                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

ANGELA HOFFMAN et al.,                         :
                                               :
               Plaintiffs,                     :     Civil Action No.:        08-1924 (RMU)
                                               :
               v.                              :     Re Document No.:       45
                                               :
DISTRICT OF COLUMBIA,                          :
                                               :
               Defendant.                      :

                                  MEMORANDUM OPINION

    DENYING THE PLAINTIFFS’ MOTION FOR RELIEF UPON RECONSIDERATION & RECUSAL

                                       I. INTRODUCTION

       This matter is before the court on the plaintiffs’ motion for relief upon reconsideration of

this court’s February 4, 2010 order, in which the court denied the plaintiffs’ motion for partial

summary judgment and granted the District of Columbia’s motion to dismiss as conceded. The

plaintiffs contend that the court erred in reaching these conclusions and that the court’s behavior

evidences a bias in favor of the defendant, requiring recusal of the undersigned judge. Because

the plaintiffs have not identified any basis for reversing the court’s prior ruling and have failed to

demonstrate any basis for recusal, the court denies the plaintiffs’ motion.



                     II. FACTUAL & PROCEDURAL BACKGROUND1

       The plaintiffs allege that on July 31, 2008, they were attending a birthday party at a

residence rented by plaintiff Angela Hoffman and owned by plaintiff Melvin Gresham, a captain

in the District of Columbia Metropolitan Police Department (“MPD”). Am. Compl. ¶¶ 1, 4, 20.

During the party, agents of the MPD and the Drug Enforcement Agency (“DEA”) raided the
1
       A more thorough description of the factual and procedural background of this case may be found
       in the court’s previous memorandum opinion. See Mem. Op. (Feb. 4, 2010) at 2-4.
residence, allegedly as part of scheme to retaliate against Captain Gresham because of his

purported whistleblower activities. Id. ¶¶ 11, 13.

       In November 2008, the plaintiffs commenced this action, asserting fourteen federal and

state law claims against the District of Columbia and the United States. See generally Compl.;

Am. Compl. More specifically, the plaintiffs asserted claims under 42 U.S.C. § 1983 for

violations of their First and Fourteenth Amendment rights, 42 U.S.C. § 1981 for violations of

their Fifth Amendment rights, the D.C. Whistleblower Act, D.C. CODE §§ 1-615.51, and the

District of Columbia Human Rights Act, id. 2-1401.01 et seq. Am. Compl. ¶¶ 39-51, 74-79.

The plaintiffs also asserted a bevy of common law tort claims against the defendants.2 Id. ¶¶ 52-

73, 80-82.

       On June 9, 2009, the plaintiffs moved for partial summary judgment on their claims

against the District. See generally Pls.’ Mot. for Partial Summ. J. The plaintiffs based their

motion on the fact that the District of Columbia Housing Authority (“DCHA”) had conducted a

hearing in April 2009 to consider whether the agency had wrongfully terminated plaintiff

Hoffman from the Housing Choice Voucher Program (“HCVP”). See id., Ex. 1 (“DCHA

Decision”) at 1. The plaintiffs argued that the hearing officer’s decision was entitled to res

judicata effect and established the District’s liability to the plaintiffs. See generally Pls.’ Mot.

for Partial Summ. J. The District filed its opposition to the plaintiffs’ motion on July 13, 2009.

See generally District’s Opp’n to Pls.’ Mot. for Partial Summ. J.




2
       In August 2009, the court dismissed all claims against the United States. See generally Mem. Op.
       (Aug. 17, 2009). The plaintiffs subsequently filed a motion for partial relief upon
       reconsideration, seeking the reinstatement of their common law tort claims against the United
       States. See generally Pl.’s Mot. to Reinstate the United States & Opp’n to the District’s Mot. to
       Dismiss. The court denied the plaintiffs’ motion on February 4, 2010. See Mem. Op. (Feb. 4,
       2010) at 6-9.


                                                   2
        On July 22, 2009, the District moved to dismiss all claims against it. See generally

District Mot. to Dismiss. The plaintiffs failed to file a timely opposition or request leave to late

file an opposition. On February 4, 2010, the court denied the plaintiffs’ motion for partial

summary judgment, concluding that based on the applicable municipal regulations, the DCHA

hearing officer’s decision did not constitute a final adjudication on the merits entitled to res

judicata effect. See Mem. Op. (Feb. 4, 2010) at 9-11. Furthermore, the court granted the

District’s motion to dismiss as conceded because the plaintiffs had not filed an opposition to the

motion. Id. at 11-14.

        On February 10, 2010, the plaintiffs filed the motion for relief upon reconsideration and

recusal now before the court. See generally Pls.’ Mot. for Relief Upon Recons. (“Pls.’ Mot.”).

The plaintiffs contend that the court erred in denying their motion for partial summary judgment,

arguing that the DCHA hearing officer’s decision was entitled to res judicata treatment and

conclusively established the District’s liability to the plaintiffs. See id. at 7-9. The plaintiffs

further argue that the court erred in granting the District’s motion to dismiss and contend that

recusal is necessary because of the court’s bias against the plaintiffs. See id. at 9-15. The

District opposes the plaintiffs’ motion, see generally Def.’s Opp’n, which is now ripe for

adjudication. The court therefore turns to the applicable legal standards and the parties’

arguments.



                                          III. ANALYSIS

         A. Legal Standard for Relief Under Federal Rule of Civil Procedure 60(b)

        In its discretion, the court may relieve a party from an otherwise final judgment pursuant

to any one of six reasons set forth in Rule 60(b). FED. R. CIV. P. 60(b); Lepkowski v. Dep’t of




                                                   3
Treasury, 804 F.2d 1310, 1311-12 (D.C. Cir. 1986). First, the court may grant relief from a

judgment involving “mistake, inadvertence, surprise, or excusable neglect.” FED. R. CIV. P.

60(b)(1). Relief under Rule 60(b)(1) turns on equitable factors, notably whether any neglect was

excusable. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392 (1993).

Second, the court may grant relief where there is “newly discovered evidence” that the moving

party could not have discovered through its exercise of due diligence. FED. R. CIV. P. 60(b)(2).

Third, the court may set aside a final judgment for fraud, misrepresentation or other misconduct

by an adverse party. Id. 60(b)(3); Mayfair Extension, Inc. v. Magee, 241 F.2d 453, 454 (D.C.

Cir. 1957). Specifically, the movant must show that “such ‘fraud’ prevented him from fully and

fairly presenting his case,” and that “the fraud is attributable to the party or, at least, to counsel.”

Richardson v. Nat’l R.R. Passenger Corp., 150 F.R.D. 1, 7 (D.D.C. 1993) (internal citations

omitted). Fourth, the court may grant relief in cases in which the judgment is “void.” FED. R.

CIV. P. 60(b)(4). A judgment may be void if the court lacked personal or subject matter

jurisdiction in the case, acted in a manner inconsistent with due process or proceeded beyond the

powers granted to it by law. Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 871

(4th Cir. 1999). Fifth, the court may grant relief if the “the judgment has been satisfied, released,

or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable.” FED. R. CIV. P. 60(b)(5); Twelve John Does v. District of

Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988) (noting that not all judgments having

continuing consequences are “prospective” for the purposes of Rule 60(b)(5)). Sixth, the court

may grant relief from a judgment for “any . . . reason that justifies [such] relief.” FED. R. CIV. P.

60(b)(6). Using this final catch-all reason sparingly, courts apply it only in “extraordinary

circumstances.” Pioneer Inv. Servs., 507 U.S. at 393.




                                                   4
       A party proceeding under one of the first three reasons must file his Rule 60(b) motion

within one year after the judgment at issue. FED. R. CIV. P. 60(c)(1). A party relying on one of

the remaining three reasons may file his Rule 60(b) motion within a reasonable time. Id. The

party seeking relief from a judgment bears the burden of demonstrating that he satisfies the

prerequisites for such relief. McCurry ex rel. Turner v. Adventist Health Sys./Sunbelt, Inc., 298

F.3d 586, 592 (6th Cir. 2002).

              B. The Court Declines to Alter is Ruling on the Plaintiffs’ Motion
                             for Partial Summary Judgment

       The plaintiffs contend that the court erred in denying their motion for summary judgment

on their claims against the District. See Pls.’ Mot. at 7-9. They assert that 14 D.C.M.R. §

8905.4(a), the municipal regulation on which the court relied in concluding that the DCHA

hearing officer’s determination was not entitled to res judicata effect, applies only to

determinations made by the DCHA Executive Director reviewing a hearing officer’s decision.

Id. The provision has no effect, the plaintiffs argue, on informal decisions rendered by a hearing

officer that are not appealed to the Executive Director, which become final ten days after

issuance. Id. The plaintiffs also argue that the court should have granted their motion for partial

summary judgment as conceded because the District’s opposition was not filed by the required

deadline and because the District expressly conceded the factual assertions in the plaintiffs’

motion. Id. at 3-5.

       The District responds that the plaintiffs’ arguments regarding the substance of their

motion for partial summary judgment simply rehash arguments raised in their earlier motion and

do not justify reversal of the court’s prior ruling. Def.’s Opp’n at 4. The District also argues that

the court properly declined to grant the plaintiffs’ motion as conceded, as the District had filed a

timely motion to stay briefing on the plaintiffs’ motion until the resolution of its pending motion



                                                  5
to quash service of the summons and complaint. Id. at 3. Furthermore, the District maintains

that its failure to file an opposing statement of material facts was of no moment because, as the

District stated in its opposition to the plaintiffs’ motion for partial summary judgment, the

arguments raised in the plaintiffs’ motion could be resolved as a matter of law. Id. at 3-4.

       The court considers the plaintiffs’ procedural and substantive arguments for relief upon

reconsideration in turn.

                            1. The Plaintiffs’ Procedural Arguments

       The plaintiffs’ procedural arguments merit little discussion. The plaintiffs’ contention

that the court should have granted their motion for partial summary judgment as conceded based

on the District’s failure to file a timely opposition is undermined by the procedural history of the

case. Soon after the plaintiffs filed certificates of service of their amended complaint, the

District filed a motion to quash, arguing that the plaintiffs had failed to properly serve the

amended complaint on the District.3 See generally District’s Mot. to Quash. On June 9, 2009,

while the District’s motion to quash was pending, the plaintiffs moved for partial summary

judgment. See generally Pls.’ Mot. for Partial Summ. J. The District’s opposition to the

plaintiffs’ motion was due on June 23, 2009. LCvR 7(b) (amended Dec. 1, 2009). Because the

court had yet to rule on the District’s motion to quash by that date, the District moved to stay

briefing on the plaintiffs’ motion for partial summary judgment until the court had resolved the

service issue. See generally District’s Mot. to Stay. On June 30, 2009, the court denied the

District’s motion to quash, see Mem. Op. (June 30, 2009), and directed the District to respond to

3
       The plaintiffs similarly allege that the court somehow interceded on behalf of the District by
       preventing the Clerk of the Court from entering default against the District based on its failure to
       file a timely response to the amended complaint. See Pls.’ Mot. at 11-13. In reality, the Clerk of
       the Court properly declined to enter default against the District because the District’s motion to
       quash service of the amended complaint remained pending. Cf. Baade v. Price, 175 F.R.D. 403,
       406 (D.D.C. 1997) (granting the defendant’s motion to set aside its default because the defendant
       had promptly filed a motion to quash service once it became aware of the plaintiff’s complaint).


                                                    6
the plaintiffs’ motion for partial summary judgment by July 13, 2009,4 see Minute Order (June

30, 2009). Given this procedural history, and specifically the fact that the District filed a timely

and reasonable motion to stay briefing on the plaintiffs’ summary judgment motion, the court

properly declined to grant the plaintiffs’ motion as conceded. See LCvR 7(b) (providing that if

no timely opposition is filed, “the Court may treat the motion as conceded”) (emphasis added).

       The plaintiffs’ argument that the District failed to file an opposing statement of material

facts in response to their motion is equally unavailing. Local Civil Rule 7(h) provides that a

party’s failure to oppose material facts in the movant’s summary judgment motion permits the

court to treat those facts as admitted. See LCvR 7(h). Yet in its opposition to the plaintiffs’

motion for partial summary judgment, the District expressly conceded the factual allegations

asserted in the plaintiffs’ motion, arguing that regardless of the truth of those factual allegations,

their motion should be denied because the hearing officer’s decision did not have res judicata

effect against the District. District’s Opp’n to Pls.’ Mot. for Partial Summ. J. at 3 n.1. Indeed,

the court resolved the plaintiffs’ motion not by relying on any disputed facts but based on its

legal determination that the DCHA hearing officer’s decision was not entitled to res judicata

effect. See Mem. Op. (Feb. 4, 2010) at 9-11. Accordingly, the District’s failure to file a

statement of facts in opposition to the plaintiffs’ motion for partial summary judgment did not

require the court to grant the plaintiffs’ motion as conceded.

                            2. The Plaintiffs’ Substantive Arguments

       As previously noted, the court denied the plaintiffs’ motion for summary judgment on its

claims against the District, concluding that the DCHA hearing officer’s decision was not a final

decision entitled to res judicata effect. See Mem. Op. (Feb. 4, 2010) at 9-11. In reaching this


4
       The court denied as moot the District’s motion to stay briefing on the plaintiffs’ motion for partial
       summary judgment. See Minute Order (Nov. 19, 2009).


                                                    7
conclusion, the court relied on the fact that the hearing officer’s decision concluded with a mere

“recommendation” that the DCHA reinstate plaintiff Hoffman to the HCVP, as well as on the

text of 14 D.C.M.R. § 8905.4, which appears to express an intention that DCHA administrative

decisions not be given res judicata effect. Id.

       The court’s reliance on the fact that the hearing officer’s decision concluded with a mere

“recommendation” appears to have been misplaced. District of Columbia municipal regulations

provide that a hearing officer’s “proposed decision will become final on the tenth (10th) day

following the postmark of the proposed decision unless one of the parties has submitted a written

request to the Executive Director to reconsider the proposed decision before issuing a final

decision and stating the basis for such review.” 14 D.C.M.R. § 8905.3. There is no dispute that

the hearing officer’s decision in favor of plaintiff Hoffman was not appealed to the Executive

Director. Thus, based on the applicable regulations, the hearing officer’s “recommendation”

became a “final decision” ten days after its issuance.

       The court’s interpretation of 14 D.C.M.R. § 8905.4 presents a more complicated matter.

The regulation provides as follows:

       In the event of a request for [a] final decision by the Executive Director, the
       Executive Director will render a final written decision within fifteen (15) days of
       receipt of the request, which shall include DCHA’s reasons for the final decision.

       (a) The final decision shall include notification that final decisions are not
       precedent setting for DCHA or the courts and cases thereafter taken to Superior
       Court of the District of Columbia are not an appeal of an administrative decision,
       are not based on the record of the informal hearing and are to be tried de novo, as
       if no determination had been made by DCHA and its hearing officer prior thereto.

14 D.C.M.R. § 8905.4.

       As the plaintiffs rightly point out, the provision appears under the subsection concerning

“final decisions” issued by the DCHA Executive Director following his or her review of a




                                                  8
DCHA hearing officer’s determination. See id. § 8905.4. The context of the provision suggests

that the notification requirement set forth in § 8905.4(a) applies only to final decisions issued by

the DCHA Executive Director, rather than informal hearing officer determinations that are not

appealed to the Executive Director and become final pursuant to § 8905.3. See id. § 8905.4(a).

       Yet even if § 8905.4(a)’s notification requirement applies only to final decisions issued

by the Executive Director, the provision nonetheless appears to express a broader policy that

DCHA administrative determinations are not intended to bind courts in subsequent judicial

proceedings, stating broadly and without qualification that “final decisions” are not be treated as

“precedent setting for DCHA or the courts” and that subsequent judicial proceedings “are to be

tried de novo, as if no determination had been made by DCHA and its hearing officer prior

thereto.” Id. Indeed, acceptance of the plaintiffs’ interpretation of the provision would lead to a

peculiar outcome in which unreviewed hearing officer determinations would be entitled to res

judicata effect, while determinations of the DCHA Executive Director reviewing such

determinations would not be entitled to res judicata effect.

       Ultimately, the court need not reach any definitive interpretation of § 8905.4, because

even if the DCHA hearing officer’s determination was a final decision eligible for res judicata

treatment, the plaintiffs still would not be entitled to summary judgment on their claims against

the District. First, neither claim preclusion nor issue preclusion may be used against a party that

was not a party to the prior proceeding or in privity with a party to the prior proceeding. See

Taylor v. Sturgell, 128 S. Ct. 2161, 2171 (2008) (noting that “[t]he application of claim and issue

preclusion to nonparties . . . runs up against the ‘deep-rooted historic tradition that everyone

should have his own day in court’” (quoting Richards v. Jefferson County, Ala., 517 U.S. 793,

798 (1996))). The proceedings before the DCHA hearing officer concerned whether the DCHA




                                                  9
had properly terminated plaintiff Hoffman from the HCVP, and the respondent in those

proceedings was the DCHA, not the District. See Pls.’ Mot. for Partial Summ. J., Ex. 1 at 1-4.

The DCHA is an independent agency legally distinct from the District government. D.C. CODE §

6-202(a). The District is not liable for any damages caused by actions of the DCHA or its

officers and is not liable for any note or other obligation entered into by the DCHA. Id. § 6-

205(d). Thus, because the District was not a party to the proceedings before the hearing officer,

her determinations do not have claim or issue preclusive effect against the District.

       In their briefs supporting their motion for partial summary judgment, the plaintiffs did not

dispute that the District was not a party to the DCHA administrative proceedings. See generally

Pls.’ Mot. for Partial Summ. J.; Pls.’ Reply in Support of Partial Summ. J. Rather, the plaintiffs

argued that even though the District was not a party to the administrative proceedings, it was

nonetheless bound by the hearing officer’s determinations because the DCHA served as a proxy

for the District during those proceedings. See Pls.’ Reply in Support of Partial Summ. J. at 4-7.

The plaintiffs based their argument on the doctrine of “virtual representation” announced in

Taylor v. Blakey, 490 F.3d 965 (D.C. Cir. 2007), in which the Circuit articulated a multi-factor

test for determining when a party is bound by prior litigation to which it was not a party. The

Supreme Court, however, struck down the “broad theory of virtual representation” articulated in

Blakey. See Sturgell, 128 S. Ct. at 2173-75 (stating that a nonparty is adequately represented in

prior litigation for res judicata purposes only if the party to the prior proceeding understood itself

to be acting in a representative capacity and if there were special procedures to safeguard the

interests of the absentees). Accordingly, the plaintiffs’ reliance on the doctrine of virtual

representation is misplaced. Moreover, the record of the administrative hearing is devoid of any

indication that the DCHA understood itself to be representing the District during the




                                                 10
administrative proceedings or that any special procedures were implemented to safeguard the

District’s interests during those proceedings, rendering the adequate representation doctrine

inapplicable. See generally Pls.’ Mot. for Partial Summ. J., Ex. 1.

       Furthermore, issue preclusion, the species of res judicata that the plaintiffs invoked in

their motion for partial summary judgment, applies only to issues “actually and necessarily

determined by a court of competent jurisdiction in [a] prior case.” Gov’t of Rwanda v. Johnson,

409 F.3d 368, 374 (D.C. Cir. 2005) (quoting Yamaha Corp. of Am. v. United States, 961 F.2d

245, 254 (D.C. Cir. 1992)); see also NextWave Personal Commc’ns, Inc. v. Fed. Commc’ns

Comm’n, 254 F.3d 130, 147 (D.C. Cir. 2001) (noting that “[i]f of a prior decision is ‘unclear, and

it is thus uncertain whether the issue was actually and necessarily decided in [the prior] litigation,

then relitigation of the issue is not precluded’” (quoting Connors v. Tanoma Mining Co., 953

F.2d 682, 684 (D.C. Cir. 1992))). Here, the plaintiffs’ claims against the District arose out of

their allegation that MPD officers manufactured allegations against Captain Gresham in

retaliation for his participation in whistleblower activity. See generally Am. Compl. The DCHA

hearing officer, however, was presented with only one issue: whether there was sufficient

evidence to support the DCHA’s determination that Hoffman had engaged in illegal activity at

her residence, thus disqualifying her from the HCVP. See Pls.’ Mot. for Partial Summ. J., Ex. 1

at 1. The hearing officer concluded that the DCHA’s determination was not supported by

sufficient evidence, stating that Hoffman had “clouded the veracity and legitimacy of the warrant

execution by presenting unrefuted evidence that the illegal items allegedly secured from her

residence were not a part of the itemized monthly record of secured evidence of criminal

activity.” Id. at 3. Although the hearing officer noted that Captain Gresham had provided

unrefuted testimony that the search warrant was fabricated to target him in retaliation for his




                                                 11
whistleblower activities, id. at 2, the issue of whether the search warrant was obtained to punish

Captain Gresham for his whistleblower activities was not a matter before the hearing officer, nor

was it necessary to her conclusion that the DCHA had improperly terminated plaintiff Hoffman

from the HCVP. See id.; see also 14 D.C.M.R. § 8902.1 (listing the issues that may be

adjudicated during an informal hearing). Accordingly, the hearing officer did not actually or

necessarily determine the issue central to the plaintiffs’ claims and did not establish the District’s

liability to the plaintiffs.

        For these reasons, the court declines to alter its ruling denying the plaintiffs’ motion for

partial summary judgment.

         C. The Court Declines to Alter its Ruling on the District’s Motion to Dismiss

        The plaintiffs assert that the court erred in granting the District’s Rule 12(b)(6) motion to

dismiss, arguing that the plaintiffs did, in fact, state a claim under the First Amendment and the

D.C. Whistleblower Act.5 See Pls.’ Mot. at 9-11, 14-15. As previously noted, however, the

court did not pass on the substance of the District’s motion to dismiss,6 but instead granted the

District’s motion as conceded because the plaintiffs failed to file an opposition to the District’s

motion or a motion for leave to late file. See Mem. Op. (Feb. 4, 2010) at 11-14. The plaintiffs

still have not offered any explanation for their failure to file an opposition to the District’s

motion. See generally Pls.’ Mot. Accordingly, the court declines to alter its ruling on the

District’s motion to dismiss.

5
        The plaintiffs’ motion for relief upon reconsideration does not specifically address any of their
        other claims against the District. See generally Pls.’ Mot.
6
        The plaintiffs’ assertion that the court “held” that the plaintiffs failed to allege that Captain
        Gresham was speaking as a citizen on a matter of public concern, see Pls.’ Mot. at 9 (citing Mem.
        Op. (Feb. 4, 2010) at 11), is simply mistaken, see Mem. Op. (Feb. 4, 2010) at 11 (stating that
        “[t]he District next argues . . . that the plaintiffs’ [First Amendment claim] . . . must be dismissed
        because the plaintiffs have failed to allege that Captain Gresham was speaking as a citizen on a
        matter of public concern rather than as an employee discharging his job responsibilities.”).


                                                     12
                   D. The Court Denies the Plaintiffs’ Request for Recusal

       The plaintiffs argue that the court’s actions in this litigation reveal the undersigned

judge’s bias in favor of the District. See Pls.’ Mot. at 16-17. Federal statute provides that “[any]

justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding

in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The question is

whether a reasonable and informed observer would question the judge’s impartiality.” United

States v. Microsoft, 253 F.3d 34, 114 (D.C. Cir. 2001)). The party seeking recusal must “show a

true personal bias [] and must allege specific facts and not mere conclusions or generalities.”

Bhd. of Locomotive Firemen and Enginemen, et al. v. Bangor & Aroostook R.R. Co., et al., 380

F.2d 570, 576-77 (D.C. Cir. 1967) (citations omitted). Here, the plaintiffs have failed to identify

any grounds for recusal. See generally Pls.’ Mot. Accordingly, the court denies the plaintiffs’

request for recusal.



                                       IV. CONCLUSION

       For the foregoing reason, the court denies the plaintiffs’ motion for relief upon

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

and contemporaneously issued this 11th day of August, 2010.



                                                                RICARDO M. URBINA
                                                               United States District Judge




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