                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
REGINALD G. MOORE, et al.,    )
                              )
          Plaintiffs,         )
                              )
          v.                  )      Civil Action No. 00-953 (RWR)
                              )
JEH JOHNSON,                  )
                              )
          Defendant.          )
______________________________)

                         MEMORANDUM ORDER

     Plaintiffs, African-American current and former special

agents of the United States Secret Service, bring this employment

discrimination action individually and on behalf of a class of

African-American special agents.    The government moves to

reconsider the court’s September 3, 2013 Order (“Order”) denying

its request to reopen discovery.    Because the government fails to

show that reconsideration is warranted, the government’s motion

will be denied.

     The government moves under Federal Rule of Civil Procedure

54(b) to reconsider the Order denying the government’s request to

reopen expert and fact discovery.    Def.’s Mot. for

Reconsideration of Sept. 3, 2013, Order Denying Post-

Certification Fact and Expert Discovery (“Govt.’s Mot.”).     The

case was referred to Magistrate Judge Robinson to manage

discovery proceedings.   Fact and expert discovery closed in 2008
                               - 2 -


and the class was certified in February 2013.     The government

initially asked to reopen discovery in the parties’ July 29, 2013

Joint Status Report, stating that the government “may explore

additional areas of expert statistical evidence” and it “has a

right to seek fact discovery from the class members as to the

issue of liability and damages.”    July 29, 2013 Joint Status

Report and Proposed Order (“July 2013 JSR”) at 7.     The government

asserts that it was unable to engage in this discovery before now

because it “did not know at that time that these individuals

would be presenting anecdotal evidence on behalf of the class”

and “now that the class is defined, defendant will seek to depose

other now identified class members.”    Id.   This request was

denied at a status hearing held on July 31, 2013 and in the

Order.

     Courts may reconsider any interlocutory decision, such as a

discovery ruling, “at any time before the entry of a judgment

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

Fed. R. Civ. P. 54(b); see also DL v. District of Columbia, 274

F.R.D. 320 (D.D.C. 2011) (denying motion to reconsider discovery

ruling under Rule 54(b)); Husayn v. Gates, 588 F. Supp. 2d 7

(D.D.C. 2008) (granting motion to reconsider discovery ruling

under Rule 54(b)).   “[R]elief upon reconsideration . . . is

available ‘as justice requires.’”    Estate of Botvin ex rel. Ellis

v. Islamic Republic of Iran, 772 F. Supp. 2d 218, 223 (D.D.C.
                               - 3 -


2011) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C.

2000)).   Under this standard, a court considers “whether [it]

patently misunderstood the parties, made a decision beyond the

adversarial issues presented, made an error in failing to

consider controlling decisions or data, or whether a controlling

or significant change in the law has occurred.”   In Def. of

Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 70, 75 (D.D.C.

2008) (internal quotation marks omitted).   “However, in order to

promote finality, predictability, and economy of judicial

resources, as a rule [a] court should be loathe to [revisit its

own prior decisions] in the absence of extraordinary

circumstances such as where the initial decision was clearly

erroneous and would work a manifest injustice.”   Pueschel v.

Nat’l Air Traffic Controllers’ Ass’n, 606 F. Supp. 2d 82, 85

(D.D.C. 2009) (alterations in original) (internal quotation marks

omitted).   Nor is a motion for reconsideration to be used as an

opportunity to rehash arguments previously made and rejected.

Michilin Prosperity Co. v. Fellowes Mfg. Co., Civil Action No.

04-1025 (RWR), 2006 WL 3208668, at *1 n.1 (D.D.C. Nov. 7, 2006).

“[W]here litigants have once battled for the court’s decision,

they should [not] be . . . permitted[] to battle for it again.”

Pueschel, 606 F. Supp. 2d at 85 (alterations in original)

(internal quotation marks omitted).
                                 - 4 -


     The government’s motion reiterates that discovery should be

reopened and that it would be prejudiced by a refusal to reopen

discovery.   However, as the government points out, it made these

very arguments at the hearing.    See Govt.’s Mot. at 11.     The

government has not shown that the Order resulted from any

misunderstanding, or exceeded the scope of the parties’

arguments, or failed to consider information presented.       See

Negley v. FBI, 825 F. Supp. 2d 58, 60-61 (D.D.C. 2011).       To the

contrary, the transcript reflects consideration of the

government’s argument about its need for additional discovery.

Hr’g Tr., July 31, 2013, at 5:6-23.      Neither has the government

identified any “controlling or significant” legal changes

warranting reconsideration.    Negley, 825 F. Supp. 2d at 60.

     The government argues that the Order was “based upon the

misapprehension that the Secret Service was previously permitted

to engage in full class discovery.”      Govt.’s Mot. at 2.   However,

there is no misunderstanding about the facts.      The initial

scheduling order “was not limited to class certification, it was

not limited to . . . experts on class certification; it was an

order that permitted, essentially, general discovery on liability

issues and everything else.”    Hr’g Tr., July 31, 2013 at 5:20-23;

see also Hr’g Tr., May 8, 2006 at 32:8-12 (“Simply put, there is

no basis that has been presented which would suggest that this

Court would appropriately exercise its discretion to . . .
                                - 5 -


otherwise limit discovery at this time.”).   Many of the

government’s arguments center on the inefficiency of conducting

merits discovery before class certification, e.g., Govt.’s Mot at

14 (citing the Federal Judicial Center Manual to contend that “it

is inefficient and inadvisable to require that all discovery

occur before a class has been certified”); id. at 2 (explaining

that discovery now “can be appropriately tailored so that it

focuses on only the certified claims”), but that is not at issue

here.    The government’s request to bifurcate class certification

and merits discovery was rejected, and discovery on both the

individual and class claims was ordered to proceed.    See Hr’g

Tr., May 8, 2006 at 32:8-12 (denying bifurcation); id. at 34:14-

16 (ordering plaintiffs’ and defendant’s discovery on individual

and class claims to begin immediately); Reply in Support of Mot.

for Reconsideration of Sept. 3, 2013, Order Denying Post-

Certification Fact & Expert Discovery (“Reply”) at 4

(acknowledging that discovery on the class claims was ordered in

2006).    The government’s need for the evidence for a trial on the

class claims, Govt.’s Mot. at 14, does not necessitate

reconsideration.    The government has had an ample opportunity to

explore the class issues since discovery closed in 2008, over a

year after the second amended complaint was filed in August 2006.

This discovery period was not limited to individual claims

discovery by the second amended complaint, the scheduling order,
                                - 6 -


or any other court orders.    Indeed, “there was no surprise that

this was going to end up being a class case.”    Hr’g Tr., July 31,

2013 at 8:17-22.

      The government’s belated assertion that it was denied absent

class discovery by Magistrate Judge Robinson’s ruling, Govt.’s

Mot. at 6-7, 17, could -- and should -- have been squarely

presented before now.   Instead, the government merely asserted

that it had a right to additional discovery, and that it could

not engage in this discovery earlier because it did not know who

the potential witnesses were.    July 2013 JSR at 7; see also Hr’g

Tr., July 31, 2013 at 7:6-21.    Similarly, the government

initially only cited general cases that allowed fact and expert

discovery after the class certification discovery, cases which

were rejected as inapposite, see Hr’g Tr., July 31, 2013, at 5:7-

18.   The government did not provide any legal authority

justifying its request for absent class discovery, nor did it

explain why the discovery it already had the opportunity to

conduct was insufficient.    A motion to reconsider is not “a

vehicle for presenting theories or arguments that could have been

advanced earlier.”   Clay v. District of Columbia, Civil Action

No. 03-466 (SBC), 2005 WL 1378768, at *1 (D.D.C. June 6, 2005).

      The government repeatedly states that it believed that

“there would be post-certification discovery of absent class

members,” e.g., Reply at 5-8; Govt.’s Mot. at 7; July 2013 JSR at
                               - 7 -


8 (asserting that “[i]f pre-certification discovery was the only

discovery to be allowed in this class action case, the parties

should have been put on notice that no post-certification

discovery would be allowed”), but as is discussed above, there

was no indication that the government would be permitted to

engage in additional discovery after the discovery period had

ended.   Indeed, the government specifically requested that

discovery be revisited and a new schedule be set if the class was

ultimately certified, see May 4, 2006 Joint Status Report at 5, 5

n.3, but this request was rejected.    See Hr’g Tr., May 8, 2006 at

32:8-12.   While the government moved for reconsideration of that

order, the motion for reconsideration was denied without

prejudice in the July 7, 2006 Memorandum Opinion and the

government did not renew its objection.

     The denial of the government’s motion to compel the

plaintiffs to produce information “about potential class members

prior to certification,” Reply at 5, does not compel another

conclusion.   Magistrate Judge Robinson did not say that

additional discovery from the absent class members would be

available later, the government did not then request that such

discovery be available later, and the government did not appeal

Magistrate Judge Robinson’s decision.   The government’s claims

about whether it received sufficient discovery, see, e.g.,

Govt.’s Mot. at 6, Reply at 5-6, from the plaintiffs during the
                               - 8 -


discovery phase is not at issue, nor is it relevant to

determining whether reopening discovery is appropriate.    See

Childers, 197 F.R.D. at 188 (listing factors relevant to

reopening discovery).   Moreover, it is not clear that the

government requested the same information then that it is

requesting now.   Compare Reply Ex. 4 (“What we’re seeking is

information that Plaintiffs currently possess regarding people

who are likely to be members of the class.”) with Govt.’s Mot. at

17 (asserting that the government should be able to now depose

absent class members that provided declarations as well as

“conduct related discovery about their assertions”).   Thus,

whether the government’s motion to compel written discovery from

the plaintiffs was denied has little bearing on whether the

government was previously foreclosed from pursuing the discovery

it now seeks.   Ultimately, the government provides no legal

authority that its own misapprehension about the scope of

discovery suffices to show either that discovery should be

reopened or that reconsideration should be granted.

     In any event, even if reconsideration was justified and the

government raised this argument in its first request to reopen

discovery, the government has not sufficiently demonstrated that

it is entitled to absent class discovery.   The government, as the

requesting party, has the burden to show that discovery from

absent class members is warranted, because, for example, the
                               - 9 -


discovery is necessary or unavailable from the representative

parties.   See United States v. Trucking Emp’rs, Inc., 72 F.R.D.

101, 104-05 (D.D.C. 1976).   While the government now contends

that it was prevented from obtaining discovery about potential

class members and their claims by Magistrate Judge Robinson’s

ruling, see Govt.’s Mot. at 6-7, 17, the government still has not

answered the threshold question of why that discovery is

warranted.   The government rests on its argument that it “should

be provided the opportunity to depose these declarants who have

figured prominently in this case,” and because the members “‘may

be witnesses, [defendant] has the right to discovery beyond what

the absent class members have said to establish the factual

incorrectness of what they have said or to see if their

experiences were frequent or aberrational.’”   Govt.’s Mot. at 17

(alteration in original) (quoting Disability Rights Council of

Greater Wash. v. WMATA, Civil Action No. 04-498 (HHK/JMF), 2006

WL 2588710, at *1 (D.D.C. Sept. 7, 2006)).   This fails to

demonstrate why absent class member discovery is necessary or

unavailable from the representative parties, what particular

information is needed from the absent class members, or how that

information relates to the common class issues.   See, e.g.,

Barham v. Ramsey, 246 F.R.D. 60, 64 (D.D.C. Nov. 8, 2007)

(denying absent class discovery because “[t]he Court is not

persuaded this information is necessary” to resolve class issues
                              - 10 -


about the defendants’ motivations).    Without information about

how the discovery sought is relevant to the class issues, an

assessment cannot be made about the necessity of that discovery.

     The government also has not shown that a legal error

occurred when the request to reopen expert discovery was

rejected.   Pueschel, 606 F. Supp. 2d at 85.   The government did

not offer any substantive arguments in support of its initial

request to reopen expert discovery.    See July 2013 JSR at 7; Hr’g

Tr., July 31, 2013, at 7:21-8:16 (stating that the expert did not

provide regression analysis but failing to state why the expert

did not conduct regression analysis earlier).    The government now

argues that “the Court had suggested that post-certification

discovery would be available,” e.g., Reply at 12, 12, but fails

to point to any representation by the Court that post-

certification expert discovery would be available.    At best, the

government’s proffered citations refer only to later factual

discovery, not expert discovery.   See Govt.’s Mot at 6-7; Reply

at 5-9.   The government also offers the fact that “[t]he Court

did not address whether liability-stage expert class discovery

might later proceed, should a class ultimately be certified on

the basis of the pre-certification evidence, including that

provided by plaintiffs’ statistical expert,” id. at 7, as support

for this contention.   Because expert discovery was not limited to

particular claims and there was no representation that later
                              - 11 -


expert discovery would be permitted, this is insufficient to show

that a manifest injustice would occur without reconsideration.

The government’s attempt to re-litigate the same issues in its

motion for reconsideration does not satisfy Rule 54(b)’s

requirements, particularly when the government did not present

sufficient arguments supporting its initial request to reopen

discovery.   See Clay, 2005 WL 1378768, at *1.

     Further, the government readily admits that it did not

initially request a more extensive expert report because, in

part, “the belief that the substantial cost of a regression

analysis could not be justified prior to the certification of a

class.”   Govt.’s Mot. at 8; see also Govt.’s Mot at 16 (repeating

that “only now are the parties finally in a position to

efficiently and cost-effectively evaluate statistically” the

plaintiffs’ claims).   The government also now argues that it

could not conduct expert analysis before because “the parameters

of any certified class were unknown,” Govt.’s Mot. at 7, and it

“would have needed to conduct countless analyses, most of which

would have been rendered useless.”     Govt.’s Mot. at 16.   These

strategic decisions offer no reason to reconsider the Order.      The

government does not demonstrate that there would be a manifest

injustice because of, for example, limitations in previous

rulings or scheduling orders that prevented it from conducting

the expert analysis it now desires before discovery closed.
                               - 12 -


     Ultimately, regardless of whether bifurcation should have

occurred, bifurcation of discovery between class certification

and merits discovery did not happen.    The parties each made

strategic decisions with respect to which fact and expert

discovery in which to engage and from which to abstain.    Thus,

the government’s failure to engage in full merits discovery

before the class certification does not require either reopening

discovery, or reconsidering the decision denying the request to

reopen discovery.   Because no error infected the decision to deny

reopening discovery, and no manifest injustice will result from

that decision, the government has not established that justice

requires reconsideration.    Accordingly, it is hereby

     ORDERED that defendant’s motion [757] for reconsideration

be, and hereby is, DENIED.    It is further

     ORDERED that plaintiffs’ motion [769] for leave to file a

surreply is DENIED as moot.

     SIGNED this 4th day of March, 2014.




                                               /s/
                                     RICHARD W. ROBERTS
                                     Chief Judge
