UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

 

)
ALLAN EARL LUCAS, JR., )
)
Plaintiff, )

) Civil Action No. 13-00143 (TFH)

v. ) '
)
DISTRICT OF COLUMBIA, )
)
Defendant. )
)
MEMORANDUM OPINION

 

Pending before the Court is plaintiff Allan Earl Lucas, Jr.’s Motion to Reconsider and/or
Motion for Leave to Amend [ECF No. 41], requesting reconsideration of this Court’s September
30, 2015 Order dismissing Without prejudice his First Amended Complaint against the District of
Columbia (the “District”) for failure to exhaust administrative remedies pursuant to the
Comprehensive Merit Personnel Act (“CMPA”), See Lucas v. District of Columbia, l33 F. Supp.
3d 176, l78 (D.D.C. 2015), and alternatively requesting leave to file a second amended
complaint The District has filed an opposition [ECF No. 43] and plaintiff a reply [ECF No. 44].
F or the reasons that follow, the Court Will deny the motion to reconsider With prejudice, and the

motion for leave to amend Without prejudice

I. BACKGROUND
Plaintiff commenced this lawsuit to recover money damages for lost earnings and
retirement benefits stemming from the District of Columbia Metropolitan Police Department’s
(“MPD”) alleged failure to treat his induction into the United States Marine Corps as a military

furlough and to reemploy him upon his discharge from military service He filed his initial

Complaint [ECF No. 11 against the District and other defendants on February 4, 2013. Although
defendants filed, and the Court granted in part, a motion to dismiss the original Complaint, the
Court granted plaintiff leave to file an amended complaint by December 17, 2013.

On December 17, 2013, plaintiff filed his First Amended Complaint [ECF No. 341
against the District ln it plaintiff alleges that he was employed by the MPD for approximately
seven months from 1972 to 1973 before he resigned to serve in the United States Marine Corps
during the Vietnam War. Pl.’s First Am. Compl. 1111 4, 6. He did not receive any exit counseling
or other information about his employment rights, and was not informed of the effect his
resignation might have on future reemployment Id. 11 7. Plaintiff served in the Marine Corps
until he was honorably discharged with a disability in 1978. Ia’. 11 9. Upon his discharge from
the military, plaintiff sought reemployment with the MPD, but was not offered restoration to his
former position. Ia’. 11 11. Plaintiff rejoined the MPD in 1982, and remained employed there
until 1993, when he obtained employment as a District of Columbia Corrections Officer. Id. 1111
13-14. Plaintiff retired from that position in 2005. Id. 11 16.

When plaintiff rejoined the MPD in 1982, he alleges, he was improperly placed in the
District’s retirement system, when he was entitled to placement in the Federal Civil Service Law
Enforcement retirement system. Pl.’s First Am. Compl. 11 13. Plaintiff was reinstated to the
federal retirement system in April 1994, although he does not elaborate on the reasons for his
reinstatement Ia’. 11 15. According to plaintiff, the MPD’s actions or omissions relating to his
resignation to serve in the Marine Corps resulted in a reduction in his federal retirement benefits
Id. 11 26. Plaintiff sought to rectify these alleged mistakes by taking numerous actions to contact
various District of Columbia agencies~plaintiff alleges he contacted the Office of Personnel

Management and the District of Columbia Retirement Board 52 times between 2007 and 2010.

Id. 1111 25, 27-28. Plaintiff contends that the District “acknowledg[ed]” his “grievance,” but that,
in October 2012, it “refused to give plaintiff his proper benefits.” Id. 1111 27, 29.

On January 6, 2014, the District filed a Renewed Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment [ECF No. 36]. In a September 30, 2015
Memorandum Opinion, the Court noted, among other things, that notwithstanding plaintiff` s
prolonged efforts pursuing various agencies, a showing of “numerous informal steps [taken] to
resolve a dispute [without a showing that] a formal grievance [had been filed] or . . . that the
agency would be unwilling or unable to consider a formal grievance did not merit a waiver of
prudential exhaustion[,]” that there was “nothing to show that 1p1aintiff] was prevented from
filing a formal grievance at any time[,]” and that “delay alone will not suffice to trigger the
futility exception [to the prudential exhaustion requirement].” Lucas, 133 F. Supp. 3d at 185
(internal quotation marks omitted) (citing Bujj”ord v. District of Columbia Publz`c Schools, 611
A.2d 519, 524 (D.C. 1992) and Dano Res. Recovery lnc. v. District ofColumbia, 566 A.2d 48&3,
487 (D.C. 1989)). The Court, therefore, concluded that “[e]ven accepting as true all the
allegations contained in the plaintiffs First Amended Complaint, as the Court must do, it is clear
on the face of the document that the plaintiff never filed a formal grievance or otherwise invoked
the required and exclusive CMPA procedures to pursue his claiins.” ld. Accordingly, the Court
dismissed plaintiff’ s First Amended Complaint without prejudice pursuant to Federal Rule of
Civil Procedure 12(b)(6) “for failure to state claims for relief because administrative exhaustion,
which is a necessary precondition to judicial review of those claims, ha[d] not been satisfied.”

ld. at 186.‘

 

l See Oi'der l, ECF No. 40 (stating that it is “ORDERED that the plaintifP s First Amended Complaint is
DISMISSED WITHOUT PREJUDICE for failure to state claims for relief pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure”).

On November 17, 2015, plaintiff filed his now pending Motion to Reconsider and/or
Motion for Leave to Amend pursuant to F ederal Rules of Civil Procedure 60(b)(1) and 60(b)(6),
and 15(a)(2), respectively Plaintiff did not attach to his motion for leave to amend an original of
his proposed amended complaint See LCvR 15.1 (“A motion for leave to file an amended
pleading shall be accompanied by an original of the proposed pleading as amended.”). However,
eight days later, on November 25, 2015, he filed a separate Complaint in Lucas v. District of
Columbia, Civil Action No. 15~02059 (TFH), raising the same legal theories as he does in this
action, but alleging additional and more detailed facts which, according to plaintiff, demonstrate
that he has exhausted his administrative remedies under the Cl\/IPA. Compare First Amended
Complaint, Civil Action No. 13-00143 (TFH), ECF No. 34 with Complaint, Civil Action No.
15-02059 (TFH), ECF No. 1. In a Memorandum Opinion and Order issued in Lucas v. District
of Columbia, Civil Action No. 15-02059 (TFH), simultaneously with this decision, the Court

dismissed the complaint in the later action as duplicative of this action.

II. DlSCUSSION
A. Motion for Reconsideration
Plaintist filings in this case and in Lucas v. District ofColumbia, Civil Action No. 15-
02059 (TFH), reflect his confusion regarding the procedural posture of this case. As the United
States Court of Appeals for the District of Columbia Circuit explained in Ciralsky v. C.I.A., 355
F.3d 661, 666 (D.C. Cir. 2004), “the dismissal without prejudice of a complaint [i]s not final . . .
because the plaintiff is free to amend his pleading and continue the litigation[,] . . . [whereas]
dismissal without prejudice of an action (or ‘case’), by contrast, . . . end[s] th[e] suit [and] . . . is

final . . . .” See also Murray v, Gilmore, 406 F.3d 708, 712 (D.C. Cir. 2005) (“Under Ciralsky . . . ,

dismissal of an action without prejudice is a final disposition but dismissal of a complaint
without prejudice typically isn’t.”). ln shoit, the Court’s order dismissing without prejudice
plaintiffs First Amended Complaint was a non-final order. Ciralsky, 355 F.3d at 666.
Thei'efore, inasmuch as plaintiff seeks reconsideration of a non~final order, Federal Rule
of Civil Procedure 54(b) governs, not Rule 60(b). See Ali v. Carnegie Inst. of Washington, 309
F.R.D. 77, 80 (D.D.C. 2015) (“The Federal Rules of Civil Procedure provide three avenues for
seeking reconsideration of judicial decisions. . . . Rule 54 governs reconsideration of
interlocutory orders, [whereas] Rules 59(e) and 60(b) dictate when a party may obtain
reconsideration of a final judgment.”); Murphy v. Exec. Offz`cefor United States Attorneys, ll F.
Supp. 3d 7, 8 (D.D.C. 2014) (“Rule 54(b) governs reconsideration of interlocutory or non-final
orders[.]”), a{f’a’ sub nom. Murphy v. Exec. Officefor U.S. Attorneys, 789 F.3d 204 (D.C. Cir.
2015); Cobell v. Norton, 224 F.R.D. 266, 271 (D.D.C. 2004) (“Rule 54(b) governs
reconsideration of orders that do not constitute final judgments in a case.”). Accordingly, the
Court will analyze plaintiffs motion for reconsideration as if it was brought under Rule 54(b).
See Cobell, 224 F.R.D. at 271 (noting “significant confusion [among the parties] with respect to
the proper legal standard governing the 1pending] motion for reconsideration” and concluding
that because the order at issue was non-final, “Federal Rule of Civil Procedure 54(b), rather than
Rule 60(b), must provide the relevant standard”).
Rule 54(b) provides, in relevant part, 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 does not end the action as to any of the claims or parties

and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities

Fed. R. Civ. P. 54(b). A motion for relief under Rule 54(b) is considered under the “as justice
requires” standard Murphy, 11 F. Supp. 3d at 8. Such relief may be warranted when “the
movant demonstrates: . . . an intervening change in the law; . . . the discovery of new evidence
not previously available; or . . . a clear error in the first orderf,]” id., or when the Court has
“patently misunderstood the parties, made a decision beyond the adversarial issues presented,
[or] made an error in failing to consider controlling decisions or data,” Ali, 309 F.R.D. at 80.

l “These considerations leave a great deal of room for the court’s discretion and, accordingly, the
‘as justice requires’ standard amounts to determining ‘whether 1reliefupon1 reconsideration is
necessary under the relevant circumstances.”’ Lewis v. District ofColumbia, 736 F. Supp. 2d 98,
102 (D.D.C. 2010) (quoting Cobell, 224 F.R.D. at 272).

Here, plaintiff argues that the Court should reconsider its non-final dismissal order
because (1) it made a mistake of fact in determining that he did not submit a formal grievance,
or, alternatively, (2) if the Court’s mistake was a mistake of law, it was an error so obvious that it
would qualify for reconsideration Pl.’s Mem. of P. & A. in Supp. of Mot. to Recons. and/or
Mot. for Leave to Am. (“Pl.’s Mem.”) 5-6; Pl.’s Reply 1-2. Neither argument is persuasive

First, plaintiff is mistaken in characterizing the Court’s determination as potentially a
mistake of fact Plaintiff argues that the Court made a “finding of fact” on the question whether
he filed a formal grievance Pl.’s Reply 1; see Pl.’s Mem. 5. A court analyzing a motion to
dismiss under Rule l2(b)(6), however, does not make independent factual findings, but instead
“accept[s] the plaintiffs factual allegations as true, and construe[s] the complaint ‘liberally,’
‘grant[ing] plaintiff1 ] the benefit of all inferences that can be derived from the facts alleged[.]”’
Browning v. Clinlon, 292 F.3d 235, 242 (D.C. Cir. 2002) (quoting Kowal v. MCI Commc'ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)); see generally Roz‘h v. .]ennings, 489 F.3d 499, 509

(2d Cir. 2007) (“In considering a motion under Fed. R. Civ. P. 12(b)(6) to dismiss a complaint
for failure to state a claim on which relief can be granted, the district court is normally required
to look only to the allegations on the face of the complaint . . . [A] ruling on a motion for
dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to make findings of fact.”).
Here, the Court concluded that “1e]ven accepting as true all the allegations contained in the
plaintiffs First Amended Complaint, as the Court must do, it is clear on the face of the document
that the plaintiff never filed a formal grievance or otherwise invoked the required and exclusive
CMPA procedures to pursue his claims.” Lucas, 133 F. Supp. 3d at 185. The Court did not
therein make a finding of fact Rather, the Court viewed every fact alleged in the First Amended
Complaint in the light most favorable to plaintiff and, accepting all of his allegations regarding
his contacts with various agencies as true, made a legal conclusion that he failed to exhaust his
administrative remedies under the CMPA because he failed to allege facts that support the
inference that he “filed a formal grievance or otherwise invoked the required and exclusive
CMPA procedures to pursue his claims.” Ia’. at 185-86.

In Support of his alternative argument that the Court made an obvious legal error that
would entitle him to reconsideration, plaintiff merely makes a bare assertion that the Court
“overlooked” his allegations as to his formal grievance Pl.’s Reply 2. To the contrary, the
Court accepted every allegation in plaintiffs First Amended Complaint as true, including his
allegations regarding his various contacts with District of Columbia agencies Even under this
favorable reading, the Court determined that it was “clear on the face of the document that the
plaintiff never filed a formal grievance or otherwise invoked the required and exclusive CMPA

procedures to pursue his claims.” Lucas, 133 F. Supp. 3d at 185.

Perhaps acknowledging the defectiveness of his First Amendment Complaint, plaintiff
argues that “to the extent that the Complaint a’ia’ not fully disclose that [the District’s refusal to
provide Lucas his proper benefits] was by the . . . Police and Firemen’s Retirement Relief Board
in a letter that specifically denied jurisdiction, that fact was central to the litigation and reveals
that the Court’s judgment was manifestly unjust.” Pl.’s Mem. at 6 (emphasis added). However,
the Court having dismissed his amended complaint, plaintiff cannot now use his motion for
reconsideration to allege facts known to him at the time he filed his amended complaint See
Murphy, 11 F. Supp. 3d at 8 (stating that relief under Rule 54(b) may be warranted “when the
movant demonstrates . . . the discovery of new evidence not previously available” (emphasis
added)); cf. Taitz v. Obama, 754 F. Supp. 2d 57, 60 (D.D.C. 2010) (stating that “[p]laintiff
cannot . . . use her Rule 60(b) motion to allege facts known to her at the time she filed her
amended complaint” and noting that Rule 60(b)(2) permits reconsideration only for “newly
discovered evidence”). In sum, plaintiff fails to demonstrate that “justice requires” the Court to
reconsider its non-final dismissal order.

B. Motion for Leave to Amend

Turning to plaintiffs alternative request for leave to file a second amended complaint, the
Court initially notes that although its denial of a motion to reconsider a final order under Rule
60(b) would require the Court to deny any subsequent motion to amend, cf Ciralsky, 355 F.3d at
673 (noting that “once a final judgment has been entered, a court cannot permit an amendment
unless the plaintiff ‘first satisf[ies] Rule 59(e)’s more stringent standard’ for setting aside that
judgment”), the denial of a motion for reconsideration of a non-_)?nal order under Rule 54(b)

obviously would not

Plaintiff, however, failed to include with his Motion for Leave to Amend an original of
the proposed amended complaint, as required by the Rules of this Court See LCvR 15.1 (“A
motion for leave to file an amended pleading shall be accompanied by an original of the
proposed pleading as amended.”); Rollins v. Wackenhut Services, lnc., 703 F.3d 122, 130 (D.C.
Cir. 2012) (“District Court Local Civil Rule 15.1 requires a motion for leave to amend to include
a proposed amended complaint.”). Accordingly, the Court will deny plaintiffs Motion for Leave
to Amend without prejudice See Johnson v. District of Columbia, 49 F. Supp. 3d 115, 122
(D.D.C. 2014) (“[T]he Court will deny [plaintiffs] request for leave to amend, without
prejudice, because [plaintiff] did not attach an original of her proposed amended complaint_as
is required by Local Rule 15.1_makingit impossible for the Court (or the District) to evaluate
the merits of her request for leave to amend.”). Were plaintiff to file another motion for leave to
amend-in compliance with Local Rule 15. l_the Court would consider the request anew. Ia’. at

123.

III. CONCLUSION
For the foregoing reasons, the Court will deny plaintiffs Motion to Reconsider and/or
Motion for Leave to Amend [ECF No. 41]. The Court’s denial of plaintiffs Motion to
Reconsider will be with prejudice and its denial of plaintiffs Motion for Leave to Amend will be

without prejudice A Separate Order accompanies this Memorandum Opinion.

0@01,@§'§;6 /Z¢~f 7%5@“~

Thomas F. Hoganl
Senior United States ' ' tJudge

