UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

KELLY A. GREEN, )

)

Plaintiff, )

)

v. ) Civil Action No. 06-366 (RWR)

)

AMERICAN FEDERATION OF LABOR, )

AND CONGRESS OF INDUSTRIAL )

ORGANIZATIONS, et al., )

)

Defendants. )

______________________________)

MEMORANDUM OPINION

Pro se plaintiff Kelly Green sued the American Federation of

Labor and Congress of Industrial Organizations (“AFL-CIO”) and

Mark Zobrisky, his supervisor at the AFL-CIO, alleging

discrimination and retaliation under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Americans

with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq., breach

of Green’s employment contract, negligent and intentional

infliction of emotional distress, and wrongful termination. 

Judge Ricardo M. Urbina granted summary judgment to the

defendants because the plaintiff’s claims were foreclosed by a

settlement agreement, and denied Green’s motion under Federal

Rule of Civil Procedure 60(b)(3) for relief from the judgment. 

Green now moves under Rule 60(b)(6) for relief from the judgment

arguing that the defendants made false representations which
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perpetrated a fraud on the court and challenging the validity of

the settlement agreement. Because the plaintiff has not shown

that relief under Rule 60(b)(6) is warranted, the motion will be

denied.

BACKGROUND

The background of this case is set forth fully in Green v.

American Federation of Labor and Congress of Industrial

Organizations, 811 F. Supp. 2d 250, 252-53 (D.D.C. 2011). 

Briefly, the plaintiff filed against the defendants an

administrative complaint and a grievance under his union’s

collective bargaining agreement. The parties reached a

settlement agreement releasing the defendants from “all claims of

any nature . . . that relate to or arise out of [Green’s]

employment” and awarding Green a monetary settlement of $10,365. 

Id. at 252. Nevertheless, Green later filed a complaint in this

court which was resolved by an order granting summary judgment to

the defendants because the settlement agreement precluded the

civil suit. Id. at 253. The D.C. Circuit affirmed the judgment

because Green ”entered into a binding settlement agreement” and

he “failed to meet the burden of showing the invalidity of the

agreement.” Green v. Am. Fed’n of Labor and Cong. of Indus.

Orgs., No. 09-7130, 2010 WL 2160003, at *1 (D.C. Cir. May 10,

2010). 
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Green then moved under Rule 60(b)(3) for relief from the

judgment arguing that “the defendants falsely represented to the

court that the plaintiff was discharged for just cause” and

alleging “fraudulent misrepresentation” by the defendant. Green,

811 F. Supp. 2d at 254. Judge Urbina denied the motion because

Green did not offer sufficient proof to support the fraud

allegations and failed to establish how the fraud “would have

prevented him from fully and fairly presenting his case before

the court.” Id. at 254-55. Green now moves for relief from the

judgment under Rule 60(b)(6) alleging that the defendants have

caused a “fraud on the court” through “fraudulent

misrepresentations[,]” and challenging the validity of the

settlement agreement. 

DISCUSSION

A court has discretion to grant relief from a final judgment

for five enumerated reasons under Rule 60(b)(1)-(5), and for “any

other reason that justifies relief” under Rule 60(b)(6). Fed. R.

Civ. P. 60(b). “‘[T]he decision to grant or deny a rule 60(b)

motion is committed to the discretion of the District Court.’” 

Kareem v. FDIC, 811 F. Supp. 2d 279, 282 (D.D.C. 2011) (quoting

United Mine Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d

469, 476 (D.C. Cir. 1993)). Relief under Rule 60(b)(6) “‘should

be only sparingly used’” and only in “‘extraordinary

circumstances.’” Salazar ex rel. Salazar v. Dist. of Columbia,
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633 F.3d 1110, 1119-20 (D.C. Cir. 2011) (quoting Ackermann v.

United States, 340 U.S. 193, 199 (1950) and Good Luck Nursing

Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)). 

Examples of the limited circumstances where relief under Rule

60(b)(6) is appropriate include an adversary’s failure to comply

with a settlement agreement which was incorporated in a court’s

order, fraud by “the party’s own counsel, by a codefendant, or by

a third-party witness[,]” or “when the losing party fails to

receive notice of the entry of judgment in time to file an

appeal.” 11 Charles Alan Wright et al., Federal Practice and

Procedure § 2864 (2d ed. 1995). Claims under Rule 60(b)(6) must

not be “premised on one of the grounds for relief enumerated in

clauses (b)(1) through (b)(5).” Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 863 (1988); see also Elec.

Privacy Info. Ctr. v. U.S. Dep’t of Homeland Security, 811 F.

Supp. 2d 216, 231 (D.D.C. 2011). Rule 60(b)(6) does not provide

an opportunity to relitigate a motion brought unsuccessfully

under one of the other provisions of Rule 60(b). See Kramer v.

Gates, 481 F.3d 788, 792 (D.C. Cir. 2007). The party seeking

relief under Rule 60 bears the burden of showing that he is

entitled to the relief. U.S. v. 8 Gilcrease Lane, 668 F. Supp.

2d 128, 131 (D.D.C. 2009). In addition, “‘[o]ne who attacks a

settlement must bear the burden of showing that the contract he

has made is tainted with invalidity[.]’” Gains v. Cont’l Mortg.
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and Inv. Corp., 865 F.2d 375, 378 (D.C. Cir. 1989) (quoting

Callen v. Pa. R.R. Co., 332 U.S. 625, 630 (1948)). However, a

party is precluded from attacking the validity of a settlement

agreement where the party “has sought to keep the benefits of the

[a]greement without also accepting its obligations.” Schmidt v.

Shah, 696 F. Supp. 2d 44, 64 (D.D.C. 2010); see also Duma v. Unum

Provident, 770 F. Supp. 2d 308, 314 (D.D.C. 2011). 

Green’s current motion for relief from the judgment asserts

three principal grounds for relief: 1) the defendants’ false

representations, Pl.’s Mem. in Supp. of Pl.’s Mot. for Relief

(“Pl.’s Mem”) at 69-83; 2) invalidity of the settlement agreement

because Green did not knowingly and voluntarily sign it, id. at

84-101, 137-145; and 3) the alleged “fraud on the court”

perpetrated by the defendants, id. at 122-136, 147-149. Green’s

allegations of false representations and fraud were raised in his

first motion for relief from the judgment under Rule 60(b)(3)

covering all claims of fraud, misrepresentation and misconduct by

opposing parties, and they were properly rejected. Because the

six enumerated grounds for relief under Rule 60(b) are mutually

exclusive, Rule 60(b)(6) cannot now provide relief for Green’s

claims of fraud and misrepresentations by the defendants. See

Liljeberg, 486 U.S. at 863 & n.11. 

Green’s remaining claim challenging the validity of the

settlement agreement fails. Green now argues that the agreement
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is invalid because he reached no meeting of the minds with the

defendants and did not indicate an intention to be bound. Pl.’s

Mem. at 96-101. The settlement agreement suggests otherwise. 

Green signed it, just below his acknowledgment that he “discussed

this Settlement Agreement with the representative of his choice

and that he is entering into it knowingly and voluntarily.” 

Defs.’ Mot. for Summ. J., Ex. 5 at 3. Judge Urbina found that

undisputed, and noted early in the litigation that “[t]he

plaintiff [made] no claim that he acquiesced to the terms of the

Settlement Agreement based on fraudulent representations or under

duress or that he did not knowingly and voluntarily sign the

agreement.” Green v. Am. Fed’n of Labor and Cong. of Indus.

Orgs., 657 F. Supp. 2d 161, 166 (D.D.C. 2009). Green may not use

Rule 60(b)(6) now as a second opportunity to re-argue his first

unsuccessful Rule 60 motion. See Kramer, 481 F.3d at 792. Nor

does Green’s allegation that he did not have the opportunity to

meet with the AFL-CIO about the agreement carry his burden under

Rule 60(b)(6). Green has not shown, for example, that the

defendants violated the settlement agreement, that fraud was

committed by any party (including the defendants), or that he was

not informed of the court’s judgment in time to appeal. Where

Green has accepted the monetary benefits of the agreement, he is

not free to attack the agreement’s validity and circumvent the

bar on pursuing his claims here. The plaintiff provides no
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authority that his allegation supports a finding of

“extraordinary circumstances” justifying relief under Rule

60(b)(6). 

CONCLUSION

Because Green has not shown that relief from the judgment

under Rule 60(b)(6) is appropriate, his motion will be denied. 

An appropriate final Order accompanies this memorandum opinion.

SIGNED this 19th day of December, 2012.

 /s/ 

RICHARD W. ROBERTS

 United States District Judge