UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
ROBERT L. MORE, et al., )
)
Plaintiffs, )
)
v. ) Civ. Action No. 99-3373 (EGS)
)
JACOB E. LEW, Secretary, )
Department of the Treasury, )
)
Defendant. )
)
MEMORANDUM OPINION
I. INTRODUCTION
Pending before the Court is Plaintiff’s Motion for Relief
from Final Judgment Pursuant to Federal Rules of Civil Procedure
60(b)(6) and 60(d)(3). Plaintiff Charles E. Hughes, along with
six other plaintiffs, brought individual actions under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 631 et
seq. against the Secretary of the Department of the Treasury. 1
Plaintiffs alleged that they were discriminated against on the
basis of their age with respect to various promotion decisions
made by their employer, the Bureau of Engraving and Printing
(“BEP”) within the Department of the Treasury. Upon
consideration of the motion, the entire record, the applicable
1
Jacob Lew has been automatically substituted for one of his
predecessors pursuant to Fed. R. Civ. P. 25(d)(1).
1
law, and for the reasons stated below, the Court DENIES
Plaintiff’s motion.
II. BACKGROUND
The background of this case is fully set forth in More v.
Snow, 480 F. Supp. 2d 257 (D.D.C. 2007). Briefly, Plaintiffs,
including Mr. Hughes, alleged that the BEP discriminated against
them with respect to promotions between 1997 and 2003, during
which time the BEP promoted officers under the age of 40 for
each position Plaintiffs applied for. Id. at 263. After
extensive discovery, Defendant filed a motion for summary
judgment, arguing that Plaintiffs had failed to exhaust their
administrative remedies, and that Plaintiffs’ claims failed on
their merits. Id. at 261. The Court ruled that Plaintiffs had
failed to exhaust their administrative remedies with respect to
all but two of the challenged promotion decisions. Id. at 271-
73. With respect to Mr. Hughes specifically, the Court found
that he had alleged a prima facie case of age discrimination
regarding a 2001 promotion decision, and that he could argue
pretext for the non-discriminatory reasons for the decision
offered by Defendant. Id. at 274.
The Court conducted a bench trial on the remaining claims
in early 2008, and entered final judgment for defendants on July
28, 2008. See Pl.’s Mot., Ex. A, Tr. of Ruling. In so doing,
the Court held the Plaintiffs had failed to present competent
2
evidence of intentional age discrimination sufficient to rebut
Defendant’s non-discriminatory reason for the two promotion
decisions being challenged. Id. at 23:23-24:3. Specifically,
with regard to Mr. Hughes, the Court found that he had
established a prima facie case of age discrimination for the
challenged 2001 promotion because (1) he was over the age of
forty, (2) he applied for the promotion, (3) he met minimum
qualifications for the promotion, and (4) he was denied
promotion in favor of applicants who were substantially younger.
Id. at 17:9-17. The Court, however, found that Defendant
established a legitimate, non-discriminatory reason for failing
to promote him when Officer Ashton, the selecting officer for
the 2001 promotion decision, stated that the fact that the
promoted officers all regularly volunteered overtime and
volunteered for assignments influenced her decision. Id. at
19:22-20:8; 23:8-23:15. Considering arguments and evidence
presented by both parties, the Court found for Defendant and
against Mr. Hughes.
Mr. Hughes filed his Motion for Relief From Final Judgment
Pursuant to Rules 60(b)(6) and 60(d)(3) on July 4, 2013, almost
five full years after the Court entered judgment on behalf of
Defendants. He argues that the judgment should be set aside
because it was “manifestly unjust” due to fraud by his own
counsel as well as counsel for the Defendant. Defendant has
3
opposed the motion, and it is now ripe for determination by the
Court.
III. STANDARD OF REVIEW
A. Rule 60(b)(6)
Pursuant to Federal Rule of Civil Procedure 60(b) a
district court may relieve a party from previous judgment for
six enumerated reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence; (3) fraud,
misrepresentation, or misconduct by an opposing party; (4) a
void judgment; (5) a satisfied, released, or discharged
judgment; or (6) “any other reason that justifies relief.” Fed.
R. Civ. P. 60(b). Rule 60(b)(6) provides courts with authority
to set aside a judgment provided that it is “not premised on one
of the grounds for relief enumerated in clauses (b)(1) through
(b)(5).” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S.
847, 863 (1988). The party seeking relief from judgment bears
the burden of showing that he or she is entitled to the relief
sought. Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011);
United States v. 8 Gilcrease Lane, 668 F. Supp. 2d 128, 131
(D.D.C. 2009).
Rule 60(b) motions must be filed “within a reasonable
time,” which is defined as no more than one year after judgment
for reasons (1), (2), and (3). Fed. R. Civ. P. 60(c)(1). What
constitutes a “reasonable time” varies with the circumstances.
4
Carvajal v. Drug Enforcement Admin., 286 F.R.D. 23, 26 (D.D.C.
2012). “In this Circuit, courts almost uniformly deny Rule
60(b)(6) motions as untimely when they are filed more than three
months after judgment.” Id. at 26. However, “a delay of
several years has been found permissible when plaintiff bore no
fault for the delay and filed the motion as soon as feasible.”
Id. at 26-27 & n.4 (listing four decisions in which the D.C.
Circuit has found that a delay of several years was permissible
where the moving party filed the motion within a month of
learning of the entry of judgment, or where the delay was caused
by “gross neglect” of the moving party’s counsel). In
determining whether a Rule 60(b) motion was filed within a
reasonable time, a court may also consider whether granting
relief would cause prejudice to the opposing party. Salazar v.
District of Columbia, 633 F.3d 1110, 1118 (D.C. Cir. 2011).
Rule 60(b)(6) “provides courts with authority adequate to
enable them to vacate judgments whenever such action is
appropriate to accomplish justice . . . [but] it should only be
applied in ‘extraordinary circumstances.’” Liljeberg, 486 U.S.
at 864 (citations and quotation marks omitted). Moreover, Rule
60(b)(6) is only available when “the motion . . . is not
premised on one of the grounds for relief enumerated in clauses
(b)(1) through (b)(5).” Id. at 863. Examples of the
extraordinary circumstances under which relief has been granted
5
pursuant to Rule 60(b)(6) include an adversary’s failure to
comply with a settlement agreement that was incorporated into a
court’s order, fraud by the “party’s own counsel, by a
codefendant, or by a third-party witness[,]” or “when the losing
party fails to receive notice of the entry of judgment in time
to file an appeal.” 11 Charles Alan Wright et al., Federal
Practice and Procedure § 2864 (2d ed. 1995).
B. Rule 60(d)(3)
Plaintiff has also moved for relief pursuant to Federal
Rule of Civil Procedure 60(d)(3), which provides that the court
may “set aside a judgment for fraud on the court.” Fed. R. Civ.
P. 60(d)(3). Relief due to “fraud on the court” is very rarely
warranted, and is “typically confined to the most egregious
cases, such as bribery of a judge or a juror, or improper
influence exerted on the court by an attorney, in which the
integrity of the court and its ability to function impartially
is directly impinged.” Great Coastal Express, Inc. v. Int’l
Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982).
IV. DISCUSSION
Mr. Hughes’ current motion for relief from judgment asserts
two principal grounds for relief. First, he argues that
Defendant’s counsel perpetrated a fraud on the Court by
misleading the Court regarding the circumstances surrounding his
promotion to corporal. Pl.’s Mot. for Relief at 6. He argues
6
that Defendant’s counsel advised key witnesses to falsely
testify, both at trial and during discovery, that he was
promoted after the BEP had implemented a seniority based
promotion system. According to Mr. Hughes, he was competitively
promoted in November 2002, before the BEP implemented the
seniority based system. Id. at 5-7. Mr. Hughes does not
specify when the seniority based system was imposed; only that
it was sometime after his competitive promotion. Mr. Hughes
argues that these misrepresentations had the effect of inducing
the Court “into believing that Mr. Hughes’ promotion was
seniority based although it was not.” Id. at 7. Mr. Hughes
also contends that this fraud was evident in Defendant’s
assertion that there was no conflict of interest between
Plaintiffs during briefing on potential conflicts prior to the
bench trial. Id. at 7-8.
Second, Mr. Hughes argues that his own counsel, Lawrence B.
Manley, was incompetent and grossly negligent, thus entitling
him to relief from judgment. Mr. Hughes’ complaints about his
counsel are varied, and they involve allegations about both
counsel’s behavior publicly in the courtroom and privately with
his clients. Id. at 9. Among Mr. Hughes’ complaints are the
following: (1) that Mr. Manley failed to assert that Mr. Hughes
was competitively promoted before a seniority based system was
implemented by BEP, id. at 9; (2) that Mr. Manley continued to
7
represent him despite the fact that he had not signed a retainer
agreement, id. at 10-11; (3) that at some point during the
pendency of the case, Mr. Hughes wanted new counsel but was told
by Mr. Manley that he could not do so until he paid his
outstanding legal fees, id. at 12-13; (4) that Mr. Manley
falsely represented that there was no conflict of interest
between the Plaintiffs even though Mr. Hughes and one other
Plaintiff were competitively promoted to corporal before the
other Plaintiffs, who were not promoted until BEP implemented a
seniority based promotion system, id. at 13-14; (5) that Mr.
Manley did not properly probe contradictory testimony by defense
witnesses, id. at 14; (6) that Mr. Hughes was not able to be
present at the final hearing in this matter because Mr. Manley
consented to a defense motion to continue the hearing without
his permission, id. at 14-15; and (7) that Mr. Manley accepted
an offer by Defendant not to move for costs in exchange for
foregoing an appeal without his permission, id. at 17.
Though the basis of Mr. Hughes’ motion is clearly fraud and
misrepresentation by his own counsel and counsel for Defendant,
he has styled his motion as one pursuant to Fed. R. Civ. P.
60(b)(6) rather than 60(b)(1) or 60(b)(3), which provide for
relief on the basis of “mistake, inadvertence, or excusable
neglect” and “fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing
8
party.” Fed. R. Civ. P. 60(b)(1), 60(b)(3). Unlike motions
pursuant to Rule 60(b)(6), which must be filed within a
“reasonable time,” motions made pursuant Rule 60(b)(1) or
60(b)(3) must be filed no more than a year after the entry of
judgment. Fed. R. Civ. P. 60(c)(1).
The provisions of Rule 60(b) are “‘mutually exclusive’ to
the extent that subsection (6) cannot be used to avoid the one-
year limitation in subsections (1)-(5), such that ‘a party who
failed to take timely action due to ‘excusable neglect’ [within
one year] may not seek relief more than a year after the
judgment by resorting to subsection (6).’” Salazar, 633 F.3d at
1118. Nor can a motion be filed pursuant to Rule 60(b)(6) if it
is premised on one of the other enumerated bases for relief.
See Liljeberg, 486 U.S. at 863; Kramer v. Gates, 481 F.3d 788,
792 (D.C. Cir. 2007) (noting that Rule 60(b)(6) is mutually
exclusive of the other enumerated grounds for relief in Rule
60(b)); S. Pac. Commc’ns Co. v. Am. Tel. & Tel. Co., 740 F.2d
1011, 1017 (D.C. Cir. 1984) (same). The Court can think of no
reason why Mr. Hughes would file a motion pursuant to this
residual clause other than to circumvent the timing requirements
of Rules 60(b)(1) and 60(b)(3). That alone is reason to deny
Mr. Hughes’ motion.
However, even if the Court were to accept the contention
that Mr. Hughes’ motion is appropriate pursuant to Rule
9
60(b)(6), Mr. Hughes has not filed his motion within a
“reasonable time” as required by the rule. Though there is no
established standard for assessing whether a motion was filed
within a “reasonable time” in this Circuit, there are a number
of factors that the court can consider in making such a
determination, including the reason for the delay and whether
the non-movant will be prejudiced by granting the motion.
Salazar, 633 F.3d at 1118 & n.5 (citations omitted). In a
declaration filed in support of his motion, Mr. Hughes details
the extensive litigation he engaged in between 2009 and 2012 to
resolve a fee dispute with Mr. Manley regarding his
representation of Plaintiff in this matter. Pl.’s Mot., Hughes
Decl. ¶¶ 30-37. He also notes that because of issues with his
attorney, he was unable to obtain a transcript of the July 28,
2009 hearing until after the time to file an appeal had expired.
Id. ¶¶ 24-27. Mr. Hughes has proffered no other explanation for
the almost five year delay in filing his motion nor has he
presented any argument that he was diligent in pursuing relief
in the meantime. Under such circumstances, Mr. Hughes’ delay in
filing is patently unreasonable. 2 See Carjaval, 286 F.R.D. at
2
Though the Court need not reach the question of prejudice
because Plaintiff has failed to file his motion within a
reasonable time, granting Mr. Hughes the relief he seeks would
unquestionably prejudice Defendant. As Defendant argues in its
opposition, to relitigate Plaintiff’s claims, nearly five years
after judgment was entered and more than a decade after the
10
26-27. A delay of several years, like that in this case, has
only been found reasonable when plaintiff bore no fault for the
delay and filed a motion as soon as feasible. See Klapprott v.
United States, 335 U.S. 601, 615 (1949) (holding that default
judgment was properly vacated when plaintiff showed severe
hardship). That is not the case here.
Finally, separate and apart from the fact that Mr. Hughes
did not file his motion within a reasonable time, he has not
made a showing of the “extraordinary circumstances” required for
relief under Rule 60(b)(6). Indeed, Mr. Hughes’ failure to
pursue relief from judgment, while he was perfectly capable of
litigating a fee dispute, counsels against finding that
“extraordinary circumstances” are present to warrant relief. In
this Circuit, “[a] litigant’s diligence in pursuing review of a
decision, either through appeal or through Rule 60(b)(6) relief,
is relevant in assessing whether extraordinary circumstances are
present.” Salazar, 633 F.3d at 1118-19. In this case, Mr.
Hughes’ “‘lack of diligence’ effectively precludes a finding of
‘extraordinary circumstance.’” Id. at 1121. Moreover, all of
the bases for relief that Mr. Hughes asserts in his motion
events in question occurred, would “unfairly prejudice defendant
because the underlying events have become so remote in time that
evidence would be lost in the form of faded memories of
witnesses and possible difficulty even locating key witnesses.”
Def.’s Opp’n at 6.
11
existed prior to entry of judgment or shortly thereafter. As
such, Mr. Hughes had ample opportunity to raise these issues
then, and cannot use a Rule 60(b) motion to remedy his failure
to do so. 3
IV. CONCLUSION
Because Mr. Hughes has not shown that relief from judgment
pursuant to Rules 60(b)(6) and 60(d)(3) is appropriate, his
motion is hereby DENIED.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 31, 2014
3
Mr. Hughes’ motion pursuant to Rule 60(d)(3) also fails. As
noted above, such relief is very rarely warranted except in the
most egregious cases. See supra Section 2.B. None of the
arguments advanced by Mr. Hughes comes close to “the more
egregious forms of subversion of the legal process” that would
amount to “fraud on the court.” Great Coastal Express, 675 F.2d
at 1357. The Court therefore denies his motion on these
grounds.
12