Jolley v. Donovan

Filing 87

ORDER denying 70 Motion to Alter or Amend Judgment; denying 77 Motion for Sanctions; denying 79 Motion to Disqualify Counsel. Plaintiff's motions are DENIED, and this case remains closed. Signed by Chief Judge Lisa G. Wood on 12/19/2011. (csr)

3n the lintteb £tateg Dt trut Court
for the £outhern Dttrttt of georgic
9runob ek tbi ton

WILLIAM B. JOLLEY
Plaintiff,
vs.
CV 210-097
THE HONORABLE SHAUN
DONOVAN, SECRETARY,
U.S. Department of Housing & Urban
Development, in his individual and
official capacities,
Defendant.
ORDER

Presently before the Court are three motions submitted by
William B. Jolley ("Plaintiff"): (1) Motion to Alter or Amend
Judgment under Rule 59 or Motion for Relief from Judgment under
Rule 60, Dkt. No. 70, (2) Motion to Sanction the Department of
Justice and AUSA Debra Kennebrew for Violation of Rule 11, Dkt.
No. 77, and (3) Motion to Disqualify AUSA Melissa S. Mundell as
Counsel for Shaun Donovan in his Capacity as an Individual, Dkt.
No. 79. For the reasons stated below, all three of Plaintiff's
motions are DENIED.

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BACKGROUND
Plaintiff is a former employee of the U.S. Department of
Housing and Urban Development ("HUD"). In 2008, Plaintiff was
transferred from Jacksonville, Florida to Boise, Idaho. While
in Boise, Plaintiff asked to swap duty assignments with another
HUD employee in Illinois. Plaintiff gave HUD an ultimatum: HUD
could grant Plaintiff's request or Plaintiff would retire.
Plaintiff's supervisor responded, stating that the reassignment
request would not be granted or denied until HUD completed an
internal restructuring assessment. Consequently, Plaintiff
resigned from HUD on March 31, 2010. Dkt. No. 1.
Plaintiff initiated this lawsuit on June 21, 2010 against
HUD Secretary, Shaun Donovan ("Defendant"). Dkt. No. 1.
Plaintiff essentially alleged that Defendant refused to resolve
Plaintiff's transfer request in an effort to force Plaintiff to
retire. Plaintiff further alleges that the Defendant "intended
the Plaintiff to retire because of his age." Dkt. No. 1, at 12.
Plaintiff was approximately eighty years old at the time he
retired.
Plaintiff sued Defendant in his official capacity and his
individual capacity, based on various theories, including
violations of the the Age Discrimination in Employment Act
(`^ADEA"), constitutional violations, and state and federal
statutory violations. Dkt. No. 1. In terms of relief,
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Plaintiff asked the Court to order HOD to "cancel the
retirement; assign Plaintiff to a supervisory position east of
the Mississippi River; and pay back-pay, attorney's fees, and
liquidated damages" and to award "compensatory damages and
punitive damages in the amount of one million dollars." Dkt.
No. 1, at 17. Defendant moved to dismiss Plaintiff's claims on
several grounds. Dkt. No. 6.
This Court granted Defendant's motion to dismiss. Dkt. No.
68. The Court dismissed the Plaintiff's claims against the
Defendant in his individual capacity because Plaintiff did not
properly serve process on the Defendant as an individual. Id.
at 4-8. Plaintiff's claims against the Defendant in his
official capacity were dismissed for two reasons: (1) Plaintiff
failed to show that he had complied with the statutory
requirements under the ADEA, namely providing the EEOC with
notice of his intent to sue, and (2) because Plaintiff failed to
state a claim under the ADEA upon which relief could be granted.
Id. at 8-13.
Plaintiff now moves the Court to reconsider its previous
ruling, styling his motion as a Rule 59 motion to alter
judgment, or alternatively, a Rule 60 motion for relief from
judgment. Dkt. No. 70. Plaintiff's arguments are largely
restatements of his arguments leading up to the Court's Order
dismissing his claims. Plaintiff further moves, in two related

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motions, for sanctions against Assistant United States Attorney
("AUSA") Debra Kennebrew, Defendant's previous counsel, and for
disqualification of Defendant's present counsel, AUSA Melissa
Mundell. Dkt. Nos. 77 and 79. These two motions challenge the
propriety of the Department of Justice ("DOJ") representing the
Defendant. The motions are based on the theory that Defendant
was not acting on behalf of the United States when he refused to
grant Plaintiff's request for transfer, and therefore Defendant
was not entitled to representation by the DOJ.

I. Motion to Amend Judgment or Motion for Relief from Judgment
Plaintiff moves, pursuant to Rule 59, for an alteration or
amendment to judgment, or alternatively, pursuant to Rule 60,
for relief from judgment. Dkt. No. 70. Plaintiff treats the
two Rules interchangeably, so it is up to the Court to determine
the Rule under which Plaintiff's motion is properly considered.
See, e.g., Brown v. Spells, 2011 WL 4543905 (M.D. Ga. Sept. 30,
2011) (resolving whether a motion for reconsideration should be
decided under Rule 59(e) or Rule 60(b) where movant cites both
provisions) . When a motion for reconsideration of a judgment is
filed within the time period set forth in Rule 59(b), the motion
should be considered a motion to amend or alter a judgment
pursuant to Rule 59(e), not Rule 60. See Mahone v. Ray, 326
F.3d 1176, 1178 n.1 (11th Cir. 2003) (confirming the propriety
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of distinguishing Rule 59(e) motions from Rule 60(b) motions
based on whether the motion is filed inside or outside of the
Rule 59(b) filing period). Because Plaintiff filed his motion
five days after the Court issued its judgment, well within the
twenty-eight day window set forth in Rule 59(b), the Court
treats Plaintiff's motion as a motion to alter or amend judgment
pursuant to Rule 59(e).'
"The only grounds for granting [a Rule 59(e)] motion are
newly-discovered evidence or manifest errors of law or fact."
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quoting In
re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). "[A] Rule
59(e) motion [cannot be used] to relitigate old matters, raise
argument or present evidence that could have been raised prior
to the entry of judgment." Id. (quoting Michael Linet, Inc., v.
Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.
2005)) . Therefore, following the guidance in Arthur v. King,
the Court will only grant Plaintiff's motion if (1) it presents
newly-discovered evidence or (2) identifies manifest errors of
law or fact. The Court reviews each of Plaintiff's arguments in
favor of reconsideration.

1 The Order was entered on March 30, 2011 and Plaintiff filed his motion on

April 5, 2011. Dkt. Nos. 68 and 70.

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A. Service of Process
Plaintiff seeks reconsideration of the portion of the
Court's Order that dismissed Plaintiff's claims against the
Defendant in his individual capacity because Plaintiff failed to
properly serve the Defendant. Dkt. No. 70, at 4-12. In its
Order, this Court held that the Plaintiff was required to serve
Defendant in accordance with Federal Rule of Civil Procedure
4(i)

2

Dkt. No. 68, at 5. The Court found that the Plaintiff

failed to comply with these requirements.
In the instant motion, Plaintiff reiterates the exact same
arguments he made when challenging the Defendant's original
motion to dismiss. As stated previously, a motion under Rule
59(e) will not be granted on the basis of relitigation of old
matters. In rearguing the same issues, Plaintiff demonstrates a
misunderstanding about the law governing the dismissal of his
claims due to improper service. As explained below, Plaintiff's
claims were properly dismissed.
Early in this litigation, Plaintiff showed that he sent a
copy of the Complaint and Summons to the Attorney General and
Defendant Shaun Donovan by certified mail, and that the mail was
received. Dkt. No. 10, Exs. 1 and 2. Plaintiff asserts that he
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Plaintiff could not rely on the service requirements set out in Rule
4(i) (2), which allow service "by registered or certified mail," as the
exclusive means of service. Rule 4 (i) (2) applies where the officer or
employee is sued only in an official capacity. At no point has Plaintiff
argued that he sued Defendant only in an official capacity.
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sent copies of the Complaint and Summons to the United States
Attorney for the Southern District of Georgia. 3 These are the
only instances of service in this suit: certified mail sent by
the Plaintiff individually to the Defendant, the Attorney
General, and the United States Attorney.
As a threshold matter, the Court recognizes Plaintiff's
vehement contention that Defendant was not acting on the United
States' behalf when he failed to grant Plaintiff's transfer
request. Dkt. No. 70, at 4-12. The Court however, maintains
its prior holding, and restates that holding as clearly as
possible: Defendant's failure to grant Plaintiff's transfer
request, was unquestionably "performed on the United States'
behalf. " 4 Dkt. No. 68, at 5. A banal staffing decision, such as
granting or denying a reassignment request, is the
quintessential example of conduct "performed on the United
States' behalf" where the Defendant is charged with managing the
Plaintiff was only able to provide evidence that he paid for documents to be
mailed by certified mail to Savannah; Plaintiff misplaced the evidence
showing that the mail was actually mailed or received. Dkt. No. 10, Ex. 3.
The Court points out that the issue has little bearing on whether service
was adequate in this case. Even if, as Plaintiff claims, Defendant's
conduct was not on the United States' behalf, the Plaintiff would still need
to serve the Defendant individually pursuant to Rule 4(d), (e), (f), or (g).
Rules 4(f), setting forth the requirements for service on an individual in a
foreign country, and Rule 4(g), setting forth the requirements for service
on a minor or an incompetent person are clearly inapplicable. Rule 4(d)
governs the procedures for requesting waiver of service. Nothing in the
record indicates that Plaintiff sent a request for waiver of service to
Defendant, or that Defendant accepted such a request. Therefore, Plaintiff
needed to serve Defendant in accordance with Rule 4 (e) . Consequently,
regardless of whether Defendant's conduct was on the United States behalf which it unquestionably was - Plaintiff must show that he satisfied the
service requirements set forth in Rule 4(e).
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staff of a federal agency. The fact that such an act may
ultimately create liability under some other legal provision
(for example, the ADEA) does not negate the fact that the
conduct was performed on the United States' behalf.
Consequently, because Plaintiff sued Defendant, a United States
officer or employee, in his individual capacity for conduct
undertaken on the United States' behalf, Plaintiff was required
to serve Defendant in accordance with Federal Rule of Civil
Procedure 4(i) (3)
Federal Rule of Civil Procedure 4(i) (3) requires service on
the United States and service on the officer or employee under
Rule 4(e). 5 Rule 4(e) provides two options for serving an
individual: (1) The plaintiff can serve the defendant in
accordance with "state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district court is located or where service is made," or (2) the
plaintiff can follow the personal service rules set forth in
Rule 4 (e) (2). There is no indication that Plaintiff followed
the personal service rules set forth in Rule 4 (e) (2). Thus,
Plaintiff's only avenue to show that service was proper is to
show that he served Defendant in accordance with the state law
for service in either the state where the district court is
Rule 4 (i) (3) also allows for service on the individual officer or employee
under Rule 4(f) and 4(g). As stated in footnote 4, neither 4(f) nor 4(g)
are applicable in this case, so the Court treats Rule 4(i) (3) as requiring
service pursuant to 4(e), the only applicable provision.
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located or where service is made. Turning to Georgia law, the
state where the district court is located, it is clear that
sending a complaint and summons by registered or certified mail,
without more, does not constitute proper service on an
individual. O.C.G.A. § 9-11-4. As such, Plaintiff needed to
perfect service under the laws of the District of Columbia,
where the service was made. See, e.g., Miller v. United States,
2011 WL 1750442 (N.D. Fla. Mar. 29, 2011) (applying either New
York or Florida service of process law under Rule 4(h), which
incorporates Rule 4(e)(1)); Carr v. Mid-Atlantic Fin. Servs.
Inc., 2010 WL 3368260, n.5 (N.D. Ga. July 27, 2010) (applying
South Carolina service-by-mail laws to determine whether a
complaint mailed from Georgia to South Carolina properly served
the defendant); Carcamo v. Norgas Carriers AS, 2010 WL 2926035
(S.D. Fla. July 23, 2010) (applying either Florida or Texas
service of process law under Rule 4(e)); T & K Capital, LLC v.
Lilley Intern., LLC, 2010 WL 2044896 (S.D. Fla. May 24, 2010)
(applying Pennsylvania law for service of process under Rule
4(e) (1)).
Plaintiff argues that he satisfied the service requirements
for the District of Columbia. Dkt. No. 70, at 4. Rule 4(e) of
the District of Columbia Rules of Civil Procedure (DCRCP) sets
forth the requirements for serving individuals located within
the United States. DCRCP 4(e) requires that an individual be

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served "pursuant to District of Columbia law. i6 As such, DCRCP
4(e) incorporates DCRCP 4(c)(3) which allows plaintiffs to
effectively serve individuals in the United States by "mailing a
copy of the summons, complaint and initial order to the person
to be served by registered or certified mail, return receipt
requested." See Lennon v. McClory, 3 F. Supp. 2d 1461, 1462
(D.D.C. 1998) ("Rule 4(e)(1) of the District of Columbia Rules
of Civil Procedure allows for service of process by means of
registered or certified mail as provided by Rule 4(c)(3) of the
District of Columbia Rules of Civil Procedure."). Therefore,
mailing a copy of the summons, complaint, and initial order to a
defendant by registered or certified mail will, in some
circumstances, constitute proper service in the District of
Columbia. However, the DCRCP 4 imposes other limits on service
by mail.
Where service is made by registered or certified mail, and
the return receipt is not signed by the person to be served, a
plaintiff must produce an affidavit proving that service was
effected. DCRCP 4(1). The affidavit "shall specifically state
. . . specific facts from which the Court can determine that the
person who signed the receipt meets the appropriate
6 Specifically, DCRCP 4(e)(1) states that service may be effected "pursuant to
District of Columbia law, or the law of the state or territory in which
service is effected, for the service of a summons upon the defendant in an
action brought in the courts of general jurisdiction of that state or
territory." DCRCP 4(e)(2) allows, in the alternative, for individuals to be
personally served, and sets forth the methods for personal service.
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qualifications for receipt of process" described in other
sections of DCRCP 4. DCRCP 4(l)(2). Plaintiff has not provided
the Court with an affidavit describing the facts of service.
Additionally, among the qualifications for a signatory to
receive process for a defendant, the DCRCP requires that the
signatory be "some person of suitable age and discretion then
residing" in the defendant's "dwelling house or usual place of
abode." DCRCP 4(e) (2). Alternatively, a signatory can be an
agent authorized to receive service on the behalf of the
defendant. Id. Here, Plaintiff sent copies of the Complaint
and Summons to the Defendant's place of employment and has
provided no evidence that the signatories on the receipt were
authorized to accept service. Dkt. No. 10, Ex. 2. As such,
Plaintiff has failed to properly serve the Defendant in his
individual capacity under District of Columbia law. See Hammond
v. Fed. Bureau of Prisons, 740 F. Supp. 2d 105 (D.D.C. 2010)
(holding that plaintiff's attempted service, consisting of
sending a copy of the complaint and summons to the defendants'
place of employment, was insufficient service under the DCRCP 4,
and consequently granting defendants' motion to dismiss).
In sum, Plaintiff was required to serve Defendant
individually under Federal Rule of Civil Procedure 4 (i) (3).
Federal Rule of Civil Procedure 4 (i) (3) required Plaintiff to
serve the Defendant in accordance with Rule 4(e), which in turn

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permitted service in accordance with the laws of Georgia or the
District of Columbia. Service was not proper under Georgia law.
District of Columbia law, specifically DCRCP 4(e), requires that
process be left at the home of a defendant or with an agent
appointed to receive service. Because Plaintiff failed to
comply with DCRCP 4(e), service on the Defendant was improper,
and the Court correctly dismissed Plaintiff's claims against the
Defendant in his individual capacity.7

B. Notice to the EEOC
Plaintiff argues that the Court was wrong in dismissing his
claims against the Defendant in his official capacity for
failing to satisfy the ADEA's statutory requirements. Dkt. No.
70, at 2. Specifically, Plaintiff refers to the portion of the
Court's order that held that Plaintiff failed to show that he
notified the EEOC of his intent to sue Defendant for age
discrimination. Dkt. No. 68, at 8-11. In reaching its
conclusion, this Court relied on the Plaintiff's Complaint and

Although Federal Rule of Civil Procedure 4 (i) (4) (B) permits a party
reasonable time to cure defects in service, its provisions are not
applicable here. Service was required under Rule 4 (i) (3) . Service was
properly made on the United States, but not the Defendant. Consequently,
Rule 4(1) (4) (B) is inapplicable. Furthermore, Plaintiff has been on notice
about the defects in service since August 20, 2010 - well over a year before
the issuance of this order. Plaintiff has made no attempt whatsoever to
cure the defective service and is not entitled to additional time to cure
service.

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exhibits provided by the Plaintiff in conjunction with his selfstyled Motion to Dismiss Defendant's Motion to Dismiss. See
Dkt. Nos. 1, 10, and 68. The Complaint incorporated a letter
("Complaint Letter") that Plaintiff sent to the EEOC on March
22, 2010. Dkt. No. 1. The exhibits confirmed that the
Complaint Letter was sent to the EEOC by certified mail and
received by the EEOC. Dkt. No. 10, Exs. 1 and 9. The Court
relied primarily on the contents of the Complaint Letter in
determining whether the Plaintiff had actually notified the EEOC
of his intent to sue. The Court held that the Complaint Letter
was a far cry from an announcement of Plaintiff's intent to
initiate a lawsuit. Dkt. No. 68, at 8-11. Rather, the letter
summarized Plaintiff's version of the facts and stated that
Plaintiff felt Defendant's conduct "appear[ed]" to violate the
ADEA. Dkt. No. 1. As such, the Court dismissed Plaintiff's
ADEA claims because the Plaintiff never actually notified the
EEOC of his intent to sue the Defendant. Dkt. No. 68.
In the instant motion, Plaintiff contends that the
Complaint Letter was sent in conjunction with another letter
("Second Letter") that more clearly indicated his intent to sue.
Dkt. No. 70, at 2-3. Admittedly, the Second Letter does state a
clear intent to sue. 8 However, Plaintiff did not present the

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The subject line of the Second Letter is "30 day notice of intent to file
ADEA complaint in U.S. District Court." Dkt. No. 70, at 3.
13

Second Letter to the Court when it was resolving Defendant's
challenge to Plaintiff's EEOC notice.9
Regardless of whether the Second Letter would have
influenced the Court's assessment of Plaintiff's EEOC notice,
Plaintiff cannot now rely on the Second Letter in requesting
reconsideration of the Court's Order. Plaintiff's argument,
that the Second Letter provided adequate notice to the EEOC on
March 22, 2010, naturally requires that he was in possession of
that letter from that date onward. Because the Plaintiff was in
possession of the Second Letter throughout the course of this
lawsuit, the Second Letter cannot be considered "newlydiscovered evidence," and thus cannot support a Rule 59(e)
motion to amend. Rather, the Second Letter is evidence "that
could have been presented prior to the entry of judgment" and
thus does not justify granting Plaintiff's Motion to Amend
Judgment. Arthur, 500 F.3d at 1343. Likewise, the Court
affirms its previous determination that the Complaint Letter did
not adequately notify the EEOC of Plaintiff's intent to sue, and
that holding was not a "manifest error of law or fact." See Id.
("The only grounds for granting [a Rule 59(e)] motion are newlydiscovered evidence or manifest errors of law or fact." (quoting

Plaintiff did attach the Second Letter as an exhibit to a motion dealing
with a wholly unrelated issue. See Dkt. No. 34, Ex. 2 ("Plaintiff's Motion
to Strike Defendant's Argument About Service of Process"). However, the
Court is not obligated to dig through the entire record, including copious
exhibits, to ferret out substantiation of one party's arguments.

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In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). Because
no new evidence has been presented, and the Court made no
manifest error, Plaintiff's motion for reconsideration regarding
his failure to adequately notify the EEOC is denied.10
C. Failure to State a Claim
In its previous Order, this Court granted Defendant's
motion to dismiss, holding that Plaintiff's claims against the
Defendant in his official capacity failed because the
Plaintiff's Complaint failed to state a claim under the ADEA.
The Court explained that for a Plaintiff to adequately state a
claim for relief under the ADEA, the Plaintiff must establish
the prima facie case of discrimination. Dkt. No. 68, at 11. In
order to do so, the Plaintiff must show, among other things,
"that 'similarly situated younger employees were treated more
favorably." See Dkt. No. 68, at 12 (quoting Diaz v. AIG Mktg.
Inc., 2010 WL 3667019, at *2 (11th Cir. Sept. 22, 2010)) . The
Court held that Plaintiff completely failed to allege that
younger employees were treated more favorably.
Plaintiff now challenges the Court's holding that his
Complaint failed to state a claim, arguing that evidence of more
favorable treatment of younger employees is not required to
establish a prima facie case of age discrimination. Plaintiff
10

The Court notes that Plaintiff's contention that he sent two letters to the
EEOC on the exact same day, one stating an intent to sue and the other
failing utterly to do so, is suspect, to say the least.

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cites one case from the Seventh Circuit Court of Appeals for his
proposition. See Dkt. No. 70, at 14 (citing Robin v. Espo Eng'g
Corp., 200 F.3d 1081 (7th Cir. 2000)). However, the Court is
aware of no case law in the Eleventh Circuit that supports
Plaintiff's position. Moreover, even if Plaintiff could
establish a prima facie case of age discrimination by showing
"other such evidence that indicates that it is more likely than
not that his age was the reason for the adverse employment
action," as he claims, the Plaintiff would still fail to state a
claim. Plaintiff has provided no evidence that a younger
employee was treated more favorably, or that his age played any
role in the disputed employment action. As such, Plaintiff's
claim would still be dismissed, even under the Seventh Circuit
standard on which the Plaintiff now relies.
D. Additional Contentions
Plaintiff argues that Defendant's counsel, AtJSA Kennebrew
committed fraud on the court by representing Defendant without
authority. Dkt. No. 70, at 12. Plaintiff's position is utterly
without merit. As discussed previously, Defendant was acting in
the course of his duties as Secretary of HUD when he failed to
grant Plaintiff's reassignment request. Therefore, there was
nothing fraudulent about the actions of defense counsel.
Alleging fraud on the court against an AUSA is a serious charge

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and should not dropped in a motion as a one-off argument.
Plaintiff has no justification for making such a claim.
Plaintiff further contends that "the dispositive action in
this case may have been made by a Magistrate Judge." Dkt. No.
70, at 15. Plaintiff provides no factual basis for his
position, nor could he. The dispositive order in this case was
issued by the undersigned, a district court judge. See Dkt. No.
68. Plaintiff's challenge on this ground is completely lacking
in merit.

II. Motion for Sanctions and Motion to Disqualify
Plaintiff has filed a "Motion to Sanction the Department of
Justice and Debra Kennebrew for Violation of Rule 11" and a
"Motion to Disqualify AUSA Melissa S. Mundell as Counsel for
Shaun Donovan in his Capacity as an Individual." Dkt. Nos. 77
and 79. Plaintiff's arguments in these motions are based on the
mistaken belief that Defendant is not entitled to legal
representation by the DOJ. Specifically, Plaintiff relies on an
unheard of interpretation of 28 C.F.R. § 50.15," and provides no
support whatsoever for his position.

" Section 50.15 is titled: Representation of Federal officials and employees
by Department of Justice attorneys or by private counsel furnished by the
Department in civil, criminal, and congressional proceedings in which
Federal employees are sued, subpoenaed, or charged in their individual
capacities.

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Simply put, Plaintiff sued Defendant in his official and
individual capacity for conduct associated with a HUD employment
decision. Defendant is entitled to DOJ legal representation in
this context. Plaintiff has pursued this path before, and the
Court has firmly rejected this theory. Dkt. Nos. 19 and 41.
Again, the Court rejects this unsubstantiated theory.
Accordingly, Plaintiff's motions challenging the propriety of
Defendant's representation by the DOJ are denied.

CONCLUSION
For the reasons stated above, Plaintiff's motions are
DENIED, and the case remains closed.

SO ORDERED, this 19th day of December, 2011.

fI SA GODBEY OOD, CHIEF JUDGE
'
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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