ARTIS, et al v. GREENSPAN

Filing 89

MEMORANDUM OPINION AND ORDER denying 72 plaintiffs' MOTION to Alter Judgment. This is a final appealable order. See Fed. R. App. P. 4(a). Signed by Judge Emmet G. Sullivan on March 2, 2009. (lcegs4)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ) ) ) ) ) ) ) ) ) ) ) ) )

CYNTHIA ARTIS, et al., Plaintiffs, v. BEN S. BERNANKE,1 Chairman of the Board of Governors of the Federal Reserve System, Defendant.

Civil Action No. 01-400 (EGS)

MEMORANDUM OPINION AND ORDER Pending before the Court is plaintiffs' motion to alter and amend the judgment pursuant to Federal Rule of Procedure 59(e). For the following reasons, the Court DENIES the motion.

I.

Background The factual and procedural history of this case have been

discussed in detail by this Court in its Memorandum Opinion and Order of September 25, 2002 and Memorandum Opinion of January 31, 2007, and need not be repeated here. See Artis v. Greenspan, 474

F. Supp. 2d 16 (D.D.C. 2007); Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002). On January 31, 2007, the Court granted

By operation of Federal Rule of Civil Procedure 25(d)(1), Chairman of the Board of Governors Bernanke is automatically substituted as the proper party in place of former Chairman Alan Greenspan.

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defendant's motion to dismiss plaintiffs' claims due to their failure to exhaust administrative remedies and dismissed with prejudice plaintiffs' Second Amended Complaint. the instant motion shortly thereafter. Plaintiffs filed

The Court held a hearing

on the motion, at which point the parties were asked to submit supplemental briefing focusing on the issue of whether plaintiff Kim Hardy ("Hardy") exhausted her administrative remedies. motion is now ripe for decision by this Court. The

II.

Standard of Review Federal Rule of Civil Procedure 59(e) allows a party to file

a motion to alter or amend the judgment, but these motions "are disfavored and relief from judgment is granted only when the moving party establishes extraordinary circumstances." Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C. 2001) (citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998)). "A Rule 59(e) 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." Messina v. Krakower, 439 F.3d 755, 758-59 (D.C. Cir.

2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation marks omitted)).

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III.

Discussion Much of plaintiffs' motion relies on evidence that was in the

record when this Court ruled on defendant's motion to dismiss. Plaintiffs do not assert that an intervening change in the law has called into question this Court's ruling; rather, they contend that the Court was "clearly in error" in finding that plaintiffs failed to engage in the type of counseling necessary to exhaust their administrative remedies. Alter & Amend at 3. Pls.' Mem. P. & A. Supp. Mot. to

Plaintiffs' arguments on this score are

simply an attempt to reargue the issues ruled on by the Court in granting defendant's motion to dismiss, and the Court rejects them as such. See Fund for Animals v. Norton, 326 F. Supp. 2d 124,

125-26 (D.D.C. 2004) ("Rule 59(e) motions are not intended to be used to relitigate matters already argued and disposed of; they are intended to permit the court to correct errors of fact appearing on the face of the record, or errors of law."). The

Court finds no clear error of either fact or law that needs to be corrected in its Memorandum Opinion of January 31, 2007. Plaintiffs have presented one piece of "new" evidence in their Rule 59(e) motion: A declaration from Hardy, signed on February 14, 2007, recounting her recollections of the "group counseling session" that took place on January 15, 1997 with EEO counselor Rosemarie Nelson ("Nelson"). Amend at Ex. 7. See Pls.' Mot. to Alter &

In the declaration, Hardy states that she was the

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only individual interviewed by Nelson at that meeting and gave Nelson detailed information about her claims of discrimination. Id. Hardy also claims that Nelson had been instructed by her

supervisors "not to counsel on any group matters" and that, at the instruction of management, Nelson left the details of Hardy's statements at the counseling session out of her counseling report. Id. Plaintiffs argue that Hardy's testimony was "improperly

excluded from the record" and that her declaration supports the conclusion that plaintiffs "participated in good faith, to the best of their abilities in the counseling process." Pls.' Mem. P. & A. Supp. Mot. to Alter & Amend at 32-33. The Court does not credit Hardy's declaration, which contradicts other record evidence regarding the same events ­ events that transpired ten years prior to Hardy's most recent declaration. Indeed, some of the statements contained in the

declaration are inconsistent with Hardy's own prior sworn testimony from her 2004 deposition. The declaration is also out

of keeping with statements of other individuals having personal knowledge of the events in question, including both Nelson and plaintiff Cynthia Artis. More fundamentally, Hardy's declaration cannot be credited because there is simply no way in which her recent recollections can properly be considered "new evidence" under the standard governing a Rule 59(e) motion. Plaintiffs fail to explain why

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these statements could not have been presented when defendant's motion to dismiss was originally pending before the Court; how Hardy's testimony could plausibly be understood as being previously unavailable to plaintiffs; or why the Court should rely on these more recent recollections, particularly when they contradict other evidence already in the record. Moreover, the

Court still finds no evidence in the record that Hardy or any of the other plaintiffs provided information about specific instances of discrimination sufficient to meet the exhaustion requirements articulated in Artis v. Greenspan, 158 F.3d 1301, 1302 (D.C. Cir. 1998).

IV.

Conclusion Accordingly, upon careful consideration of plaintiffs'

motion, the response and reply thereto, the supplemental briefing filed by the parties at the request of the Court, the entire record herein, and the applicable law, it is by the Court hereby ORDERED that plaintiff's motion is DENIED. appealable order. See Fed. R. App. P. 4(a). This is a final

Signed:

Emmet G. Sullivan United States District Judge March 2, 2009

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