Kline v. Springer ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VALERIE KLINE,
Plaintiff,
Case No. 1:07-cv-451-RCL
v.
KIRAN AHUJA, in her official capacity as
Director ofthe Office of Personnel
Management,
Defendant.
VALERIE KLINE,
Plaintiff,
Case No. 1:10-cv-1802-RCL
v.
KIRAN AHUJA, in her official capacity as
Director of the Office of Personnel
Management,
Defendant.
VALERIE KLINE,
Plaintiff,
Case No. 1:14-cv-1498-RCL
v.
KIRAN AHUJA, in her official capacity as
Director of the Office of Personnel
Management, et al.,
Defendants.
1
MEMORANDUM OPINION
On March 8, 2007, plaintiff Valerie Kline filed a lawsuit against her employers at the U.S.
Office of Personnel Management ("OPM"), alleging race and sex discrimination and retaliation
during her employment as an analyst. On March 13, 2009, the court granted defendant's motion
for summary judgment and the D.C. Circuit affirmed. Kline v. Springer, 602 F. Supp. 2d 234(D.D.C. 2009), aff'd sub nom., Kline v. Berry, 404 F. App'x 505 (D.C. Cir. 2010) ("Kline I"). But
that was only the first of four actions filed by plaintiff against her employers at OPM (collectively,
"OPM"). In all four actions, the Court entered judgment for OPM. Kline v. Archuleta, 102 F. Supp.
3d 24 (D.D.C. 2015), amended in part, No. 10-cv-1802 (RCL), 2015 WL 4064941 (D.D.C. July
1, 2015), aff'd sub nom. Kline v. Cobert, No. 15.:5226, 2016 WL 1272942 (D.C. Cir. Feb. 10,
2016) ("Kline IF'); Kline v. Archuleta, 99 F. Supp. 3d 1 (D.D.C.), amended in part, 309 F.R.D. 91(D.D.C. 2015), aff'd sub nom. Kline v. Cobert, No. 15-5248, 2016 WL 1272945 (D.C. Cir. Feb.
10, 2016) ("Kline III"); Kline v. Weichert, No. 1:16-cv-262-RCL, 2020 WL 2615528 (D.D.C. May
23, 2020), aff'd sub nom. Kline v. Ahuja, No. 20-5220, slip op. (D.C. Cir. Nov. 23, 2021) ("Kline
IV'').
On April 14, 2021, plaintiff moved to vacate and reopen the Court's final judgments in
favor of OPM in Kline I, II, and III. She argues that reopening is warranted based on new evidence
discovered during Kline IV and because the Court's prior judgments were the result of fraud on
the Court. OPM opposes. Plaintiffs motion, OPM's opposition, and plaintiffs reply in support of
her motion are identical in all three cases. 1 Upon consideration of the parties' filings, including
plaintiffs motion to reopen ("Pl.'s Mot."), OPM's opposition ("Def.'s Opp'n"), plaintiffs reply
1
See Kline I, No. 07-cv-451, ECF Nos. 87, 98, 10 I; Kline II, No. 10-cv-1802, ECF Nos. 162, 172, 175; Kline 111, No.
14-cv-1498, ECF Nos. 42, 52, 55.
2
in support of her motion ("Pl. 's Reply"), applicable law, and the entire record in these cases, the
Court will DENY Ms. Kline's motion for relief from judgement in Kline I, II, and III.
I. BACKGROUND
A. Factual Background
Plaintiffs four lawsuits (Kline I-IV) arise from a common factual background. In each, she
sued her employers at OPM, so the Court will refer to defendants collectively as OPM. 2 The
relevant facts are as follows.
In October 2002, OPM hired plaintiff as a GS-12 Management Analyst to perform
regulatory duties in its Publications Management Group ("PMG"). Kline II, 102 F. Supp. 3d. at
26. Plaintiffs position description ("PD") described that, "under the guidance of the Regulatory
Team Leader," she would be responsible for "executing the regulatory processing components of
the Regulatory Issuance System," "analyz[ing] and evaluat[ing] OPM's regulatory processes,"
. "and implement[ing] improvements to the Regulatory Issuance System." Kline 2002 Original PD
at 2, Kline III, No. 14-cv-1498 (D.D.C.), ECF No. 23-3 Ex. 2. In plaintiffs words, she "was hired
to perform regulatory work on a full-time basis for OPM's [PMG] and act as the 'backup' to
[Regulatory Team Leader] Jacqueline Carter." Kline II, 102 F. Supp. 3d. at 26.
In May 2003, however, plaintiffs PD was changed to include nonregulatory duties because
there were not enough regulatory duties to support both her and Carter. Id. (citing Kline 2003 PD
at 2, Kline II, No. 10-cv-1802 (D.D.C.) ECF No. 134-1 Ex. 4). Plaintiffs new PD "consist[ed]
primarily of publications duties," and "clearly reassigned her into a new, non-regulatory position."
Kline III, 99 F. Supp. 3d at 4. The new PD listed four major duties, only one of which involved
regulatory work: plaintiff was to "[a]ssist[] the Regulatory Team by performing activities related
2
The Court recognizes that, in Kline III, not all of the parties are necessarily directly associated with OPM.
3
to Regulatory Issuance by providing editorial review and interpretation of policy. 1' Kline II, 102 F.
Supp. 3d. at 26-27 (citing Kline 2003 PD at 2).
Notwithstanding that plaintiff agreed to her new position description, plaintiffs claims in
Kline I-IV all originate in part from her "dissatisfaction with her job requirements following her
reassignment." Kline III, 99 F. Supp. 3d at 1-2, 4. In particular, plaintiffs lawsuits stem from her
"obstinate-and unsupported-insistence that .her new position was still categorized as a
regulatory position or gave her primary responsibility of regulatory duties." Kline II, I 02 F. Supp.
3d. at 32.
1. Kline I
In Kline I; plaintiff sued OPM for discrimination and hostile work environment based on
three primary theories. See Kline I, 602 F. Supp. 2d at 238-39, 242--43. The court rejected each
theory and granted summary judgment to OPM. First, plaintiff argued that OPM had a
demonstrated track record of reverse race discrimination because white women employees were
allegedly underrepresented at OPM. Id. at 238-39. However, the court found that the statistics
introduced by plaintiff, "even if ... properly supported with record evidence," were insufficient
to sustain her discrimination action. Id. at 239 & n.2.
Next, plaintiff asserted that OPM created a hostile work environment and discriminated
against her when, "several years before she filed suit, [her supervisor] was 'flirty' with her, felt
spurned, and retaliated against her_when she ignored him." Id. at 243. Again, the court rejected
plaintiffs claims because her "unsubstantiated allegations and assumptions" were generally
"unsupported by record evidence, [we]re completely unconnected to impermissible motive, [we]re
not objectively offensive, or [we]re simply employee grievances completely untied to
discriminatory animus." Id.4
Finally, plaintiff argued that-OPM discriminated and retaliated against her through several
"adverse employment actions" after her PD changed in 2003. These alleged "adverse actions"
included OPM denying plaintiffs request to telework and a "bad" performance evaluation for
duties assigned to her under her new position. Id. at 239-40, 239 n.3; see Kline III, 99 F. Supp. 3d
at 2 (discussing the same). The court rejected plaintiffs contention that the telework denial resulted
from illicit race discrimination. Kline I, 602 F. Supp. 2d at 239-40. 3 Instead, the court determined
that the denial was consistent with plaintiffs 2003 PD change and the business needs of the
office-plaintiff "needed to be onsite to better complete her day-to-day assignments and, among
other things, to be available to customers and because of a lack of coverage in her absence." Id.The court likewise held that plaintiffs "fully successful"4 annual performance appraisal was
neither discriminatory nor retaliatory. Id. Besides finding that "plaintiffs assertions about her own
performance [we ]re self-serving[, ]unsupported[,] and . . . [did] not give rise to an inference of
impermissible motive," OPM had introduced "significant undisputed evidence in the record ...
that the plaintiff had been warned about her performance long before the issuance of the
evaluation," and deserved her evaluation. Id. at 240.
The D.C. Circuit affirmed in an unpublished opinion. Kline v. Berry, 404 Fed. App'x. 505
(D.C. Cir. 2010). The D.C. Circuit held that most of the alleged injuries were not actionable under
Title VII, that they did not result from illicit discrimination, and that OPM offered legitimate,
nondiscriminatory reasons for- plaintiffs mediocre performance evaluation. Id. at 505·.
3
For example, the court found unconvincing plaintiffs assertion that "an inference of [race] discrimination c[ould]
be drawn from the fact that Carter, a black female whose husband suffered several strokes, was allowed to telework."
Kline I, 602 F. Supp. 2d at 240. Carter was not similarly situated to plaintiff because Carter "was an employment
grade higher than the plaintiff and had different responsibilities, including review of the plaintiffs work." Id.4
Plaintiff argued she should have received an "Outstanding" evaluation. Kline I, 602 F. Supp. 2d at 240.
5
2. Kline II
In October 2010, plaintiff initiated her second action against OPM. In Kline II, plaintiff
argued that OPM retaliated against her by diminishing her substantive regulatory duties after she
returned from administrative leave in June 2006. 5 Kline II, 102 F. Supp. 3d at 28, 31-32. She
alleged that she was "constructively reassigned into a new non-regulatory and unclassified
position." Id. at 31 (internal quotation marks omitted).
This Court rejected plaintiffs claims and granted OPM's motion for summary judgment.
Id. First, the "allegations that [plaintiffs] work assignments were significantly changed after her
return from Administrative Leave [we ]re unsupported by the record." Id. at 32. The Court reasoned
I•
that:
"[e]ven before going on Administrative Leave, Ms. Kline did not
have primary responsibility over any regulatory work. While Ms.
Kline was initially hired as a GS-12 Management Analyst on the
Regulatory Team ... in October 2002, her updated PD from 2003
was very different. ... [The] updated PD clearly state[d] that she
was to perform mostly publications duties and assist the Regulatory
Team.
Id. at 32 (internal citations omitted). Even if plaintiff had suffered a diminution in duties, plaintiffs
"own testimony suggest[ed that] it was minor and therefore could not have been a materially
adverse consequence affecting the terms, conditions, or privileges of her employment." Id. at 33.
For example, plaintiff reported that "in the months before she was placed on Leave there were very
few regulations to process".and that "she had only four hours of work per week to perform." Id_.
at 33. In any event, OPM offered a "legitimate, non-discriminatory reason for any minor changes
in Ms. Kline's duties." Id. at 33-34.
5
Plaintiff was placed on administrative leave in April 2006 pending an investigation by the Inspector General's Office
into allegations that plaintiff was "using her work computer inappropriately and was attempting to procure weapons
and ammunition from someone she knew online." Kline fl, 102 F. Supp. 3d at 27.
6
Plaintiff also made several allegations about the hiring of Stephen Hickman, including that
"her regulatory duties were 'stripped from her' once Mr. Hickman came on board." Id. at 33. In
August 2006, PMG advertised a new, full-time GS-12 Management Analyst position focused on
regulatory work. Id. at 28. This position's PD was "virtually identical" to plaintiffs original PD.
Id. Hickman was hired into this position in October 2006. Id. The Court recognized in Kline II that
Hickman was hired "to take over Ms. Carter's duties when she retired," and that after he was hired,
Hickman took over from Carter the primary responsibility for the regulatory issuances program.
Id. at 32-33.
But the Court concluded that Hickman's hiring was "irrelevant" to the lawsuit. Id. at 33.
"Despite plaintiffs repeated assertations that her duties were transferred to ... Mr. Hickman, it is
an inescapable fact that Ms. Kline was not performing significant regulatory work even before she
went on Administrative Leave." Id. In light of that "inescapable fact" and because plaintiff"herself
admitted she did very little regulatory work even before her Administrative Leave," the Court held
that plaintiff "did not suffer an adverse employment action upon her return from [a]dministrative
[l]eave" and no reasonable jury could infer that she had been retaliated against. Id. at 35.
The D.C. Circuit summarily affirmed. Kline, 2016 WL 1272942, at* 1. The D.C. Circuit
concluded that plaintiff "ha[ d] not shown that she suffered an adverse employment action based
on the lack ofregulatory assignments when she returned from administrative leave." Id. And even
if plaintiff had suffered an adverse employment 8:ction, the D.C. Circuit reasoned that "she ha[d]
not produced sufficient evidence for a reasonable jury to find that the [OPM's] asserted non-
retaliatory reason for not giving her regulatory assignments was pretextual • and that [OPM]
retaliated against her." Id. .
7
3. Kline III
Meanwhile, in August 2014, plaintiff initiated yet another employment discrimination
action against OPM. This case, like her earlier two actions, stemmed from plaintiffs
dissatisfaction with her reassignment to a position consisting primarily of nonregulatory duties.
See Kline III, 99 F. Supp. 3d at 1-2. In Kline III, plaintiff brought a "failure to promote" claim and
alleged that OPM discriminated _or retaliated against her "by giving responsibility for the
regulatory issuances system" to Hickman instead ofto her. Id. at 1.
As mentioned above, in August 2006-and in anticipation of Carter's upcommg
retirement-OPM advertised a full-time regulatory, "GS-12-classified position nearly identical to
the one plaintiff applied for and was hired to fill in 2002." Id. The advertised position described
"full-time, substantive regulatory duties." Id. at 4. While plaintiff had agreed in 2003 to
reassignment to a revised PD consisting primarily of nonregulatory publication duties, plaintiff
failed to apply for the new position. Id. at 1. And in October 2006, OPM hired Hickman into the
GS-12 regulatory position. Id. at 2.
In 2008, OPM advertised a GS-13-level position, like that vacated by Carter upon her
retirement, with responsibility for managing the regulatory issuances system in USAJOBS. See id.
at 2. Hickman was ultimately promoted to this position. Id. 6
The Court granted summary judgment to OPM. Plaintiffs failure to promote claim was
based on her erroneous belief that the GS-12 regulatory position advertised in 2006 (to which
Hickman was hired) was "a kind of promotion rather than a different position," and that OPM was
obligated to "reassign" or "promote" plaintiff into that position without her having to apply. Id.
6
OPM's decision to hire Hickman instead of plaintiff for the GS-13 position forms the basis of plaintiffs fourth
lawsuit. See Kline IV, 2020 WL 2615528, at* 1.
8
But even if the GS-12 position was properly considered a promotion, the record demonstrated that
plaintiff was currently at the "full performance level" for her position, so she would only have
been eligible for promotion after applying and competing for the position. Id. at 3--4. She did not. ·
The Court also rejected plaintiffs "unsupported and unavailing" allegations that plaintiffs
supervisors verbally expressed that her position reassignment was "temporary" and that plaintiff
would "still assume responsibility for managing the regulatory issuances after Ms. Carter retired."
Id. at 3--4. The Court reasoned that plaintiffs PD, "which [wa]s undisputed, clearly reassigned her
into a new, non-regulatory position" and therefore, "despite her unsupported and subjective belief
to the contrary, [plaintiff] had no 'right' to be assigned primary responsibility ofregulatory duties."
Id. at 3.
Finally, the Court rejected plaintiffs assertion that "a GS-12 employee could not take over
Ms. Carter's duties, which were GS-13-level responsibilities." Id. at 4. Besides plaintiffs failure
to cite any law prohibiting such a practice, OPM introduced testimony that it was "normal practice
for Federal agencies to fill a position at a lower grade level than the previous incumbent." Id.
Indeed, plaintiff herself alleged that "when she was originally hired as a GS-12 employee-with a
nearly identical PD-it was with the intent that she take over Ms. Carter's duties when she retired."
Id. Because plaintiff failed to apply for the GS-12 regulatory position, "apparently still
misunderstanding the contours of her own, different, position," the Court determined that plaintiff
did not suffer any adverse action in this ca~e. Id.
The D.C. Circuit summarily affirmed. Kline, 2016 WL 1272945, at* 1. The D.C. Circuit
found that no "reasonable jury could infer discrimination or retaliation from [OPM's] decision to ·
assign another employee the responsibility of managing the Regulatory Issuances System." Id.(citations omitted). To the extent that plaintiffs claim of relation was based on OPM's failure to
9
advertise a GS-13 position in 2006, the D.C. Circuit found that plaintiff "offer[ed] no evidence
that suggests this decision was made to retaliate against her for engaging in protected activity." Id.
4. Kline IV
On February 16, 2016, plaintiff filed her fourth action against OPM, alleging age
discrimination, sex discrimination, and retaliation. Kline IV, 2020 WL 2615528, at * 1. In Kline IV,
plaintiff first alleged that she "was not selected for the GS.,..13 position"-Carter' s former position
for which Hickman was hired-"due to age and sex discrimination." Id. at *5.
On November 25, 2008, OPM advertised availability for a GS-13 Management Analyst
position. Id. at *2. Plaintiff and Hickman were the only two applicants. Id. Although plaintiff "had
believed that she would be assuming this position once the previous employee in that position,
Jacqueline Carter, retired," Hickman was ultimately selected for the position. Id. Plaintiff argued
that OPM's failure to select her for the GS-13 position was based on age and sex discrimination
because Hickman is "a male in his twenties." Id. at *6.
The Court granted OPM's motion for summary judgment. First, OPM provided "a
legitimate, non-discriminatory reason" for its choice-"Hickman had more experience with the
Federal Register and was highly recommended by his previous supervisor at the Federal Register."
Id. at *5. And plaintiff failed to establish that OPM' s rationale was pretextual: her only evidence
linking the adverse action to her age and sex other was Hickman's age and sex, which was not
enough. Id. a~ *6-7. The Court also rejected plaintiffs arguments that the failure to fill the GS-13
position two years earlier-when it first became vacant-violated the Administrative Procedure
Act ("APA"). Id. at *6. Because plaintiffs complaint did not assert an APA claim, the Court
reasoned that these allegations would only be relevant in the instant action if plaintiff showed .that
"the delay was specifically engineered to deny her the position based on her age and/or sex." Id.
But plaintiff"ha[d] not brought forth even a shred of evidence that this was the case." Id. Similarly,
the Court found "even if Mr. Hickman's GS-12 responsibilities did constitute an APA violation,"
plaintiff could not establish that OPM gave Hickman "this responsibility in order to prevent
[plaintiff] from ultimately getting the GS-13 position based on her sex and age." Id. 7
The D.C. Circuit affirmed in an unpublished opinion. Kline v. Ahuja, No. 20-5220, slip op.
at 1 (D.C. Cir. Nov. 23, 2021). The D.C. Circuit concluded that Kline did not provide "even a
shred of evidence" to support a reasonable inference that any of OPM's actions were "motivated
by discriminatory or retaliatory intent." Id. at 4 (citation omitted).
B. Kline's Present Motion
Plaintiff, invoking Federal Rules of Civil Procedure 60(b)(6) and 60(d)(3), now asks this
Court to set aside the more than five-year-old judgments in Kline I, 11, and III and reopen these
cases for a trial on the merits. See Pl. 's Mot. 35. Her motion invokes three main theories. First,
plaintiff argues that Kline I should be reopened-based on the "totality of the circumstances." Id. at
12. In her view, the totality of the circumstances includes "the allegations and outcomes of Kline
II, III, and IV," and "the current lens with which sexual harassment cases are viewed," which stems
from "the awareness brought on by the Me Too movement, of the prevalence of sexual and other
forms of harassment and discrimination and retaliation in the workplace." Id. at 12.
Next, plaintiff argues that Kline II and III should be reopened because the Court's prior
rulings against her were a product of misrepresentations and "fraud on the court" perpetrated by
OPM's attorneys. Id. at 12-25. OPM's alleged misrepresentations in Kline II and III all relate to
Hickman's hiring in 2006. Id. at 10-11. While her allegations are sometimes unclear (and often
7
The Court also granted summary judgment to OPM on plaintiffs other counts, which are not relevant to the present
motion.
11
repetitive), plaintiff contends that OPM or its counsel misrepresented: (1) that Hickman "was not
hired as a GS-12 in 2006 to take over for Carter," id.; (2) that Hickman neither took over nor was
"promoted" to Carter's position in 2006, id. at 10-11, 15; and (3) that Carter's "Team Leader
position was not filled until 2008 and that Hickman did not take over for Carter until 2008," id. at
14-15. Plaintiff also claims that ·OPM's false representations led the Court to wrongfully adopt
OPM' s characterizations of her claims in Kline II and III. Id. at 19-24.
Plaintiffs third theory builds on her second-she argues that OPM allegedly "admitted"
the falsity of its prior representations during the Kline IV litigation and that OPM's admissions
constitute an "extraordinary circumstance" warranting reopening. Id. at 26-30. The first alleged
admission is found in OPM's motion for summary-judgment, which states that Hickman "was in
charge of managing the Regulatory System" in his role GS-12 Management Analyst. Id. The
second is found in OPM's statement of undisputed material facts, which state_s that "Hickman's
position was a full-time regulatory position on the Regulatory Team of the PMG, and ·his
responsibilities included managing the Regulatory Issuance System [RIS], analyzing legislation
and processing documents to upload to the system." Id. at 26-28. These statements apparently
contradict OPM's representations in Kline II and III that "Carter's Team Leader position was not
filled until 2008," "that Hickman did not take over for Carter until 2008," and that "Hickman did
not assume [Carter's] position [in 2006]." Id. at 28. Plaintiff argues that these statements amount
to an "extraordinary circumstance" that justifies relief under Rule 60(b)(6), and evidence that OPM
committed fraud on the court in Kline II and III. Id.
OPM opposes plaintiffs request. See Def. 's Opp'n. First, OPM contends that there are no
extraordinary circumstances warranting relief in Kline I .Id. at 5-6. Next, OPM argues that
plaintiffs motion is time-barred. See, e.g., id. at 7-9. Finally, OPM argues that plaintiff fails to
12
show any fraud or misrepresentations, which in any event, are not valid grounds for relief under
Rule 60(b)( 6). See id. at 9-14. Plaintiff filed a reply in support of her request and responding to
OPM's arguments. See Pl.'s Reply.
Plaintiffs arguments are meritless. Her "new" evidence has already been thoroughly
considered and rejected by the Court. And plaintiff fails to establish the falsity of OPM's
representations in Kline II and III, let alone demonstrate that the representations rise to the level
of "fraud on the court" or an "extraordinary circumstance." Her motion must be denied.
II. LEGAL STANDARD
A. Rule 60(b )(6)
. Federal Rule of Civil Procedure 60(b) authorizes a court to relieve a party from a previous
judgment or order for six enumerated reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct by an
opposing party; (4) a void judgment; (5) a satisfied, released, or discharged judgment; or (6) "any
other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b). Relief
under Rule 60(b)(6) is available only if the motion "is not premised on one of the grounds for relief
enumerated in clauses (b)(l) through (b)(5)." Liljeberg v. Health Servs. Acquisition Corp.,
486 U.S. 847, 863 (1988).
A motion brought under any clause of Rule 60(b) "must be made within a reasonable time,
which, for reasons (1), (2), and (3) [means] no more than a year after the entry of the judgment or
order." Austin v. Donahoe, 307 F.R.D. 264, 266 (D.D.C. 2014) (citing Fed. R. Civ. P. 60(c)(l))
(internal quotation marks omitted). Motions invoking any of the latter three grounds for Rule 60(b)
relief have no specific time limit but must be brought within a "reasonable time," which depends
on the facts and circumstances of the case. See Salazar ex rel. Salazar v. District of Columbia, 633
F.3d 1110, 1116, 1118 n.5 (D.C. Cir. 2011). The D.C. Circuit will consider prejudice to the
13
nonmoving party as a factor in determining whether a Rule 60(b) motion was ·timely filed. See id.
at 1120. But lack of prejudice does not make a motion timely. See Carvajal v. Drug Enf't Admin.,
286 F.R.D. 23, 27-28 (D.D.C. 2012) (citing In re Sealed Case (Bowles), 624 F.3d 482,487 (D.C.
Cir. 2010)). And because the provisions of Rule 60(b) are "mutually exclusive," Rule 60(b)(6)
· cannot be used to avoid the one-year limitation applicable to subsections (1)-(3). Salazar, 633
F.3d at 1116 (citations omitted); see Liljeberg, 486 U.S. at 863 & n.11.
A movant seeking relief under Rule 60(b )( 6) bears the additional burden of demonstrating
"extraordinary circumstances" that justify the reopening of a final judgment. Gonzalez v. Crosby,
545 U.S. 524,535 (2005). This requirement imposes a "very high bar." Kramer·v. Gates, 481 F.3d
788, 792 (D.C. Cir. 2007). Indeed, while "a district court enjoys significant discretion in deciding
whether to grant or deny a Rule 60(b) motion," Comput. Pros. for Soc. Resp. v. US. Secret Serv.,
72 F.3d 897,903 (D.C. Cir. 1996); the D.C. Circuit has cautioned that Rule 60(b)(6) "should be
only·sparingly used," Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C. Cir.
1988). A motion brought under Rule 60(b )(6) "is not an opportunity for unsuccessful litigants to
take a mulligan." Kramer, 481 F.3d at 792. Instead, the movant must make a sufficiently
"compelling showing of inequity or hardship." Twelve John Does, 841 F.2d at 1140. The Court
may consider a "wide range of factors," including "the risk of injustice to the parties," the "risk of
undermining the public's confidence in the judicial process," Buck v. Davis, 137 S. Ct. 759, 778
(2017) (quoting-Liljeberg, 486 U.S. at 863-64); and the "litigant's diligence in pursuing review of
a decision," Salazar, 633 F.3d at 1118-19 (citing Gonzalez, 545 U.S. at 537).
· B. Rule 60(d)(3)
Plaintiff has also moved for relief pursuant .to Rule 60( d)(3 ), which .acknowledges the
Court's authority "to set aside a judgment for fraud on the court." Fed. R. Civ. P. 60(d)(3).
14
Although the "reasonable time" requirement imposed by Rule 60(c)( 1) is not applicable to Rule
60(d)(3), Rule 60(d)(3) is much more limited in scope than Rule 60(b)(3) and only applies in "very
unusual cases." Jordan v: US. Dep 't of Lab., 331 F.R.D. 444, 451 (D.D.C. 2019), ajf'd, No. 19-
5201, 2020 WL 283003 (D.C. Cir. Jan. 16, 2020). "Although the requirements for a successful
claim of fraud on the court elude precise definition, several guiding principles emerge from the
case law." Bowie v. Maddox, 677 F. Supp. 2d 276,278 (D.D.C. 2010).
First, the fraud must be "egregious." More v. Lew, 34 F. Supp. 3d 23, 28 (D.D.C. 2014)
(citation omitted). In Baltia Air Lines, Inc. v. Transaction Management., Inc., the D.C. Circuit
explained that
[f]raud on the court ... is fraud which is directed to the judicial
· machinery itself and is not fraud between the parties or fraudulent
documents, false statements or perjury. Fraud upon the court refers
only to very unusual cases involving far more than an injury to a
single litigant. Examples include the bribery of a judge or the
knowing particip98 F.3d 640, 642--43 (D.C. Cir. 1996). Stated differently, the inquiry asks whether the alleged
fraud constitutes a "deliberate scheme to directly subvert the judicial process." Great Coastal
Express, Inc. v. Int'l Bhd. Of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982). Second, "[a]n
indispensable element is that the fraud prevented a party from presenting his case." Bowie, 677 F.
Supp. 2d at 279 (citation omitted). Finally, "the extraordinary step of setting aside a judgment
requires 'clear and convincing' evidence of fraud on the court." Id. (citing Shepherd v. Am. Broad.
Cos., 62 F.3d 1469, 1476-77 (D.C. Cir. 1995)).
With these lofty requirements in mind, it may be obvious that "[a] plaintiff cannot assert
fraud or fraud on the court simply because [s]he disagrees with the rulings of this Court and of the
D.C. Circuit." Jordan, 331 F.R.D. at 452.
15
III. ANALYSIS
. . .
The motion before the Court presents nothing more than an attempt to relitigate claims and
arguments that this Court has already rejected. Plaintiffs motion falls well short of the high bar
imposed by Rule 60(b)(6) for "extraordinary circumstances" and 60(d)(3) for "fraud on the court."
As explained in the following analysis, the Court will deny her request for relief from judgment in
. .
Kline I, II, '1nd Ill.
A. Plaintiff Is Not Entitled To Relief From The Judgment In Kline I
Plaintiff argues that Kline · I "should be reopened and consolidated with the other Kline
cases" to "incorporate by reference the allegations and outcomes of Kline II, Ill, and IV'' and to·
consider both "the pertinent record and evidence as a whole" and "the current lens with which
sexual harassment cases are viewed." Pl.' s Mot. 12. Plaintiff believes that consideration of the
"totality of circumstances" justifies this Court's undoing the judgment in Kline I "on at least the
hostile work environment claim, that the complained of actions were not severe or pervasive
enough." Id.
Plaintiff has not met her burden to establish that the Court's judgment in Kline I should be
set aside. Plaintiff fails to explain, and the Court does not see, how either Rule 60(b )( 6) or Rule
60(d)(3) provide a basis for plaintiffs requested relief. The essence of plaintiffs claim is that the
Court made a legal error when it "found the numerous complained of issues to be trivial or
unsupported by the record, without holding any evidentiary hearing to resolve disputed facts." Id.
at 12. However, plaintiffs mere discontent with this Court's ruling is not a valid basis for relief
under Rule 60(b)(6) or Rule 60(d)(3). See Jordan, 331 F.R.D. at 452.
B. Plaintiff Is Not Entitled To Relief From The Judgments In Kline II And III
The Court will also deny plaintiffs motion for relief from the judgments in Kline II and
III Plaintiff argues that OPM and its counsel perpetrated a fraud on the court by misleading the
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Court about the circumstances surrounding Hickman's hiring, the nature of the position at issue,
and plaintiff's overall claims in the earlier actions. Pl.' s Mot. 10-11. Her arguments fail.
1. Plaintifrs motion fails under Rule 60(b)(6)
Though the basis of plaintiff's motion is clearly fraud and misrepresentation by OPM and
OPM's attorneys, she relies on Fed. R. Civ. P. 60(b)(6) and 60(d)(3), rather than 60(b)(3), which
provides for relief on the basis of "fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party." Fed. R. Civ. P. 60(b)(3). Unlike motions
invoking Rule 60(b)(6), which must be filed within a "reasonable time," a Rule 60(b)(3) motion
must be filed no more than a year after the entry of judgment. Fed. R. Civ. P. 60(c)(l). A motion
cannot be filed pursuant to Rule 60(b)(6) if it is premised on one of the other enumerated bases for
relief. See Liljeberg, 486 U.S. at 863.
Here, plaintiff invokes OPM's alleged "fraud," which would be encompassed by Rule
-60(b)(3). But the provisions of Rule 60(b) are "mutually exclusive," Salazar ex rel. Salazar, 633
F .3d at 1116, and the Court can think of no reason why plaintiff would file a motion pursuant to
Rule 60(b)(6)'s residual clause other than to circumvent the timing requirements of Rule 60(c).
That alone is sufficient to deny plaintiff's motion. Plaintiff's allegations of false representations
and fraud by OPM and OPM's counsel fall squarely under Rule 60(b)(3), and thus cannot provide
a basis for relief under Rule 60(b)(6) now that the one-year limitation has passed. See, e.g., Fed.
R. Civ. P. 60(b)(3); 11 Charles Alan \Yright & Arthur R. Miller, Federal Practice & Pro[!edure
§ 2864 (3d ed.) (distinguishing fraud that may be cognizable under Rule 60(b)(6) with fraud
cognizable underRule 60(b)(3)).
Even if the Court were to consider plaintiff's motion, she has Jiot met her burden to
demonstrate the "extraordinary circumstances" required for relief under Rule 60(b)(6). Indeed,
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plaintiff has failed to show any false representations of the type required to support a claim of
fraud. Plaintiff argues that OPM's statements in Kline IV regarding Hickman's hiring in 2006 as a
GS-12 Management Analyst and the position he occupied until he was promoted to a GS-13 role'
in December 2008 contradict OPM' s prior representations in the Kline 11 and JI! litigation. Pl.' s
Mot. 27. Plaintiff correctly observes that, in Kline IV, OPM stated that at the time Hickman was
hired in 2006, his "position was a full-time regulatory position on the Regulatory Team of the
PMG, and his responsibilities included managing the Regulatory Issuance System [RIS]." Id.
Plaintiff is mistaken that these statements contradict OPM' s representations in·Kline 11 and Kline
III "that Hickman had not assumed Carter's position for managing the RIS." Indeed, in Kline 11
and 111, OPM represented, and this Court found, exactly that: Hickman took over Carter's
responsibility for managing the regulatory issuances program when he was hired in October 2006.
See Kline 11, 102 F. Supp. 3d at 32 ("Ms. Carter ... had primary responsibility for the regulatory
issuances program in the PMG. After Mr. Hickman was hired, he had primary responsibility of the
regulatory issuance." (internal citation omitted)); Kline 111, 99 F. Supp. 3d at 2-4 (explaining that
"[i]n 2006, in preparation for Ms. Carter's retirement, OPM advertised a GS-12-classified
position" which was a "full-time regulatory position" that "focused almost exclusively on the
regulatory issuances program of the PMG" (internal quotation marks omitted))
Plaintiff fails now, as she did when this Court decided Kline 111, to demonstrate that when
Hickman .assumed responsibility for managing the regulatory issuances he necessarily "filled
Carter's Team Leader position in 2006 upon her retirement." Pl. 's Mot. 28; Kline 111, 99 F. Supp.
3d at 4 (rejecting plaintiff's argument ':that a GS-12 employee could not take over Ms. Carter's
duties, which were GS-13-level responsibilities"). OPM's so-called "admission" in Kline.IV that
"Hickman assumed Carter's duties immediately after she retired," Pl. 's Mot. 10, does not establish
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that "Hickman was de facto promoted to the Team Leader position in 2006 and de facto assumed
Carter's position in 2006 immediately after she retired." Id. at 28. Plaintiff erroneously conflates
Hickman's regulatory duties with Carter's leadership role.
Even if plaintiff could have sought relief under Rule 60(b)(6) based on OPM's alleged
misrepresentations, plaintiff fails to establi_sh that OPM's prior representations are false. Th~s,
plaintiff cannot demonstrate the necessary "extraordinary circumstances" and her motion under .
Rule 60(b)(6) shall be denied.
2. Plaintiff's motion fails under Rule 60(d)(3)
Plaintiffs request for relief under Rule 60(d)(3) must also be denied. None of plaintiffs
allegations meet the high bar required to demonstrate fraud on the court, which is "rarely warranted
and is typically confined to the most egregious cases ... in which the integrity of the court and its
ability to function impartially is directly impinged." More, 34 F. Supp. 3d at 28 (internal quotation
marks omitted). Plaintiff not only fails to -provide clear and convincing evidence that OPM's
conduct rises to the level of fraud on the court, she provides no evidence of fraud at all.
First, plaintiff argues that OPM perpetrated fraud on the court by failing to admit "that it
hired Hickman to do the duties associated with taking over for Carter immediately after she retired
in 2006." Pl. 's Mot. 10. But plaintiff provides no evidence that OPM's earlier representations were
false. Indeed, in Kline 11 and Kline III, this Court recognized that "Mr. Hickman was hired to take
over Ms. Carter's duties when she retired." Kline II, 102 F._Supp.3d at 32; see Kline III, 99 F. Supp.
3d at 2; see also supra.
Next, plaintiff asserts that OPM committed fraud on the Court in Kline II and 111 by
"represent[ing], albeit falsely, that Carter's Team Leader position was not filled until 2008 and
that Hickman did not take over for Carter until 2008." Pl. 's Mot. 27. As support for this allegation
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plaintiff points to the alleged "truth" that OPM admitted in Kline JV: "that Hickman did in fact
take over Carter's Team Leader 'managing' responsibilities immediately after Carter's retirement
in 2006." Pl. 's Mot. 10. Plaintiffs semantic games are unavailing. OPM's so-called "admission"
in Kline IV refers to Mr. Hickman's responsibility for "managing" the Regulatory Issuances
System-which does not contradict OPM's prior statements. See Kline II, 102 F. Supp. 3d at 32
(':After Mr. Hickman was hired, he had primary responsibility of these regulatory issuances.").
And despite plaintiffs insistence to the contrary, assigning Hickman responsibility for "managing
the RIS as a GS-12 .in 2006" is not clear and .convincing evidence thatOPM promoted Hickman
into Carter's GS-13 Team Leader "management" position·in 2006. See Pl. 's Mot. 13..:._16. Plaintiffs
bare allegations and word games do not establish that OPM perpetrated fraud on the court. Yet
again, plaintiff erroneously conflates Hickman's regulatory duties with Carter's leadership role.
Plaintiff next argues that OPM mischaracterized the nature and substance of her argument
in Kline Ill. See id. at 23 (alleging that OPM "omitted the word 'primary' in order to fraudulently
represent that Kline[] was complaining about not being hired into the GS-12 position that Hickman
was hired to fill rather than Kline's actual claim that she was not given Carter's Team Leader
position for 'primary [lead] responsibility for regulatory assignments' after she retired"). This too
falls far short of proving "fraud on the court." Beyond her speculative assertions as to the OPM's
bad faith, plaintiff offers no proof that OPM's alleged "misrepresentations" were backed by fraud.
See Jordan, 331 F.R.D. at 452. At most, plaintiff has demonstrated that she disputes OPM's
position on a substantive issue in Kline Ill. However, plaintiff cannot relitigate the merits of those
issues now by claiming that OPM committed "fraud on the court" in merely arguing its case. Id.
("It has long been the rule in this Circuit that 'a motion for relief from judgment on the ground of
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misrepresentation will be denied if it is merely an attempt to relitigate the case[.]"' (quoting Am.
Cetacean Soc. v. Smart, 673 F. Supp. 1102, 1105 (D.D.C. 1987))).
Finally, even if there was some perjured testimony offered or misrepresentation in this
case-and there is not-plaintiff has failed to show such egregious fraud that the Court could
conclude that OPM's misconduct was a "deliberate scheme to ~irectly subvert the judicial process"
affecting more than just her. Great Coastal Express, 675 F.2d at 1356. And plaintiff has been
disputing these same arguments for years, so the Court is not convinced that the alleged fraud here
prevented her from presenting her case. See Bowie, 677 F. Supp. 2d.at 279.
Plaintiff fails to prove even the falsity of OPM's representations in Kline II and III, let
alone clearly and convincingly show that any intentional misconduct occurred. Accordingly,
plaintiffs allegations do not establish a fraud on the court and her motion under Rule 60(d)(3)
shall be denied.
IV. CONCLUSION
Based on the foregoing, the Court will DENY Ms. Kline's motion to reopen by separate
order.
Date: November '1--"f, 2021 Royce C. Lamberth
United States District Judge
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