                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
____________________________
DEBORAH KATZ PUESCHEL,        )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 99-2556 (RWR)
                              )
NATIONAL AIR TRAFFIC          )
CONTROLLERS’ ASSOCIATION,     )
                              )
     Defendant.               )
____________________________ )


                   MEMORANDUM OPINION AND ORDER

     Plaintiff Deborah Katz Pueschel filed this lawsuit against

her union, the National Air Traffic Controllers’ Association

(“NATCA”), alleging that NATCA violated Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq.     A Memorandum

Opinion and Order issued on August 5, 2002 (“Opinion”), dismissed

as untimely all of Pueschel’s claims except for her claim that

her termination was unlawful retaliation.   Pueschel moves for

clarification of whether under the Opinion the earlier incidents

of discrimination are discoverable, and reconsideration of

whether she timely alleged a hostile work environment claim in

light of National Railroad Passenger Corp. v. Morgan, 536 U.S.

101 (2002).   Because Pueschel has not demonstrated that justice

requires reconsideration of the August 5, 2002 Opinion, and

because Pueschel improperly seeks an advisory opinion regarding

permissible discovery, Pueschel’s motion will be denied.
                                 -2-

                             BACKGROUND

     The background of this case is discussed fully in the

August 5, 2002 Opinion.    Briefly, Pueschel was an air traffic

controller with the Federal Aviation Administration (“FAA”) and a

member of NATCA.    In 1997, Pueschel filed a charge of

discrimination with the Equal Employment Opportunity Commission

(“EEOC”) against NATCA.    After the EEOC dismissed Pueschel’s

charge as untimely, she filed suit against NATCA for the same

violations.    That suit was dismissed as untimely.   See Pueschel

v. National Air Traffic Controllers’ Ass’n, 172 F.3d 920

(D.C. Cir. 1998) (affirming the district court’s dismissal of

plaintiff’s case as untimely).

     Later, on January 28, 1999, Pueschel learned that she had

been removed as an air traffic controller specialist, effective

January 15, 1999, because of her inability to work.    Pueschel

contacted an EEO counselor on February 13, 1999; she filed a

formal discrimination complaint with the Department of

Transportation on April 30, 1999; she filed a formal charge of

discrimination with the EEOC on May 30, 1999; and she filed this

lawsuit on September 27, 1999, alleging that NACTA violated Title

VII by discriminating and retaliating against her, harassing her,

failing to accommodate her, and failing to prevent the FAA from

harassing her, discriminating against her, and retaliating

against her.
                                   -3-

     NATCA moved to dismiss Pueschel’s claims, arguing in part

that Pueschel had not pled an adequate claim of unlawful

discrimination under Title VII.     The Opinion decided that

Pueschel had adequately pled a claim of unlawful retaliation

under Title VII.   Opinion at 8.    However, the Opinion determined

that Pueschel could bring claims only for incidents of

discrimination that occurred within 45 days of February 13, 1999,

the date she contacted an EEO counselor, and that the only

incident alleged in her complaint that occurred in that time

frame was her termination.   (Id. at 9.)    Therefore, Pueschel’s

sole remaining claim from her complaint is that NATCA caused and

unlawfully failed to prevent her termination in retaliation for a

prior successful sexual harassment lawsuit.     While Pueschel

argued that the alleged earlier incidents of discriminatory

conduct were part of a “continuing violation,” the Opinion

specifically determined that “the allegations of earlier

discrimination and harassment are untimely and are not

sufficiently related to be saved by the continuing violation

doctrine.”   (Id. at 12.)

     Citing Morgan, Pueschel has moved for reconsideration of the

Opinion to the extent it disallowed any hostile work environment

claim, and clarification as to whether she may seek in discovery

evidence of incidents of discrimination that were deemed untimely

by the Opinion.    Defendant opposes the motion, arguing that it is
                                -4-

merely an attempt to circumvent the limitations period that has

already been found to bar the claims that Pueschel seeks to

introduce.

                            DISCUSSION

I.   RECONSIDERATION

     A motion for reconsideration is governed by Rule 54(b) of

the Federal Rules of Civil Procedure.    See Childers v. Slater,

197 F.R.D. 185, 190 (D.D.C. 2000).    That rule 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 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).   Under Rule

54(b), a trial court may grant reconsideration “as justice

requires.”   Marshall v. Honeywell Tech. Solutions, Inc, Civil

Action No. 05-2502 (RWR), 2009 WL 427312, at *2 (D.D.C.

February 23, 2009) (citing Campbell v. U.S. Dep’t of Justice, 231

F. Supp. 2d 1, 7 (D.D.C. 2002)).   However, in order to promote

finality, predictability and economy of judicial resources, “as a

rule [a] court should be loathe to [revisit its own prior

decisions] in the absence of extraordinary circumstances such as

where the initial decision was clearly erroneous and would work a

manifest injustice.”   Lederman v. United States, 539 F. Supp. 2d
                                -5-

1, 2 (D.D.C. 2008) (quoting Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 817 (1988)).     Reconsideration may be

warranted where there was a patent misunderstanding of the

parties, where a decision was made that exceeded the issues

presented, where a court failed to consider controlling law, or

where a significant change in the law occurred after the decision

was rendered.   Singh v. George Washington Univ., 383 F. Supp. 2d

99, 101 (D.D.C. 2005).   The moving party has the burden of

showing that reconsideration is warranted, and that some harm or

injustice would result if reconsideration were to be denied.     In

Def. of Animals v. Nat’l Institute of Health, 543 F. Supp. 2d 70,

76 (D.D.C. 2008).

     Pueschel argues that the August 5, 2002 Opinion erred by

failing to determine that incidents of discrimination that

occurred between 1994 and her termination in 1999 should be part

of a surviving claim of hostile environment discrimination under

Title VII.   She essentially seeks to revive a hostile work

environment claim by alleging that Morgan would allow her to go

forward.   However, Pueschel fails to provide any new evidence

reflecting any misunderstanding of this claim, or show that the

Opinion was erroneous when it determined that the previous

incidents of discrimination of which she complains were not

sufficiently connected to events that occurred during the

limitations period to allow them to be part of a hostile work
                                -6-

environment claim.   The parties already argued in their briefs

regarding the motion to dismiss (see Pl.’s Opp’n to Def.’s Mot.

to Dismiss at 9-10; Def.’s Reply in Supp. of Mot. to Dismiss

at 4-5) about whether the previous incidents were sufficiently

connected, and the August 2002 Opinion explicitly analyzed this

issue and ruled against Pueschel.     Opinion at 11-12.   “[W]here

litigants have once battled for the court’s decision, they should

[not] be . . . permitted[] to battle for it again.”       Singh, 383

F. Supp. 2d at 101-102 (internal quotations and citations

omitted).

     Notably, Pueschel’s assertion that these incidents occurred

between 1994 and 1999 is unsupported by the complaint and is

contradicted by an earlier brief she filed.     The hostile work

environment facts that Pueschel alleges are relevant are found in

paragraph 15 of her complaint which alleges that

     NATCA has posted newspaper reports about plaintiff on
     its bulletin board. This posting contributed to
     further hostilities. Plaintiff has been criticized for
     her activities and called offensive names and
     descriptions by NATCA members and officials. Upon
     information and belief, there were comments by NATCA
     members that it was hoped that plaintiff would be fired
     for what she did to [former FAA official] Sullivan.

(Compl. ¶ 15.)   However, the complaint neither provides dates for

when that behavior occurred, nor specifies that the cited

behavior occurred between 1994 and 1999.     Moreover, Pueschel’s

earlier brief in opposition to defendant’s motion to dismiss,

filed in 1999, reflects that the hostile name-calling and
                                  -7-

comments directed at her occurred before 1983 when a Fourth

Circuit opinion in Pueschel’s earlier case, Katz v. Dole, 709

F.2d 251 (1983), mentioned that conduct.     See Pl.’s Opp’n to Mot.

to Dismiss at 4 (“Judge Ervin had noted that Sullivan testified

that he had heard controllers referring to [Pueschel] by

obscenities.”).

      Because the August 5, 2002 Opinion separately concluded that

there was an insufficient relationship between the previous

claims and the retaliation to support a continuing violation

theory, Pueschel has not shown a basis for concluding that there

is a sufficient nexus in time or substance for her to adequately

plead a hostile work environment claim that should have survived

the defendant’s motion to dismiss.      Therefore, Pueschel does not

show that justice requires reconsideration of the Opinion.

II.   DISCOVERY

      Pueschel alleges that the defendants have objected to

discovery requests she has made concerning incidents that were

dismissed in the Opinion as untimely.     She seeks an order

clarifying that the Opinion did not preclude her from discovering

such background evidence.   Her motion does not set forth the text

of any discovery request to which the defendant objected, much

less the text of any objection.    In that posture, there is

no concrete discovery dispute upon which to rule.     Pueschel's

generic question is in essence a request for an advisory opinion,
                                -8-

something federal courts are not empowered to render.    See Steel

Co. v. Citizens for a Better Environment, 523 U.S. 83, 101, 104

(1998) (Article III’s case-or-controversy requirement precludes

federal courts from issuing advisory opinions based on abstract

issues).   Her request for clarification, then, will be denied.

                       CONCLUSION AND ORDER

     Because Pueschel has not shown that justice requires

reconsideration of the August 2002 Opinion, and because she has

not presented in this motion a concrete discovery dispute

amenable to a ruling other than an advisory opinion, her motion

will be denied.   Accordingly, it is hereby

     ORDERED that plaintiff’s motion [34] for clarification and

reconsideration be, and hereby is, DENIED.

     SIGNED this 30th day of March, 2009.



                                               /s/
                                      RICHARD W. ROBERTS
                                      United States District Judge
