                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

ELIZABETH SHEPPARD,                              :
                                                 :
               Plaintiff,                        :       Civil Action No.:         10-0834 (RMU)
                                                 :
               v.                                :       Re Document No.:          10
                                                 :
DISTRICT OF COLUMBIA et al.,                     :
                                                 :
               Defendants.                       :

                                   MEMORANDUM OPINION

          DENYING THE PLAINTIFF’S MOTION FOR RELIEF UPON RECONSIDERATION

                                        I. INTRODUCTION

       The plaintiff alleges that the defendants violated her due process and her equal protection

rights by failing to process her claim for disability benefits pursuant to D.C. Code § 1-623.24(a-

3)(1). The court previously granted the defendants’ motion to dismiss after determining that the

plaintiff’s claims were precluded under the doctrine of res judicata. The matter returns before

the court on the plaintiff’s motion for relief upon reconsideration of the court’s order dismissing

her action. 1 Because the plaintiff has not persuaded the court that it erred in dismissing the case,

the court denies her motion.




1
       Although the plaintiff brings her motion for relief upon reconsideration pursuant to both Federal
       Rule of Civil Procedure 59(e) and 60(b), Pl.’s Mot. at 1, the court limits its analysis to Rule 59(e)
       because the plaintiff filed this motion within twenty-eight days of the order dismissing her case.
       See Sec. & Exch. Comm’n v. Bilzerian, 729 F. Supp. 2d 9, 12 (D.D.C. 2010) (“If a person files a
       motion for reconsideration within twenty-eight days of the judgment or order of which he
       complains, courts consider it a Rule 59(e) motion; otherwise, they treat it as a Rule 60(b)
       motion.”).
                     II. FACTUAL & PROCEDURAL BACKGROUND 2

         In January 2006, the plaintiff filed a claim for permanent partial disability benefits with

the Disability Compensation Program (“DCP”) of the District of Columbia. Compl. ¶¶ 12, 15.

As a general matter, the DCP was, at the time, statutorily required to determine whether to award

a payment of compensation within thirty days of the filing of a disability claim. D.C. CODE § 1-

623.24(a-3)(1) (2006). The DCP’s failure to make such a determination resulted in the claim’s

automatic acceptance with “payment of compensation [commencing] on the 31st day following

the date the [disability] claim was filed.” Id.

       The plaintiff filed a disability claim with the DCP on January 25, 2006. Compl. ¶ 15.

After thirty days elapsed without either a decision by the defendant or an automatic acceptance

of her claim, the plaintiff sought an order from an Administrative Law Judge (“ALJ”) declaring

that the DCP had accepted her disability claim pursuant to D.C. Code § 1-623.24(a-3)(1). Defs.’

Mot. to Dismiss, Ex. 2 (Pl.’s Pet. to the District of Columbia Court of Appeals (“Pl.’s D.C.

Pet.”)) at 2. The ALJ determined that D.C. Code § 1-623.24(a-3)(1) did not apply to the

plaintiff’s claim because that provision applied only to an applicant’s “initial claim” for

disability benefits. See Notice (Jan. 14, 2011), ALJ’s Order at 3-5. According to the ALJ, the

plaintiff’s claim was not an initial claim because she had filed previous claims for benefits

arising from the same injury. See id. The plaintiff appealed to the Compensation Review Board

(“CRB”), which affirmed the ALJ’s ruling. See generally id., CRB Decision.

       The plaintiff appealed the CRB’s decision to the District of Columbia Court of Appeals,

arguing, inter alia, that the defendants’ failure to render a decision on her claim violated her due


2
       On February 22, 2011, the court issued a memorandum opinion setting forth in greater detail the
       factual and procedural background of this case. Sheppard v. Dist. of Columbia, 2011 WL
       710211, at *1-2 (D.D.C. Feb. 22, 2011). For convenience, the court briefly restates the relevant
       background here.

                                                   2
process and equal protection rights. Pl.’s D.C. Pet. at 17-22. The District of Columbia Court of

Appeals affirmed the decision of the CRB without addressing the plaintiff’s constitutional

claims. See generally Sheppard v. D.C. Dep’t of Emp’t Servs., 993 A.2d 525 (D.C. 2010) (per

curiam).

       The plaintiff subsequently commenced this action, claiming that the defendants violated

her due process and equal protection rights guaranteed by the Fifth and Fourteenth Amendments,

respectively. Compl. ¶¶ 6-7. In June 2010, the defendants filed a motion to dismiss, arguing that

the plaintiff’s claims were barred under the doctrine of res judicata. Defs.’ Mot. to Dismiss at 3.

The court granted the defendants’ motion on February 22, 2011, holding that the plaintiff’s

claims were precluded by res judicata because she had previously asserted the same claim in a

case involving the same parties before the District of Columbia Court of Appeals, 3 and for which

that court issued a valid, final judgment on the merits. Sheppard v. Dist. of Columbia, 2011 WL

710211, at *5-6 (D.D.C. Feb. 22, 2011).




3
       In the District of Columbia Court of Appeals, the plaintiff named the D.C. Department of
       Employment Services (“DOES”) as the respondent, see generally Sheppard v. D.C. Dep’t of
       Emp’t Servs., 993 A.2d 525 (D.C. 2010), whereas the named defendants in this action are the
       District of Columbia and Mayor Adrian Fenty, see generally Compl. The defendant correctly
       notes, however, that DOES is non sui juris, and an action against it is therefore construed as an
       action against the District of Columbia. See McConnell v. D.C. Dep’t of Emp’t Servs., 1993 WL
       433595, at *1 n.1 (D.D.C. Oct. 6, 1993). Similarly, the plaintiff’s claims against the Mayor of the
       District of Columbia in his official capacity are construed as claims against the District itself.
       Atchinson v. Dist. of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) (“A section 1983 suit for
       damages against municipal officials in their official capacities is . . . equivalent to a suit against
       the municipality itself.”). The plaintiff does not dispute that the parties are identical or in privity
       for purposes of claim preclusion. See generally Pl.’s Opp’n; see also Smith v. Dist. of Columbia,
       629 F. Supp. 2d 53, 58 (D.D.C. 2009) (noting that one element of claim preclusion is “whether
       the party against whom the plea is asserted was a party or in privity with a party in the prior case”
       (quoting Patton v. Klein, 746 A.2d 866, 869 (D.C. 1999))). Accordingly, the court concludes that
       the plaintiff’s actions before the District of Columbia Court of Appeals and this court involve the
       same parties for purposes of res judicata. See Bonaccorsy v. Dist. of Columbia, 685 F. Supp. 2d
       18, 24 (D.D.C. 2010) (“[A]s [plaintiff] has neither rebutted nor addressed D.C.’s argument to the
       contrary, she has waived or conceded the issue.”).

                                                     3
       On February 25, 2011, the plaintiff filed this motion for relief upon reconsideration of the

court’s February 2011 ruling. See generally Pl.’s Mot. With the motion now ripe for

adjudication, the court turns to the applicable legal standards and the parties’ arguments.



                                         III. ANALYSIS

                          A. Legal Standard for a Rule 59(e) Motion

       A motion to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e)

must be filed within twenty-eight days of the entry of the judgment at issue. FED. R. CIV. P.

59(e). While the court has considerable discretion in ruling on a Rule 59(e) motion, the

reconsideration and amendment of a previous order is an unusual measure. Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam); McDowell v. Calderon, 197 F.3d

1253, 1255 (9th Cir. 1999). Rule 59(e) motions “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 legal error or prevent manifest injustice.” Ciralsky v. Cent.

Intelligence Agency, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone, 76 F.3d at 1208).

Moreover, “[a] Rule 59(e) motion to reconsider is not simply an opportunity to reargue facts and

theories upon which a court has already ruled,” New York v. United States, 880 F. Supp. 37, 38

(D.D.C. 1995), or a vehicle for presenting theories or arguments that could have been advanced

earlier, Kattan v. Dist. of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993); W.C. & A.N. Miller

Cos. v. United States, 173 F.R.D. 1, 3 (D.D.C. 1997).




                                                  4
        B. The Court Denies the Plaintiff’s Motion for Relief Upon Reconsideration

       The plaintiff contends that claim preclusion does not apply to her action because the

claim before the District of Columbia Court of Appeals and this court are not identical. 4 Pl.’s

Mot. at 4. The plaintiff argues that in the action before the District of Columbia Court of

Appeals, she alleged that she had been “deprived [] of due process and equal protection of the

law because of what could result” from the defendants’ failure to process her claim, while “in the

instant action, [the p]laintiff contends that the [defendants’] failure to process her [disability

benefits claim] has resulted in an unconstitutional delay [in] processing her claim and decidedly

disparate treatment.” Id. at 3-4. In other words, the plaintiff asserts that “[t]he essential factual

difference between [her] prior claims and her present claims is the passage of time.” Id. at 4.

Due to these “factual” differences between the two claims, the plaintiff contends that the court’s

ruling that her claim was barred under res judicata was a “manifest injustice.” Id. at 3.

       The defendants assert that the plaintiff’s argument must be rejected because it is raised

for the first time in her motion for reconsideration. Defs.’ Opp’n. at 1. The defendants further

argue that notwithstanding the plaintiff’s current argument, the plaintiff previously conceded that

the claims raised before the District of Columbia Court of Appeals are identical to those brought

before this court. Id. at 2. Finally, the defendants argue that the mere passage of time between

the plaintiff’s claims in the District of Columbia Court of Appeals and the claims asserted here

does not “resuscitate” her claims. Id. at 3.

       As a preliminary matter, the court notes that the plaintiff argues for the first time in her

motion for reconsideration that there are factual differences between her claims in this court and


4
       In moving for reconsideration, the plaintiff states that she originally interpreted the defendants’
       motion to dismiss as solely arguing issue preclusion, rather than both issue preclusion and claim
       preclusion. Pl.’s Mot. at 2 n.1 (stating that “that [the plaintiff] construed Defendant’s motion too
       narrowly as raising solely a question of issue preclusion”).

                                                    5
those brought before the District of Columbia Court of Appeals. See Pl.’s Opp’n at 3. In her

opposition to the defendants’ motion to dismiss, the plaintiff argued only that res judicata did not

bar her claims because the District of Columbia Court of Appeals “did not dispose of [her] due-

process and equal-protection arguments on the merits.” Pl.’s Opp’n at 3. Although the plaintiff

had ample opportunity to point out differences between the two sets of claims in her opposition

to the defendants’ motion to dismiss, she failed to do so. See Fox v. Am. Airlines, Inc., 389 F.3d

1291, 1296 (D.C. Cir. 2004) (affirming the district court’s refusal to vacate its judgment pursuant

to a Rule 59(e) motion because the party’s argument could have been raised earlier); Kattan, 995

F.2d at 276 (“Ordinarily Rule 59 motions . . . are not granted by the District Court where they are

used by a losing party to request the trial judge to reopen proceedings in order to consider a new

defensive theory which could have been raised during the original proceedings.”); see also Davis

v. Dist. of Columbia, 2011 WL 611814, at *2-3 (D.C. Cir. Feb. 15, 2011) (holding that manifest

injustice did not result upon a denial of a Rule 59 motion where the party had “ample

opportunities . . . to timely produce additional evidence”). The court declines to revisit its earlier

ruling on the basis of an argument that could have been raised in response to the defendants’

motion to dismiss.

       Moreover, even if the plaintiff had properly asserted this argument in the first instance, it

would not have persuaded the court to reach a different result. “The doctrine of res judicata

prevents repetitious litigation involving the same causes of action or the same issues.” I.A.M.

Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946 (D.C. Cir. 1983). Res judicata

has two distinct aspects – claim preclusion and issue preclusion (commonly known as collateral

estoppel) – that apply in different circumstances and with different consequences to the litigants.




                                                  6
NextWave Pers. Commc’ns, Inc. v. Fed. Commc’ns Comm’n, 254 F.3d 130, 142 (D.C. Cir.

2001); Novak v. World Bank, 703 F.2d 1305, 1309 (D.C. Cir. 1983).

        Under claim preclusion, “a final judgment on the merits of an action precludes the parties

or their privies from relitigating issues that were or could have been raised in that action.” Drake

v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002) (quoting Allen v. McCurry, 449 U.S.

90, 94 (1980)). “Whether two cases implicate the same cause of action turns on whether they

share the same ‘nucleus of facts.’” Drake, 291 F.3d at 66 (quoting Page v. United States, 729

F.2d 818, 820 (D.C. Cir. 1984)). In making that determination, courts look at “whether the facts

are related in time, space, origin, or motivation, whether they form a convenient trial unit, and

whether their treatment as a unit conforms to the parties’ expectations or business understanding

or usage.” Stanton v. Dist. of Columbia Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997)

(quoting Restatement (Second) of Judgments § 24(2) (1982)).

        Under issue preclusion or collateral estoppel, “once a court has decided an issue of fact or

law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a

different cause of action involving a party to the first case.” Yamaha Corp. of Am. v. United

States, 961 F.2d 245, 254 (D.C. Cir. 1992) (quoting Allen, 449 U.S. at 94). Issue preclusion

applies if three criteria are met: (1) if in the prior litigation, the issue was “actually litigated, that

is, contested by the parties and submitted for determination by the court;” (2) if the prior

litigation was “actually and necessarily determined by a court of competent jurisdiction;” and (3)

if “preclusion in the second trial [does] not work an unfairness.” Otherson v. Dep’t of Justice,

711 F.2d 267, 273 (D.C. Cir. 1983) (citations omitted).

        In short, “claim preclusion forecloses all that which might have been litigated

previously,” I.A.M. Nat’l Pension Fund, 723 F.2d at 949, while issue preclusion “prevents the



                                                     7
relitigation of any issue that was raised and decided in a prior action,” Novak, 703 F.2d at 1309.

In this way, res judicata helps “conserve judicial resources, avoid inconsistent results, engender

respect for judgments of predictable and certain effect, and [] prevent serial forum-shopping and

piecemeal litigation.” Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); see also

Allen, 449 U.S. at 94.

       In her petition to the District of Columbia Court of Appeals, the plaintiff alleged that on

January 25, 2006, she made a claim for permanent partial disability benefits on which the

defendant failed to issue a decision. Pl.’s D.C. Pet. at 4. She argued that the CRB’s

interpretation and application of D.C. Code § 1-623.24(a-3)(1) deprived her of access to the

CRB’s adjudicatory procedures in violation of her due process and equal protection rights. Id. at

17-22. The plaintiff noted that more than three years had elapsed since she applied for

permanent partial disability benefits and that during that time, she had been experiencing adverse

effects due to “the ongoing and arbitrary delay” in processing her application. Id. at 19.

       In this action, the plaintiff alleges identical facts – namely, that on January 25, 2006, she

made a claim for permanent partial disability benefits and that the defendant subsequently failed

to process her claim, depriving her of due process and equal protection of the law.

Compl. ¶¶ 15-16, 20. Because the plaintiff’s claims before the District of Columbia Court of

Appeals and the claims asserted before this court share the same nucleus of facts, the court

concludes that they are identical claims for purposes of claim preclusion. Drake, 291 F.3d at 66.

       The similarity in the factual allegations of the plaintiff’s claims is not diminished by the

passage of time between the judgment of the District of Columbia Court of Appeals and the




                                                 8
filing of the complaint in this case. 5 See Pl.’s Mot. at 4. The pertinent events underlying both

sets of claims – that the plaintiff filed a claim for partial permanent disability benefits and the

defendants did not process that claim – had occurred prior to the commencement of the

plaintiff’s action in the District of Columbia Court of Appeals. Pl.’s D.C. Pet. at 4. Nor does it

appear that any material intervening event transpired since the time that she received a judgment

from the District of Columbia Court of Appeals. Cf. Stanton, 127 F.3d at 78 (“Federal law is

clear that post-judgment events give rise to new claims, so that claim preclusion is no bar.”). See

Pl.’s D.C. Pet. at 4. On the contrary, the plaintiff alleges that the defendants have continuously

refused to take action from the time of her application for disability benefits in January 2006.

Pl.’s Mot. at 4 (noting the “more than five year ongoing delay processing her claim”).

       In sum, the plaintiff previously had the opportunity but failed to argue that her claims

before this court were different than those adjudicated in the District of Columbia Court of

Appeals. Additionally, the facts underlying her petition to the District of Columbia Court of

Appeals appear to be the same facts on which her current claims are premised. Accordingly, the

court denies the plaintiff relief upon reconsideration of its previous order dismissing the

complaint under the doctrine of res judicata.




5
       The plaintiff appears to argue that the relevant timeframe in which a factual difference developed
       is the time between the filing of her administrative petition and the filing of her case in this court.
       See Pl.’s Mot. at 4. The court notes, however, that it is the time between the judgment of the
       District of Columbia Court of Appeals and the filing of this case that is relevant. See Stanton,
       127 F.3d at 78-79 (observing that post-judgment events give rise to new claims based on identical
       conduct and similarly, each successive enforcement of a statute creates a new cause of action).

                                                     9
                                      IV. CONCLUSION

       For the foregoing reasons, the court denies the plaintiff’s motion for relief upon

reconsideration. An Order consistent with this Memorandum Opinion is separately and

contemporaneously issued this 3rd day of June, 2011.

                                                             RICARDO M. URBINA
                                                             United States District Judge




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