                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
BETTY CLAYTON,                )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 11-1889 (RWR)
                               )
DISTRICT OF COLUMBIA,         )
                               )
          Defendant.           )
_____________________________ )

                   MEMORANDUM OPINION AND ORDER

     Plaintiff Betty Clayton brings suit against the District of

Columbia (“District”) alleging that the District reclassified her

position and terminated her in violation of D.C. law and the

United States Constitution.    The District moves for

reconsideration of a March 21, 2013 memorandum opinion and order

that granted in part and denied in part the District’s motion to

dismiss.   Because justice does not require reconsideration, the

District’s motion will be denied.

                              BACKGROUND

     The background of this case is discussed more fully in

Clayton v. District of Columbia, Civil Action No. 11-1889 (RWR),

2013 WL 1154098 (D.D.C. Mar. 21, 2013).    Briefly, Clayton was the

Director of the D.C. Government Operations Division of the

District of Columbia National Guard (“DCNG”).     Id. at *1.

“During the events relevant to the complaint, Clayton reported to

Major General Errol Schwartz, the Commanding General of the Joint
                                -2-

Force Headquarters of the DCNG.”   Id.   As the agency head,

Clayton was “under an obligation and duty to investigate and

discipline potential wrongdoing at the DCNG as well as report

fraud, waste and abuse.”   Id. (internal quotation marks omitted).

Clayton alleges that in this capacity, she reported several

incidents of unlawful conduct within the DCNG despite pressure

from the Judge Advocate General and federal Inspector General

investigators “to not file or report the sexual harassment

allegations[.]”   Id. (internal quotation marks omitted).

      When Clayton was appointed, the Director of the D.C.

Government Operations Division was a Career Service position.

Id.

      In May 2010, “General Schwartz’s staff solicited the
      advice of the D.C. Human Resources Department’s General
      Counsel regarding General Schwartz’s administrative
      authority over the employees of the Government
      Operations Division.” [Am. Compl.] ¶ 70. On
      August 27, 2010, Attorney General Nickles responded to
      General Schwartz’s inquiry stating that the Division is
      a “subordinate agency of the Mayor of the District of
      Columbia” and that the Director of the Government
      Operations Division is “a District employee” who is
      “subject to the personnel rules, regulations, laws and
      the policy of the District[.]” Def. D.C.’s Mot. to
      Dismiss the Am. Compl. (“District’s Mot.”), Ex. (Letter
      from Peter J. Nickles, Attorney General for the
      District of Columbia, to Major General Erroll [sic] R.
      Schwartz, Commanding General, District of Columbia
      National Guard (Aug. 27, 2010) at 1–2). The Director’s
      “chief responsibility” is “[s]upervision of District
      personnel assigned to the DCNG.” Id. at 2. Although
      the Division is a District agency, in light of the
      Division’s mission “to facilitate the coordination of
      operational programs so that the National Guard can
      efficiently respond to natural and civil emergencies in
      the District,” the Commanding General has “the
                               -3-

     opportunity to collaborate with District officials
     regarding the personnel matters of the Division[.]”
     Id. The Commanding General is also “free to confer
     with the Mayor” on personnel matters “if personnel
     problems rise to the level where it impacts the
     readiness of the National Guard[.]” Id.

Clayton, 2013 WL 1154098, at *2.

     “On September 27, 2010, Clayton received a letter stating

that the Director position was being reclassified from a Career

Service position to an at-will, Management Supervisory Service

(‘MSS’) position under D.C. Code § 1-609.58(a).1   . . .   On

October 26, 2010, Clayton received a notification . . . that she


     1
       D.C. Code § 1-609.58(a) provides:
     Persons currently holding appointments to positions in
     the Career Service who meet the definition of
     “management employee” as defined in § 1-614.11(5) shall
     be appointed to the Management Supervisory Service
     unless the employee declines the appointment. Persons
     declining appointment shall have priority for
     appointment to the Career Service if a vacant position
     for which they qualify is available within the agency
     and is acceptable to the employee. If no such vacant
     position is available, a 30-day separation notice shall
     be issued to the employee, who shall be entitled to
     severance pay in the manner provided by § 1-624.09.
D.C. Code § 1-609.58. This provision was added to the D.C.
Government Comprehensive Merit Personnel Act in June 1998. Even
though the language of the statute uses the modifier “currently,”
it appears that the District has previously used the process
outlined in the statute to reappoint to an MSS position a
management employee who was appointed to a Career Service
position after 1998. See, e.g., Final Brief for Appellees,
Geleta v. Gray, 645 F.3d 408 (D.C. Cir. 2011) (No. 10-7026), 2010
WL 6368292, at *12, *23-24. A “management employee” is “any
person whose functions include responsibility for project
management and supervision of staff and the achievement of the
project’s overall goals and objectives.” D.C. Code § 1-614.11
(emphasis added). Thus, the Director of D.C. Government
Operations -- as described in the Attorney General’s letter -- is
a management employee subject to D.C. Code § 1-609.58.
                                  -4-

was being terminated without cause effective November 10, 2010.”

Id. at *3 (internal citations omitted).

        Clayton filed suit alleging, in Count Four, that the

District violated Clayton’s constitutional due process rights by

depriving Clayton of her protected property interest in her

employment and right to seek review with the Office of Employee

Appeals of any termination of her employment without due process.

Id.     Count Five sought a declaratory judgment that D.C. Code

§ 1-609.58(a) is unconstitutional on its face and as applied to

Clayton.    Id.

        The District moved to dismiss Clayton’s amended complaint.

A March 21, 2013 memorandum opinion and order granted in part and

denied in part the District’s motion and dismissed Count Four and

Clayton’s facial challenge to D.C. Code § 1-609.58(a) in Count

Five.    Id.   However, the District did not challenge Clayton’s

as-applied constitutional challenge to D.C. Code § 1-609.58(a) in

its motion to dismiss.     Id. at *8 n.12.   Accordingly, the

memorandum opinion and order did not consider the merits of

Clayton’s as-applied claim and that claim was not dismissed.

        The District now moves for reconsideration of the March 21,

2013 memorandum opinion and order to the extent that it did not

dismiss Clayton’s as-applied challenge to D.C. Code

§ 1-609.58(a).    The District contends that it “intended to

contest all of the claims set forth” in Clayton’s amended
                                  -5-

complaint.   Def. D.C.’s Mot. for Recons. of Court’s Mar. 21, 2013

Mem. Op. & Order (“Def.’s Mot.”), Def.’s Mem. in Supp. of Def.’s

Mot. for Recons. (“Def.’s Mem.”) at 3.        However, the District

admits that it

     did not understand Count V of the Amended Complaint to
     contain any as-applied constitutional challenge to
     D.C. Code § 1-609.58 that was meaningfully distinct
     from Clayton’s claim in Count IV that the
     reclassification of her position to MSS “was
     pretextual and intended to deprive her of her due
     process right to her employment and any OEA appeal.”

Id. (quoting Am. Compl. ¶ 106).     The District asserts that its

“failure to make clear that the arguments sets forth in [its

motion to dismiss] were intended to address any as-applied

challenge to the statute, as well as Plaintiff’s direct due

process claims, was inadvertent.”       Id.   Clayton opposes, arguing

that the motion for reconsideration is merely an attempt by the

District to recover on a “deliberate strategic decision[] in

drafting its motion and [that the District] believed that it had

adequately addressed all of the claims set forth.”       Pl.’s Opp’n

to Def. D.C.’s Mot. for Recons., Mem. of P. & A. in Supp. of

Pl.’s Opp’n to Def.’s Mot. for Recons. at 6 (internal quotation

marks omitted).

                            DISCUSSION

     The District moves for reconsideration under Federal Rule of

Civil Procedure 60(b).   However, Rule 54(b), and not Rule 60(b),

“governs reconsideration of orders that do not constitute final
                                 -6-

judgments in a case.”    Cobell v. Norton, 224 F.R.D. 266, 271

(D.D.C. 2004); see also Fed. R. Civ. P. 54(b) (providing that

Rule 54(b) governs “any order or other decision . . . that

adjudicates fewer than all the claims . . . of fewer than all the

parties”).   Here, the March 21, 2013 memorandum opinion and order

granting in part and denying in part the District’s motion to

dismiss did not dispose of all of Clayton’s claims.    Thus, the

District’s motion will be analyzed under Rule 54(b).

     Rule 54(b) provides that an interlocutory order “may be

revised at any time before the entry of a judgment adjudicating

all the claims and all the parties’ rights and liabilities.”

Fed. R. Civ. P. 54(b).   “Under Rule 54, a court may reconsider an

interlocutory decision ‘as justice requires.’”   United States ex

rel. Westrick v. Second Chance Body Armor, Inc., 893 F. Supp. 2d

258, 268 (D.D.C. 2012) (quoting Capitol Sprinkler Inspection,

Inc. v. Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011)).

The as justice requires standard “leave[s] a great deal of room

for the court’s discretion and, accordingly, . . . amounts to

determining ‘whether reconsideration is necessary under the

relevant circumstances.’”   Judicial Watch v. Dep’t of the Army,

466 F. Supp. 2d 112, 123 (D.D.C. 2006) (quoting Cobell, 224

F.R.D. at 272).   Justice may so require where the court has

“‘patently misunderstood the parties, made a decision beyond the

adversarial issues presented, [or] made an error in failing to
                                  -7-

consider controlling decisions or data, or [where] a controlling

or significant change in the law has occurred.’”   Arias v.

DynCorp, 856 F. Supp. 2d 46, 51 (D.D.C. 2012) (quoting Negley v.

FBI, 825 F. Supp. 2d 58, 60 (D.D.C. 2011)).   “‘The moving party

has the burden of showing that reconsideration is warranted, and

that some harm or injustice would result if reconsideration were

to be denied.’”   Henok v. Chase Home Fin., LLC, Civil Action No.

12-336 (RWR), 2013 WL 2352104, at *3 (D.D.C. May 30, 2013)

(quoting Pueschel v. Nat’l Air Traffic Controllers’ Ass’n, 606 F.

Supp. 2d 82, 85 (D.D.C. 2009)).

     The District does not assert that the parties were patently

misunderstood or that the March 21, 2013 memorandum opinion and

order made some other mistake warranting reconsideration under

Rule 54(b).   Instead, the District admits that Clayton’s as-

applied challenge was not considered because the District -- not

the court -- misunderstood Count Five in Clayton’s amended

complaint and because the District failed to clearly argue that

Clayton’s as-applied challenge should be dismissed.   See Def.’s

Mot. at 1; see also Def.’s Reply in Further Supp. of Def.’s Mot.

for Recons. at 2-3 (stating that the District’s “failure [to

address Clayton’s as-applied challenge] was merely an inadvertent

drafting error”).   The District further asserts that it will

“likely seek dismissal of and/or summary judgment on this claim

again in the future, based at least in part on [the] same
                                -8-

arguments” the District made in its motion to dismiss.   See

Def.’s Mem. at 4-5.   The District has not shown that it will be

harmed by having to resort to future action regarding Clayton’s

as-applied constitutional claim, or that some injustice will

result if reconsideration is denied.   Because the District has

not demonstrated that reconsideration is warranted, its motion

will be denied.

                       CONCLUSION AND ORDER

     The District has not shown that justice requires

reconsideration of the March 21, 2013 memorandum opinion and

order.   Accordingly, it is hereby

     ORDERED that the District’s motion [35] for reconsideration

be, and hereby is, DENIED.

     SIGNED this 22nd day of August, 2013.



                                       /s/
                                RICHARD W. ROBERTS
                                Chief Judge
