                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

                                                     )
JAMES D. MOSES,                                      )
                                                     )
                        Plaintiff,                   )
                                                     )
                v.                                   )                               06-cv-01712 (RCL)
                                                     )
GENE L. DODARO,                                      )
Acting Comptroller General,                          )
                                                     )
                        Defendant.                   )
                                                     )


                                     MEMORANDUM OPINION


I.      INTRODUCTION

        This case comes before the Court on the plaintiff’s motion [146] for reconsideration of

this Court’s January 12, 2012 Memorandum Opinion, granting the defendant’s motion for

summary judgment. Upon consideration of the filings, the entire record herein and the relevant

law, the Court will DENY the plaintiff’s motion for reconsideration.

II.     BACKGROUND1

        The plaintiff, a retired Government Accountability Office (“GAO”) employee, filed the

instant action alleging, among other things, discrimination on the basis of age, in violation of the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. The plaintiff alleges

that the GAO discriminated against him in 2006 by restructuring its Band II employees into two

categories, A and B. The plaintiff, who was placed into the lower paying B category, asserts that


1
 As this is the fourth Memorandum Opinion issued in this case, the Court will merely provide a brief
overview of the six-year history of the plaintiff’s claims. A more detailed description of the factual and
procedural background can be found in this Court’s January 12, 2012 Memorandum Opinion. See Moses
v. Dodaro, 2012 WL 89861 (D.D.C. Jan. 12, 2012).
the GAO established this restructuring in an effort to “reshape the staff profile to eliminate a

surplus of Senior Band II GAO analysts and specialists.” Further, because of the new pay scale

ranges associated with the restructuring, some Band IIB employees’ salaries exceeded the

applicable maximum for that position. The plaintiff fell into this category. Although no

employees’ salaries were reduced, the GAO denied these employees, again including the

plaintiff, the 2006 cost-of-living allowance (“COLA”) that most GAO employees received.

Thus, the plaintiff alleges that the defendant additionally discriminated against him by failing to

award him this COLA.

        The plaintiff filed the instant action on October 4, 2006, seeking to represent a class of

approximately 300 GAO auditors. In a December 2009 opinion, the Court (per Judge Sullivan)

granted-in-part and denied-in-part without prejudice the defendant’s motion to dismiss. The

Court noted that the parties should present the Court with supplemental briefing on the impact, if

any, of the Lilly Ledbetter Fair Pay Act of 2009. 2 The defendant, noting the recent statutory

change, subsequently decided not to re-file their motion to dismiss on the grounds that the

plaintiff’s claim was untimely.

        The plaintiff then filed an amended complaint, which the defendant moved to dismiss, or

in the alternative, for summary judgment. The Court (per Judge Sullivan) granted the

defendant’s motion for summary judgment as it related to the plaintiff’s disparate treatment

claim of discrimination, and additionally denied the plaintiff’s motion for discovery. The

plaintiff’s claim, as it related to a disparate impact theory of recovery, remained intact.

        The defendant subsequently filed a renewed motion to dismiss, or in the alternative,

motion for summary judgment, to address the remaining disparate impact discrimination claim.

2
 This Lilly Ledbetter Fair Pay Act modified the ADEA to clarify that a discriminatory compensation decision or
other practice that is unlawful under the ADEA occurs each time compensation is paid pursuant to the
discriminatory compensation decision or other practice.

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The plaintiff filed a cross-motion for summary judgment, as well as a motion for reconsideration

regarding the Court’s denial of discovery of his disparate treatment claim. The Court, in its

January 12, 2012 opinion, granted the defendant’s motion for summary judgment and dismissed

with prejudice the plaintiff’s remaining claim. In that opinion, the Court also denied the

plaintiff’s motion for reconsideration of the denial of discovery.

        The plaintiff now asks the Court to reconsider this most recent ruling on the grounds that

1) the Court misapprehended the plaintiff’s responses to the defendant’s reasonable factors other

than age defense; 2) the Court used the wrong standard for denying discovery; 3) the law has

changed within the six year duration of this case; and 4) the plaintiff discovered at least one new

fact relevant to this litigation.

III.    ANALYSIS

        A.      Standard of Review

        Rule 59(e) of the Federal Rules of Civil Procedure permits a party, within 28 days

following entry of a judgment, to file a motion to alter or amend that judgment. Motions filed

under Rule 59(e) are generally disfavored, and are granted only when the moving party

establishes that extraordinary circumstances justify relief. Niedermeier v. Office of Baucus, 153

F. Supp. 2d 23, 28 (D.D.C. 2001). A court need not grant such a motion unless it finds that there

is an intervening change of controlling law, new evidence, or the need to correct clear error or

prevent manifest injustice. Anyanwutaku v. Moore, 151 F.3d 1053, 1057–58 (D.C. Cir. 1998)

(citations and quotation marks omitted). Such motions are not 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).

        B.      The Court Denies Plaintiff’s Motion for Reconsideration



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                1. Misapprehension of Plaintiff’s Responses

         The Court dismissed the plaintiff’s disparate impact claim of discrimination at the

summary judgment stage for failing to address the defendant’s affirmative defense. Specifically,

the defendant asserted that the restructuring and COLA allotment decisions were attributable to

reasonable factors other than age.

         In his motion for reconsideration, the plaintiff first argues that the Court

“misapprehended” his response to the defendant’s argument. In support, the plaintiff asserts that

he continually argued the defendant’s reasoning was “pretext” and directs the Court to review

nine pages of former pleadings in which he allegedly put forth these arguments. See Pl.’s Mot.,

Ex. 1.

         Although not stated in his pleadings, the Court will assume the plaintiff is requesting its

prior judgment be altered based on what he believes is “clear error.” Courts have generally not

defined what constitutes “clear error” under Rule 59(e). See Lightfoot v. Dist. of Columbia, 355

F. Supp. 2d 414, 422 (D.D.C. 2005). What can be learned from scarce case law on the subject is

that clear error should conform to a “very exacting standard.” Id. (quoting Hopwood v. Texas,

236 F.3d 256, 272 (5th Cir. 2000)). District courts should have “a clear conviction of error”

before finding a final judgment was predicated on clear error. Id. (internal citation omitted).

The Seventh Circuit declared that a final judgment must be “dead wrong” to constitute clear

error. Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988).

         Under this burdensome standard, plaintiff’s argument falls short. The defendant put forth

specific factors that it asserted were considered during the Band II restructuring process.

Specifically, the defendant asserted that length of time in position and roles and responsibilities

of the employee were weighed in the decision-making process. The plaintiff directs the Court to



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numerous pleadings, some of which originated prior to the defendant asserting this defense, and

merely circles the word “pretext.” Additionally, parts of the plaintiff’s attached exhibits do not

even apply to his disparate impact theory of recovery. Therefore, the plaintiff has failed to

evidence that the Court should correct what amounts to a clear error.

               2.   Plaintiff’s Discovery Arguments

       The Court dismissed the plaintiff’s initial request for discovery in its March 31, 2011

Memorandum Opinion and later denied the plaintiff’s request to reconsider this interlocutory

ruling in its January 12, 2012 Memorandum Opinion. The plaintiff first argues that the Court

erred by denying him discovery and refers the Court to the Federal Rules of Civil Procedure.

Specifically, he references Rule 26 and 34, “which presuppose[] liberal discovery.” He also

references the record and depositions previously taken. Because a motion for reconsideration is

not an opportunity for the plaintiff to reargue facts and theories, New York, 880 F. Supp. at 38,

the Court is not persuaded by this argument.

       The plaintiff goes on to argue that the Lilly Ledbetter Fair Pay Act of 2009 is new

controlling law that should require the disclosure of company records regarding paychecks. Pl.’s

Mot. at 7. This argument is even less persuasive, as the Court previously requested briefing on

the Lilly Ledbetter Act’s impact on this litigation back in 2009. The plaintiff did not raise this

argument in any of his pleadings up until this point. As a general proposition, Rule 59(e)

motions are not granted when losing parties enlist the motion to make new arguments that could

have been raised prior to final judgment. Taylor v. DOJ, 268 F. Supp. 2d 34, 35 (D.D.C. 2003)

(internal citation omitted). The Court will not disturb this general rule.

       The plaintiff next attempts to persuade the Court that two “recent” cases should affect the

denial of discovery in this case. See Bloomberg L.P. v. Bd. of Governors of Fed. Reserve, 649 F.



                                                  5
Supp. 2d 262 (S.D.N.Y. 2009); Artis v. Bernanke, 630 F. 3d 1031 (D.C. Cir. 2011). The former

case, originating out of the Second Circuit, is not controlling authority. Further, the latter case

concerns an appeal of a motion to dismiss for failure to exhaust administrative remedies. The

fact that it references a liberal discovery preference in Title VII cases is not an intervening

change of controlling law. Additionally, both cases were available to the plaintiff prior to this

Court’s January 12, 2012 ruling. Thus, neither case presents the extraordinary circumstances

necessary to justify the relief the plaintiff seeks here.

                3. New Material Fact

        The plaintiff last argues that his September 28, 2011 Freedom of Information Act

(“FOIA”) request for GAO Senior Executive Service bonuses retrieved relevant data that

warrants discovery. Pl.’s Mot. at 3. The plaintiff argues that the bonus amounts in 2006 suggest

that decision makers for the Band II restructure benefitted from older employees departure from

GAO. Id.

        Unfortunately for the plaintiff, his last argument also fails. The FOIA request returned

information on October 17, 2011. This occurred well before the Court’s ruling on January 12,

2012. Courts routinely deny Rule 59(e) motions where all relevant facts were known by the

party prior to the entry of judgment and the party failed to present those facts. See, e.g., Indep.

Petroleum Ass'n of Am. V. Babbitt, 178 F.R.D. 323, 327 (D.D.C. 1998) (denial of Rule 59(e)

motion was not an abuse of discretion when plaintiff's counsel knew all relevant facts prior to

entry of judgment and failed to assert them), aff'd, 235 F.3d 588 (D.C. Cir. 2001). The plaintiff

cannot now establish that the Court's decision granting the motion for summary judgment based

upon the record before it was manifestly unjust where he took no action to amend his pleadings




                                                    6
or to introduce this new evidence until after the Court dismissed this case. See Gibbs v. Buck,

307 U.S. 66, 72 (1939); Payne v. District of Columbia, 559 F.2d 809, 820 n.59 (D.C. Cir. 1977).

       Moreover, even if the plaintiff had amended his pleadings to introduce this evidence, the

Court would still have granted the defendant’s motion for summary judgment. The FOIA

request returned the total dollar amount of Senior Executive Service bonuses for the years 1984

to 2010. The plaintiff’s conclusory assertions that the bonuses in 2006 were higher due to

incentives for eliminating the positions of “older persons” do not make up for the failure to

combat the defendant’s affirmative defense. Further, the plaintiff’s claim centers on the theory

that he was essentially “demoted” into the lower paying Band IIB position; not that he was

terminated to fund higher bonuses. The plaintiff was not fired during the restructure and

maintained his position at the GAO until his retirement in 2010.

V. CONCLUSION

       For the reasons set forth above, the Court will DENY the plaintiff’s motion [146] for

reconsideration.

       A separate Order and Judgment consistent with these findings shall issue this date.

       Signed by Royce C. Lamberth, Chief Judge, on April 20, 2012.




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