Driever v. United States

• Decision Date: 14 May 2021
• Docket Number: Civil Action No. 19-1807 (TJK)
• Parties: JEANETTE DRIEVER, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants.
• Court: U.S. District Court — District of Columbia

JEANETTE DRIEVER, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants.

Civil Action No. 19-1807 (TJK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 14, 2021

MEMORANDUM OPINION

Jeanette Driever, a former federal inmate, sued various government entities and officials to challenge a Bureau of Prisons policy that authorizes housing transgender prisoners according to their gender identity. Proceeding pro se, she asserted violations of her First, Fourth, Fifth, Eighth, and Fourteenth Amendment rights, as well as violations of the Religious Freedom Restoration Act, the Administrative Procedure Act, and the Federal Tort Claims Act. In October 2020, the Court dismissed her complaint under Rules 12(b)(1) and (6) and denied as futile her attempt to amend it. She now moves to reconsider on account of the purported impact of a subsequent Supreme Court case on the Court's earlier decision, and in the alternative, to extend her time to appeal. For the reasons explained below, the Court will deny the motion in its entirety.

I. Background

Driever was incarcerated at Carswell Federal Medical Center ("FMC Carswell") for two stints before she was released from custody in April 2018. ECF No. 13 at 4; id. n.3. In June 2019—over a year later—she filed this suit against the United States, the United States Attorney General, the BOP Director, former Warden of FMC Carswell Jody Upton, "all BOP Wardens," "all BOP Directors of Psychology Services," and "unknown BOP employees[,]" in both their official and individual capacities ("Defendants"). In her initial complaint, she claimed that a Bureau of Prisons (BOP) policy, Program Statement 5200.04, violated her rights because it permitted the BOP to place transgender inmates in women's correctional institutions. Complaint ("Compl."), ECF No. 1 ¶ 18. In particular, she objected to transgender—mainly male-to-female—inmates sharing "cells, locker areas, showers, toilets, and other areas where bodily privacy is normatively protected" with female inmates. Compl. ¶ 32. She asserted violations of her rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments, requested injunctive and declaratory relief as well as monetary damages, id. ¶¶ 41-47, and also sought to bring the matter as a class action by seeking relief on behalf of "similarly situated federal female inmates." Id. ¶ 2.

In January 2020, Defendants moved to dismiss Driever's official-capacity claims, ECF No. 13, and the individual-capacity claims, ECF No. 15. The next day, the Court set a deadline for her to oppose Defendants' motions by February 21, 2020. ECF No. 16. Rather than do so, Driever moved to amend the complaint. ECF No. 18. The Court denied the motion without prejudice for failure to comply with LCvR 7(m). See Minute Order of Mar. 31, 2020. In June 2020, Driever again moved to amend her complaint, ECF No. 19. The proposed amended complaint ("Am. Compl."), ECF No. 19-1, added claims under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1(a), the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), the Administrative Procedure Act (APA), 5 U.S.C. § 702, and for negligence and intentional infliction of emotional distress, Am. Compl. ¶¶ 14, 41-45. The proposed amended complaint also sought to join two more pro se plaintiffs, Rhonda Fleming and Stacey Shanahan, id. at caption, ¶¶ 2-3, and four more defendants: former BOP Director CharlesSamuels, Warden E. Strong (current warden of the Federal Correctional Institution in Tallahassee, Florida) ("FCI Tallahassee"), Warden C. Coil (former warden of FCI Tallahassee), and Warden Julie Nichols (former warden of the Federal Correctional Institution in Waseca, Minnesota) ("FCI Waseca"), id. at caption, ¶¶ 7-10

On October 19, the Court granted Defendants' motions to dismiss under Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure.¹ See ECF No. 30; see also Driever v. United States, No. 19-cv-1807, 2020 WL 6135036 (D.D.C. Oct. 19, 2020). The Court also denied as futile Driever's motion for leave to amend her complaint, ECF No. 19, after determining that the proposed amended complaint's claims would also be subject to dismissal. In its Opinion, the Court noted the potential relevance of Tanzin v. Tanvir, 141 S. Ct. 486 (2020), a Supreme Court case that had been argued but was awaiting decision. See Driever, 2020 WL 6135036, at *8. On December 10, 2020, the Supreme Court decided Tanzin. And on January 8, 2021, Driever filed the pending motion to reconsider and reopen the case, as well as to extend her time to appeal. Motion to Reopen ("Mot. for Recon."), ECF No. 31.

II. Analysis

A. Motion to Reconsider

Driever moves for reconsideration under Federal Rules of Civil Procedure 60(b)(5) and (6). "The decision to grant or deny a rule 60(b) motion is committed to the discretion of the District Court." Kareem v. FDIC, 811 F. Supp. 2d 279, 282 (D.D.C. 2011). Motions for reconsideration are "disfavored" and "granting . . . such a motion is . . . an unusual measure." Cornish v. Dudas, 813 F. Supp. 2d 147, 148 (D.D.C. 2011). Plaintiff's motion turns on herassertion that the Supreme Court's subsequent decision in Tanzin impacts this Court's dismissal of her RFRA claim.

Under Rule 60(b)(5), a court "may relieve a party" from a final judgment or order if "it is based on an earlier judgment that has been reversed or vacated." Driever's invocation of Rule 60(b)(5) is misplaced. Rule 60(b)(5) allows for relief from a judgment when "the present judgment is based on the prior judgment in the sense of claim or issue preclusion"—not "merely because a case relied on as precedent by the court in rendering the present judgment has since been reversed." Wright & Miller, 11 Fed. Prac. & Proc. Civ. § 2863 & n.11 (3d ed.) (collecting cases).

That leaves Rule 60(b)(6), which allows for relief from a judgment under "extraordinary circumstances." "[C]hanges in case law that occur after a final judgment has been entered are generally not the type of 'extraordinary circumstances' which warrant 60(b)(b) reconsideration," especially when a plaintiff has not pursued an appeal. Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 811 F. Supp. 2d 216, 231 (D.D.C. 2011) (collecting cases). But in this case, perhaps relief under Rule 60(b)(6) remains available to Driever, because although she did not note a timely appeal, she did request that her time to appeal be extended, and she did so within the time limit to make such a request under Federal Rule of Appellate Procedure 4(a)(5)(A)(i). See also Polites v. U.S., 364 U.S. 426, 433 (1960) ("[W]e need not go so far here as to decide that when an appeal has been abandoned or not taken because of a clearly applicable adverse rule of law, relief under Rule 60(b) is inflexibly to be withheld when there has later been a clear and authoritative change in governing law."). On the other hand, Rule 60(b)(6) may be invoked only if no other avenue under Rule 60(b) is available to a plaintiff. Goland v. CIA, 607 F.2d 339, 372-73 (D.C. Cir. 1979). And in light of her pro se status, the Court might instead construe hermotion as brought under Rule 60(b)(1)). Although that rule allows for relief in the cases of "mistake, inadvertence, surprise, or excusable neglect," the D.C. Circuit has permitted plaintiffs to seek relief under that rule based on a change in intervening law that occurred during the plaintiffs' time for appeal, when the plaintiffs also filed a motion for reconsideration within that same appeal period. D.C. Federation of Civic Ass'ns v. Volpe, 520 F.2d 451, 453 (D.C. Cir. 1975). But again, Driever is not in precisely the same boat as the plaintiffs in Volpe. Although Tanzin was similarly decided within the sixty-day time limit to appeal the Court's original decision under Federal Rule of Appellate Procedure 4(a)(1)(B), Driever did not move to reconsider and extend her time to appeal until after the time to appeal had expired. In the end, though, the Court need not resolve the puzzle of whether Driever's motion is properly brought under Rule 60(b)(6), Rule 60(b)(1), or neither rule. Under either standard, there is no basis to grant it, because Tanzin does not affect the Court's original conclusion that her complaint and proposed amended complaint were subject to dismissal.

Driever's complaint and proposed amended complaint brought several claims, including a RFRA claim, against various federal officials in their official and individual capacities. And for purposes of this motion, her RFRA claim for monetary damages is the only one that matters. This Court dismissed her RFRA claim for two reasons: (1) "RFRA does not waive the federal government's sovereign immunity for damages," Driever, 2020 WL 6135036, at *8 (citing Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006)); and (2) monetary damages were unavailable against individual federal employees, id. at *8 & n.10. Driever now argues that the Court should reconsider its decision in light of Tanzin, in which the Supreme Court held that RFRA permits suits for money damages against federal officials in their individual capacities. Mot. for Recon. at 1. But for the reasons explained below, Tanzin doesnot change the Court's prior determination that monetary damages are unavailable for Driever's RFRA claim against any Defendant here, in either an official or individual capacity.

1. Official-Capacity Claims

Driever's motion suggests that Tanzin might affect the Court's analysis as to whether sovereign immunity applies to her official-capacity RFRA claims. See Mot. for Recon. ¶ 2; ECF No. 33 ("Recon. Reply") ¶ 1. But it does not. The Supreme Court made clear that its analysis was limited to "a suit against individuals, who do not enjoy sovereign immunity." Tanzin, 141 S. Ct. at 493. As a result, the Court's determination that "RFRA does not waive the federal government's sovereign immunity for damages" remains faithful to Circuit precedent. Webman, 441...