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Lucas v. District of Columbia

United States District Court, District of Columbia

October 5, 2016

ALLAN EARL LUCAS, JR., Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

          MEMORANDUM OPINION

          THOMAS F. HOGAN SENIOR UNITED STATES DISTRICT JUDGE.

         Pending 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 prejudice.

         I. BACKGROUND

         Plaintiff 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.

         On 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.

         When 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.

         On 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. atl86.[1]

         On 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.

         II. DISCUSSION

         A. Motion for Reconsideration

         Plaintiffs 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.

         Therefore, 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").

         Rule 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 ...

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