United States District Court, District of Columbia
Heather G. White, The Federal Practice Group, Washington, DC, for Plaintiffs.
Heather D. Graham-Oliver, Carl Ezekiel Ross, Christian Alexander Natiello, Oliver W. McDaniel, U.S. Attorney's Office, Washington, DC, for Defendant.
ROSEMARY M. COLLYER, District Judge.
Plaintiffs claim that counsel for Defendant Arne Duncan, Secretary of Education, misled this Court when Government counsel argued that they discovered new evidence that it was former Secretary Margaret Spellings who decided to close certain regional offices, causing the disabled and older Plaintiffs to lose their jobs. Based upon the new evidence, the Court allowed Secretary Duncan to amend his Answer and reopened discovery. Plaintiffs seek reconsideration.
The motion to reconsider will be denied.
Plaintiffs bring claims for disability and age discrimination under the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 633a et seq., based upon closure of regional offices of DoEd's Rehabilitation Services Administration (" RSA" ), where they were employed. The offices were closed on September 30, 2005, they sued in 2006, and discovery has been long and laborious. In February 2012, the Court granted the Secretary's December 2011 motion, Dkt. 51, and allowed Secretary Duncan to amend his Answer to add new affirmative defenses. Government counsel asked to amend the Answer after they discovered that Secretary Spellings was the individual who decided to close RSA regional offices. This fact became known only during the deposition of Assistant Education Secretary Troy Justesen, who was thought to be the key decisionmaker. Government counsel reported that, following the deposition, they spoke with Secretary Spellings, who gave them consulting reports from Boston Consulting Group (" BCG" ) that recommended the closures. The reports were shared at only the very highest levels of the Department and were previously unknown to counsel. This evidence appeared to change the nature of the closure decision as well as the relevant decision-makers.
Plaintiffs now move for reconsideration of the Court's order allowing an amended Answer. They contend that Government counsel affirmatively misled the Court " when [they] alleged that [they had] recently learned from Justesen that Spellings was the official who decided to close the RSA regional offices [and] that [they] had also learned from Spellings that BCG documents were critical newly discovered evidence regarding the decision." Pls.' Mem. [Dkt. 70-1] at 9-10. Plaintiffs argue, as they did in opposing the Secretary's motion to amend his Answer, that the decision to close the RSA regional offices was made in late 2004, when Secretary Spellings was not yet Secretary. The Government responds that Secretary Spellings influenced the closure decision in her role as a domestic policy advisor in the White House.
Secretary Spellings has now been deposed. Plaintiffs argue that she testified: 1) she advised on budget decisions but was not the decision-maker with respect to cutting RSA regional offices from the FY 2008 budget; and 2) the BCG documents were not related to the closure of the RSA offices. See Mot. to Reconsider, Ex. 1
[Dkt. 70-2] at 57, 61. Accordingly, Plaintiffs argue that Government counsel misrepresented that Secretary Spellings was the individual who decided to close RSA regional offices and the role that the BCG documents played in this decision. Since this was the basis for the Court's approval of an amended Answer, Plaintiffs ask the Court to reverse course.
Government counsel deny they misled this Court. They argue that they " noted [Secretary Spellings's] role in the process and later discovered evidence showing that others were involved" in the decision to close RSA regional offices. Def.'s Opp'n [Dkt. 78] at 2. They stand by their assertion that Secretary Spellings was part of the decision to close the regional offices, although she was only one of many White House officials who participated in the decision-making process. Government counsel deflect Plaintiffs' claims that the BCG reports were delivered too late to have impacted the closure decision, arguing that ...