United States District Court, District of Columbia
F. HOGAN SENIOR UNITED STATES DISTRICT JUDGE.
before the Court is plaintiff Allan Earl Lucas, Jr.'s
Motion to Reconsider and/or Motion for Leave to Amend [ECF
No. 41], requesting reconsideration of this Court's
September 30, 2015 Order dismissing without prejudice his
First Amended Complaint against the District of Columbia (the
"District") for failure to exhaust administrative
remedies pursuant to the Comprehensive Merit Personnel Act
("CMP A"), see Lucas v. District of
Columbia, 133 F.Supp.3d 176, 178 (D.D.C. 2015), and
alternatively requesting leave to file a second amended
complaint. The District has filed an opposition [ECF No. 43]
and plaintiff a reply [ECF No. 44]. For the reasons that
follow, the Court will deny the motion to reconsider with
prejudice, and the motion for leave to amend without
commenced this lawsuit to recover money damages for lost
earnings and retirement benefits stemming from the District
of Columbia Metropolitan Police Department's
("MPD") alleged failure to treat his induction into
the United States Marine Corps as a military furlough and to
reemploy him upon his discharge from military service. He
filed his initial Complaint [ECF No. 1] against the District
and other defendants on February 4, 2013. Although defendants
filed, and the Court granted in part, a motion to dismiss the
original Complaint, the Court granted plaintiff leave to file
an amended complaint by December 17, 2013.
December 17, 2013, plaintiff filed his First Amended
Complaint [ECF No. 34] against the District. In it plaintiff
alleges that he was employed by the MPD for approximately
seven months from 1972 to 1973 before he resigned to serve in
the United States Marine Corps during the Vietnam War.
Pl.'s First Am. Compl. ¶¶ 4, 6. He did not
receive any exit counseling or other information about his
employment rights, and was not informed of the effect his
resignation might have on future reemployment. Id.
¶ 7. Plaintiff served in the Marine Corps until he was
honorably discharged with a disability in 1978. Id.
¶ 9. Upon his discharge from the military, plaintiff
sought reemployment with the MPD, but was not offered
restoration to his former position. Id. ¶ 11.
Plaintiff rejoined the MPD in 1982, and remained employed
there until 1993, when he obtained employment as a District
of Columbia Corrections Officer. Id. ¶¶
13-14. Plaintiff retired from that position in 2005.
Id. ¶ 16.
plaintiff rejoined the MPD in 1982, he alleges, he was
improperly placed in the District's retirement system,
when he was entitled to placement in the Federal Civil
Service Law Enforcement retirement system. Pl.'s First
Am. Compl. ¶ 13. Plaintiff was reinstated to the federal
retirement system in April 1994, although he does not
elaborate on the reasons for his reinstatement. Id.
¶ 15. According to plaintiff, the MPD's actions or
omissions relating to his resignation to serve in the Marine
Corps resulted in a reduction in his federal retirement
benefits. Id. ¶ 26. Plaintiff sought to rectify
these alleged mistakes by taking numerous actions to contact
various District of Columbia agencies-plaintiff alleges he
contacted the Office of Personnel Management and the District
of Columbia Retirement Board 52 times between 2007 and 2010.
Id. ¶¶ 25, 27-28. Plaintiff contends that
the District "acknowledged]" his "grievance,
" but that, in October 2012, it "refused to give
plaintiff his proper benefits." Id.
¶¶ 27, 29.
January 6, 2014, the District filed a Renewed Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment
[ECF No. 36]. In a September 30, 2015 Memorandum Opinion, the
Court noted, among other things, that notwithstanding
plaintiffs prolonged efforts pursuing various agencies, a
showing of "numerous informal steps [taken] to resolve a
dispute [without a showing that] a formal grievance [had been
filed] or ... that the agency would be unwilling or unable to
consider a formal grievance did not merit a waiver of
prudential exhaustion[, ]" that there was "nothing
to show that [plaintiff] was prevented from filing a formal
grievance at any time[, ]" and that "delay alone
will not suffice to trigger the futility exception [to the
prudential exhaustion requirement]." Lucas, 133
F.Supp.3d at 185 (internal quotation marks omitted) (citing
Bufford v. District of Columbia Public Schools, 611
A.2d 519, 524 (D.C. 1992) and Dano Res. Recovery Inc. v.
District of Columbia, 566 A.2d 483, 487 (D.C. 1989)).
The Court, therefore, concluded that "[e]ven accepting
as true all the allegations contained in the plaintiffs First
Amended Complaint, as the Court must do, it is clear on the
face of the document that the plaintiff never filed a formal
grievance or otherwise invoked the required and exclusive
CMPA procedures to pursue his claims." Id.
Accordingly, the Court dismissed plaintiffs First Amended
Complaint without prejudice pursuant to Federal Rule of Civil
Procedure 12(b)(6) "for failure to state claims for
relief because administrative exhaustion, which is a
necessary precondition to judicial review of those claims,
ha[d] not been satisfied." Id.
November 17, 2015, plaintiff filed his now pending Motion to
Reconsider and/or Motion for Leave to Amend pursuant to
Federal Rules of Civil Procedure 60(b)(1) and 60(b)(6), and
15(a)(2), respectively. Plaintiff did not attach to his
motion for leave to amend an original of his proposed amended
complaint. See LCvR 15.1 ("A motion for leave
to file an amended pleading shall be accompanied by an
original of the proposed pleading as amended.").
However, eight days later, on November 25, 2015, he filed a
separate Complaint in Lucas v. District of Columbia,
Civil Action No. 15-02059 (TFH), raising the same legal
theories as he does in this action, but alleging additional
and more detailed facts which, according to plaintiff,
demonstrate that he has exhausted his administrative remedies
under the CMPA. Compare First Amended Complaint,
Civil Action No. 13-00143 (TFH), ECF No. 34 with
Complaint, Civil Action No. 15-02059 (TFH), ECF No. 1. In a
Memorandum Opinion and Order issued in Lucas v. District
of Columbia, Civil Action No. 15-02059 (TFH),
simultaneously with this decision, the Court dismissed the
complaint in the later action as duplicative of this action.
Motion for Reconsideration
filings in this case and in Lucas v. District of
Columbia, Civil Action No. 15-02059 (TFH), reflect his
confusion regarding the procedural posture of this case. As
the United States Court of Appeals for the District of
Columbia Circuit explained in Ciralsky v. CIA., 355
F.3d 661, 666 (D.C. Cir. 2004), "the dismissal without
prejudice of a complaint [i]s not final.. . because
the plaintiff is free to amend his pleading and continue the
litigation[, ] . . . [whereas] dismissal without prejudice of
an action (or 'case'), by contrast, ...
end[s] th[e] suit [and] ... is final. . . ." See
also Murray v. Gilmore, 406 F.3d 708, 712 (D.C. Cir.
2005) ("Under Ciralsky ..., dismissal of an
action without prejudice is a final disposition but dismissal
of a complaint without prejudice typically isn't.").
In short, the Court's order dismissing without prejudice
plaintiffs First Amended Complaint was a non-final order.
Ciralsky, 355 F.3d at 666.
inasmuch as plaintiff seeks reconsideration of a non-final
order, Federal Rule of Civil Procedure 54(b) governs, not
Rule 60(b). See AH v. Carnegie Inst, of Washington,
309 F.R.D. 77, 80 (D.D.C. 2015) ("The Federal Rules of
Civil Procedure provide three avenues for seeking
reconsideration of judicial decisions.... Rule 54 governs
reconsideration of interlocutory orders, [whereas] Rules
59(e) and 60(b) dictate when a party may obtain
reconsideration of a final judgment."); Murphy v.
Exec. Office for United States Attorneys, 11 F.Supp.3d
7, 8 (D.D.C. 2014) ("Rule 54(b) governs reconsideration
of interlocutory or non-final orders[.]"), aff'd
sub nom. Murphy v. Exec. Office for U.S. Attorneys, 789
F.3d 204 (D.C. Cir. 2015); Cobell v. Norton, 224
F.R.D. 266, 271 (D.D.C. 2004) ("Rule 54(b) governs
reconsideration of orders that do not constitute final
judgments in a case."). Accordingly, the Court will
analyze plaintiffs motion for reconsideration as if it was
brought under Rule 54(b). See Cobell, 224 F.R.D. at
271 (noting "significant confusion [among the parties]
with respect to the proper legal standard governing the
[pending] motion for reconsideration" and concluding
that because the order at issue was non-final, "Federal
Rule of Civil Procedure 54(b), rather than Rule 60(b), must
provide the relevant standard").
54(b) provides, in relevant part, that
any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment ...