United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
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
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.
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). The Court accordingly dismissed the
Complaint for lack of subject matter jurisdiction.
Id. at 3-4.
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,  filed an Opposition to the Motion on March
22, 2019. ECF No. 12. Plaintiff filed a Reply on April 19,
2019. ECF No. 14.
STANDARD OF REVIEW
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)).
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. “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)).
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
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.
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).
“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