Moore v. Carson, Civil Action No. 14-2109 (JDB)

• Court: United States District Courts. United States District Court (Columbia)
• Parties: ANDREW P. MOORE, Plaintiff, v. BENJAMIN S. CARSON, Secretary, U.S. Department of Housing and Urban Development, et al. Defendants.
• Docket Number: Civil Action No. 14-2109 (JDB)
• Decision Date: 03 May 2017

ANDREW P. MOORE, Plaintiff,
v.
BENJAMIN S. CARSON,¹ Secretary,
U.S. Department of Housing and Urban Development, et al. Defendants.

Civil Action No. 14-2109 (JDB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

May 3, 2017

MEMORANDUM OPINION

Andrew Moore is a former employee of the U.S. Department of Housing and Urban Development (HUD). He is an African-American man over 62 years old, and he alleges that HUD, and several individually named HUD employees, took dozens of adverse actions against him because of his race, sex, and age, and in retaliation for filing a complaint with the Equal Employment Opportunity Commission (EEOC). In a June 17, 2016, Memorandum Opinion and Order, this Court granted a motion to dismiss all claims against the individual defendants, granted in part the motion to dismiss the claims against HUD itself (via the HUD Secretary), and granted in part HUD's motion for summary judgment on Moore's remaining claims. Ultimately, the only one of Moore's claims to survive is his claim of a hostile work environment under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Unhappy with this result, Moore filed a motion to vacate the June 17 decision. After a detour to the D.C. Circuit, that motion is now before this Court. For the reasons explained below, the Court will deny Moore's motion.

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BACKGROUND

I. Factual Background

The facts are explained more fully in the Court's June 17 Memorandum Opinion. See 192 F. Supp. 3d 18, 31-33 (D.D.C. 2016). A brief summary here will suffice.²

In 2014, Moore was selected as a finalist for the Presidential Management Fellowship (PMF) by the Office of Personnel Management. Am. Compl. [ECF No. 12] ¶ 27. The PMF program is a two-year fellowship that serves as an entrance to federal employment for certain individuals with advanced degrees. See 5 C.F.R. §§ 362.403(b), (f), 362.404(a). In March 2014, Moore interviewed with HUD at a job fair where agencies could recruit and hire PMF finalists. That interview led to a job offer for a role that Moore believed was a "management position" overseeing housing grants and vouchers in the Fort Worth, Texas, regional office. See Am. Compl. ¶ 28.

When Moore started the job in April 2014, he was dismayed to learn that his role was that of a building inspector, rather than a manager. Id. ¶¶ 36, 46-47. Much to his frustration, he saw other PMF employees with less education and management experience assigned to higher paying positions. Id. ¶ 43. Moore believes that HUD intentionally discriminated against him by fraudulently "deceiv[ing] him into believing that he would be offered a legitimate Presidential Management Fellow position," id. ¶ 126(a), and then pushing him into a worse role once he arrived, id. ¶ 34. And he believes this discrimination campaign continued once he was on the job. He argues that other PMF employees at HUD—in particular, employees who were female, not African American, or were younger—were treated better than he was. Id. ¶¶ 61, 66.

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Ultimately, Moore was fired on September 24, 2014. Id. ¶ 107. He alleges that his Notice of Termination contains "false trumped-up charges," and that other PMF employees (who were younger, female, or not African American) were not fired. Id. ¶¶ 108, 113.

II. Procedural Background

In the fall of 2014, Moore filed two formal Equal Employment Opportunity (EEO) complaints charging HUD with race and sex discrimination, retaliation, hostile work environment, and discriminatory and retaliatory discharge. Id. ¶ 19. He also separately raised his age discrimination claim with the EEOC around the same time, when he filed a notice of intent to sue. Id. ¶ 17. He ultimately brought suit in this Court on December 11, 2014. He raised nine causes of action. The first five alleged that then-HUD Secretary Julian Castro (hereinafter, HUD) discriminated against Moore based on his age, gender, and race, and retaliated against him in violation of the ADEA and Title VII. Specifically, Counts I and II allege a list of twenty-four discriminatory actions taken against Moore. Count III asserts retaliation based on many of the same discrete incidents. Count IV asserts a discriminatory and retaliatory hostile work environment. And Count V claims that Moore's termination was also discriminatory and retaliatory.

The last four causes of action alleged that nine individual employees of HUD conspired to obstruct justice in violation of 42 U.S.C. § 1985(2) (Count VI); conspired to deprive Moore of his rights and privileges in violation of 42 U.S.C. § 1985(3) (Count VI); and engaged in a pattern of racketeering activity in violation of 18 U.S.C. § 1962(c) (Count VIII); and that four individuals engaged in "negligence to prevent conspiracy" in violation of 42 U.S.C. § 1986 (Count VII).

On August 11, 2015, the defendants filed a motion to dismiss or, in the alternative, for summary judgment. See Defs.' Mot. to Dismiss & Mot. for Summ. J. [ECF No. 20]. They sought

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to defeat all nine counts of the complaint either by dismissal under Rule 12(b)(6) for failure to state a claim or under Rule 56 on summary judgment. Plaintiff opposed the motion, arguing that he had not yet had the opportunity to engage in discovery. See Pl.'s Opp'n [ECF No. 30]. He also filed a motion to disqualify the presiding judge. See Pl.'s Mot. to Disqualify [ECF No. 53].

The Court granted in part and denied in part the defendants' motion to dismiss or, in the alternative, for summary judgment. Ultimately, Moore's allegation of a hostile work environment based on age discrimination (Count IV) was the only claim that survived. All other claims were either dismissed or summary judgment was granted to the defendant. The Court also denied Moore's motion to disqualify the presiding judge.

Moore then filed the motion at hand to vacate that judgment. See Pl.'s Mot. to Vacate [ECF No. 63]. Further proceedings on Moore's remaining claim were stayed while the motion to vacate proceeded. See July 15, 2016, Minute Order. Moore also filed an appeal of the Court's June 17, 2016 Order. Notice of Appeal [ECF No. 76]. The D.C. Circuit dismissed the appeal for lack of jurisdiction because this Court's June 17 Order was neither a final order nor subject to interlocutory appeal. See Moore v. Castro, No. 16-5361, Order (D.C. Cir. Feb. 6, 2017) (per curiam) (nonprecedential) [ECF No. 82-1]. For the reasons explained below, Moore's motion to vacate will be denied.

LEGAL STANDARD

Moore has styled his request as a motion for relief under Federal Rules of Civil Procedure 60(b)(3) and 60(b)(4). The former permits relief from "a final judgment, order, or proceeding" for "fraud[,] . . . misrepresentation, or misconduct by an opposing party." Fed. R. Civ. P. 60(b)(3). The latter permits relief when "the judgment is void," id. at 60(b)(4), that is, when "the rendering

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court was powerless to enter it," Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008) (quoting Combs v. Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987)).

However, as the text plainly states, relief under Rule 60(b) is only available "from a final judgment, order, or proceeding." Fed. R. Civ. P. 60(b) (emphasis added); see also Isse v. Am. Univ., 544 F. Supp. 2d 25, 29 (D.D.C. 2008). The Court's June 17 Order was not final because it did not resolve all of Moore's claims. See Moore, No. 16-5361, Order (D.C. Cir. Feb. 6, 2017). Rule 60 is therefore not the proper vehicle for Moore to seek relief from the Court's judgment.

The Court will instead construe Moore's motion as one for reconsideration under Rule 54(b). A court may revise its own interlocutory orders "at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. P. 54(b); see also Cobell v. Jewell, 802 F.3d 12, 19 (D.C. Cir. 2015) (Rule 54(b) is the proper vehicle for reconsideration of an order "while a case is still ongoing in district court"). This will benefit, rather than harm, Moore because the standard for relief under Rule 54(b) is somewhat more lenient than that of Rule 60(b). See Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004).

Under Rule 54(b), a court may grant relief "as justice requires." Capitol Sprinkler Inspection, Inc. v. Guest Servs. Inc., 630 F.3d 217, 227 (D.C. Cir. 2011) (internal quotation marks omitted). Such instances include where a court has "patently misunderstood a party . . . 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, 224 F.R.D. at 272 (alteration in original) (internal quotation marks omitted). Whether to reconsider an order is at a court's discretion, and a court need not consider arguments that it has already rejected on the merits. See Capitol Sprinkler Inspection, 630 F.3d at 225, 227.

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ANALYSIS

Moore's motion relies primarily on arguments that were already raised and rejected on the merits in this Court's June 17 Memorandum Opinion. The Court will only briefly explain why none of these repeat arguments convince the Court to reconsider its earlier ruling.

I. The Motion to Disqualify

The Court's June 17 Order denied Moore's motion to disqualify the undersigned judge. See Moore, 192 F. Supp. 3d at 33-34. The motion to disqualify was based on Moore's belief that the Court was improperly biased against him. Under 28 U.S.C. § 455(a), a judge "shall disqualify himself [or herself] in any proceeding in which his [or her] impartiality might reasonably be questioned." This inquiry employs an "objective standard," probing whether "a reasonable and informed observer would question the judge's impartiality." United States v. Cordova, 806 F.3d 1085, 1092 (D.C. Cir. 2015) (internal quotation marks omitted).

The Court denied the motion because Moore only identified disagreements with the Court's case-management procedures, rather than actions...