                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
JAMES ROANE, JR., et al.,     )
                              )
          Plaintiffs,         )
                              )
          v.                  )    Civil Action No. 05-2337 (RWR)
                              )
ALBERTO GONZALES, et al.,     )
                              )
          Defendants.         )
                              )
______________________________)

                    MEMORANDUM OPINION AND ORDER

     Federal death row inmate Jeffrey Paul moves under Federal

Rules of Civil Procedure 59(e) and 60(b) for reconsideration of

an order denying his untimely motion to intervene.   He claims

that documented mental incompetence rendered him unable to assert

his right to challenge his method of execution and cannot bar

intervention, and that disallowing intervention will impair his

legally-protectable interests in this litigation.    Because Paul

presents no newly-discovered evidence, factual or legal error, or

manifest injustice warranting reconsideration, the motion will be

denied.

                             BACKGROUND

     Paul was convicted of murder on federal land and sentenced

to death in 1997.   (Paul’s Mem. in Support of Mot. to Interv.

(“Mot. to Interv.”) at 2.)   Paul’s counsel appealed his

conviction and death sentence; petitioned for a writ of
                                -2-

certiorari in 2001; filed a 28 U.S.C. § 2255 motion in 2002;

filed a Rule 59(e) motion to alter or amend the district court’s

denial of his § 2255 motion in 2005; applied for a certificate of

appealability in 2008, and petitioned the Supreme Court for

certiorari in 2009.   (Id.)

     This action was filed in December of 2005.     Several

plaintiffs successfully moved to intervene in this action between

2006 and 2007.   Roane v. Gonzales, 269 F.R.D. 1, 2-3 (D.D.C.

2010).   With the assistance of three attorneys, two of whom

continue to represent him now, Paul moved to intervene only in

October of 2009.   (See id. at 3; Mot. to Interv. at 11; Paul’s

Mot. to Reconsider (“Mot. to Recons.”) at 1, 15.)    His motion was

denied, Roane, 269 F.R.D. 1, and he seeks reconsideration.

     Paul now claims that he has been unable to assert his right

to challenge his method of execution due to a long-standing

incapacitating mental disability.     (Mot. to Recons. at 7, 12.)

To support the claim, Paul cites concerns expressed in 1997 by a

psychologist, Dr. H. Anthony Semone, about Paul’s competency to

stand trial; a 2006 report by a psychiatrist, Dr. Seymour

Halleck, opining that since Paul’s attempt in November 2003 to

hang himself, “his mental condition has deteriorated to such an

extent that he is unable to assist his attorneys in proceedings

relevant to his appeal” (Defs.’ Mot. to Recons., Ex. 1 at 9, 19;

id., Ex. 3 at 3); and a 2004 affidavit by one of Paul’s appellate
                                -3-

attorneys stating that he and Paul had had “only one rational

conversation about the merits of his case” (id., Ex. 5 at 1).

Paul raised this claim in neither his motion to intervene nor his

reply to the government’s opposition to his motion to intervene.

     The government opposes reconsideration and notes that Paul’s

competency issues were fully examined in the district court both

before and after his trial and in the court of appeals

thereafter.   (Defs.’ Notice to the Court (“Defs.’ Notice”)

[Docket #273] at 2-4.)   As the Eighth Circuit explained, the

district court authorized two mental health examinations before

trial to assess Paul’s competence to stand trial.   The district

court received opinions from the same two experts, Dr. Semone and

Dr. Kuo, whose declarations accompany Paul’s pending motion to

reconsider.   Paul v. United States, 534 F.3d 832, 848 (8th Cir.

2008).   The district court also received the same 2004

declaration signed by Dr. Halleck post-trial during the habeas

proceedings after Paul’s hanging attempt that accompanies Paul’s

pending motion to reconsider.   The district court thereafter held

a hearing and engaged in a lengthy colloquy via teleconference

with Paul, id. at 849-50, and invited briefing concerning Paul’s

competency at that time, id. at 851-52.   The district court found

Paul fully competent based upon letters Paul had written, and

Paul’s conduct, conversation and demeanor during the hearing.    On

appeal, the court of appeals authorized Dr. Halleck to examine
                                -4-

Paul and it received Dr. Halleck’s same 2006 report that

accompanies Paul’s pending motion.    Id. at 852.   The Eighth

Circuit found the competency finding “adequately supported.”      Id.

at 853.   Paul has filed no reply to the government’s opposition

to his motion to reconsider.

     Although the defendants filed notice in December of 2010 of

their intent to set an execution date for Paul no sooner than

April 22, 2011 (Defs.’ Notice at 4-5), the defendants have been

reconsidering their lethal injection protocol since then since

they lack one of the chemicals used in the protocol (Joint Mot.

[Docket #286] at 1; Defs.’ Status Rpt. [Docket #292] at 1).

                            DISCUSSION

     A motion to reconsider a final order is generally treated as

a Rule 59(e) motion if it is filed within the filing time limit

set forth in that rule -– as Paul’s was1 –- and as a Rule 60(b)

motion if it is filed thereafter.     Lightfoot v. D.C., 355 F.

Supp. 2d 414, 420-21 (D.D.C. 2005).    As a general matter, Rule

59(e) motions to reconsider “are disfavored.”    Id. at 421.

Reconsideration may be warranted if the movant establishes “an

intervening change of controlling law, the availability of new

evidence, or the need to correct clear error or manifest



     1
       The current version of Rule 59(e) provides that the motion
“must be filed no later than 28 days after the entry of the
[order].” Fed. R. Civ. P. 59(e). Paul’s motion was filed seven
days after the order denying him intervention was entered.
                                 -5-

injustice. . . .    Rule 59(e) motions are not granted if the court

suspects the losing party is using the motion as an

instrumentality for . . . asserting new arguments that could have

been . . . advanced earlier.”    Id. (internal quotation marks and

citations omitted); see also Latin Am. for Soc. and Econ. Dev. v.

Adm’r of Fed. Highway Admin., Civil Action No. 09-897 (EGS), 2010

WL 199823, at *1 (D.D.C. Jan. 11, 2010).   The term “manifest

injustice” eludes precise definition.   Firestone v. Firestone, 76

F.3d 1205, 1208 (D.C. Cir. 1996); see also Piper v. U.S. DOJ, 312

F. Supp. 2d 17, 22 (D.D.C. 2004) (“[T]here is even less case law

on the books giving meaning to ‘manifest injustice’ than to

‘clear error.’”).   The D.C. Circuit has noted that “[m]anifest

injustice does not exist where . . . a party could have easily

avoided the outcome, but instead elected not to act until after a

final order had been entered.”   Davis v. D.C., 413 F. App’x 308,

311 (D.C. Cir. 2011) (internal quotation marks and citation

omitted).

     Paul cites no intervening change in controlling law.

Neither does he cite newly available evidence.    The evidence

concerning his alleged mental incompetency was, according to his

own counsel, readily available eight years ago.   (See Mot. to

Recons. at 15 (asserting that Paul’s “period of . . . mental

disability . . . began at least as early as December 2003.”).)

The Halleck declaration alone dates back to 2004.   Paul’s
                                  -6-

submissions duplicate exactly or in substance portions of the

information fully assessed by Paul’s trial court and the Eighth

Circuit when both made findings regarding his competence.2

Though this evidence “is newly raised, it is not . . . ‘new’

evidence [because] it was previously available.”    Olson v.

Clinton, 630 F. Supp. 2d 61, 63 (D.D.C. 2009) (internal quotation

marks and citations omitted).3

     The defendants’ notice of its intention to execute Paul,

filed on December 23, 2010, was previously unavailable and

arguably is newly discovered evidence within the meaning of

Firestone.   76 F.3d at 1208.    (See also Paul’s Supplemental Mot.

to Recons. Order Denying Paul Leave to Intervene at 2-3.)

However, the notice would not necessarily have changed the

decision denying intervention.    See Barnard v. Dep’t of Homeland

Sec., 598 F. Supp. 2d 1, 26 (D.D.C. 2009) (declining to consider

separately the four elements allowing a party to obtain relief

from judgment based on newly discovered evidence where the

evidence would not have changed the initial decision).    The


     2
       That information included Paul’s suicide attempt. Compare
Shafer v. Knowles, No. C03-1165SI, 2003 WL 22127878, at *2 (N.D.
Cal. Aug. 14, 2003) (“The fact that [a defendant] twice attempted
suicide . . . does not necessarily mean that he was mentally
incompetent for purposes of attending to his legal affairs.”)
     3
       This reasoning would also defeat relief under Rule
60(b)(2) which requires a showing of “newly discovered evidence
that, with reasonable diligence, could not have been discovered”
within 28 days of the order denying intervention. Fed. R. Civ.
P. 60(b)(2).
                                -7-

opinion denying intervention here stated that “[i]n ruling on a

motion to intervene, the Court must first determine whether the

application to intervene is timely.”   Roane, 269 F.R.D. at 4

(internal quotation marks and citation omitted).   The opinion

found that “Paul’s failure to file timely his own method of

execution challenge[,]” rather than the denial of his motion to

intervene, impaired Paul’s interest in the Roane litigation.     Id.

Ultimately, Paul failed to find support in three of the four

factors courts consider when granting intervention.   Id. at 4.

The defendants’ decision to schedule an execution date may have

expedited the court’s decision4 but “would not have changed [its]

outcome.”   Barnard, 598 F. Supp. 2d at 27.   Accordingly, the

notice does not provide a ground for reconsidering the decision

denying intervention.

     Nor has Paul cited authority in this circuit that would

establish that denying intervention as untimely was clear error.

In this circuit, mental incompetence tolls a statute of

limitations if a party’s disability rendered him “unable to

manage [his] business affairs . . . or to comprehend [his] legal

rights or liabilities.”   Smith-Haynie v. D.C., 155 F.3d 575, 580

(D.C. Cir. 1998).   “Equitable tolling is only appropriate on non


     4
       In any event, any need for expedition was mooted seven
weeks before the projected date for announcing an execution
schedule when the Attorney General announced that the government
had no reserves of one of the lethal injection chemicals.
(Parties’ Joint Status Rpt. [Docket #281] at 1.)
                                  -8-

compos mentis5 grounds when a plaintiff is ‘completely incapable

of handling his affairs and legal rights.’”   Perry v. U.S. Dep’t

of State, 669 F. Supp. 2d 60, 66 (D.D.C. 2009) (internal

quotation marks and citation omitted).   The burden to make this

showing is “high,” as “[t]he court’s equitable power . . . will

be exercised only in extraordinary and carefully circumscribed

instances.”   Smith-Haynie, 155 F.3d at 579-80.

     Paul’s efforts fall short.    The latest psychiatric

evaluation Paul offers of his competency was forty months old by

the time he filed his untimely motion to intervene in 2009.

Denying a movant’s untimely intervention motion that did not

establish mental incompetency at the time the motion was filed

reflects no error.   See Collins v. Scurr, 230 F.3d 1362 (Table)

(8th Cir. 2000) (affirming the dismissal of a petitioner’s

untimely habeas petition for failure to establish his mental

incompetency at or around the time the petition was filed).

Moreover, Paul has not yet overcome the judicial findings at the

trial and appellate levels as recently as one year before he

moved to intervene that he was not mentally incompetent.    Nor has

he disputed that multiple counsel have actively pursued his legal


     5
       Paul cites to D.C. Code § 12-302(a), which tolls the
statute of limitations in civil actions for “a person who is non
compos mentis.” (Paul’s Mot. to Interv. at 3.) “Equitable
tolling is only appropriate on non compos mentis grounds when a
plaintiff ‘is completely incapable of handling his affairs and
legal rights.’” Miller v. Rosenker, 578 F. Supp. 2d 67, 72
(D.D.C. 2008) (internal citation omitted).
                               -9-

rights in multiple fora after his conviction.   See Reupert v.

Workman, 45 F. App’x 852, 854 (10th Cir. 2002) (declining to toll

a counseled defendant’s deadline for filing habeas petition where

he “pursu[ed] legal remedies during the . . . period” of alleged

mental incompetence); Lopez v. Citibank, N.A., 808 F.2d 905, 907

(1st Cir. 1987) (assuming mental illness may toll an employment

discrimination case, “it cannot do so where a plaintiff has

presented no strong reason why, despite the assistance of

counsel, he was unable to bring suit”); Van Allen v. United

States, 236 F. App’x 612, 614 (Fed. Cir. 2007) (denying equitable

tolling for mental incompetence where counseled veteran

“demonstrated diligence and competence in numerous

submissions”);6 but see Riva v. Ficco, 615 F.3d 35, 43 (1st Cir.

2010) (characterizing this reasoning as flawed).   It bears noting

that this Roane litigation presents the legal question as to

whether lethal injection violates the federal Constitution and

the Administrative Procedure Act.    Even assuming that Paul is



     6
       Even pro se plaintiffs are held to this standard. See,
e.g., Bilbrey v. Douglas, 124 F. App’x 971, 973 (6th Cir. 2005)
(“[E]ven during the periods when Bilbrey’s mental condition
appears to have been the most impaired, she continued to file
litigation in the state courts”); Walker v. Schriro, 141 F. App’x
528, 530-31 (9th Cir. 2005) (“The district court reasonably
concluded that since Walker was able to complete filings
immediately prior to the time the AEDPA limitation period was
running, during the time the statute was being tolled for his
state habeas proceedings, and immediately after the limitation
period expired, he could have filed his federal habeas claim on
time”).
                                 -10-

mentally incompetent, and that he is unable to assist his

attorneys meaningfully, it is not clear that his participation

would materially affect their representation in this litigation.

Paul has failed to make out the difficult showing that would

justify equitable tolling under Smith-Haynie.    155 F.3d at 580.

     Finally, Paul has failed to show that denying intervention

would work a manifest injustice.    “The standard of proving

manifest injustice is . . . high[,]” In re Motion of Burlodge

Ltd., Misc. Action No. 08-525 (CKK/JMF), 2009 WL 2868756, at *7

(D.D.C. Sept. 3, 2009) (internal quotation marks and citation

omitted), and is not satisfied where a party “could have easily

avoided the outcome, but instead elected not to act until after a

final order had been entered.”    Davis, 413 F. App’x at 311.   Paul

elected not to submit evidence of his mental incompetence until

he moved for reconsideration of the order denying intervention.

Moreover, Paul still has not refuted the possibility of bringing

his own action to protect his interest in challenging his

execution protocol.   See Roane, 269 F.R.D. at 4 (noting Paul’s

failure to demonstrate that denying intervention would impair his

ability to protect his interests since he did not refute that he

could still seek the same relief in the court where he was
                                -11-

convicted).    Accordingly, he has demonstrated no manifest

injustice.7

                        CONCLUSION AND ORDER

     Paul has not identified any intervening change in

controlling law, proffered new evidence, or shown a need to

correct clear error or prevent manifest injustice.   Accordingly,

it is hereby

     ORDERED that Paul’s motion [261] for reconsideration be, and

hereby is, DENIED.   It is further

     ORDERED that the government’s motion [276-1] to strike

Paul’s supplement be, and hereby is, DENIED as moot.

     SIGNED this 29th day of December, 2011.


                                        /s/
                                RICHARD W. ROBERTS
                                United States District Judge




     7
       Nor has he demonstrated under Rule 60(b) “any other reason
that justifies relief.”
