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David Grogan, Herman Brewer, and Fayette Reid, Individually v. Eric H. Holder

September 21, 2012

DAVID GROGAN, HERMAN BREWER, AND FAYETTE REID, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL PERSONS SIMILARLY SITUATED, AND JAMES BROOKS, INDIVIDUALLY, GENERAL, PLAINTIFFS,
v.
ERIC H. HOLDER, UNITED STATES ATTORNEY
DEFENDANT.



The opinion of the court was delivered by: Barbara J. Rothstein United States District Judge

MEMORANDUM ORDER DENYING PLAINTIFFS'MOTION FOR RECONSIDERATION;GRANTING PLAINTIFFS' LEAVE TO FILE MOTION AS TO REMAINING ISSUES

I. INTRODUCTION

Plaintiffs David Grogan, Herman Brewer, and Fayette Reid ("Class Plaintiffs"), individually and on behalf of a class of similarly situated individuals, bring suit against their employer, the United States Marshals Service ("USMS" or "Defendant"). Class Plaintiffs allege that USMS engaged in a pattern or practice of racial discrimination against them and other African-American Deputy United States Marshals in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq ("Title VII"). Plaintiff James Brooks brings only individual claims of racial discrimination under Title VII.

In 2010, Plaintiffs sought to amend their complaint, a motion that Judge Kennedy, who previously presided over this case, granted in part and denied in part. In 2011, Plaintiffs moved for reconsideration of the partial denial. This case having been transferred, that motion is before this Court. On September 17, 2012, Plaintiffs notified the Court of significant factual and procedural developments, which Plaintiffs believe relate to their motion for reconsideration.

The Court has thoroughly reviewed Plaintiffs' motion, related briefings, and the entire record of this case. For the reasons elaborated below, the Court denies in part and denies as moot (and without prejudice) in part Plaintiffs' motion for reconsideration. The Court also grants Plaintiffs leave to file a motion, wherein they may address the effect of recent factual and procedural developments.

II. BACKGROUND*fn1

On September 16, 2010, Plaintiffs filed a motion to amend their Complaint. Among other things, Plaintiffs asked to (1) expand the liability period to start in 1994 instead of 2007,*fn2

and (2) add factual allegations regarding Plaintiff Brooks' exhaustion of administrative remedies. In seeking to extend the liability period for the class claims back to 1994, Plaintiffs argued that they satisfied the exhaustion requirements of Title VII*fn3 vicariously by pointing to an administrative class complaint filed by a former United States Deputy Marshal, Matthew Fogg ("Fogg Complaint"). Some procedural history as to Fogg's administrative class complaint is therefore necessary.

Fogg, who is not a named plaintiff in this lawsuit, filed an Equal Employment Opportunity ("EEO") complaint on behalf of "50 and expanding (black) USMS employees" in July 1994. In April 1996, Fogg's complaint was dismissed for lack of specificity and detail. Fogg appealed this dismissal but, on October 24, 1997, the Equal Employment Opportunity Commission ("EEOC") mistakenly dismissed his appeal. Some seven years later, in 2004, Fogg petitioned the EEOC for reconsideration of the dismissal of his appeal. In May 2006, the EEOC re-opened Fogg's appeal and vacated the dismissal, remanding the charge to the EEOC Washington Field Office for class certification consideration. On March 19, 2007, the Washington Field Office denied class certification and dismissed Fogg's complaint once again. Fogg appealed this decision to the EEOC Office of Federal Operations.

While Fogg's appeal was pending, in September 2010, Judge Kennedy denied Plaintiffs' motion to amend the complaint. Judge Kennedy held that Plaintiffs had not vicariously exhausted their administrative remedies for the 1994-2006 claims by virtue of Fogg's administrative complaint. Judge Kennedy also ruled that the statute of limitations had expired as to those claims and that tolling was not proper. For these reasons, Judge Kennedy denied as futile Plaintiffs' proposed amendment to expand the liability period to include 1994 through 2006. Finally, Judge Kennedy did not allow Plaintiffs to add factual allegations regarding Plaintiff Brooks' efforts to exhaust his administrative remedies for a non-promotion claim.

In September 2011, Plaintiffs moved for reconsideration of Judge Kennedy's decision. On September 17, 2012, Plaintiffs filed a notice of Supplemental Authority information this Court that in July 2012, while the motion for reconsideration was pending, the EEOC Office of Federal Operations reversed the decision that had denied class certification and the decision that dismissed Fogg's class complaint. Pls.' Notice of Suppl. Authority (Sept. 17, 2012) at 1. Fogg's case was remanded back to the agency with orders that an Administrative Judge be appointed to hear the class action claims. Id. at 2. With this background information in mind, the Court now turns to the Plaintiffs' motion for reconsideration.

III. ANALYSIS

A. Legal Standard for Reconsideration Under Rule 54(b)

The Court considers Plaintiffs' motion for reconsideration under Rule 54(b). See Fed. R. Civ. P. 54(b) (setting forth a court's authority to revise its non-final orders); Pittman v. Franklin, 282 F. Appx. 418, 423 (6th Cir. 2008) ("the denial of a motion to amend [a pleading] is generally a non-final order that is not immediately appealable"). The reconsideration of an interlocutory decision pursuant to Rule 54(b) is available "as justice requires." Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000). Some factors that the Court may consider in determining whether reconsideration is warranted include whether the Court "has patently misunderstood a party, has made a decision outside the adversarial issues presented to the Court by the parties, has made an error not of reasoning, but of apprehension, or ...


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