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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT DAVIS, 

Plaintiff, 

v. 

PROFESSIONAL REPRESENTATIVES 

ORGANIZATION, ET. AL., 

Defendants. 

Case No. 15-10767 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

R. STEVEN WHALEN

 / 

ORDER DENYING MOTION FOR RECONSIDERATION [76] 

 On March 28, 2016, Plaintiff filed an Emergency Motion for 

Reconsideration Pursuant to Local Rule 7.1(h) and to Alter or Amend the Court’s 

Judgment pursuant to Fed. R. Civ. P. 59(e) and for Relief from Judgment Pursuant 

to Fed. R. Civ. P. 60(b)(2). For the reasons stated below, this Motion is DENIED. 

1. STANDARD OF REVIEW

Local Rule 7.1(h)(3) provides that: 

Generally, and without restricting the court’s discretion, the 

court will not grant motions for rehearing or reconsideration 

that merely present the same issues ruled upon by the court, 

either expressly or by reasonable implication. The movant must 

not only demonstrate a palpable defect by which the court and 

the parties and other persons entitled to be heard on the motion 

have been misled but also show that correcting the defect will 

result in a different disposition of the case. 

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See Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir. 

2003) (A motion for reconsideration is granted only “if the movant demonstrates 

that the district court and the parties have been misled by a palpable defect, and 

correcting the defect will result in a different disposition of the case”). “A palpable 

defect is a defect which is obvious, clear, unmistakable, manifest or plain.” Fleck 

v. Titan Tire Corp., 177 F. Supp. 2d 605, 624 (E.D. Mich. 2001) (internal citations 

and quotations omitted). “The decision whether to grant reconsideration lies 

largely within the discretion of the court.” Yuba Natural Res., Inc. v. United States, 

904 F.2d 1577, 1583 (Fed. Cir. 1990). 

Per Fed. R. Civ. P. Rule 59(e), a movant may file a Motion to alter or amend 

judgment within 28 days of the entry of the judgment. A Court may grant relief 

under Rule 59(e) for the following reasons: 

(1) because of an intervening change in the controlling law; (2) 

because evidence not previously available has become available; 

(3) to correct a clear error of law; or (4) to prevent manifest 

injustice.” 

Hayes v. Norfolk S. Corp., 25 F. App'x 308, 315 (6th Cir.2001). 

Fed. R. Civ. P. 60(b) provides: 

On motion and just terms, the court may relieve a party or its legal 

representative from a final judgment, order, or proceeding for the 

following reasons: 

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(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable diligence, 

could not have been discovered in time to move for a new trial 

under Rule 59(b); 

(3) fraud (whether previously called intrinsic or extrinsic), 

misrepresentation, or misconduct by an opposing party; 

(4) the judgment is void; 

(5) the judgment has been satisfied, released or discharged; it is 

based on an earlier judgment that has been reversed or vacated; 

or applying it prospectively is no longer equitable; or 

(6) any other reason that justifies relief. 

To prevail on a Rule 60(b)(2) motion, a movant must show that they “exercised 

due diligence in obtaining the information” and that “the evidence is material and 

controlling and clearly would have produced a different result if presented before 

the original judgment.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 615 (6th 

Cir.2012). 

2. ANALYSIS

Plaintiff requests that judgment be reversed based on newly discovered 

evidence contained in a letter from a Mr. Burg on March 23, 2016 and an error of 

law concerning Court’s interpretation of 29 U.S.C. § 504. 

Plaintiff introduces as new evidence an email conversation with Mr. Burg 

who works at the Office of Labor-Management Standards at the Department of 

Labor. These email exchanges do not point to new evidence that would lead the 

Court to reverse the judgment entered on March 16, 2016. The emails inform 

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Plaintiff that his ban begins on the date of his release from imprisonment. This date 

is used to start the ban merely because, as the letter explicitly states, the ban begins 

at the date of conviction or the date of after the end of imprisonment, whichever is 

the later date [76-2]. There is no indication that by choosing the later start date, the 

other possible start date of the ban, or the time of conviction, becomes 

meaningless. 

The Court maintains its previous position that there is no indication that this 

is anything other than a calculation based on duration of the ban. This distinction 

makes sense since the purpose of the statute is to keep those convicted of certain 

offenses out of union positions until they are rehabilitated. Considering these aims, 

it is logical to distinguish the duration of the ban for those convicted and not 

imprisoned and those who are convicted and subsequently imprisoned, because the 

time served might equal the time of the ban. It would be antithetical to the purpose 

of the ban to allow those just released from prison and still under the terms of 

probation to be able to serve in a union before they have shown outside of prison 

that they are fully rehabilitated. Additionally, if the Court were to take Plaintiff’s 

position concerning this letter, then those convicted would not be barred from 

working for the union after convicted but before place in prison or while still in 

prison, which would be completely illogical. Therefore, the Court maintains its 

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previous position concerning the ban, and maintains that Defendant could 

terminate Plaintiff legally under § 504 at the time of the plea, which the Court 

interprets to be time of conviction, rather than only once Plaintiff was released 

from prison. 

Additionally, the Court is not bound to give the evidence presented Chevron

deference as Plaintiff argues. Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984). The emails between Plaintiff and a District 

Director for the U.S. Department of Labor do not purport to be “official” agency 

determinations. According to the Supreme Court: 

administrative implementation of a particular statutory provision 

qualifies for Chevron deference when it appears that Congress 

delegated authority to the agency generally to make rules carrying the 

force of law, and that the agency interpretation claiming deference 

was promulgated in the exercise of that authority. 

United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). The evidence offered 

by Plaintiff are merely emails without any indication of procedure or formality 

indicative of rule-making, or a similar process that would afford it such Chevron

deference. Under the ruling of Mead, the emails that Plaintiff presents are not 

entitled to Chevron deference but are instead due consideration under the standard 

stated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). Id at 227. 

When considering an agency’s interpretation under Skidmore: 

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The weight [accorded to an administrative] judgment in a particular 

case will depend upon the thoroughness evident in its consideration, 

the validity of its reasoning, its consistency with earlier and later 

pronouncements, and all those factors which give it power to 

persuade, if lacking power to control.” 

United States v. Mead Corp., 533 U.S. 218, 228, 121 S. Ct. 2164, 2172, 150 L. Ed. 

2d 292 (2001) (citing Skidmore at 140). Under Skidmore, the Court finds that the 

position in the email that “conviction” in the statute is the date someone is 

sentenced not persuasive. There is no thoroughness evident in the emails; there is 

no reasoning presented, or agency authority cited, in the email for the proposition 

advanced by Mr. Burg to support the validity of his reasoning. Additionally, this 

statement is contradictive of the information provided on the agency’s website, still 

current today, which states that for the purposes of §504, the term “judgment of 

conviction” “includes a finding or plea of guilty, or an equivalent procedure, such 

as a plea of no contest to a disqualifying crime described in §504, and a sentence or 

other punitive disposition of the case by the trial court.” 

 Because the Court finds the Plaintiff ‘s position that emails presented are 

new evidence unpersuasive, the Court declines to adopt the position offered in the 

letters. The new evidence is not enough to persuade the Court to afford the § 504 a 

narrower interpretation than any Court has ever given it. Across the country, 

Courts have consistently given the statute the same broad interpretation advanced 

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in the Order Granting Defendant’s Motion to Dismiss [74] and have not been 

overturned on appeal. Plaintiff argues that the Court has made a mistake of law in 

its interpretation of § 504, and yet there is no new argument presented as to why 

the Court has made a legal error. Plaintiff cannot offer a single case to advance his 

argument for a narrow reading of the statute. Therefore, the Court concludes that 

no error of law has been made in its interpretation of § 504, and declines to reverse 

its prior decision based on unpersuasive new evidence and identical legal 

arguments that Plaintiff has already advanced. Accordingly, 

IT IS ORDERED that Plaintiff’s Motion for Reconsideration [76] is 

DENIED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: April 5, 2016 Senior United States District Judge 

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