                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                             )
DARIN JONES,                                 )
                                             )
               Plaintiff,                    )
                                             )
       v.                                    )       Civil Action No. 13-08 (RMC)
                                             )
U.S. DEPARTMENT OF JUSTICE, et               )
al.,                                         )
                                             )
                                             )
               Defendants.                   )
                                             )

                                 MEMORANDUM OPINION

               Before the Court is Darin Jones’ pro se Motion to Reopen Based on Change in

Law, or in the Alternative, Based on Oversight, which, for reasons explained below, the Court

construes as a Motion for Reconsideration Under Rule 60(a), or in the Alternative, Under Rule

60(b) (“Mot. for Reconsideration”) [Dkt. 38]. This Court ordered the Government to respond to

Mr. Jones’ Motion by December 6, 2017. Apparently disinclined to do so, the Government did

not file a response. Undeterred, Mr. Jones filed a Reply to Defendants Failure to Respond to

Judge Collyer’s 11/8/2017 Minute Order on December 20, 2017 (Def.’s Reply), which the Court

will construe as a reply in support of Mr. Jones’ Motion for Reconsideration. For the reasons

below, Mr. Jones’ motion will be denied.

                                            I. FACTS

               On January 4, 2013, Mr. Jones filed a Complaint against the Federal Bureau of

Investigation (FBI), alleging retaliation and discrimination on the basis of gender and age in

violation of Title VII, 42 U.S.C. § 2000(e) et seq. After intervening events examined in the

Court’s prior Opinion, the Court dismissed the suit without prejudice on July 1, 2015 because

                                                 1
Mr. Jones had failed to exhaust his administrative remedies with respect to any of his claims and

provided no basis to excuse that failure. See Memorandum Opinion [Dkt. 33]. A full

recapitulation of the facts is not necessary, as they are laid out in this Court’s prior Opinion. See

id.

               In the instant motion, Mr. Jones asks this Court to consider four cases in revisiting

its dismissal of his case without prejudice, vacate the dismissal, and “issue an opinion

distinguishing the conflicts between the controlling precedents and the July 1 decision, and

remand for further proceedings.” Mot. for Reconsideration at 4. 1 Mr. Jones followed his motion

with a reply. As the government submitted no response to the motion, this Court considers only

the arguments made in Mr. Jones’ motion and reply. For the reasons explained below, the

motion will be denied.

                                    II. LEGAL STANDARD

               Mr. Jones filed a Motion to Reopen Based on Change in Law, or in the

Alternative, Based on Oversight, which is terminology unknown to this Court. Based on the

relief requested, the Court finds that Mr. Jones’ motion should be construed as a Motion for

Reconsideration under Rule 60(b)(6).

               The Federal Rules of Civil Procedure do not specifically address motions for

reconsideration. See Estate of Klieman v. Palestinian Auth., 82 F. Supp. 3d 237, 241-42 (D.D.C.

2015). However, the Rules provide three pathways for those seeking reconsideration of judicial

decisions. Rule 54(b) permits reconsideration of interlocutory judgments. Fed. R. Civ. P. 54(b).



1
  The cases cited in Mr. Jones motion are United States v. Kwai Fun Wong, 135 S. Ct. 1625
(2015); Perry v. Merit Systems Protection Board, 137 S. Ct. 1975 (2017); McCarthy v. Merit
Systems Protection Board, 809 F.3d 1365 (Fed. Cir. 2010); and Jones v. Dep’t of Health and
Human Services, 834 F.3d 1362 (Fed. Cir. 2016).

                                                  2
Rule 59(e) permits a party to seek reconsideration of a final judgment within 28 days of that

judgment. Fed. R. Civ. P. 59(e). Rule 60 permits a party to seek reconsideration of a final

judgment either (a) to correct a mistake arising from an oversight or omission or (b) to seek relief

from a judgment or order due to: (1) mistake, inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence; (3) fraud, misrepresentation, or other misconduct; (4) void

judgment; (5) satisfied, released, or discharged judgment; or (6) “any other reason justifying

relief from the operation of the judgment.” Fed. R. Civ. P. 60(a), (b); see also Gates v. Syrian

Arab Republic, 646 F.Supp. 2d 79, 83 (D.D.C. 2009). Rule 60(b) requires that a motion alleging

excusable neglect, newly discovered evidence, or fraud be filed within one year of the judgment,

while motions under other grounds must be filed “within a reasonable time.” Fed. R. Civ. P.

60(b).

               “The granting of a Rule 60(b) 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.’”

Mitchell v. Samuels, 255 F. Supp. 3d 212, 214 (D.D.C. 2017) (quoting Firestone v. Firestone, 76

F.3d 1205, 1208 (D.C. Cir. 1996)). More specifically, the granting of motions under Rule

60(b)(6) should be limited to “extraordinary circumstances.” See Gonzalez v. Crosby, 545 U.S.

524, 535 (2005) (“[O]ur cases have required a movant seeking relief under Rule 60(b)(6) to show

‘extraordinary circumstances’ justifying the reopening of a final judgment.”). The D.C. Circuit

has echoed that sentiment in observing that Rule 60(b)(6) motions “should be only sparingly

used,” Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir.1980), and are

not an opportunity for unsuccessful parties to “take a mulligan.” Kramer v. Gates, 481 F.3d 788,

792 (D.C. Cir. 2007).



                                                  3
                                         III. ANALYSIS

                Mr. Jones moves this Court to reconsider its order granting Defendants’ Motion to

Dismiss, or in the Alternative for Summary Judgment. See 7/1/15 Order [Dkt. 34]. Because that

order adjudicated all of Mr. Jones’ claims in this case, he is foreclosed from relief under Rule

54(b), which permits reconsideration and revision of orders or decisions adjudicating fewer than

all the claims at issue in a case. See Fed. R. Civ. P. 54(b). Having filed his motion for

reconsideration more than 28 days after the entry of the dismissal order, the relief Mr. Jones

seeks is also prohibited by Rule 59(e) and must be considered solely under Rule 60. See Fed. R.

Civ. P. 59(e), 60. See McMillian v. District of Columbia, 233 F.R.D. 179, 180 n. 1 (D.D.C.2005)

(holding that motions to reconsider filed within ten days of judgment are reviewed under Rule

59(e) and those filed after ten days are treated under Rule 60(b)). 2

                Mr. Jones does not assert in his motion or reply that a mistake, excusable neglect,

newly discovered evidence, or fraud are at issue here. Nor does he argue that this Court’s

judgment is void, has been satisfied, released, discharged, or was based on an earlier judgment

that was reversed or vacated. Instead, Mr. Jones bases his motion on “change in law” or

“oversight.” Mr. Jones does not move under an established rule, but his motion suggests

arguments similar to those often raised under Rule 60(b)(6), which permits reconsideration for

“other” reasons. The Court therefore will assess his motion for reconsideration under that Rule,

in keeping with the well-recognized principle that pro se litigants are “allowed more latitude than

litigants represented by counsel,” which includes applying less stringent standards to pro se




2
    The 2009 Amendment to Rule 59(e) extended the filing deadline from ten days to 28 days.

                                                  4
pleadings than formal pleadings drafted by lawyers. Moore v. Agency for Intern. Development,

999 F.2d 874, 876 (D.C. Cir. 1993) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).3

        A. Change in Controlling Law

                Mr. Jones argues that the four cases cited in his motion and accompanying reply

necessitate reconsideration of this Court’s prior dismissal of the case without prejudice. The

Court interprets this as an argument for reconsideration under Rule 60(b)(6) based on a change in

controlling law. See Firestone, 76 F.3d at 1208. Unfortunately, the cases cannot bear the weight

of Mr. Jones’ argument.

                In United States v. Kwai Fun Wong, the Supreme Court held that the time

limitations applicable to suits brought pursuant to the Federal Tort Claims Act (FTCA), 28

U.S.C. § 2401(b), were non-jurisdictional and were therefore subject to equitable tolling. 135 S.

Ct. 1625 (2015). This case is inapposite because Mr. Jones’ case was neither brought under the

FTCA, nor did it suffer from a deficiency that could be cured by equitable tolling.4

                Jones v. Dep’t of Health and Human Services was a decision issued by the

Federal Circuit, and is therefore not binding on this Court. See 834 F.3d 1361 (Fed. Cir. 2016).

In that case, the Federal Circuit treated an appellant’s prematurely filed notice of appeal from a

non-final Merit Systems Protection Board (MSPB) decision as “effectively stayed until the

underlying agency order bec[ame] final.” Id. at 1365. In contrast, the D.C. Circuit, which issues

decisions binding on this Court, has limited its interpretation of “judicially reviewable action” to

an action that is subject to judicial review as of the time the plaintiff files suit. Butler v. West,


3
  Though Mr. Jones is, in fact, an attorney, the Court reviews his pleadings under the more
forgiving pro se standards.
4
 The Supreme Court has previously held that equitable tolling of statutory time limits is
available in Title VII suits against the United States. See Irwin v. Dep’t of Veteran Affairs, 498
U.S. 89 (1990).

                                                   5
164 F.3d 634, 639 (D.C. Cir. 1999) (addressing 5 U.S.C. § 7702(e)(1)(B)). Therefore, Jones

offers no support for Mr. Jones’ assertion of a change in controlling law.

               Similarly, McCarthy v. Merit Systems Protection Board is a Federal Circuit case,

which does not provide this Court with a change in controlling law to consider. See 809 F.3d

1365 (Fed. Cir. 2016).

               Mr. Jones also asserts that his case was “unlawfully bifurcated between the

Federal Circuit and the district court,” Def.’s Reply at 2, in contravention of the Supreme Court’s

later decision in Perry v. Merit Systems Protection Board. See 137 S. Ct. 1975 (2017). In Perry,

the Supreme Court held that judicial review of a mixed-case MSPB dismissal based on

jurisdiction lies with the district court. Perry is mandatory authority, but it has no bearing on the

dismissal of Mr. Jones’ case for failure to exhaust his administrative remedies.5 Mr. Jones chose

to file suit under Title VII in this Court on January 4, 2013, alleging discrimination on the basis

of gender and age. Compl. ¶¶ 19-31. His claims were dismissed because they were not filed

according to the simple rule: “file in the time allotted, and neither before nor after.” Hooker-

Robinson v. Rice, No. 05-321, 2006 WL 2130652, at *3-4 (D.D.C. July 27, 2006). Mr. Jones’

argument that his claims were “unlawfully bifurcated” fails. The fact that the district court may

have been a proper forum for all of his claims does not change the fact that Mr. Jones was

required to exhaust the administrative remedies available before the MSPB before filing a

complaint in federal court. See Williams v. Munoz, 106 F. Supp. 2d 40, 43 (D.D.C. 2000) (“A

plaintiff is required to exhaust [his] claims in the forum [] he has chosen before filing a civil

action.”). Because Mr. Jones failed to do so, his case was dismissed.



5
  It should be noted that Mr. Jones has provided no basis, and this Court finds none, to construe
the Perry holding as applying retroactively.

                                                  6
               None of the four decisions cited by Mr. Jones provides a change in controlling

law applicable to his case that would support a motion for reconsideration under Rule 60(b)(6).

       B. Federal Circuit

               Mr. Jones alleges that the Federal Circuit’s decision affirming MSPB’s dismissal

of his MSPB appeal for lack of jurisdiction is contrary to law and should be “reopened.” The

Supreme Court denied Mr. Jones’ petition for a writ of certiorari on appeal from the Federal

Circuit. Jones v. MSPB, No. 2016-1711 (Fed. Cir. January 10, 2017), cert. denied (October 2,

2017). Mr. Jones also argues that this Court should “reopen the Federal Circuit’s […] ruling,”

due to several alleged errors in that holding. Mot. for Reconsideration at 4-14. This Court does

not sit to review decisions of the Federal Circuit; there are no grounds for this Court to

reconsider its dismissal of Mr. Jones’ case without prejudice.

                                       IV. CONCLUSION

               For the reasons articulated above, the Court will deny Mr. Jones’ Motion for

Reconsideration [Dkt. 38]. A memorializing Order accompanies this Memorandum Opinion.



Date: May 25, 2018
                                                                     /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




                                                 7
