                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-1200


BARBARA M. MURCHISON,

                Plaintiff - Appellant,

           v.

MICHAEL J. ASTRUE,

                Defendant - Appellee.



                             No. 11-1462


BARBARA M. MURCHISON,

                Plaintiff - Appellant,

           v.

MICHAEL J. ASTRUE,

                Defendant - Appellee.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.  J. Frederick Motz, Senior District
Judge. (1:08-cv-02665-JFM)


Argued:   December 8, 2011                 Decided:   February 15, 2012


Before TRAXLER, Chief Judge, and AGEE and DIAZ, Circuit Judges.
Affirmed in part, reversed in part, vacated        in   part,   and
remanded by unpublished per curiam opinion.


ARGUED: Phillip R. Kete, Washington, D.C., for Appellant. Alex
Gordon, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.    ON BRIEF: Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.



Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Barbara Murchison commenced an action in district court,

seeking    enforcement            of   a   prior    Equal    Employment        Opportunity

Commission       (“EEOC”)         order    requiring      that   the    Social          Security

Administration (“SSA”), her employer, return her to her prior

position       or    its    equivalent       (“Enforcement       Claim”).           Murchison

also alleges that the SSA unlawfully failed to promote her on

two separate occasions (“Promotion Claims”).                            She now appeals

the district court’s grant of summary judgment in favor of the

SSA.     She also appeals the denial of a Rule 60(b) motion for

relief from judgment.                  For the reasons that follow, we affirm

the    grant    of       summary    judgment       with   respect      to    the    Promotion

Claims, vacate the grant of summary judgment with respect to the

Enforcement Claim, reverse the denial of the Rule 60(b) motion,

and remand for further proceedings.



                                              I.

       Prior        to    2001,    Murchison       held    the   position          of    Social

Insurance Specialist (Team Leader), a GS-13 position with the

SSA, in the Community Affairs Section of the Office of Regional

Communications,             Inter-Governmental            and     Community             Affairs

(“ORCICA”).          ORCICA is one of two offices within the Office of

External       Affairs      (“OEA”).         Michelle       Brand,     the    Director       of

ORCICA,    was       Murchison’s          supervisor.       Murchison        alleged       that

                                               3
Brand discriminated against her in a variety of ways. 1                             Because

this alleged discriminatory treatment was upsetting Murchison to

the point of affecting her health, Murchison requested to be

reassigned out of OEA.               Murchison specifically requested not to

be assigned to the Office of Public Inquiries (“OPI”); however,

she was reassigned to the OPI mailroom, where much of her time

was   spent    carrying       out    duties       at    the    GS   7-9    level   such    as

opening and sorting mail.

          Shortly after this reassignment, Brand left her position

as the Director of ORCICA.               Due to the urgency of filling the

Director    of      ORCICA    position,    the         SSA    followed     its   policy    of

promoting from within a department and filled the position on an

interim, non-competitive basis by promoting Robin Neal as Acting

Director      for    120     days,    while       at    the    same       time   seeking   a

permanent replacement for Brand.                  Neal was working within ORCICA

prior to this promotion and was merely promoted to a higher

      1
       For example, the record reflects that Murchison alleged
discrimination when Brand failed to recommend her for a
Recognition of Contribution award; moved her office to an annex
in a separate building; assigned her tasks that had already been
assigned to other employees; excluded her from meetings, which,
in some cases, precluded her from attending conferences; failed
to authorize religious compensatory time worked in order to make
up for time spent away from work attending to religious
obligations; failed to credit her for non-religious compensatory
time worked; assigned her a GS-12 mentor rather than providing
her with one-on-one training about new job duties; and required
her to provide a doctor’s note in order to get sick leave when
other employees had no such obligation.



                                              4
position within the same department.                        Murchison, having recently

been reassigned, did not work within ORCICA at the time of the

promotion.         According to one of Murchison’s former supervisors,

the   policy       of   promoting        someone          from    within    the    department

facilitates        an   effective        transition.              Thereafter,          Neal   was

promoted    again       to   the   position          of    executive       officer      for   the

Office of Communications.                Murchison applied for this position

but did not receive the promotion.                           The person charged with

making that hiring decision explained that he chose Neal rather

than Murchison because he was familiar with Neal’s good work

performance but had no familiarity with Murchison.

                                             A.

      Prior        to   requesting         the       reassignment          out    of    ORCICA,

Murchison filed an internal Equal Employment Opportunity (“EEO”)

complaint      on       October      13,     2000,          alleging        harassment        and

discrimination based on race, color, sex, age, religion, and

disability.         After filing this complaint, she requested to be

reassigned and was assigned, as mentioned above, to the OPI.

Murchison     amended        her   EEO     complaint         on   June     15,    2001.       The

amended    complaint         alleged     additional          acts    of     discrimination,

including      a    claim     that     the       SSA      discriminatorily         failed      to

promote her to the Director of ORCICA position, and addressed

her reassignment to the OPI, which she alleged was retaliation

for having engaged in prior protected activity by filing the

                                                 5
October 13 EEO complaint.                   The administrative judge (“AJ”) found

that the SSA had discriminated against Murchison in a variety of

ways, including its decision to reassign her.                                As a result, the

AJ awarded damages to Murchison in the amount of $6,500 and

granted her various equitable relief, which included an order

that       the    SSA    return     Murchison          to   her    prior     position      or   its

equivalent.         However, finding that the SSA had not discriminated

against      Murchison         by   failing       to     promote      her    on    two    separate

occasions,         the    AJ    found      against          Murchison       on    her    Promotion

Claims. 2

       Murchison         appealed         the     AJ’s      decision       on     her    Promotion

Claims       to    the    EEOC’s         Office    of       Federal    Operations         (“OFO”).

During       the    pendency        of    the     appeal      of   her      Promotion      Claims,

Murchison also raised her Enforcement Claim for the first time,

filing with the OFO two petitions for enforcement of the AJ’s

decision to return her to her prior position or its equivalent

because the SSA had yet to comply with that order. 3                                On July 25,




       2
       Although the decision to promote Neal to the position of
executive officer for the Office of Communications occurred
after Murchison filed her amended EEO complaint, the AJ
addressed that promotion claim nonetheless.
       3
       According to the OFO, some of the ordered corrective
action had not taken place “because [Murchison’s] complaint was
subsumed in a class complaint certified by the Commission.”
J.A. A39.    The OFO construed Murchison’s petitions to seek
“exclusion from the pending class complaint so that the relief
(Continued)
                                                   6
2008, the OFO affirmed the AJ’s decision in its entirety and

again ordered the SSA to return Murchison to her prior position

or its equivalent acceptable to her.                 The OFO also ordered the

SSA   to    “submit   a    report    of     compliance     to   the    Commission’s

Compliance Officer”; “include [with the report] documentation of

the agency’s action as evidence that the corrective action has

been taken and implemented”; and “send a copy of all submissions

to the complainant.”        J.A. A45.

      On    September      30,    2008,   the     SSA   emailed     the    EEOC    and

asserted that “Ms. Murchison was promoted and is currently in a

GS-13 Social Insurance Specialist position.”                       J.A. A54.       The

email also stated that all required corrective actions had been

taken   and    that   an    attached      document      provided      proof   of   the

corrective action.         Contrary to these assertions, Murchison was

never      returned   to    her     prior       position   or   its       equivalent.

Moreover, Murchison never received the SSA’s email as required

by the OFO’s order.

                                          B.

      Murchison filed a civil action in the district of Maryland

on October 10, 2008.             Her complaint set forth her Enforcement

Claim in count one and realleged her Promotion Claims in counts



ordering the agency to return her to her former position could
take effect.” J.A. A39.



                                            7
two and three.           After the initiation of this lawsuit, an EEOC

compliance officer, relying on the September 30 email and its

attachment, assured both Murchison’s attorney and the Assistant

United States Attorney representing the SSA that the SSA had

provided the EEOC sufficient documentation to demonstrate that

the SSA had complied with the OFO’s order to restore Murchison

to her prior position or its equivalent.                      Knowing this to be

untrue, Murchison contacted the EEOC’s compliance officer and

sought     the    documentation        purporting      to    establish      that    the

corrective action had been taken; however, it appears that she

never received the requested information.

     The district court granted the SSA’s motion for summary

judgment    as    to     all   counts.      With    regard    to    the   Enforcement

Claim, the district court concluded that 29 C.F.R. § 1614.503(g)

sets forth two prerequisites to filing an enforcement action,

neither    of    which     Murchison     had    satisfied.         Accordingly,     the

district        court     dismissed       the      Enforcement      Claim     without

addressing its merits.           With regard to the Promotion Claims, the

district    court       rejected   them    on    the   merits,      concluding     that

Murchison       failed    to    establish       pretext     with   regard    to    both

promotions.       Murchison filed a timely notice of appeal with this

court.




                                            8
                                    C.

     During the pendency of this appeal, the EEOC conceded that

it had erroneously determined that the SSA had complied with the

OFO’s order to restore Murchison to her prior position or its

equivalent.    As a result of this concession, Murchison filed a

motion for relief from judgment with the district court pursuant

to Rule 60(b) of the Federal Rules of Civil Procedure.                  However,

the district court denied the motion, and Murchison also appeals

the denial of that motion. 4



                                    II.

     We   first   consider    the   district        court’s      resolution     of

Murchison’s   Rule   60(b)   motion,       which   we   review    for   abuse   of

discretion.    See L.J. v. Wilbon, 633 F.3d 297, 304 (4th Cir.

2011).    “[T]he nature of our review must take into account that

Rule 60(b) was intended to preserve the delicate balance between

the sanctity of final judgments . . . and the incessant command

of the court’s conscience that justice be done in light of all

the facts.”    Smalls v. United States, 471 F.3d 186, 191 (D.C.

Cir. 2006) (internal quotation marks omitted).                   A party moving


     4
       Murchison’s appeal from the district court’s grant of
summary judgment (Case No. 10-1200) is consolidated with her
challenge to the district court’s denial of her Rule 60(b)
motion for relief (Case No. 11-1462).



                                       9
for relief under Rule 60(b) “must make a showing of timeliness,

a   meritorious         defense,      a    lack        of     unfair       prejudice    to    the

opposing        party,       and   exceptional          circumstances.”              Werner    v.

Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984) (footnote omitted).

Once       a   movant    makes     this     threshold          showing,       she    must     then

satisfy one of six subparts of Rule 60(b).                           Id. at 207.       The SSA

concedes        that     Murchison         can        make     the     threshold       showing;

therefore, we only address the applicability of the six subparts

of Rule 60(b).

       Rule 60(b)(6) permits a court to relieve a party from a

final judgment or order for “any other reason that justifies

relief.”        Fed. R. Civ. P. 60(b)(6). 5                  This provision “vests power

in courts adequate to enable them to vacate judgments whenever

such action is appropriate to accomplish justice.”                                 Klapprott v.

United States, 335 U.S. 601, 615 (1949); see also Nat’l Credit

Union      Admin.      Bd.    v.   Gray,    1    F.3d        262,    266    (4th    Cir.     1993)

(describing Rule 60(b)(6) as a “grand reservoir of equitable

power to do justice in a particular case” (internal quotation

       5
        Although Murchison relied exclusively on subpart (5) in
her Rule 60(b) motion, we consider the applicability of the
other subparts of Rule 60(b) in reviewing the district court’s
decision.    See Kamen v. Kemper Fin. Servs., 500 U.S. 90, 99
(1991) (“When an issue or claim is properly before the court,
the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing
law.”).



                                                 10
marks omitted)).         Although we have described this provision as a

catch-all provision, see Aikens v. Ingram, 652 F.3d 496, 500

(4th Cir. 2011) (en banc), “a motion under Rule 60(b)(6) may not

be   granted       absent    extraordinary           circumstances,”            Reid     v.

Angelone, 369 F.3d 363, 370 (4th Cir. 2004) (internal quotation

marks omitted).        “[E]xtraordinary circumstances [are those] that

create a substantial danger that the underlying judgment was

unjust.”     Margoles v. Johns, 798 F.2d 1069, 1073 (7th Cir. 1986)

(per curiam).

     The district court’s decision to grant summary judgment to

the SSA on Murchison’s Enforcement Claim was based on the SSA’s

assertion    of    compliance      and    the       EEOC’s       acceptance     of     that

assertion.         The    EEOC    has    since       declared       that    its      prior

determination of compliance was erroneous.                       This means that the

district court’s summary judgment order relied on an admittedly

incorrect conclusion of the EEOC and on what can only be deemed

a deceptive and false assertion of compliance made by the SSA.

     The district court order also relied on its conclusion that

29 C.F.R. § 1614.503(g) sets forth two prerequisites, one of

which   must      be   met   in   order        to   file     a    civil    action      for

enforcement.           The   district      court       believed        that       neither

prerequisite had been established.                  One of these two purported

prerequisites would require that the EEOC “determine[] that an

agency is not complying with a prior decision.”                           Id.    Had the

                                          11
EEOC properly construed the SSA’s report of compliance during

its initial review, the EEOC would have determined that the SSA

was   not   complying       with    the    OFO’s    order,       and    this    purported

prerequisite       would    have    been     met.         Moreover,       had    the    SSA

provided Murchison with all of its submissions to the EEOC, as

required by the OFO’s order, Murchison would have been able to

alert the EEOC of the compliance report’s incorrectness, which

also would have enabled the EEOC to determine that the SSA was

not     complying    with     the    OFO’s      order,     thus        satisfying      this

purported     prerequisite.           Therefore,          assuming,       but     without

deciding, that § 1614.503(g) sets forth prerequisites to filing

a civil enforcement action, Murchison would have satisfied one

of those prerequisites had the SSA’s misrepresentations not been

erroneously accepted by the EEOC.

      To    this    day,   despite    two       rulings    in    the     administrative

process that required the SSA to return Murchison to her prior

position or its equivalent, the first dating back over six years

to    September     2005,     the    SSA     has    steadfastly          not    complied.

Justice was not accomplished, and was in fact subverted, because

the EEOC improperly accepted the SSA’s compliance report and

because the SSA misled the EEOC.                   These factors were entirely

out of Murchison’s control.                Given this factual background, it

is clear that the underlying judgment was unjust.                          In light of

these    extraordinary       circumstances,         we    find    that    the    district

                                           12
court abused its discretion in denying Murchison’s Rule 60(b)

motion for relief.         Accordingly, we vacate the grant of summary

judgment with respect to the Enforcement Claim, we reverse the

denial   of   the   Rule   60(b)       motion,    and   we   remand    for    further

proceedings. 6



                                         III.

     Murchison also challenges the resolution of her Promotion

Claims, which concern her failure to be promoted into both the

Director of ORCICA position and the Office of Communications

position.        Related    to    the    Promotion      Claims    is     Murchison’s

challenge     concerning     access      to    discovery,     which    we    turn    to

first.

                                          A.

     Murchison      argues       that    the     district     court    abused       its

discretion     in   denying      her    request     for      discovery      prior    to

rendering its judgment.           Although Murchison argued her need for

discovery pertaining to all claims before the district court,

she limits her argument on appeal to discovery pertinent to her

Promotion Claims.      We review the denial of discovery for abuse



     6
       Because we resolve Murchison’s Enforcement Claim under
Rule 60(b), we express no opinion as to whether § 1614.503(g)
sets forth prerequisites to filing civil enforcement actions.



                                          13
of discretion.          See Nader v. Blair, 549 F.3d 953, 958-59 (4th

Cir. 2008).

       At the time of this action, Rule 56(f) 7 provided that a

court may refuse an application for judgment, permit additional

discovery,       or     “make      such     other       order     as     is        just”     upon

determining “from the affidavits . . . that the party cannot for

reasons stated” present facts to defeat summary judgment.                                   This

rule       requires,    among   other      things,       that   a      non-movant          “put[]

forth      [in   an    affidavit]    the     reasons      why     [s]he       is    unable    to

present the necessary opposing material.”                         Pine Ridge Coal Co.

v. Local 8377, United Mine Workers of Am., 187 F.3d 415, 421

(4th Cir. 1999) (per curiam) (internal quotation marks omitted).

Murchison filed an affidavit, but she failed to specify why she

had not yet conducted the discovery she sought.                               See Comm. for

the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.

1992)       (noting    requirement        that    a    non-movant        specify       in    the

affidavit “what steps have been taken to obtain the[] facts”

sought through discovery).

       Moreover,        of   the     four        purported      discovery           needs      in

Murchison’s       affidavit        that     are       pertinent     to    her        Promotion

       7
       At the time of the district court’s ruling, the content of
Rule 56(d) was contained in Rule 56(f).     The intervening 2010
Amendments to the Federal Rules of Civil Procedure reorganized
the content of Rule 56; however, “Subdivision (d) carries
forward without substantial change the provisions of former
subdivision (f).” Fed. R. Civ. P. 56 advisory committee’s note.


                                             14
Claims,       two    seek   to    establish        facts    that       would    not   create

genuine issues of material fact.                      One of these two requests

seeks    to    establish        the    identity     of     the   selecting      officials.

However, the record already discloses that Phil Gambino was the

selecting official for the Director of ORCICA position and that

David    Byrd       was   the    selecting     official          for    the    position   of

executive officer for the Office of Communications.                             The second

of   the      two    requests         seeks   to     establish         that    Murchison’s

qualifications were superior to those of Neal.                          However, Gambino

selected Neal for the Director of ORCICA position because the

policy was to hire from within the department, Neal was working

within ORCICA at the time and Murchison was not, and Gambino

deemed Neal to be a competent employee who could provide for a

smooth transition. 8            The district court was within its discretion

in denying the motion with respect to these discovery needs on

the ORCICA promotion because the facts sought, if established,

would not create a genuine issue of material fact as to whether

the reasons given were pretext.                     See Ingle ex rel. Estate of

Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (“Rule 56(f)


     8
       Whether Murchison had superior qualifications to Neal is
no longer relevant to the Office of Communications promotion
because, as explained in the subsequent section, Murchison did
not perfect an argument with regard to the alleged failure to
promote her to be an executive officer in the Office of
Communications.



                                              15
motions may be denied . . . if the additional evidence sought

for discovery would not have by itself created a genuine issue

of   material    fact    sufficient     to    defeat     summary   judgment.”

(internal quotation marks omitted)).

     The remaining two relevant discovery needs pertain to the

agency officials who participated in the promotion decisions.

Specifically,    Murchison     stated      that    without   discovery     she

“cannot   know   the     identities   of     all   the   agency    officials”;

“cannot   take   their    depositions”;      and   “cannot   obtain    .   .   .

contemporaneous written records and communications.”               J.A. A236.

Given the vagueness of these discovery needs, the district court

was within its discretion in denying the motion with respect to

these requests as well.       See Everson v. Leis, 556 F.3d 484, 493

(6th Cir. 2009). 9

                                      B.

     Having considered the Rule 56(f) motion, we next address

the district court’s grant of summary judgment on Murchison’s

Promotion Claims, which we review “de novo, applying the same

legal standards as the district court.”            Nader, 549 F.3d at 958.


     9
       Although the district court denied Murchison’s motion
under former Rule 56(f) for different reasons, “we are entitled
to affirm the court's judgment on alternate grounds, if such
grounds are apparent from the record.”   MM ex rel. DM & EM v.
School Dist. of Greenville Cnty., 303 F.3d 523, 536 (4th Cir.
2002).



                                      16
With regard to the Office of Communications position, Murchison

did not advance any arguments in her opening brief, and she has,

therefore, abandoned that claim.                  See A Helping Hand, LLC v.

Balt. Cnty., Md., 515 F.3d 356, 369 (4th Cir. 2008) (“It is a

well settled rule that contentions not raised in the argument

section of the opening brief are abandoned.” (internal quotation

marks omitted)).

     With regard to the Director of ORCICA position, the SSA

hired   someone   from    within    ORCICA        based   on    a    policy    that    it

believed would provide for an effective transition.                           Murchison

argues that she should have been promoted because she knew the

most about the inner workings of ORCICA, having only left ORCICA

approximately     one    month     prior     to     Neal’s      promotion.         This

argument is insufficient to establish pretext because it does

not undermine the SSA’s legitimate nondiscriminatory explanation

of hiring a person who was working within ORCICA and whom it

believed could effectuate the smoothest transition.                           Murchison

was not considered because she had wanted out of OEA and, hence,

out of ORCICA.

     Murchison    is     correct    that     an    employer         cannot    defeat   a

failure-to-promote       claim     by   initially         and       discriminatorily

removing an employee from the selection pool, see Shannon v.

Ford Motor Co., 72 F.3d 678, 682-83 (8th Cir. 1996); however,

the reassignment was at Murchison’s request.                    It was only after

                                        17
the SSA had accommodated Murchison’s request that the vacancy

occurred and the agency decided to promote from within ORCICA. 10

Murchison has presented no evidence that the SSA does not have a

policy       of    promoting          from    within     ORCICA;       that    Murchison    was

transferred for the purpose of removing her from the selection

pool; or that the policy of promoting from within ORCICA was

ever        ignored        in     other        circumstances           involving      recently

transferred          employees.              Therefore,         Murchison’s      attempt     to

connect       her        transfer       with       the   SSA’s        subsequent     promotion

decision          does     not        rise    above      mere    speculation,         and   she

accordingly fails to establish pretext.



                                                   IV.

       For     the       reasons       stated      herein,      we    affirm   the    district

court’s grant of summary judgment as to the Promotion Claims

including         the     denial       of    the   discovery         claims.     However,    we

vacate       the     grant       of    summary      judgment         with   respect    to   the


       10
        Although Murchison was transferred to the OPI, where she
requested not to be reassigned, she does not present evidence
connecting that transfer with the SSA’s subsequent hiring
decision.   Therefore, the SSA’s decision to transfer Murchison
to the OPI, rather than a different department, is not
determinative in our pretext analysis.        See DeJarnette v.
Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (“[T]his Court
does not sit as a kind of super-personnel department weighing
the prudence of employment decisions . . . .” (internal
quotation marks omitted)).



                                                   18
Enforcement Claim, reverse the denial of the Rule 60(b) motion

for relief, and remand with instructions for the district court

to enforce the OFO’s order to return Murchison to her prior

position or its equivalent acceptable to her.

                                                AFFIRMED   IN PART,
                                                REVERSED   IN PART,
                                                 VACATED   IN PART,
                                                     AND   REMANDED




                               19
