The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Federal death row inmate Jeffrey Paul moves under Federal Rules of Civil Procedure 59(e) and 60(b) for reconsideration of an order denying his untimely motion to intervene. He claims that documented mental incompetence rendered him unable to assert his right to challenge his method of execution and cannot bar intervention, and that disallowing intervention will impair his legally-protectable interests in this litigation. Because Paul presents no newly-discovered evidence, factual or legal error, or manifest injustice warranting reconsideration, the motion will be denied.
Paul was convicted of murder on federal land and sentenced to death in 1997. (Paul's Mem. in Support of Mot. to Interv. ("Mot. to Interv.") at 2.) Paul's counsel appealed his conviction and death sentence; petitioned for a writ of certiorari in 2001; filed a 28 U.S.C. § 2255 motion in 2002; filed a Rule 59(e) motion to alter or amend the district court's denial of his § 2255 motion in 2005; applied for a certificate of appealability in 2008, and petitioned the Supreme Court for certiorari in 2009. (Id.)
This action was filed in December of 2005. Several plaintiffs successfully moved to intervene in this action between 2006 and 2007. Roane v. Gonzales, 269 F.R.D. 1, 2-3 (D.D.C. 2010). With the assistance of three attorneys, two of whom continue to represent him now, Paul moved to intervene only in October of 2009. (See id. at 3; Mot. to Interv. at 11; Paul's Mot. to Reconsider ("Mot. to Recons.") at 1, 15.) His motion was denied, Roane, 269 F.R.D. 1, and he seeks reconsideration.
Paul now claims that he has been unable to assert his right to challenge his method of execution due to a long-standing incapacitating mental disability. (Mot. to Recons. at 7, 12.) To support the claim, Paul cites concerns expressed in 1997 by a psychologist, Dr. H. Anthony Semone, about Paul's competency to stand trial; a 2006 report by a psychiatrist, Dr. Seymour Halleck, opining that since Paul's attempt in November 2003 to hang himself, "his mental condition has deteriorated to such an extent that he is unable to assist his attorneys in proceedings relevant to his appeal" (Defs.' Mot. to Recons., Ex. 1 at 9, 19; id., Ex. 3 at 3); and a 2004 affidavit by one of Paul's appellate attorneys stating that he and Paul had had "only one rational conversation about the merits of his case" (id., Ex. 5 at 1). Paul raised this claim in neither his motion to intervene nor his reply to the government's opposition to his motion to intervene.
The government opposes reconsideration and notes that Paul's competency issues were fully examined in the district court both before and after his trial and in the court of appeals thereafter. (Defs.' Notice to the Court ("Defs.' Notice") [Docket #273] at 2-4.) As the Eighth Circuit explained, the district court authorized two mental health examinations before trial to assess Paul's competence to stand trial. The district court received opinions from the same two experts, Dr. Semone and Dr. Kuo, whose declarations accompany Paul's pending motion to reconsider. Paul v. United States, 534 F.3d 832, 848 (8th Cir. 2008). The district court also received the same 2004 declaration signed by Dr. Halleck post-trial during the habeas proceedings after Paul's hanging attempt that accompanies Paul's pending motion to reconsider. The district court thereafter held a hearing and engaged in a lengthy colloquy via teleconference with Paul, id. at 849-50, and invited briefing concerning Paul's competency at that time, id. at 851-52. The district court found Paul fully competent based upon letters Paul had written, and Paul's conduct, conversation and demeanor during the hearing. On appeal, the court of appeals authorized Dr. Halleck to examine Paul and it received Dr. Halleck's same 2006 report that accompanies Paul's pending motion. Id. at 852. The Eighth Circuit found the competency finding "adequately supported." Id. at 853. Paul has filed no reply to the government's opposition to his motion to reconsider.
Although the defendants filed notice in December of 2010 of their intent to set an execution date for Paul no sooner than April 22, 2011 (Defs.' Notice at 4-5), the defendants have been reconsidering their lethal injection protocol since then since they lack one of the chemicals used in the protocol (Joint Mot. [Docket #286] at 1; Defs.' Status Rpt. [Docket #292] at 1).
A motion to reconsider a final order is generally treated as a Rule
59(e) motion if it is filed within the filing time limit set forth in
that rule --- as Paul's was*fn1 --- and as a Rule
60(b) motion if it is filed thereafter. Lightfoot v. D.C., 355
Supp. 2d 414, 420-21 (D.D.C. 2005). As a general matter, Rule 59(e)
motions to reconsider "are disfavored." Id. at 421. Reconsideration
may be warranted if the movant establishes "an intervening change of
controlling law, the availability of new evidence, or the need to
correct clear error or manifest
injustice. . . . Rule 59(e) motions are not granted if the court
suspects the losing party is using the motion as an instrumentality
for . . . asserting new arguments that could have been . . . advanced
earlier." Id. (internal quotation marks and citations omitted); see
also Latin Am. for Soc. and Econ. Dev. v. Adm'r of Fed. Highway
Admin., Civil Action No. 09-897 (EGS), 2010 WL 199823, at *1 (D.D.C.
Jan. 11, 2010). The term "manifest injustice" eludes precise
definition. Firestone v. Firestone, 76
F.3d 1205, 1208 (D.C. Cir. 1996); see also Piper v. U.S. DOJ,
F. Supp. 2d 17, 22 (D.D.C. 2004) ("[T]here is even less case law on
the books giving meaning to 'manifest injustice' than to 'clear
error.'"). The D.C. Circuit has noted that "[m]anifest injustice does
not exist where . . . a party could have easily avoided the outcome,
but instead elected not to act until after a final order had been
entered." Davis v. D.C., 413 F. App'x 308, 311 (D.C. Cir. 2011)
(internal quotation marks and citation omitted).
Paul cites no intervening change in controlling law. Neither does he cite newly available evidence. The evidence concerning his alleged mental incompetency was, according to his own counsel, readily available eight years ago. (See Mot. to Recons. at 15 (asserting that Paul's "period of . . . mental disability . . . began at least as early as December 2003.").) The Halleck declaration alone dates back to 2004. Paul's submissions duplicate exactly or in substance portions of the information fully assessed by Paul's trial court and the Eighth Circuit when both made findings regarding his competence.*fn2
Though this evidence "is newly raised, it is not . . . 'new' evidence [because] it was previously available." Olson v. Clinton, 630 F. Supp. 2d 61, 63 (D.D.C. 2009) (internal quotation marks and citations omitted).*fn3
The defendants' notice of its intention to execute Paul, filed on
December 23, 2010, was previously unavailable and arguably is newly
discovered evidence within the meaning of Firestone. 76 F.3d at 1208.
(See also Paul's Supplemental Mot. to Recons. Order Denying Paul Leave
to Intervene at 2-3.) However, the notice would not necessarily have
changed the decision denying intervention. See Barnard v. Dep't of
Homeland Sec., 598 F. Supp. 2d 1, 26 (D.D.C. 2009) (declining to
consider separately the four elements allowing a party to obtain
relief from judgment based on newly discovered evidence where the
evidence would not have changed the initial decision). The
opinion denying intervention here stated that "[i]n ruling on a
motion to intervene, the Court must first determine whether the
application to intervene is timely." Roane, 269 F.R.D. at 4 (internal
quotation marks and citation omitted). The opinion found that "Paul's
failure to file timely his own method of execution challenge[,]"
rather than the denial of his motion to intervene, impaired Paul's
interest in the Roane litigation. Id. Ultimately, Paul failed to find
support in three of the four factors courts consider when granting
intervention. Id. at 4. The defendants' decision to schedule an
execution date may have expedited the court's decision*fn4
but "would not have changed [its] outcome." Barnard, 598 F.
Supp. 2d at 27. Accordingly, the notice does not provide a ground for
reconsidering the decision denying intervention.
Nor has Paul cited authority in this circuit that would establish that denying intervention as untimely was clear error. In this circuit, mental incompetence tolls a statute of limitations if a party's disability rendered him "unable to manage [his] business affairs . . . or to comprehend [his] legal rights or liabilities." Smith-Haynie v. D.C., 155 F.3d 575, 580 (D.C. Cir. 1998). "Equitable tolling is only appropriate on non compos mentis*fn5 grounds when a plaintiff is 'completely incapable of handling his affairs and legal rights.'" Perry v. U.S. Dep't of State, 669 F. Supp. 2d 60, 66 (D.D.C. 2009) (internal quotation marks and citation omitted). The burden to make this ...