there "is no mention of the requirement of any party to be indigent" to obtain counsel in the "Court-appointed Counsel section of the Guide." Id. at 3 (emphasis in original) (citing Guide, at 16-17). He concludes "[i]n summary [that] self-represented litigants are not informed that in order to qualify for a Court appointed counsel, the applicants must be indigent" or else he would have "refrained from undertaking the effort to request a Court appointed counsel." Id. at 3.

         Plaintiff then spends five pages of his memorandum discussing and summarizing Connecticut case law and various Connecticut "Practice Book" sections regarding sealing in state court. Unfortunately, Plaintiff, as a pro se litigant, fails to comprehend that by filing his action in federal court - as opposed to state court - only Federal Rules and case precedent of the Second Circuit and United States Supreme Court are binding on this Court's decisions.

         Finally, Plaintiff states that he believed that when he filed his motion for appointment of counsel on the case docket, it would be "treated in strict confidentiality by the Court" because he received "no warning . . . that the divulged personal or financial information . . .[would] become a matter of public record and remain in [the] public domain." Id. at 7. He notes that in the "Privacy Policy" section of the pro se Guide, litigants are asked only to "partially redact personal data identifiers from their pleadings" but there is no language "alerting the self-represented litigants from filing any other written sensitive personal and financial information." Id. Therefore, the language in the Guide "did not stop the Plaintiff from disclosing confidential private information." Id. at 8.

         In addition to taking issue with the Guide, Plaintiff faults the Clerk's Office in failing to inform him of the Court's "pilot program allowing attorneys to e-file sealed motions and sealed documents in civil cases" and in failing to warn him that "any confidential information in the motion will become a matter of public record." Id. Plaintiff thus asks the Court to redact his "personal" information on the grounds that he was "unintentionally led to publicly file his confidential personal and financial information due to lack of simple, easy-to-understood [sic] and ...