                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

                                )
ROBERT L. MORE, et al.,         )
                                )
     Plaintiffs,                )
                                )
     v.                         ) Civ. Action No. 99-3373 (EGS)
                                )
JACOB E. LEW, Secretary,        )
Department of the Treasury,     )
                                )
     Defendant.                 )
                                )

                          MEMORANDUM OPINION

I.   INTRODUCTION

     Pending before the Court is Plaintiff’s Motion for Relief

from Final Judgment Pursuant to Federal Rules of Civil Procedure

60(b)(6) and 60(d)(3).    Plaintiff Charles E. Hughes, along with

six other plaintiffs, brought individual actions under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 631 et

seq. against the Secretary of the Department of the Treasury. 1

Plaintiffs alleged that they were discriminated against on the

basis of their age with respect to various promotion decisions

made by their employer, the Bureau of Engraving and Printing

(“BEP”) within the Department of the Treasury.     Upon

consideration of the motion, the entire record, the applicable




1
  Jacob Lew has been automatically substituted for one of his
predecessors pursuant to Fed. R. Civ. P. 25(d)(1).
                                  1
law, and for the reasons stated below, the Court DENIES

Plaintiff’s motion.

II.   BACKGROUND

      The background of this case is fully set forth in More v.

Snow, 480 F. Supp. 2d 257 (D.D.C. 2007).   Briefly, Plaintiffs,

including Mr. Hughes, alleged that the BEP discriminated against

them with respect to promotions between 1997 and 2003, during

which time the BEP promoted officers under the age of 40 for

each position Plaintiffs applied for.   Id. at 263.   After

extensive discovery, Defendant filed a motion for summary

judgment, arguing that Plaintiffs had failed to exhaust their

administrative remedies, and that Plaintiffs’ claims failed on

their merits.   Id. at 261.   The Court ruled that Plaintiffs had

failed to exhaust their administrative remedies with respect to

all but two of the challenged promotion decisions.    Id. at 271-

73.   With respect to Mr. Hughes specifically, the Court found

that he had alleged a prima facie case of age discrimination

regarding a 2001 promotion decision, and that he could argue

pretext for the non-discriminatory reasons for the decision

offered by Defendant.   Id. at 274.

      The Court conducted a bench trial on the remaining claims

in early 2008, and entered final judgment for defendants on July

28, 2008.   See Pl.’s Mot., Ex. A, Tr. of Ruling.   In so doing,

the Court held the Plaintiffs had failed to present competent

                                  2
evidence of intentional age discrimination sufficient to rebut

Defendant’s non-discriminatory reason for the two promotion

decisions being challenged.   Id. at 23:23-24:3.   Specifically,

with regard to Mr. Hughes, the Court found that he had

established a prima facie case of age discrimination for the

challenged 2001 promotion because (1) he was over the age of

forty, (2) he applied for the promotion, (3) he met minimum

qualifications for the promotion, and (4) he was denied

promotion in favor of applicants who were substantially younger.

Id. at 17:9-17.   The Court, however, found that Defendant

established a legitimate, non-discriminatory reason for failing

to promote him when Officer Ashton, the selecting officer for

the 2001 promotion decision, stated that the fact that the

promoted officers all regularly volunteered overtime and

volunteered for assignments influenced her decision.    Id. at

19:22-20:8; 23:8-23:15.   Considering arguments and evidence

presented by both parties, the Court found for Defendant and

against Mr. Hughes.

     Mr. Hughes filed his Motion for Relief From Final Judgment

Pursuant to Rules 60(b)(6) and 60(d)(3) on July 4, 2013, almost

five full years after the Court entered judgment on behalf of

Defendants.   He argues that the judgment should be set aside

because it was “manifestly unjust” due to fraud by his own

counsel as well as counsel for the Defendant.   Defendant has

                                 3
opposed the motion, and it is now ripe for determination by the

Court.

III. STANDARD OF REVIEW

     A.     Rule 60(b)(6)

     Pursuant to Federal Rule of Civil Procedure 60(b) a

district court may relieve a party from previous judgment for

six enumerated reasons:     (1) mistake, inadvertence, surprise, or

excusable neglect; (2) newly discovered evidence; (3) fraud,

misrepresentation, or misconduct by an opposing party; (4) a

void judgment; (5) a satisfied, released, or discharged

judgment; or (6) “any other reason that justifies relief.”    Fed.

R. Civ. P. 60(b).    Rule 60(b)(6) provides courts with authority

to set aside a judgment provided that it is “not premised on one

of the grounds for relief enumerated in clauses (b)(1) through

(b)(5).”    Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.

847, 863 (1988).    The party seeking relief from judgment bears

the burden of showing that he or she is entitled to the relief

sought.    Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011);

United States v. 8 Gilcrease Lane, 668 F. Supp. 2d 128, 131

(D.D.C. 2009).

     Rule 60(b) motions must be filed “within a reasonable

time,” which is defined as no more than one year after judgment

for reasons (1), (2), and (3).    Fed. R. Civ. P. 60(c)(1).   What

constitutes a “reasonable time” varies with the circumstances.

                                   4
Carvajal v. Drug Enforcement Admin., 286 F.R.D. 23, 26 (D.D.C.

2012).   “In this Circuit, courts almost uniformly deny Rule

60(b)(6) motions as untimely when they are filed more than three

months after judgment.”   Id. at 26.    However, “a delay of

several years has been found permissible when plaintiff bore no

fault for the delay and filed the motion as soon as feasible.”

Id. at 26-27 & n.4 (listing four decisions in which the D.C.

Circuit has found that a delay of several years was permissible

where the moving party filed the motion within a month of

learning of the entry of judgment, or where the delay was caused

by “gross neglect” of the moving party’s counsel).     In

determining whether a Rule 60(b) motion was filed within a

reasonable time, a court may also consider whether granting

relief would cause prejudice to the opposing party.     Salazar   v.

District of Columbia, 633 F.3d 1110, 1118 (D.C. Cir. 2011).

     Rule 60(b)(6) “provides courts with authority adequate to

enable them to vacate judgments whenever such action is

appropriate to accomplish justice . . . [but] it should only be

applied in ‘extraordinary circumstances.’” Liljeberg, 486 U.S.

at 864 (citations and quotation marks omitted).     Moreover, Rule

60(b)(6) is only available when “the motion . . . is not

premised on one of the grounds for relief enumerated in clauses

(b)(1) through (b)(5).”   Id. at 863.    Examples of the

extraordinary circumstances under which relief has been granted

                                 5
pursuant to Rule 60(b)(6) include an adversary’s failure to

comply with a settlement agreement that was incorporated into a

court’s order, fraud by the “party’s own counsel, by a

codefendant, or by a third-party witness[,]” or “when the losing

party fails to receive notice of the entry of judgment in time

to file an appeal.”   11 Charles Alan Wright et al., Federal

Practice and Procedure § 2864 (2d ed. 1995).

      B.   Rule 60(d)(3)

      Plaintiff has also moved for relief pursuant to Federal

Rule of Civil Procedure 60(d)(3), which provides that the court

may “set aside a judgment for fraud on the court.”       Fed. R. Civ.

P. 60(d)(3).   Relief due to “fraud on the court” is very rarely

warranted, and is “typically confined to the most egregious

cases, such as bribery of a judge or a juror, or improper

influence exerted on the court by an attorney, in which the

integrity of the court and its ability to function impartially

is directly impinged.”     Great Coastal Express, Inc. v. Int’l

Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982).

IV.   DISCUSSION

      Mr. Hughes’ current motion for relief from judgment asserts

two principal grounds for relief.      First, he argues that

Defendant’s counsel perpetrated a fraud on the Court by

misleading the Court regarding the circumstances surrounding his

promotion to corporal.     Pl.’s Mot. for Relief at 6.   He argues

                                   6
that Defendant’s counsel advised key witnesses to falsely

testify, both at trial and during discovery, that he was

promoted after the BEP had implemented a seniority based

promotion system.   According to Mr. Hughes, he was competitively

promoted in November 2002, before the BEP implemented the

seniority based system.    Id. at 5-7.   Mr. Hughes does not

specify when the seniority based system was imposed; only that

it was sometime after his competitive promotion.      Mr. Hughes

argues that these misrepresentations had the effect of inducing

the Court “into believing that Mr. Hughes’ promotion was

seniority based although it was not.”     Id. at 7.   Mr. Hughes

also contends that this fraud was evident in Defendant’s

assertion that there was no conflict of interest between

Plaintiffs during briefing on potential conflicts prior to the

bench trial.   Id. at 7-8.

     Second, Mr. Hughes argues that his own counsel, Lawrence B.

Manley, was incompetent and grossly negligent, thus entitling

him to relief from judgment.    Mr. Hughes’ complaints about his

counsel are varied, and they involve allegations about both

counsel’s behavior publicly in the courtroom and privately with

his clients.   Id. at 9.   Among Mr. Hughes’ complaints are the

following: (1) that Mr. Manley failed to assert that Mr. Hughes

was competitively promoted before a seniority based system was

implemented by BEP, id. at 9; (2) that Mr. Manley continued to

                                  7
represent him despite the fact that he had not signed a retainer

agreement, id. at 10-11; (3) that at some point during the

pendency of the case, Mr. Hughes wanted new counsel but was told

by Mr. Manley that he could not do so until he paid his

outstanding legal fees, id. at 12-13; (4) that Mr. Manley

falsely represented that there was no conflict of interest

between the Plaintiffs even though Mr. Hughes and one other

Plaintiff were competitively promoted to corporal before the

other Plaintiffs, who were not promoted until BEP implemented a

seniority based promotion system, id. at 13-14; (5) that Mr.

Manley did not properly probe contradictory testimony by defense

witnesses, id. at 14; (6) that Mr. Hughes was not able to be

present at the final hearing in this matter because Mr. Manley

consented to a defense motion to continue the hearing without

his permission, id. at 14-15; and (7) that Mr. Manley accepted

an offer by Defendant not to move for costs in exchange for

foregoing an appeal without his permission, id. at 17.

     Though the basis of Mr. Hughes’ motion is clearly fraud and

misrepresentation by his own counsel and counsel for Defendant,

he has styled his motion as one pursuant to Fed. R. Civ. P.

60(b)(6) rather than 60(b)(1) or 60(b)(3), which provide for

relief on the basis of “mistake, inadvertence, or excusable

neglect” and “fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an opposing

                                8
party.”   Fed. R. Civ. P. 60(b)(1), 60(b)(3).      Unlike motions

pursuant to Rule 60(b)(6), which must be filed within a

“reasonable time,” motions made pursuant Rule 60(b)(1) or

60(b)(3) must be filed no more than a year after the entry of

judgment.   Fed. R. Civ. P. 60(c)(1).

     The provisions of Rule 60(b) are “‘mutually exclusive’ to

the extent that subsection (6) cannot be used to avoid the one-

year limitation in subsections (1)-(5), such that ‘a party who

failed to take timely action due to ‘excusable neglect’ [within

one year] may not seek relief more than a year after the

judgment by resorting to subsection (6).’”       Salazar, 633 F.3d at

1118.   Nor can a motion be filed pursuant to Rule 60(b)(6) if it

is premised on one of the other enumerated bases for relief.

See Liljeberg, 486 U.S. at 863; Kramer v. Gates, 481 F.3d 788,

792 (D.C. Cir. 2007) (noting that Rule 60(b)(6) is mutually

exclusive of the other enumerated grounds for relief in Rule

60(b)); S. Pac. Commc’ns Co. v. Am. Tel. & Tel. Co., 740 F.2d

1011, 1017 (D.C. Cir. 1984) (same).       The Court can think of no

reason why Mr. Hughes would file a motion pursuant to this

residual clause other than to circumvent the timing requirements

of Rules 60(b)(1) and 60(b)(3).       That alone is reason to deny

Mr. Hughes’ motion.

     However, even if the Court were to accept the contention

that Mr. Hughes’ motion is appropriate pursuant to Rule

                                  9
60(b)(6), Mr. Hughes has not filed his motion within a

“reasonable time” as required by the rule.     Though there is no

established standard for assessing whether a motion was filed

within a “reasonable time” in this Circuit, there are a number

of factors that the court can consider in making such a

determination, including the reason for the delay and whether

the non-movant will be prejudiced by granting the motion.

Salazar, 633 F.3d at 1118 & n.5 (citations omitted).     In a

declaration filed in support of his motion, Mr. Hughes details

the extensive litigation he engaged in between 2009 and 2012 to

resolve a fee dispute with Mr. Manley regarding his

representation of Plaintiff in this matter.     Pl.’s Mot., Hughes

Decl. ¶¶ 30-37.    He also notes that because of issues with his

attorney, he was unable to obtain a transcript of the July 28,

2009 hearing until after the time to file an appeal had expired.

Id. ¶¶ 24-27.   Mr. Hughes has proffered no other explanation for

the almost five year delay in filing his motion nor has he

presented any argument that he was diligent in pursuing relief

in the meantime.    Under such circumstances, Mr. Hughes’ delay in

filing is patently unreasonable. 2    See Carjaval, 286 F.R.D. at


2
  Though the Court need not reach the question of prejudice
because Plaintiff has failed to file his motion within a
reasonable time, granting Mr. Hughes the relief he seeks would
unquestionably prejudice Defendant. As Defendant argues in its
opposition, to relitigate Plaintiff’s claims, nearly five years
after judgment was entered and more than a decade after the
                                 10
26-27.   A delay of several years, like that in this case, has

only been found reasonable when plaintiff bore no fault for the

delay and filed a motion as soon as feasible.     See Klapprott v.

United States, 335 U.S. 601, 615 (1949) (holding that default

judgment was properly vacated when plaintiff showed severe

hardship).    That is not the case here.

     Finally, separate and apart from the fact that Mr. Hughes

did not file his motion within a reasonable time, he has not

made a showing of the “extraordinary circumstances” required for

relief under Rule 60(b)(6).    Indeed, Mr. Hughes’ failure to

pursue relief from judgment, while he was perfectly capable of

litigating a fee dispute, counsels against finding that

“extraordinary circumstances” are present to warrant relief.     In

this Circuit, “[a] litigant’s diligence in pursuing review of a

decision, either through appeal or through Rule 60(b)(6) relief,

is relevant in assessing whether extraordinary circumstances are

present.”    Salazar, 633 F.3d at 1118-19.   In this case, Mr.

Hughes’ “‘lack of diligence’ effectively precludes a finding of

‘extraordinary circumstance.’”    Id. at 1121.   Moreover, all of

the bases for relief that Mr. Hughes asserts in his motion



events in question occurred, would “unfairly prejudice defendant
because the underlying events have become so remote in time that
evidence would be lost in the form of faded memories of
witnesses and possible difficulty even locating key witnesses.”
Def.’s Opp’n at 6.

                                 11
existed prior to entry of judgment or shortly thereafter.   As

such, Mr. Hughes had ample opportunity to raise these issues

then, and cannot use a Rule 60(b) motion to remedy his failure

to do so. 3

     IV.      CONCLUSION

     Because Mr. Hughes has not shown that relief from judgment

pursuant to Rules 60(b)(6) and 60(d)(3) is appropriate, his

motion is hereby DENIED.

     SO ORDERED.

Signed:       Emmet G. Sullivan
              United States District Judge
              March 31, 2014




3
 Mr. Hughes’ motion pursuant to Rule 60(d)(3) also fails. As
noted above, such relief is very rarely warranted except in the
most egregious cases. See supra Section 2.B. None of the
arguments advanced by Mr. Hughes comes close to “the more
egregious forms of subversion of the legal process” that would
amount to “fraud on the court.” Great Coastal Express, 675 F.2d
at 1357. The Court therefore denies his motion on these
grounds.

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