United States District Court, D. Columbia
Manu Kennedy, Plaintiff: Gary M. Gilbert, LEAD ATTORNEY,
Stephanie Marie Herrera, Shannon C. Leary, LAW OFFICES OF
GARY M. GILBERT AND ASSOCIATES, P.C., Silver Spring, MD USA.
Vincent G. Gray, in his official capacity of Mayor of
Washington, District of Columbia, District of Columbia, Irvin
B. Nathan, in his official capacity as Attorney General,
District of Columbia, Defendants: Jonathan Hale Pittman, LEAD
ATTORNEY, OFFICE OF ATTORNEY GENERAL/DC, Washington, DC USA;
Shana Lyn Frost, LEAD ATTORNEY, OFFICE OF THE ATTORNEY
GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC USA.
Kenneth B. Ellerbe, in his official capacity of Chief,
District of Columbia Fire and EMS Department, Dc Fire & Ems
Department, Defendants: Shana Lyn Frost, LEAD ATTORNEY,
OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA,
Washington, DC USA.
OPINION AND ORDER
R. COOPER, United States District Judge.
District of Columbia's fire department maintains a policy
requiring its firefighters to be clean-shaven so that their
respirators will fit properly. Manu Kennedy, a former D.C.
firefighter, refused to comply with that policy because he
has a skin condition that leads to irritation and infection
when he shaves too closely. After the fire department denied
his request for an exemption from the shaving policy and
disciplined him for his noncompliance, Kennedy filed suit
against the District and associated officials and agencies.
He alleged 28 counts of disability discrimination, racial
discrimination, failure to accommodate, medical-privacy
violations, and retaliation, though he later agreed to
withdraw several counts. The District moved to dismiss most
of Kennedy's claims, particularly those related to his
allegations of disability discrimination and failure to
accommodate, contending that Kennedy's condition did not
qualify as a disability under applicable law. The Court
agreed, concluding that Kennedy's claim should be
evaluated under the relatively narrow definition of "
disability" in place prior to the Americans with
Disabilities Act Amendments Act (" ADAAA" ) because
the allegedly discriminatory conduct took place before the
new law went into effect and Kennedy's subsequent
requests that the fire department reverse its initial
decision did not create new instances of discrimination. Mem.
Op. 7-9, ECF No. 21.
now asks the Court to reconsider its decision, repeating his
arguments that the ADAAA definition should govern the
Court's analysis. Because he fails to reference any
intervening factual or legal
developments or show tat the Court misapprehended
controlling law, the Court will deny his motion to reconsider
the merits of its previous decision. Alternatively, Kennedy
requests that the Court permit him to pursue an interlocutory
appeal in order to clarify a controlling question of law:
whether a claim based on an accommodation request renewed
after the effective date of the ADAAA, but originally made
before that date, should be evaluated based on the new
definition of " disability" or the prevailing
pre-amendment interpretation of the statute. Because
immediate resolution of this question could well conserve
significant time and resources, and because Kennedy has
identified a substantial ground for difference of opinion on
this issue, the Court will permit Kennedy to pursue an appeal
of its interlocutory order under 28 U.S.C. § 1292(b).
Federal Rule of Civil Procedure 54(b), any order or decision
that is not a final judgment " may be revised at any
time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities."
Courts grant motions for reconsideration of interlocutory
orders only " as justice requires." Shea v.
Clinton, 850 F.Supp.2d 153, 157 (D.D.C. 2012) (quoting
Hoffman v. Dist. of Columbia, 681 F.Supp.2d 86, 90
(D.D.C. 2010)) (internal quotation marks omitted). While
courts enjoy significant discretion under Rule 54(b), "
in order to promote finality, predictability and economy of
judicial resources," they generally should not revisit
prior interlocutory decisions " in the absence of
extraordinary circumstances such as where the initial
decision was clearly erroneous and would work a manifest
injustice." Id. at 157-58 (quoting Pueschel
v. Nat'l Air Traffic Controllers' Ass'n, 606
F.Supp.2d 82, 85 (D.D.C. 2009)) (internal quotation marks
omitted). In deciding whether " justice requires"
reversal of its prior interlocutory order, a court considers
 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  whe[ther] a controlling or significant
change in the law or facts [has occurred] since the
submission of the issue to the Court.
United States v. Slough,
61 F.Supp.3d 103, 107
(D.D.C. 2014) (quoting Singh v. George Washington
Univ.,383 F.Supp.2d 99, 101 (D.D.C. 2005)). A motion
for reconsideration should therefore be denied " when it
merely asserts 'arguments for reconsideration [that] the
court has already rejected on the merits.'" BEG
Invs., LLC v. Alberti,85 F.Supp.3d 54, 58 (D.D.C. 2015)
(alteration in ...