Davis v. Professional Representatives Organization et al

Filing 78

ORDER denying 76 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT DAVIS,
Case No. 15-10767
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
PROFESSIONAL REPRESENTATIVES
ORGANIZATION, ET. AL.,

U.S. MAGISTRATE JUDGE
R. STEVEN WHALEN

Defendants.
/
ORDER DENYING MOTION FOR RECONSIDERATION [76]
On March 28, 2016, Plaintiff filed an Emergency Motion for
Reconsideration Pursuant to Local Rule 7.1(h) and to Alter or Amend the Court’s
Judgment pursuant to Fed. R. Civ. P. 59(e) and for Relief from Judgment Pursuant
to Fed. R. Civ. P. 60(b)(2). For the reasons stated below, this Motion is DENIED.
1. STANDARD OF REVIEW
Local Rule 7.1(h)(3) provides that:
Generally, and without restricting the court’s discretion, the
court will not grant motions for rehearing or reconsideration
that merely present the same issues ruled upon by the court,
either expressly or by reasonable implication. The movant must
not only demonstrate a palpable defect by which the court and
the parties and other persons entitled to be heard on the motion
have been misled but also show that correcting the defect will
result in a different disposition of the case.
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See Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir.
2003) (A motion for reconsideration is granted only “if the movant demonstrates
that the district court and the parties have been misled by a palpable defect, and
correcting the defect will result in a different disposition of the case”). “A palpable
defect is a defect which is obvious, clear, unmistakable, manifest or plain.” Fleck
v. Titan Tire Corp., 177 F. Supp. 2d 605, 624 (E.D. Mich. 2001) (internal citations
and quotations omitted). “The decision whether to grant reconsideration lies
largely within the discretion of the court.” Yuba Natural Res., Inc. v. United States,
904 F.2d 1577, 1583 (Fed. Cir. 1990).
Per Fed. R. Civ. P. Rule 59(e), a movant may file a Motion to alter or amend
judgment within 28 days of the entry of the judgment. A Court may grant relief
under Rule 59(e) for the following reasons:
(1) because of an intervening change in the controlling law; (2)
because evidence not previously available has become available;
(3) to correct a clear error of law; or (4) to prevent manifest
injustice.”
Hayes v. Norfolk S. Corp., 25 F. App'x 308, 315 (6th Cir.2001).
Fed. R. Civ. P. 60(b) provides:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
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(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

To prevail on a Rule 60(b)(2) motion, a movant must show that they “exercised
due diligence in obtaining the information” and that “the evidence is material and
controlling and clearly would have produced a different result if presented before
the original judgment.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 615 (6th
Cir.2012).
2. ANALYSIS
Plaintiff requests that judgment be reversed based on newly discovered
evidence contained in a letter from a Mr. Burg on March 23, 2016 and an error of
law concerning Court’s interpretation of 29 U.S.C. § 504.
Plaintiff introduces as new evidence an email conversation with Mr. Burg
who works at the Office of Labor-Management Standards at the Department of
Labor. These email exchanges do not point to new evidence that would lead the
Court to reverse the judgment entered on March 16, 2016. The emails inform
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Plaintiff that his ban begins on the date of his release from imprisonment. This date
is used to start the ban merely because, as the letter explicitly states, the ban begins
at the date of conviction or the date of after the end of imprisonment, whichever is
the later date [76-2]. There is no indication that by choosing the later start date, the
other possible start date of the ban, or the time of conviction, becomes
meaningless.
The Court maintains its previous position that there is no indication that this
is anything other than a calculation based on duration of the ban. This distinction
makes sense since the purpose of the statute is to keep those convicted of certain
offenses out of union positions until they are rehabilitated. Considering these aims,
it is logical to distinguish the duration of the ban for those convicted and not
imprisoned and those who are convicted and subsequently imprisoned, because the
time served might equal the time of the ban. It would be antithetical to the purpose
of the ban to allow those just released from prison and still under the terms of
probation to be able to serve in a union before they have shown outside of prison
that they are fully rehabilitated. Additionally, if the Court were to take Plaintiff’s
position concerning this letter, then those convicted would not be barred from
working for the union after convicted but before place in prison or while still in
prison, which would be completely illogical. Therefore, the Court maintains its
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previous position concerning the ban, and maintains that Defendant could
terminate Plaintiff legally under § 504 at the time of the plea, which the Court
interprets to be time of conviction, rather than only once Plaintiff was released
from prison.
Additionally, the Court is not bound to give the evidence presented Chevron
deference as Plaintiff argues. Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). The emails between Plaintiff and a District
Director for the U.S. Department of Labor do not purport to be “official” agency
determinations. According to the Supreme Court:
administrative implementation of a particular statutory provision
qualifies for Chevron deference when it appears that Congress
delegated authority to the agency generally to make rules carrying the
force of law, and that the agency interpretation claiming deference
was promulgated in the exercise of that authority.

United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). The evidence offered
by Plaintiff are merely emails without any indication of procedure or formality
indicative of rule-making, or a similar process that would afford it such Chevron
deference. Under the ruling of Mead, the emails that Plaintiff presents are not
entitled to Chevron deference but are instead due consideration under the standard
stated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). Id at 227.
When considering an agency’s interpretation under Skidmore:
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The weight [accorded to an administrative] judgment in a particular
case will depend upon the thoroughness evident in its consideration,
the validity of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control.”
United States v. Mead Corp., 533 U.S. 218, 228, 121 S. Ct. 2164, 2172, 150 L. Ed.
2d 292 (2001) (citing Skidmore at 140). Under Skidmore, the Court finds that the
position in the email that “conviction” in the statute is the date someone is
sentenced not persuasive. There is no thoroughness evident in the emails; there is
no reasoning presented, or agency authority cited, in the email for the proposition
advanced by Mr. Burg to support the validity of his reasoning. Additionally, this
statement is contradictive of the information provided on the agency’s website, still
current today, which states that for the purposes of §504, the term “judgment of
conviction” “includes a finding or plea of guilty, or an equivalent procedure, such
as a plea of no contest to a disqualifying crime described in §504, and a sentence or
other punitive disposition of the case by the trial court.”
Because the Court finds the Plaintiff ‘s position that emails presented are
new evidence unpersuasive, the Court declines to adopt the position offered in the
letters. The new evidence is not enough to persuade the Court to afford the § 504 a
narrower interpretation than any Court has ever given it. Across the country,
Courts have consistently given the statute the same broad interpretation advanced
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in the Order Granting Defendant’s Motion to Dismiss [74] and have not been
overturned on appeal. Plaintiff argues that the Court has made a mistake of law in
its interpretation of § 504, and yet there is no new argument presented as to why
the Court has made a legal error. Plaintiff cannot offer a single case to advance his
argument for a narrow reading of the statute. Therefore, the Court concludes that
no error of law has been made in its interpretation of § 504, and declines to reverse
its prior decision based on unpersuasive new evidence and identical legal
arguments that Plaintiff has already advanced. Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Reconsideration [76] is
DENIED.
SO ORDERED.

Dated: April 5, 2016

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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