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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DERRICK WALKER,

Plaintiff,

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v. Case No. 3:22-cv-00877-D

CRIMINAL INVESTIGATION 

UNIT/DALLAS FIELD OFFICE 

IRS, WILLIAM BYRD, and BILLY 

F. WILLIAMS,

Defendants.

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS

OF THE UNITED STATES MAGISTRATE JUDGE

On June 7, 2022, the District Court dismissed without prejudice for lack of 

subject matter jurisdiction Plaintiff Derrick Walker’s claims against Defendants 

Criminal Investigation Unit of the Dallas Field Office of the Internal Revenue 

Service (IRS) and William Byrd. Mem. Op. & Order 5-8 (ECF No. 8); J. I, at 1 (ECF 

No. 9). Then, on July 15, 2022, the Court dismissed Walker’s claims against 

Defendant Billy F. Williams for failure to effect proper service. Order 1 (ECF No. 

12). On August 30, 2002, Walker filed a Motion to Reopen Case Proceedings (ECF 

No. 14) and, later, he filed a Motion to Add Additional Information and the 

Defendant United States to Proceeding (ECF No. 17). As explained in these 

Findings, Conclusions, and Recommendation of the United States Magistrate 

Judge, the Court should construe Walker’s Motion to Reopen as a Rule 60(b) 

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Motion and deny the relief requested. The Court also should deny Walker’s Motion 

to Add Additional Information and the Defendant United States to Proceeding.

The Federal Rules of Civil Procedure “do[] not expressly recognize a ‘motion 

for reconsideration.’” T.B. by and through Bell v. Nw. Indep. Sch. Dist., 980 F.3d 

1047, 1051 (5th Cir. 2020). Instead, “[a] motion asking the court to reconsider a 

prior ruling is evaluated either as a motion to ‘alter or amend a judgment’ under 

Rule 59(e) or as a motion for ‘relief from final judgment, order or proceeding’ 

under Rule 60(b).” Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th 

Cir. 2012). The court determines the applicable rule based on when the motion was 

filed. Id. “If the motion was filed within twenty-eight days after the entry of the 

judgment, the motion is treated as though it was filed under Rule 59, and if it was 

filed outside of that time, it is analyzed under Rule 60.” Id. Here, Walker filed his 

Motion to Reopen Case Proceedings on August 30, 2022—forty-six days after entry 

of the most recent judgment. Therefore, the Court should analyze the Motion 

under Rule 60(b).

Under Rule 60(b), grounds for relief from judgment include:

(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;

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(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.

Fed. R. Civ. P. 60(b)(1)-(6). Relief under Rule 60(b) is considered an extraordinary 

remedy, and the need for predictability mandates caution in reopening judgments. 

In re Pettle, 410 F.3d 189, 191 (5th Cir. 2005). The movant bears the burden of 

establishing at least one of the Rule 60(b) requirements to obtain relief. Harrison 

v. Baylor Univ. Med. Ctr., 2018 WL 7048085, at *2 (N.D. Tex. Dec. 21, 2018), 

adopted by 2019 WL 202325 (N.D. Tex. Jan 15, 2019).

In this case, none of the first five grounds for relief from judgment are 

applicable. Walker does not contend the judgments dismissing his claims resulted 

from any mistake, inadvertence, surprise, or excusable neglect on his part or any 

fraud, misrepresentation, or misconduct on the part of any Defendant. Nor does 

he assert the judgments are void or have been vacated. He also does not argue that 

he has new evidence that could not have been discovered earlier. Thus, he must 

rely on Rule 60(b)(6) which is a catch-all provision allowing reconsideration for

“any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). But Rule 60(b)(6) 

relief is only available in “extraordinary circumstances.” Gonzalez v. Crosby, 545 

U.S. 524, 535 (2005). Such circumstances “may include, in an appropriate case, 

the risk of injustice to the parties and the risk of undermining the public’s 

confidence in the judicial process.” Buck v. Davis, 137 S. Ct. 759, 778 (2017) 

(internal quotation marks and citations omitted). 

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In support of his Motion, Walker mostly reasserts the same arguments he 

made in his original petition, and he does not substantively address any of the 

reasons the Court provided for dismissal. Compare Pl.’s Am. Compl. 1-3 (ECF No. 

1-9) with Pl.’s Mot. Reopen 1-3 (ECF No. 14) (making similar arguments regarding 

alleged fraud). But making the same arguments does not suffice as grounds to 

grant a Rule 60(b)(6) motion. See Wanken v. Wanken, 511 F. App’x 363, 366 (5th 

Cir. 2013) (noting that an attempt to make the same argument is not grounds for 

relief under Rule 60(b)(6)). 

As explained in the Court’s prior orders, Walker filed his lawsuit in state 

court against the IRS and Billy Williams for purported torts arising out of 

Williams’s alleged fraudulent use of Walker’s social security number. Mem. Op. & 

Order 2. He later added IRS employee William Byrd as a defendant. Pl.’s Am. 

Compl. 1. After the government removed the case to federal court, the Court 

dismissed Walker’s claims against the IRS and Byrd under the derivative 

jurisdiction doctrine because the Federal Tort Claims Act (FTCA) confers exclusive 

jurisdiction over Walker’s claims in federal courts. Mem. Op. & Order 4-5. The 

Court also found Walker failed to exhaust his administrative remedies, and he sued 

the wrong party by not naming the United States as a defendant. Id. at 6-7. The 

Court dismissed Walker’s claims against Williams because Walker failed to timely 

serve Williams. J.II, at 1 (ECF No. 13) Walker has not identified any “extraordinary 

circumstances” that justify Rule 60(b) relief.

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Walker’s firm belief that the government’s removal to federal court was 

improper is simply not sufficient to warrant relief under Rule 60(b)(6). “The broad 

power granted by clause (6) is not for the purpose of relieving a party from free, 

calculated, and deliberate choices” a party makes. Edward H. Bohlin Co. v. 

Banning Co., 6 F.3d 350, 357 (5th Cir. 1993). Walker made the deliberate choice 

to bring his action in state court and there is nothing to suggest that the 

government’s removal was inappropriate. Therefore, his Motion to Reopen Case 

Proceedings should be denied.

In a second motion, Walker seeks to add additional information to bolster 

his allegations and add the United States as a defendant. Pl.’s Mot. Add Info. 2 

(ECF No. 17). However, “[w]hen a district court dismisses an action and enters a 

final judgment, . . . a plaintiff may request leave to amend only by either appealing 

the judgment, or seeking to alter or reopen the judgment under Rule 59 or 60.” 

Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003) (citing Dussouy v. 

Gulf Coast Inv. Corp., 660 F.2d 594, 597 n.1 (5th Cir. Nov. 1981)). Because the Rule 

60(b) Motion should be denied, so too should this Motion to amend the parties or 

add additional information as it is an impermissible motion to reopen the 

judgment.

The District Court should DENY the Motion to Reopen Case Proceedings 

(ECF No. 14) and should DENY the Motion to Add Additional Information and the 

Defendant United States to Proceeding (ECF No. 17).

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SO RECOMMENDED.

October 25, 2022.

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REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report and 

recommendation must file specific written objections within 14 days after being 

served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be 

specific, an objection must identify the specific finding or recommendation to 

which objection is made, state the basis for the objection, and specify the place in 

the magistrate judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates by reference or 

refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted 

by the district court, except upon grounds of plain error. See Douglass v. United 

Svcs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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