                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                           )
RICHARD ANDERSON, et al.,                  )
                                           )
               Plaintiffs,                 )
                                           )
        v.                                 )          Civil Action No. 06-1565 (RMC)
                                           )
ARNE DUNCAN, in his official capacity )
as the Secretary of the U.S. Department of )
Education,                                 )
                                           )
               Defendant.                  )
                                           )


                                   MEMORANDUM OPINION

               Plaintiffs claim that counsel for Defendant Arne Duncan, Secretary of Education,

misled this Court when Government counsel argued that they discovered new evidence that it

was former Secretary Margaret Spellings who decided to close certain regional offices, causing

the disabled and older Plaintiffs to lose their jobs. Based upon the new evidence, the Court

allowed Secretary Duncan to amend his Answer and reopened discovery. Plaintiffs seek

reconsideration.

                   The motion to reconsider will be denied.

                                             I.     FACTS

                Plaintiffs bring claims for disability and age discrimination under the

Rehabilitation Act, 29 U.S.C. § 700 et seq., and the Age Discrimination in Employment Act, 29

U.S.C. § 633a et seq, based upon closure of regional offices of DoEd’s Rehabilitation Services

Administration (“RSA”), where they were employed. The offices were closed on September 30,
2005, they sued in 2006, and discovery has been long and laborious. In February 2012, the

Court granted the Secretary’s December 2011 motion, 1 Dkt. 51, and allowed Secretary Duncan

to amend his Answer to add new affirmative defenses. Government counsel asked to amend the

Answer after they discovered that Secretary Spellings was the individual who decided to close

RSA regional offices. This fact became known only during the deposition of Assistant

Education Secretary Troy Justesen, who was thought to be the key decisionmaker. Government

counsel reported that, following the deposition, they spoke with Secretary Spellings, who gave

them consulting reports from Boston Consulting Group (“BCG”) that recommended the closures.

The reports were shared at only the very highest levels of the Department and were previously

unknown to counsel. This evidence appeared to change the nature of the closure decision as well

as the relevant decision-makers.

               Plaintiffs now move for reconsideration of the Court’s order allowing an amended

Answer. They contend that Government counsel affirmatively misled the Court “when [they]

alleged that [they had] recently learned from Justesen that Spellings was the official who decided

to close the RSA regional offices [and] that [they] had also learned from Spellings that BCG

documents were critical newly discovered evidence regarding the decision.” Pls.’ Mem. [Dkt.

70-1] at 9-10. Plaintiffs argue, as they did in opposing the Secretary’s motion to amend his

Answer, that the decision to close the RSA regional offices was made in late 2004, when

Secretary Spellings was not yet Secretary. The Government responds that Secretary Spellings

influenced the closure decision in her role as a domestic policy advisor in the White House.




1
 This motion was entitled “Renewed Motion for Leave to File Amended Answer or,
Alternatively, Motion for Clarification of the Court’s Minute Orders of September 14 and 16,
2010.” It was treated as a motion for reconsideration under Federal Rule of Civil Procedure
54(b).
                                                2
               Secretary Spellings has now been deposed. Plaintiffs argue that she testified: 1)

she advised on budget decisions but was not the decision-maker with respect to cutting RSA

regional offices from the FY 2008 budget; and 2) the BCG documents were not related to the

closure of the RSA offices. See Mot. to Reconsider, Ex. 1 [Dkt. 70-2] at 57, 61. Accordingly,

Plaintiffs argue that Government counsel misrepresented that Secretary Spellings was the

individual who decided to close RSA regional offices and the role that the BCG documents

played in this decision. Since this was the basis for the Court’s approval of an amended Answer,

Plaintiffs ask the Court to reverse course.

               Government counsel deny they misled this Court. They argue that they “noted

[Secretary Spellings’s] role in the process and later discovered evidence showing that others

were involved” in the decision to close RSA regional offices. Def.’s Opp’n [Dkt. 78] at 2. They

stand by their assertion that Secretary Spellings was part of the decision to close the regional

offices, although she was only one of many White House officials who participated in the

decision-making process. Government counsel deflect Plaintiffs’ claims that the BCG reports

were delivered too late to have impacted the closure decision, arguing that they had “a good faith

reason to believe that the BCG report[s were] part of an overarching decision making process to

close the regional offices.” Id. at 6.

                                     II.      LEGAL STANDARD

               Federal Rule of Civil Procedure 54(b) provides that “any order or other decision,

however designated, that adjudicates fewer than all the claims or the rights and liabilities of

fewer than all the parties . . . may be revised at any time before the entry of judgment

adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).

Relief under Rule 54(b) is available “as justice requires.” DL v. District of Columbia, 274



                                                   3
F.R.D. 320, 324 (D.D.C. 2011). “[A]sking ‘what justice requires’ amounts to determining,

within the court’s discretion, whether reconsideration is necessary under the relevant

circumstances.” Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005).

               Circumstances that support reconsideration include whether the court has

“patently misunderstood a party, has made a decision outside the adversarial issues presented to

the Court by the parties, has made an error not of reasoning, but of apprehension, or where a

controlling or significant change in the law or facts [has occurred] since the submission of the

issue to the Court.” Ficken v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010) (quoting Cobell v.

Norton, 224 F.R.D. 266, 272 (D.D.C. 2004) (internal quotations marks omitted)). A court’s

discretion under Rule 54(b) is limited by the law of the case doctrine and “subject to the caveat

that, where litigants have once battled for the court's decision, they should neither be required,

nor without good reason permitted, to battle for it again.” Singh v. George Washington Univ.,

383 F. Supp. 2d 99, 101 (D.D.C. 2005).

                                          III.    ANALYSIS

               The reduction in force that closed the RSA regional offices at issue here occurred

on September 30, 2005. This lawsuit was filed a year later. Since the offices’ closing, all

documents relevant to discovery were warehoused in hundreds of boxes that had to be manually

searched. It has been a difficult and contentious matter to bring through discovery. The late

amendment to the Answer was no help for frayed nerves. Notably, the case has progressed to

pending dispositive motions for complete or partial summary judgment filed by both sides.

               The history helps explain the vehemence with which the current motion for

reconsideration is litigated. As Plaintiffs argue, former Secretary Spellings testified that the

BCG reports were not “associated in any way with the process or the decision to eliminate the



                                                  4
RSA Regional Offices.” See Pls.’ Mot. to Reconsider, Ex. 1 [Dkt. 70-2] at 61. At this time, the

evidence shows that Secretary Spelling was aware of the decision to cut the RSA regional offices

from the budget and played some uncertain role, but was not the final decision-maker.

Nonetheless, it cannot be found that Government counsel affirmatively misled the Court. This is

a decision for which no one appears to want to claim ownership and counsel’s legitimate

difficulty in reconstructing history is obvious.

               In an attempt to bolster their claim of fraud, Plaintiffs emphasize certain points

made previously. They focus on previously cited evidence to demonstrate that the BCG reports

could not have been relevant to the decision to close the RSA regional offices, as Government

counsel represented, because they were dated in 2005, after the decision was made. They argue

that Government counsel was aware of that timeframe and therefore undisputedly misled the

Court. Pls.’ Mem. at 10. The problem is that the evidence cited does not definitively show

exactly when the closure decision was made — only sometime between late 2004 and early

2005. Pls.’ Opp’n to Def’s Mot. for Reconsideration, Ex. 12 [Dkt. 52-12]; see also id., Ex. 13

[Dkt. 52-13] at 27 (Deputy Assistant Secretary John E. Hager confirming that the decision was

made in “early 2005”); see generally, Pls.’ Reply, Ex. 3 [Dkt. 80-3]. With such uncertainty, the

good faith of Government counsel’s representation that the BCG reports and analysis were

important is not diminished.

               Plaintiffs also argue, as they did in opposing the motion to amend the answer, that

the BCG reports did not directly address closing the RSA regional offices. However, even

Plaintiffs note that the consultant reports generally mentioned eliminating portions of DoEd’s

regional presence. Pls.’ Opp’n at 8. It was not bad faith for Government counsel to interpret the




                                                   5
BCG reports as “setting a policy direction towards closing many, but not all, regional offices.”

Def.’s Reply [Dkt. 55] at 6.

               Accordingly, the circumstances do not support Plaintiffs’ request that the Court

reconsider its ruling that allowed an amended Answer. Plaintiffs’ claims of misrepresentation or

fraud overplay the obvious confusion in the record. “Fraud on the court is a narrow concept,

limited to ‘the most egregious conduct involving a corruption of the judicial process itself.’”

Cobell, 334 F.3d at 1148 (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice & Procedure § 2870, 418 (2d ed. 1995)). And while Government counsel’s

initial understanding of Secretary Spellings’s role may not be accurate, they continue to argue

that the decision to close the RSA regional offices originated outside DoEd.

                                       IV.     CONCLUSION

               The weaknesses that Plaintiffs perceive in the Secretary’s arguments do not show

bad faith or fraud. Accordingly, Plaintiffs’ Motion for Reconsideration, Dkt. 70, will be denied.

A memorializing Order accompanies this Memorandum Opinion.



Date: December 3, 2012                                         /s/             _
                                                  ROSEMARY M. COLLYER
                                                  United States District Judge




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