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Stacey A. Kittner v. Robert M. Gates

May 11, 2011


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff Stacey A. Kittner brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), against Defendant Robert M. Gates in his official capacity as Secretary of Defense. Kittner also alleges violations of her Fifth Amendment rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), against several Department of Defense employees sued in their individual capacities. The individually sued Defendants include Deborah Monroe, Deputy Chief, Directorate for Analysis, Office of Counter-Proliferation Technology ("CPT"), Defense Intelligence Agency ("DIA"); Col. William Russel Strosnider, Chief, Operating Base National Capitol Region ("OBNCR"), DIA; Capt. William S. Gieckel, Acting Chief, OBNCR; Scott Darren LaCoss, Chief of Controlled Operations, OBNCR; Brad Ahlskog, Division Chief, CPT; and Claudia Caslow, Korean Team Chief, CPT.

This matter is presently before the Court on Plaintiff's Motion for Reconsideration (May 26, 2010) ("Plaintiff's Mot.") [Dkt. No. 32] of the Court's April 28, 2010 Order [Dkt. No. 27] granting Defendants' Motion to Dismiss Plaintiff's Bivens claim against the individually sued Defendants. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Plaintiff's Motion for Reconsideration is denied.

I. Standard of Review*fn1

Plaintiff properly brings her Motion for Reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b). As the moving party, Plaintiff has the burden of demonstrating that relief under either of these Rules is warranted. Messina v. Krakower, 439 F.3d 755, 758-59 (D.C. Cir. 2006); Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995).

It is well-established that a motion for reconsideration is committed to the sound discretion of the court. Murray, 52 F.3d at 355. The granting of such a motion is, however, an unusual measure, occurring in extraordinary circumstances. Firestone v. Firestone 76 F.3d 1205, 1208 (D.C. Cir. 1996)(per curiam); Anderson v. District of Columbia, 72 F.3d 166, 167-68 (D.C. Cir. 1995) (per curiam).

The court will entertain a motion for reconsideration only "where sufficient grounds for disturbing the finality of the judgment" are shown. Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006) (citations omitted). In particular, such a motion "'need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Messina, 439 F.3d at 758 (quoting Firestone, 76 F.3d at 1208).

II. Analysis

Plaintiff urges the Court to reconsider and vacate its April 28, 2010 Order on the grounds that new evidence obtained from the Government demonstrates that the Court's dismissal of Plaintiff's Bivens claim against the individually sued Defendants will result in manifest injustice. Plaintiff's Mot. 2. Plaintiff argues that various new documents produced by the Government on April 13, 2010, after completion of briefing of Defendants' Motion to Dismiss, demonstrate that "the individual Defendants, acting under the color of law, exceeded the scope of their employment by intentionally and improperly engaging in unlawful and conspiratorial acts such as making false allegations, and perpetuating allegations they knew to be false, in an effort to prevent Plaintiff . . . from doing her job." Id. at 7.

As recounted by Plaintiff, the new evidence strongly implicates the individually sued Defendants in discriminatory and retaliatory actions aimed at limiting Plaintiff's employment opportunities. Nonetheless, under applicable case law, Plaintiff's new evidence does not entitle her to a renewed Bivens claim against these parties.*fn2

In order to support a motion for reconsideration under Rule 60(b), Plaintiff's new evidence must meet four requirements: (1) it "must have been in existence at the time of trial" [in this case at the time of the Court's April 28, 2010 Order]; (2) it "must be such that if [sic] was not and could not by the exercise of due diligence have been discovered in time to present it in the original proceeding;" (3) it must not be "merely cumulative or impeaching;" and (4) it "must be admissible and credible, and of such a material and controlling nature as will probably change the outcome." Canady v. Erbe Elektromedizin GmbH, 99 F. Supp. 2d 37, 44 (D.D.C. 2000) (citations omitted).

As it is undisputed that the new evidence was in existence during the relevant time period, and that Plaintiff could not have otherwise obtained it by due diligence in time to include it in briefing on Defendants' Motion to Dismiss, Plaintiff's proffered evidence satisfies the first two Canady requirements. However, the new evidence fails to satisfy the remaining two prongs of Canady's four-part test. As the Government correctly argues, Plaintiff's new evidence is merely cumulative and corroborative of the factual allegations this Court dismissed in its April 28, 2010 Order and that it assumed to be true for purposes of rendering that decision. See April 28, 2010 Memorandum Opinion 2 n.2 ("April 28, 2010 Mem. Op.")[Dkt. No. 28]. In light of these circumstances, Plaintiff's new evidence cannot change the outcome of the Court's April 28, 2010 Order dismissing her Bivens claim against the individually sued Defendants.

Consequently, because the new evidence fails to meet the last two requirements of Canady, the Court denies Plaintiff's Motion for Reconsideration on the basis of her new evidence.

Plaintiff's remaining arguments in support of her Motion for Reconsideration fall into two categories: (1) arguments relating to Title VII preemption of Plaintiff's Bivens claim; and (2) arguments relating to Plaintiff's need to ...

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