United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
the Court is Darin Jones' pro se Motion to
Reopen Based on Change in Law, or in the Alternative, Based
on Oversight, which, for reasons explained below, the Court
construes as a Motion for Reconsideration Under Rule 60(a),
or in the Alternative, Under Rule 60(b) (“Mot. for
Reconsideration”) [Dkt. 38]. This Court ordered the
Government to respond to Mr. Jones' Motion by December 6,
2017. Apparently disinclined to do so, the Government did not
file a response. Undeterred, Mr. Jones filed a Reply to
Defendants Failure to Respond to Judge Collyer's
11/8/2017 Minute Order on December 20, 2017 (Def.'s
Reply), which the Court will construe as a reply in support
of Mr. Jones' Motion for Reconsideration. For the reasons
below, Mr. Jones' motion will be denied.
January 4, 2013, Mr. Jones filed a Complaint against the
Federal Bureau of Investigation (FBI), alleging retaliation
and discrimination on the basis of gender and age in
violation of Title VII, 42 U.S.C. § 2000(e) et
seq. After intervening events examined in the
Court's prior Opinion, the Court dismissed the suit
without prejudice on July 1, 2015 because Mr. Jones had
failed to exhaust his administrative remedies with respect to
any of his claims and provided no basis to excuse that
failure. See Memorandum Opinion [Dkt. 33]. A full
recapitulation of the facts is not necessary, as they are
laid out in this Court's prior Opinion. See id.
instant motion, Mr. Jones asks this Court to consider four
cases in revisiting its dismissal of his case without
prejudice, vacate the dismissal, and “issue an opinion
distinguishing the conflicts between the controlling
precedents and the July 1 decision, and remand for further
proceedings.” Mot. for Reconsideration at
Mr. Jones followed his motion with a reply. As the government
submitted no response to the motion, this Court considers
only the arguments made in Mr. Jones' motion and reply.
For the reasons explained below, the motion will be denied.
Jones filed a Motion to Reopen Based on Change in Law, or in
the Alternative, Based on Oversight, which is terminology
unknown to this Court. Based on the relief requested, the
Court finds that Mr. Jones' motion should be construed as
a Motion for Reconsideration under Rule 60(b)(6).
Federal Rules of Civil Procedure do not specifically address
motions for reconsideration. See Estate of Klieman v.
Palestinian Auth., 82 F.Supp.3d 237, 241-42 (D.D.C.
2015). However, the Rules provide three pathways for those
seeking reconsideration of judicial decisions. Rule 54(b)
permits reconsideration of interlocutory judgments.
Fed.R.Civ.P. 54(b). Rule 59(e) permits a party to seek
reconsideration of a final judgment within 28 days of that
judgment. Fed.R.Civ.P. 59(e). Rule 60 permits a party to seek
reconsideration of a final judgment either (a) to correct a
mistake arising from an oversight or omission or (b) to seek
relief from a judgment or order due to: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud, misrepresentation, or other
misconduct; (4) void judgment; (5) satisfied, released, or
discharged judgment; or (6) “any other reason
justifying relief from the operation of the judgment.”
Fed.R.Civ.P. 60(a), (b); see also Gates v. Syrian Arab
Republic, 646 F.Supp.2d 79, 83 (D.D.C. 2009). Rule 60(b)
requires that a motion alleging excusable neglect, newly
discovered evidence, or fraud be filed within one year of the
judgment, while motions under other grounds must be filed
“within a reasonable time.” Fed.R.Civ.P. 60(b).
granting of a Rule 60(b) motion is discretionary, and need
not be granted ‘unless the district court finds that
there is an intervening change of controlling law, the
availability of new evidence or the need to correct a clear
error or prevent manifest injustice.'” Mitchell
v. Samuels, 255 F.Supp.3d 212, 214 (D.D.C. 2017)
(quoting Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996)). More specifically, the granting of motions
under Rule 60(b)(6) should be limited to “extraordinary
circumstances.” See Gonzalez v. Crosby, 545
U.S. 524, 535 (2005) (“[O]ur cases have required a
movant seeking relief under Rule 60(b)(6) to show
‘extraordinary circumstances' justifying the
reopening of a final judgment.”). The D.C. Circuit has
echoed that sentiment in observing that Rule 60(b)(6) motions
“should be only sparingly used, ” Good Luck
Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C.
Cir.1980), and are not an opportunity for unsuccessful
parties to “take a mulligan.” Kramer v.
Gates, 481 F.3d 788, 792 (D.C. Cir. 2007).
Jones moves this Court to reconsider its order granting
Defendants' Motion to Dismiss, or in the Alternative for
Summary Judgment. See 7/1/15 Order [Dkt. 34].
Because that order adjudicated all of Mr. Jones' claims
in this case, he is foreclosed from relief under Rule 54(b),
which permits reconsideration and revision of orders or
decisions adjudicating fewer than all the claims at issue in
a case. See Fed. R. Civ. P. 54(b). Having filed his
motion for reconsideration more than 28 days after the entry
of the dismissal order, the relief Mr. Jones seeks is also
prohibited by Rule 59(e) and must be considered solely under
Rule 60. See Fed. R. Civ. P. 59(e), 60. See
McMillian v. District of Columbia, 233 F.R.D. 179, 180
n. 1 (D.D.C.2005) (holding that motions to reconsider filed
within ten days of judgment are reviewed under Rule 59(e) and
those filed after ten days are treated under Rule
Jones does not assert in his motion or reply that a mistake,
excusable neglect, newly discovered evidence, or fraud are at
issue here. Nor does he argue that this Court's judgment
is void, has been satisfied, released, discharged, or was
based on an earlier judgment that was reversed or vacated.
Instead, Mr. Jones bases his motion on “change in
law” or “oversight.” Mr. Jones does not
move under an established rule, but his motion suggests
arguments similar to those often raised under Rule 60(b)(6),
which permits reconsideration for “other”
reasons. The Court therefore will assess his motion for
reconsideration under that Rule, in keeping with the
well-recognized principle that pro se litigants are
“allowed more latitude than litigants represented by
counsel, ” which includes applying less stringent
standards to pro se pleadings than formal pleadings
drafted by lawyers. Moore v. Agency for Intern.
Development, 999 F.2d 874, 876 (D.C. Cir. 1993) (citing
Haines v. Kerner, 404 U.S. 519, 520
Change in Controlling Law
Jones argues that the four cases cited in his motion and
accompanying reply necessitate reconsideration of this
Court's prior dismissal of the case without prejudice.
The Court interprets this as an argument for reconsideration
under Rule 60(b)(6) based on a change in controlling law.
See Firestone, ...