                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA


                                )
CYNTHIA ARTIS, et al.,          )
                                )
                  Plaintiffs,   )
                                )
           v.                   )   Civil Action No. 01-400 (EGS)
                                )
BEN S. BERNANKE,1               )
Chairman of the Board           )
of Governors of the             )
Federal Reserve System,         )
                                )
                  Defendant.    )
                                )


                      MEMORANDUM OPINION AND ORDER

     Pending before the Court is plaintiffs’ motion to alter and

amend the judgment pursuant to Federal Rule of Procedure 59(e).

For the following reasons, the Court DENIES the motion.



I.   Background

     The factual and procedural history of this case have been

discussed in detail by this Court in its Memorandum Opinion and

Order of September 25, 2002 and Memorandum Opinion of January 31,

2007, and need not be repeated here.       See Artis v. Greenspan, 474

F. Supp. 2d 16 (D.D.C. 2007); Artis v. Greenspan, 223 F. Supp. 2d

149 (D.D.C. 2002).    On January 31, 2007, the Court granted


      1
        By operation of Federal Rule of Civil Procedure 25(d)(1),
Chairman of the Board of Governors Bernanke is automatically
substituted as the proper party in place of former Chairman Alan
Greenspan.
defendant’s motion to dismiss plaintiffs’ claims due to their

failure to exhaust administrative remedies and dismissed with

prejudice plaintiffs’ Second Amended Complaint.   Plaintiffs filed

the instant motion shortly thereafter.   The Court held a hearing

on the motion, at which point the parties were asked to submit

supplemental briefing focusing on the issue of whether plaintiff

Kim Hardy (“Hardy”) exhausted her administrative remedies.   The

motion is now ripe for decision by this Court.



II.   Standard of Review

      Federal Rule of Civil Procedure 59(e) allows a party to file

a motion to alter or amend the judgment, but these motions “are

disfavored and relief from judgment is granted only when the

moving party establishes extraordinary circumstances.”

Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C.

2001) (citing Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C. Cir.

1998)).   “A Rule 59(e) motion is discretionary and need not be

granted unless the district court finds that there is an

intervening change of controlling law, the availability of new

evidence, or the need to correct a clear error or prevent manifest

injustice.”   Messina v. Krakower, 439 F.3d 755, 758-59 (D.C. Cir.

2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.

Cir. 1996) (internal quotation marks omitted)).




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III.    Discussion

       Much of plaintiffs’ motion relies on evidence that was in the

record when this Court ruled on defendant’s motion to dismiss.

Plaintiffs do not assert that an intervening change in the law has

called into question this Court’s ruling; rather, they contend

that the Court was “clearly in error” in finding that plaintiffs

failed to engage in the type of counseling necessary to exhaust

their administrative remedies.     Pls.’ Mem. P. & A. Supp. Mot. to

Alter & Amend at 3.     Plaintiffs’ arguments on this score are

simply an attempt to reargue the issues ruled on by the Court in

granting defendant’s motion to dismiss, and the Court rejects them

as such.    See Fund for Animals v. Norton, 326 F. Supp. 2d 124,

125-26 (D.D.C. 2004) (“Rule 59(e) motions are not intended to be

used to relitigate matters already argued and disposed of; they

are intended to permit the court to correct errors of fact

appearing on the face of the record, or errors of law.”).     The

Court finds no clear error of either fact or law that needs to be

corrected in its Memorandum Opinion of January 31, 2007.

       Plaintiffs have presented one piece of “new” evidence in

their Rule 59(e) motion: A declaration from Hardy, signed on

February 14, 2007, recounting her recollections of the “group

counseling session” that took place on January 15, 1997 with EEO

counselor Rosemarie Nelson (“Nelson”).      See Pls.’ Mot. to Alter &

Amend at Ex. 7.      In the declaration, Hardy states that she was the


                                    3
only individual interviewed by Nelson at that meeting and gave

Nelson detailed information about her claims of discrimination.

Id.   Hardy also claims that Nelson had been instructed by her

supervisors “not to counsel on any group matters” and that, at the

instruction of management, Nelson left the details of Hardy’s

statements at the counseling session out of her counseling report.

Id.   Plaintiffs argue that Hardy’s testimony was “improperly

excluded from the record” and that her declaration supports the

conclusion that plaintiffs “participated in good faith, to the

best of their abilities in the counseling process.” Pls.’ Mem. P.

& A. Supp. Mot. to Alter & Amend at 32-33.

      The Court does not credit Hardy’s declaration, which

contradicts other record evidence regarding the same events –

events that transpired ten years prior to Hardy’s most recent

declaration.   Indeed, some of the statements contained in the

declaration are inconsistent with Hardy’s own prior sworn

testimony from her 2004 deposition.   The declaration is also out

of keeping with statements of other individuals having personal

knowledge of the events in question, including both Nelson and

plaintiff Cynthia Artis.

      More fundamentally, Hardy’s declaration cannot be credited

because there is simply no way in which her recent recollections

can properly be considered “new evidence” under the standard

governing a Rule 59(e) motion.   Plaintiffs fail to explain why


                                 4
these statements could not have been presented when defendant’s

motion to dismiss was originally pending before the Court; how

Hardy’s testimony could plausibly be understood as being

previously unavailable to plaintiffs; or why the Court should rely

on these more recent recollections, particularly when they

contradict other evidence already in the record.   Moreover, the

Court still finds no evidence in the record that Hardy or any of

the other plaintiffs provided information about specific instances

of discrimination sufficient to meet the exhaustion requirements

articulated in Artis v. Greenspan, 158 F.3d 1301, 1302 (D.C. Cir.

1998).



IV.   Conclusion

      Accordingly, upon careful consideration of plaintiffs’

motion, the response and reply thereto, the supplemental briefing

filed by the parties at the request of the Court, the entire

record herein, and the applicable law, it is by the Court hereby

      ORDERED that plaintiff’s motion is DENIED.   This is a final

appealable order.   See Fed. R. App. P. 4(a).



Signed:    Emmet G. Sullivan
           United States District Judge
           March 2, 2009




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