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Hecht v. Hargan

United States District Court, D. Maryland, Southern Division

January 13, 2020

ELAINE HECHT, Plaintiff,
ERIC D. HARGAN, Acting Secretary, U.S. Department of Health and Human Services Defendant.



         Plaintiff Elaine Hecht (“Plaintiff”) moves for reconsideration of the Court's dismissal of her Complaint in this case on February 8, 2019. ECF No. 11. Hecht contends that the Court's Opinion made an error of law, or alternatively requests leave to amend her complaint. No. hearing is necessary. See Loc. Rule 105.6. (D. Md.). For the following reasons, the Court will deny the Motion for Reconsideration and the request for leave to amend the Complaint.

         I. BACKGROUND

         Plaintiff Elaine Hecht is employed by the U.S. Department of Health and Human Services (“HHS”) at its HIV/AIDS Bureau in Rockville, Maryland and has more than thirty-five years of federal service. ECF No. 1 ¶ 6. Her Complaint alleges that HHS violated her rights under the Due Process Clause of the Fifth Amendment through a litany of transgressions by various supervisors and managers. See Id. ¶¶ 30-31. The allegations center on claims that various senior employees deprived Plaintiff of responsibilities and duties commensurate with her position, insisted that she be treated as a lower level employee, and obstructed her efforts to be promoted. See id.

         In a Memorandum Opinion issued on February 8, 2019, ECF No. 9, the Court dismissed Plaintiff's Complaint without prejudice on the ground that she had not exhausted the administrative remedies available to her under the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq. (“CSRA”), before filing her Complaint. The Complaint offered only the bare allegation, without elaboration or factual support, that Plaintiff had exhausted her administrative remedies. ECF No. 9 at 3 (citing ECF No. 1 ¶ 2).[1] The Court accordingly dismissed the Complaint for lack of subject matter jurisdiction. Id. at 3-4.

         On March 8, 2019, Plaintiff filed the pending Motion for Reconsideration of the Court's February 8, 2019 opinion under Federal Rule of Civil Procedure 59(e). ECF No. 11 at 1. Defendant, Secretary of Health and Human Services Alex M. Azar II, [2] filed an Opposition to the Motion on March 22, 2019. ECF No. 12. Plaintiff filed a Reply on April 19, 2019. ECF No. 14.


         A motion to reconsider under Federal Rule of Civil Procedure 59(e) “may only be granted in three situations: ‘(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.'” Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (quoting Zinkand v. Brown, 478 F.3d 634, 637 (4th Cir. 2007)). “Clear error or manifest injustice occurs where a court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension.” Letren v. Arch Bay Holdings, LLC, No. GJH-15-622, 2016 WL 8673871, at *2 (D. Md. Dec. 16, 2016) (quoting Wagner v. Warden, No. ELH-14-791, 2016 WL 1169937, at *3 (D. Md. Mar. 24, 2016)). Rule 59(e) reconsideration “is an extraordinary remedy that should be applied sparingly.” Mayfield, 674 F.3d at 378 (citing EEOC v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir. 1997)). “A Rule 59(e) motion ‘may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'” Letren, 2016 WL 8673871, at *2 (quoting Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)). “‘[M]ere disagreement' with the court's ruling does not support a motion to alter or amend the judgment.” Id. (alteration in original) (quoting Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993)).

         Federal Rule of Civil Procedure Rule 15(a) “provide[s] that ‘leave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.'” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citing Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)). “[A] district court may not deny such a motion simply because it has entered judgment against the plaintiff-be it a judgment of dismissal, a summary judgment, or a judgment after a trial on the merits.” Id. at 427. “Instead, a post-judgment motion to amend is evaluated under the same legal standard as a similar motion filed before judgment was entered-for prejudice, bad faith, or futility.” Id.[3] “Futility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards: ‘[A] district court may deny leave if amending the complaint would be futile-that is, if the proposed amended complaint fails to satisfy the requirements of the federal rules.'” Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011) (alteration in original) (quoting United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)).


         Plaintiff argues that the Court made a clear error of law in its description of the statutory regime for administrative and judicial review of federal employment disputes. ECF No. 11 at 2. In her Reply, Plaintiff claims that the Court engaged in a “logical fallacy” by creating a “false dichotomy” in its description of this regime. ECF No. 14 at 6. The Court will review in some detail the components of the governing framework to demonstrate why Plaintiff is mistaken.

         As the Court noted in its Memorandum Opinion, quoting the Supreme Court, the CSRA “established a comprehensive system for reviewing personnel action taken against federal employees.” ECF No. 9 at 2 (quoting Elgin v. Dep't of Treasury, 567 U.S. 1, 5 (2012)). “Congress intended that the CSRA would operate to the exclusion of all other statutory remedies for claims arising out of the federal employment relationship.” Hall v. Clinton, 235 F.3d 202, 206 (4th Cir. 2000). “The CSRA provides different remedial schemes depending on the severity of the personnel action at issue.” Fleming v. Spencer, 718 Fed.Appx. 185, 186 (4th Cir. 2018). “For major personnel actions, such as termination, an employee is entitled to appeal the agency's decision directly to the Merit Systems Protection Board (‘MSPB').” Id. (citing 5 U.S.C. § 7513(d)); see 5 U.S.C. § 7512 (listing the covered major personnel actions that are directly appealable). Actions subject to direct MSPB review are known as “adverse actions.” See Rocha v. Merit Sys. Prot. Bd., 688 F.3d 1307, 1311 (Fed. Cir. 2012).

         “Less serious employment decisions are not directly appealable to the MSPB.” Fleming, 718 Fed.Appx. at 186. They are instead under the purview of the U.S. Office of Special Counsel (“OSC”), which must “receive and investigate allegations of prohibited personnel practices” and take corrective action “where appropriate.” 5 U.S.C. § 1212(a); see Id. § 1214(a). “Prohibited personnel practices” include fourteen categories of actions enumerated at 5 U.S.C. § 2302(b). The list contains a catch-all provision stating that it is a prohibited personnel practice to “take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.” Id. § 2302(b)(12).

         The “merit systems principles” include that “[a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.” Id. § 2301(b)(2). Accordingly, violating the constitutional rights of a federal agency employee is a prohibited personnel practice within the jurisdiction of the OSC. Fleming, 718 Fed.Appx. at 186 (citing Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1432 (D.C. Cir. 1996)). “When an employee raises a constitutional challenge, the OSC must investigate the allegation ‘to determine whether there are reasonable grounds' to believe that a violation has occurred.” Id. (citing 5 U.S.C. § 1214(a)(1)(A), (b)(2)(A)). “Congress clearly intended for the OSC to handle constitutional ...

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