UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID GROGAN, HERMAN BREWER,
and FAYETTE REID, individually and on
behalf of a class of all persons similarly
situated,
Civil Action No. 08-1747 (BJR)
and JAMES BROOKS, individually,
MEMORANDUM ORDER
Plaintiffs,
DENYING PLAINTIFFS’ MOTION FOR
RECONSIDERATION; GRANTING PLAINTIFFS’
v.
LEAVE TO FILE MOTION AS TO REMAINING
ISSUES
ERIC H. HOLDER, United States Attorney
General,
Defendant.
I. INTRODUCTION
Plaintiffs David Grogan, Herman Brewer, and Fayette Reid (“Class Plaintiffs”),
individually and on behalf of a class of similarly situated individuals, bring suit against their
employer, the United States Marshals Service (“USMS” or “Defendant”). Class Plaintiffs allege
that USMS engaged in a pattern or practice of racial discrimination against them and other
African-American Deputy United States Marshals in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et. seq (“Title VII”). Plaintiff James Brooks brings only
individual claims of racial discrimination under Title VII.
In 2010, Plaintiffs sought to amend their complaint, a motion that Judge Kennedy, who
previously presided over this case, granted in part and denied in part. In 2011, Plaintiffs moved
for reconsideration of the partial denial. This case having been transferred, that motion is before
this Court. On September 17, 2012, Plaintiffs notified the Court of significant factual and
procedural developments, which Plaintiffs believe relate to their motion for reconsideration.
The Court has thoroughly reviewed Plaintiffs’ motion, related briefings, and the entire
record of this case. For the reasons elaborated below, the Court denies in part and denies as
moot (and without prejudice) in part Plaintiffs’ motion for reconsideration. The Court also
grants Plaintiffs leave to file a motion, wherein they may address the effect of recent factual and
procedural developments.
II. BACKGROUND 1
On September 16, 2010, Plaintiffs filed a motion to amend their Complaint. Among
other things, Plaintiffs asked to (1) expand the liability period to start in 1994 instead of 2007, 2
and (2) add factual allegations regarding Plaintiff Brooks’ exhaustion of administrative remedies.
In seeking to extend the liability period for the class claims back to 1994, Plaintiffs argued that
they satisfied the exhaustion requirements of Title VII 3 vicariously by pointing to an
administrative class complaint filed by a former United States Deputy Marshal, Matthew Fogg
(“Fogg Complaint”). Some procedural history as to Fogg’s administrative class complaint is
therefore necessary.
Fogg, who is not a named plaintiff in this lawsuit, filed an Equal Employment
Opportunity (“EEO”) complaint on behalf of “50 and expanding (black) USMS employees” in
July 1994. In April 1996, Fogg’s complaint was dismissed for lack of specificity and detail.
Fogg appealed this dismissal but, on October 24, 1997, the Equal Employment Opportunity
Commission (“EEOC”) mistakenly dismissed his appeal. Some seven years later, in 2004, Fogg
1
Pertinent facts are taken from Judge Kennedy’s September 1, 2011 Order, unless otherwise
indicated.
2
Expanding the liability period would likely increase the size of the proposed class. See Pls.’ Am.
Compl. ¶ 84 (defining the class as “All current and former African American Deputy U.S.
Marshals who are serving or have served with the USMS at any time during the liability
period.”).
3
Title VII requires that federal employees who seek to sue their employers for discrimination first
exhaust their administrative remedies.
2
petitioned the EEOC for reconsideration of the dismissal of his appeal. In May 2006, the EEOC
re-opened Fogg’s appeal and vacated the dismissal, remanding the charge to the EEOC
Washington Field Office for class certification consideration. On March 19, 2007, the
Washington Field Office denied class certification and dismissed Fogg’s complaint once again.
Fogg appealed this decision to the EEOC Office of Federal Operations.
While Fogg’s appeal was pending, in September 2010, Judge Kennedy denied Plaintiffs’
motion to amend the complaint. Judge Kennedy held that Plaintiffs had not vicariously
exhausted their administrative remedies for the 1994-2006 claims by virtue of Fogg’s
administrative complaint. Judge Kennedy also ruled that the statute of limitations had expired as
to those claims and that tolling was not proper. For these reasons, Judge Kennedy denied as
futile Plaintiffs’ proposed amendment to expand the liability period to include 1994 through
2006. Finally, Judge Kennedy did not allow Plaintiffs to add factual allegations regarding
Plaintiff Brooks’ efforts to exhaust his administrative remedies for a non-promotion claim.
In September 2011, Plaintiffs moved for reconsideration of Judge Kennedy’s decision.
On September 17, 2012, Plaintiffs filed a notice of Supplemental Authority information this
Court that in July 2012, while the motion for reconsideration was pending, the EEOC Office of
Federal Operations reversed the decision that had denied class certification and the decision that
dismissed Fogg’s class complaint. Pls.’ Notice of Suppl. Authority (Sept. 17, 2012) at 1. Fogg’s
case was remanded back to the agency with orders that an Administrative Judge be appointed to
hear the class action claims. Id. at 2. With this background information in mind, the Court now
turns to the Plaintiffs’ motion for reconsideration.
III. ANALYSIS
A. Legal Standard for Reconsideration Under Rule 54(b)
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The Court considers Plaintiffs’ motion for reconsideration under Rule 54(b). See Fed. R.
Civ. P. 54(b) (setting forth a court’s authority to revise its non-final orders); Pittman v. Franklin,
282 F. Appx. 418, 423 (6th Cir. 2008) (“the denial of a motion to amend [a pleading] is generally
a non-final order that is not immediately appealable”). The reconsideration of an interlocutory
decision pursuant to Rule 54(b) is available “as justice requires.” Childers v. Slater, 197 F.R.D.
185, 190 (D.D.C. 2000). Some factors that the Court may consider in determining whether
reconsideration is warranted include whether the Court “has patently misunderstood a party, has
made a decision outside the adversarial issues presented to the Court by the parties, has made an
error not of reasoning, but of apprehension, or where a controlling or significant change in the
law or facts [has occurred] since the submission of the issue to the court.” Cobell v. Norton, 224
F.R.D. 266, 272 (D.D.C. 2004) (internal citation omitted).
B. Vicarious Exhaustion
Judge Kennedy rejected Plaintiffs’ arguments that they had exhausted their administrative
remedies by virtue of the vicarious exhaustion doctrine. Under this doctrine, a court may excuse
a plaintiff’s failure to exhaust his or her administrative remedies if other plaintiffs in the case had
completed the exhaustion process, and if the claims being asserted by the plaintiff who failed to
exhaust are sufficiently similar to those claims where exhaustion was properly completed. See
Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800, 807 (D.C. Cir. 2010). Judge Kennedy found
that the vicarious exhaustion doctrine did not apply because there was no named plaintiff in the
current case that had exhausted the administrative process for the pre-2007 class claims. Mem.
Op. (Sept. 1. 2011) at 9. In other words, Judge Kennedy refused to allow Plaintiffs “to
piggyback” off of Fogg’s EEO charges when Fogg was not named in the action currently before
the Court. Id.
4
Plaintiff argues that reconsideration of Judge Kennedy’s ruling regarding vicarious
exhaustion is warranted because, on September 27, 2011 (a few weeks after Judge Kennedy
issued his ruling), Fogg submitted an amendment to his EEO charge seeking to include Plaintiffs
Brewer and Reid as charging parties. According to Plaintiffs, should the EEO grant Fogg’s
amendment, Plaintiffs Brewer and Reid “will have administratively exhausted and may assert the
[1994-2006] claims in that class charge.” Defendant responds, inter alia, by noting that an
amendment to an EEO charge must be done “prior to the conclusion of the [EEOC]
investigation.” Defendants argue that because “the EEOC must reject Fogg’s purported
amendment,” the Court “should disregard Fogg’s pending motion to amend his EEO Complaint
to add Brewer and Reid, as it is irrelevant and untimely.” Def.’s Opp’n at 6-7.
Fogg’s proposed amendment is not grounds for reconsideration of Judge Kennedy’s
ruling. The Administrative Judge has not yet ruled on Fogg’s proposed amendment. Thus,
Plaintiffs’ arguments are premature, and there are no changed circumstances that would warrant
reconsideration. In the event that Fogg were granted leave to amend his administrative charge to
include Plaintiffs Brewer and Reid as charging parties, Plaintiffs, at that point, may notify the
Court and request leave to file a motion to renew their arguments based on vicarious exhaustion.
Until then, Judge Kennedy’s order rejecting vicarious exhaustion stands.
C. Continuing Violations
Plaintiffs argue that they are entitled to pursue a finding of liability and relief for pre-
2007 claims based on the continuing violations doctrine. Pls.’ Mot. at 10. It is unclear to the
Court why such an argument is raised in Plaintiffs’ motion for reconsideration when Judge
Kennedy never ruled on the matter and Plaintiffs never sought to amend their Complaint to
include charges based on the continuing violations doctrine. Indeed, because Plaintiffs’ original
Complaint included charges based on continuing violations, such a request would not have made
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much sense. See Compl. ¶ 95 (stating that the class members “are entitled to application of the
continuing violation doctrine to all violations alleged herein”). Therefore, Plaintiffs are not
asking the Court to reconsider Judge Kennedy’s Order, nor did Plaintiffs see a need to pursue
any amendment on this issue. Because Plaintiffs never sought to amend their complaint in this
fashion and because Judge Kennedy’s Order did not address the applicability of the continuing
violations doctrine, the parties’ respective arguments as to the scope and availability of the
continuing violations doctrine are not properly raised at this time (or at least not in briefing on
Plaintiffs’ motion to reconsider the Order denying amendment), and the Court does not consider
them. 4 Accordingly, the Court denies as moot Plaintiffs’ motion for reconsideration as to the
continuing violations issue.
D. Plaintiff Brooks’ Individual 2010 Claims
Plaintiffs also requests that the Court reconsider Judge Kennedy’s Order and allow
Plaintiffs to amend their complaint to include factual allegations related to Plaintiff Brooks’
August 18, 2010 EEO complaint. Pls.’ Mot. at 13. Plaintiffs had previously sought to amend
their Complaint to add that, “[o]n August 18, 2010, after seeking EEO Counseling, Mr. Brooks
filed an additional EEO complaint discrimination [sic] regarding denials of promotion [that
occurred] in May of 2010. Mr. Brooks is in the process of exhausting these promotion claims.”
Mem. Op. (Sept. 1, 2011) at 22. Defendant objected to this proposed amendment, arguing that
Brooks sought to bring this non-promotion claim before waiting the mandatory 180-day period
from the filing of his EEO charge. Judge Kennedy deemed the argument conceded because
Plaintiffs did not respond, and denied the proposed amendment.
Plaintiffs now ask the Court to reconsider, arguing that “[w]hile Plaintiffs’ Motion to
Amend remained pending before [Judge Kennedy], Plaintiff Brooks exhausted his administrative
4
The Court’s ruling is not meant to foreclose parties from revisiting this issue through a more
appropriate motion, perhaps in the context of discovery, dismissal, or summary judgment.
6
remedies as of April 28, 2011, and his claims have since been ripe for inclusion in Plaintiffs’
class complaint.” Pls.’ Mot. at 14. According to Plaintiffs, they were not required to “address[]
Defendant’s objection where the mere passage of time during which Plaintiffs’ motion remained
pending before [Judge Kennedy] would have cured Brooks’ failure to exhaust.” 5 Id. at 14-15.
Defendant, however, maintains that amendment is inappropriate because “permitting Brooks to
include his claims in the amended complaint would violate the rule of Murthy v. Vilsack and
otherwise be contrary to judicial economy.” Def.’s Opp’n at 22.
Defendant is correct that Murthy v. Vilsack forecloses Plaintiffs’ amendment. Under
Title VII, “an aggrieved federal employee may file a civil action ‘after one hundred and eighty
days from the filing of the initial charge’ when the EEOC has failed to take final action.”
Murthy v. Vilsack, 609 F.3d 460, 465 (D.C. Cir. 2010) (quoting 42 U.S.C. § 2000e-16(c)). In
Murthy v. Vilsack, the plaintiff had filed a complaint in the district court 131 days after filing his
charge with the EEOC. Id. at 462. The plaintiff attempted to avoid the consequences of his
untimely filing by amending his complaint. The D.C. Circuit, however, held that “the filing of
an amended complaint after the 180-day period expired cannot cure the failure to exhaust.” Id.
According to the Circuit, “allowing [a plaintiff] to cure his failure to exhaust administrative
remedies by amending his complaint would contravene EEOC’s investigative duty and
undermine Congress’ policy of encouraging informal resolution up to the 180th day.” Id.
(internal citations omitted).
Here, Plaintiff Brooks, like the plaintiff in Murthy v. Vilsack, had not exhausted his
administrative remedies at the time that he sought to add the 2010 non-promotion claim to the
5
The Court rejects this argument. Plaintiffs were under an obligation to respond to Defendant’s
arguments concerning exhaustion, or they ran the risk of having Judge Kennedy treat Defendant’s
arguments treated as conceded. The fact is that, at least as of October 14, 2010 – the date that
Plaintiffs’ reply in support of their motion to amend was filed, Plaintiffs did not have much of a
counterargument. By Plaintiffs’ own admission, Brooks would not exhaust his administrative
remedies until April 28, 2011. See Pls.’ Mot. at 14.
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Complaint; that is, less than 180 days elapsed between the filing of Brooks’ EEO non-promotion
charge and his attempt to bring that charge before this Court. Thus, Defendant is correct that
“because Brooks had not exhausted his administrative remedies at that time,” his 2010 non-
promotion claim would have been subject to immediate dismissal and amendment is futile.
Def.’s Opp’n at 22. As amendment does not cure the original flaw, Plaintiffs’ motion for
reconsideration as to the amendment of Brooks’ 2010 claims is denied.
E. Plaintiffs’ Remaining Arguments
As noted earlier, the Court was recently notified of events that transpired with Fogg’s
administrative class claim, to wit: that the EEOC Office of Federal Operations has reversed the
decision denying class certification and remanded the case to the agency with instructions that an
Administrative Judge be assigned to the matter. These significant factual and procedural events
that occurred since the ruling by Judge Kennedy merit thorough consideration. Because Judge
Kennedy’s rulings were based on a different record than the one presented before the Court
today, the Court believes it would be impractical and a waste of judicial resources to entertain
Plaintiffs’ remaining arguments for reconsideration. Some of the parties’ arguments as to the
remaining issues may be moot, or at least may need to be updated in light of the evolving
procedural history in Fogg’s class claim. Accordingly, with respect to the remaining issues
raised by Plaintiffs in their motion for reconsideration, the Court denies without prejudice
Plaintiffs’ motion for reconsideration.
The Court grants Plaintiffs leave to file a motion raising any arguments that, after critical
evaluation, Plaintiffs believe remain outstanding, given the instant Order and the Fogg class
action developments. Plaintiffs’ motion shall be limited to 15 pages and is due 14 days from the
date of this Order. Defendant’s opposition is similarly limited to 15 pages and is due 14 days
8
from the date that Plaintiffs files their motion. Plaintiff’s reply, limited to 10 pages, is due 10
days from the date that Defendant files its opposition.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that [Dkt. #69] Plaintiffs’ motion for
reconsideration is denied. Denial shall be without prejudice only as to Plaintiffs’ “remaining
issues,” see supra Part III.E. An Order consistent with this Memorandum Opinion is separately
issued this 21st day of September, 2012.
September 21, 2012
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
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