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Grant v. Mnuchin

United States District Court, District of Columbia

November 14, 2019

STEVEN T. MNUCHIN, Secretary, United States Department of Treasury, Defendant.



         In June 2015, Aaron Darnell Grant filed a Complaint that appealed the 2015 Final Order issued by the Merit Systems Protection Board (MSPB or Board) sustaining his discharge from the Department of the Treasury in 2013. Appearing pro se, Mr. Grant asserted that the 2015 Final Order did not sufficiently weigh his proffered explanations for his conduct against Treasury's reasons for discharge. Secretary of the Treasury Steven T. Mnuchin, sued in his official capacity, moved for summary judgment; Mr. Grant opposed; and the Court granted summary judgment in favor of Treasury. While the motion for summary judgment was pending, Mr. Grant moved for an emergency telephone conference with the Court concerning possible fraud in the underlying investigation and reporting that were used to support his termination. The Court granted the motion, heard arguments from both parties about the underlying report, and received supplemental briefs. When it granted summary judgment to Treasury, the Court explained why Mr. Grant's allegations of fraud did not cause the Court to question MSPB's decision and did not affect the merits. Now pending is Mr. Grant's motion for reconsideration.

         I. FACTS

         The Memorandum Opinion on summary judgment recited the facts in detail; for present purposes, only the specific facts relevant to the motion for reconsideration will be mentioned. See Grant v. Mnuchin, 373 F.Supp.3d 286, 290-94 (D.D.C. 2019).

         Aaron Darnell Grant worked as a Special Agent conducting criminal investigations for the Internal Revenue Service (IRS or Agency), an agency within the Department of the Treasury. He was discharged for various forms of misconduct in 2010. See 9/28/17 Mem. Op. [Dkt. 29]. Mr. Grant was reinstated to the IRS on September 4, 2012, after the MSPB found errors in the Agency's handling of his discharge but without reaching its merits.[1] See Notice, Ex. 32, 2014 MSPB Initial Decision, AR 4190-91.[2] By notice dated December 7, 2012, the Agency informed Mr. Grant that it was proposing his removal again for three separate reasons: (1) being less than candid in a matter of official business (lack of candor); (2) failing to follow established Agency procedures; and (3) failing to cooperate in an official investigation. Notice, Ex. 18, Second Proposal to Remove (Second Proposal), AR 217-18. The Second Proposal also recited the materials the Agency relied upon in proposing Mr. Grant's removal, notified Mr. Grant of his right to review those materials, and provided contact information for the Agency's Human Resources Specialist to whom he should address his request for the materials. Id. at ¶ 219-20.

         On January 30, 2013, the Agency notified Mr. Grant that it had sustained all reasons and specifications in the Second Proposal and that his removal was effective as of that date. Notice, Ex. 29, 1/30/13 Decision Sustaining Second Proposed Removal (Second Removal), AR 202-05. The Deciding Official was Sean P. Sowards, Deputy Director, Criminal Investigation. Id. On December 11, 2013, Mr. Grant appealed the Second Removal to MSPB and alleged that the IRS had discriminated and retaliated against him when it discharged him, due to his disability and prior protected activity. On July 17, 2014, MSPB Administrative Judge Andrew Niedrick issued an Initial Decision in which he sustained the Agency's findings on all charges and specifications that were the basis for Mr. Grant's Second Removal. Notice, Ex. 32, 2014 MSPB Initial Decision, AR 4158-213. Mr. Grant filed a timely Petition for Review by the MSPB. The two sitting members of the MSPB affirmed the Administrative Judge's decision on May 27, 2015, modifying it only to “clarify the administrative judge's analysis that [Mr. Grant] failed to prove his due process claims.” Notice, Ex. 33, 2015 MSPB Final Order, AR 4472.

         Mr. Grant filed his Complaint in this Court on June 26, 2015, filed an Amended Complaint [Dkt. 7] on November 11, 2015, and a Second Amended Complaint [Dkt. 23] on August 19, 2016; it is the Second Amended Complaint which is operative and is hereafter called the Complaint. The Complaint alleged violations of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 1101 et seq., Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973 (Rehab Act), 29 U.S.C. § 701 et seq. On the government's motion for partial summary judgment, this Court reviewed Mr. Grant's discrimination claims under Title VII and the Rehab Act de novo. Barnes v. Small, 840 F.2d 972, 979 (D.C. Cir. 1988). Those discrimination and retaliation allegations were dismissed on September 28, 2017, leaving open for review Mr. Grant's appeal of MSPB's decision under the CSRA. See 9/28/17 Mem. Op.; 9/28/17 Order [Dkt. 30]. The government moved for summary judgment on the remaining claims on June 22, 2018 and Mr. Grant opposed. The Court granted summary judgment to the IRS on March 29, 2019. See 3/29/19 Mem. Op. [Dkt. 57]; 3/29/19 Order [Dkt. 58].

         In November 2018 (before the Memorandum Opinion on summary judgment), Mr. Grant remembered, and recovered from an old phone, photographs of the IRS Special Agents' office configuration as it was in April 2010. That photograph caused him to question the descriptions of events in the 2010 Treasury Inspector General for Tax Administration (TIGTA) Report of Investigation (ROI) (TIGTA Report), so he submitted requests for records to the IRS and TIGTA under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. TIGTA responded on March 15, 2019 and indicated that Mr. Grant's casefile was approximately 351 pages long. See Mot. for Recons., Ex. 3, TIGTA FOIA Resp. [Dkt. 59-3] (indicating that the requested documents totaled 351 pages and TIGTA was releasing 141 pages in full and 73 pages in part).

         However, on February 5, 2019-almost immediately after the government filed its reply on the motion for summary judgment and before TIGTA answered his FOIA request- Mr. Grant filed an Emergency Motion for Telephonic Conference. In that motion, he asserted inter alia that the 2010 TIGTA Report used in the removal proceedings was “fraudulent, ” and “tampered with by agency officials to hide their misconduct before/during/after the TIGTA investigation.” Mot. for Telephonic Conference [Dkt. 50] at 1. On March 28, 2019, after the motion was briefed, the Court conducted a telephone conference with the parties and authorized them to submit more briefs. Mr. Grant argued that the TIGTA Report was fraudulent because portions of the ROI were allegedly inconsistent with the underlying case file. The arguments made in the telephone conference and the briefs were considered and rejected when the Court granted summary judgment to the government. See Grant, 373 F.Supp.3d at 301-03. Mr. Grant now moves for reconsideration.[3]


         Federal Rule of Civil Procedure 59(e) allows a party to move to alter or amend a judgment within 28 days of the entry of judgment. “Motions filed under Rule 59(e) are generally disfavored, and are granted only when the moving party establishes that extraordinary circumstances justify relief.” Moses v. Dodaro, 856 F.Supp.2d 99, 102 (D.D.C. 2012) (citing Niedermeier v. Office of Baucus, 153 F.Supp.2d 23, 28 (D.D.C. 2001)). Motions for reconsideration under Rule 59(e) are “discretionary and need not be granted unless the 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.'” Nanko Shipping, USA v. Alcoa, Inc., 118 F.Supp.3d 372, 375 (D.D.C. 2015) (quoting Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006)). To constitute clear error, “[a] final judgment must be ‘dead wrong.'” Id. (quoting Lardner v. FBI, 875 F.Supp.2d 49, 53 (D.D.C. 2012)).

         “Rule 59(e) . . . ‘may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 Wright & Miller, Fed. Prac. and Proc. § 2810.1 (2d ed. 1995)); see also Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F.Supp.2d 5, 10 (D.D.C. 2011) (“In this Circuit, it is well-established that motions for reconsideration, whatever their procedural basis, cannot be used as an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that could have been advanced earlier.”) (internal citations omitted).

         III. ANALYSIS

         Liberally reading Mr. Grant's pro se motion, the Court interprets his arguments for reconsideration to advance the following reasons: (1) the TIGTA case file is newly discovered evidence that was not part of the Court's challenged decision; (2) the Court committed error in not finding that Mr. Grant should have been advised of his Miranda[4] rights prior to his interview with the TIGTA investigators; and (3) the Court erred in considering the TIGTA ROI because it was inadmissible hearsay and it was not certified or authenticated. The government responds that Mr. Grant is not entitled to reconsideration because (1) evidence from the TIGTA case file is not “new” as it has been available ...

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