1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

)

ROBERT L. MORE, et al., )

)

Plaintiffs, )

)

v. ) Civ. Action No. 99-3373 (EGS) 

)

JACOB E. LEW, Secretary, )

Department of the Treasury, )

)

Defendant. )

)

MEMORANDUM OPINION

I. INTRODUCTION

Pending before the Court is Plaintiff’s Motion for Relief 

from Final Judgment Pursuant to Federal Rules of Civil Procedure 

60(b)(6) and 60(d)(3). Plaintiff Charles E. Hughes, along with 

six other plaintiffs, brought individual actions under the Age 

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 631 et 

seq. against the Secretary of the Department of the Treasury.1

 

Plaintiffs alleged that they were discriminated against on the 

basis of their age with respect to various promotion decisions 

made by their employer, the Bureau of Engraving and Printing 

(“BEP”) within the Department of the Treasury. Upon 

consideration of the motion, the entire record, the applicable 

 1 Jacob Lew has been automatically substituted for one of his 

predecessors pursuant to Fed. R. Civ. P. 25(d)(1).
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law, and for the reasons stated below, the Court DENIES

Plaintiff’s motion.

II. BACKGROUND

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

Snow, 480 F. Supp. 2d 257 (D.D.C. 2007). Briefly, Plaintiffs, 

including Mr. Hughes, alleged that the BEP discriminated against 

them with respect to promotions between 1997 and 2003, during 

which time the BEP promoted officers under the age of 40 for 

each position Plaintiffs applied for. Id. at 263. After 

extensive discovery, Defendant filed a motion for summary 

judgment, arguing that Plaintiffs had failed to exhaust their 

administrative remedies, and that Plaintiffs’ claims failed on 

their merits. Id. at 261. The Court ruled that Plaintiffs had 

failed to exhaust their administrative remedies with respect to 

all but two of the challenged promotion decisions. Id. at 271-

73. With respect to Mr. Hughes specifically, the Court found 

that he had alleged a prima facie case of age discrimination 

regarding a 2001 promotion decision, and that he could argue 

pretext for the non-discriminatory reasons for the decision 

offered by Defendant. Id. at 274. 

The Court conducted a bench trial on the remaining claims 

in early 2008, and entered final judgment for defendants on July 

28, 2008. See Pl.’s Mot., Ex. A, Tr. of Ruling. In so doing, 

the Court held the Plaintiffs had failed to present competent 
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evidence of intentional age discrimination sufficient to rebut 

Defendant’s non-discriminatory reason for the two promotion 

decisions being challenged. Id. at 23:23-24:3. Specifically, 

with regard to Mr. Hughes, the Court found that he had 

established a prima facie case of age discrimination for the 

challenged 2001 promotion because (1) he was over the age of 

forty, (2) he applied for the promotion, (3) he met minimum 

qualifications for the promotion, and (4) he was denied 

promotion in favor of applicants who were substantially younger. 

Id. at 17:9-17. The Court, however, found that Defendant 

established a legitimate, non-discriminatory reason for failing 

to promote him when Officer Ashton, the selecting officer for 

the 2001 promotion decision, stated that the fact that the 

promoted officers all regularly volunteered overtime and 

volunteered for assignments influenced her decision. Id. at 

19:22-20:8; 23:8-23:15. Considering arguments and evidence 

presented by both parties, the Court found for Defendant and 

against Mr. Hughes.

Mr. Hughes filed his Motion for Relief From Final Judgment 

Pursuant to Rules 60(b)(6) and 60(d)(3) on July 4, 2013, almost 

five full years after the Court entered judgment on behalf of 

Defendants. He argues that the judgment should be set aside 

because it was “manifestly unjust” due to fraud by his own 

counsel as well as counsel for the Defendant. Defendant has 
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opposed the motion, and it is now ripe for determination by the 

Court. 

III. STANDARD OF REVIEW

A. Rule 60(b)(6)

Pursuant to Federal Rule of Civil Procedure 60(b) a 

district court may relieve a party from previous judgment for 

six enumerated reasons: (1) mistake, inadvertence, surprise, or 

excusable neglect; (2) newly discovered evidence; (3) fraud, 

misrepresentation, or misconduct by an opposing party; (4) a 

void judgment; (5) a satisfied, released, or discharged 

judgment; or (6) “any other reason that justifies relief.” Fed. 

R. Civ. P. 60(b). Rule 60(b)(6) provides courts with authority 

to set aside a judgment provided that it is “not 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). The party seeking relief from judgment bears 

the burden of showing that he or she is entitled to the relief 

sought. Norris v. Salazar, 277 F.R.D. 22, 25 (D.D.C. 2011); 

United States v. 8 Gilcrease Lane, 668 F. Supp. 2d 128, 131 

(D.D.C. 2009). 

Rule 60(b) motions must be filed “within a reasonable 

time,” which is defined as no more than one year after judgment 

for reasons (1), (2), and (3). Fed. R. Civ. P. 60(c)(1). What 

constitutes a “reasonable time” varies with the circumstances. 
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Carvajal v. Drug Enforcement Admin., 286 F.R.D. 23, 26 (D.D.C. 

2012). “In this Circuit, courts almost uniformly deny Rule 

60(b)(6) motions as untimely when they are filed more than three 

months after judgment.” Id. at 26. However, “a delay of 

several years has been found permissible when plaintiff bore no 

fault for the delay and filed the motion as soon as feasible.” 

Id. at 26-27 & n.4 (listing four decisions in which the D.C. 

Circuit has found that a delay of several years was permissible 

where the moving party filed the motion within a month of 

learning of the entry of judgment, or where the delay was caused 

by “gross neglect” of the moving party’s counsel). In 

determining whether a Rule 60(b) motion was filed within a 

reasonable time, a court may also consider whether granting 

relief would cause prejudice to the opposing party. Salazar v. 

District of Columbia, 633 F.3d 1110, 1118 (D.C. Cir. 2011). 

Rule 60(b)(6) “provides courts with authority adequate to 

enable them to vacate judgments whenever such action is 

appropriate to accomplish justice . . . [but] it should only be 

applied in ‘extraordinary circumstances.’” Liljeberg, 486 U.S. 

at 864 (citations and quotation marks omitted). Moreover, Rule 

60(b)(6) is only available when “the motion . . . is not 

premised on one of the grounds for relief enumerated in clauses 

(b)(1) through (b)(5).” Id. at 863. Examples of the 

extraordinary circumstances under which relief has been granted 
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pursuant to Rule 60(b)(6) include an adversary’s failure to 

comply with a settlement agreement that was incorporated into 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).

B. Rule 60(d)(3)

Plaintiff has also moved for relief pursuant to Federal 

Rule of Civil Procedure 60(d)(3), which provides that the court 

may “set aside a judgment for fraud on the court.” Fed. R. Civ. 

P. 60(d)(3). Relief due to “fraud on the court” is very rarely 

warranted, and is “typically confined to the most egregious 

cases, such as bribery of a judge or a juror, or improper 

influence exerted on the court by an attorney, in which the 

integrity of the court and its ability to function impartially 

is directly impinged.” Great Coastal Express, Inc. v. Int’l 

Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir. 1982). 

IV. DISCUSSION

Mr. Hughes’ current motion for relief from judgment asserts 

two principal grounds for relief. First, he argues that 

Defendant’s counsel perpetrated a fraud on the Court by 

misleading the Court regarding the circumstances surrounding his 

promotion to corporal. Pl.’s Mot. for Relief at 6. He argues 
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that Defendant’s counsel advised key witnesses to falsely 

testify, both at trial and during discovery, that he was 

promoted after the BEP had implemented a seniority based 

promotion system. According to Mr. Hughes, he was competitively 

promoted in November 2002, before the BEP implemented the 

seniority based system. Id. at 5-7. Mr. Hughes does not 

specify when the seniority based system was imposed; only that 

it was sometime after his competitive promotion. Mr. Hughes

argues that these misrepresentations had the effect of inducing 

the Court “into believing that Mr. Hughes’ promotion was 

seniority based although it was not.” Id. at 7. Mr. Hughes 

also contends that this fraud was evident in Defendant’s 

assertion that there was no conflict of interest between 

Plaintiffs during briefing on potential conflicts prior to the 

bench trial. Id. at 7-8. 

Second, Mr. Hughes argues that his own counsel, Lawrence B. 

Manley, was incompetent and grossly negligent, thus entitling 

him to relief from judgment. Mr. Hughes’ complaints about his 

counsel are varied, and they involve allegations about both 

counsel’s behavior publicly in the courtroom and privately with 

his clients. Id. at 9. Among Mr. Hughes’ complaints are the 

following: (1) that Mr. Manley failed to assert that Mr. Hughes 

was competitively promoted before a seniority based system was 

implemented by BEP, id. at 9; (2) that Mr. Manley continued to 
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represent him despite the fact that he had not signed a retainer 

agreement, id. at 10-11; (3) that at some point during the 

pendency of the case, Mr. Hughes wanted new counsel but was told 

by Mr. Manley that he could not do so until he paid his 

outstanding legal fees, id. at 12-13; (4) that Mr. Manley 

falsely represented that there was no conflict of interest 

between the Plaintiffs even though Mr. Hughes and one other 

Plaintiff were competitively promoted to corporal before the 

other Plaintiffs, who were not promoted until BEP implemented a 

seniority based promotion system, id. at 13-14; (5) that Mr. 

Manley did not properly probe contradictory testimony by defense 

witnesses, id. at 14; (6) that Mr. Hughes was not able to be 

present at the final hearing in this matter because Mr. Manley 

consented to a defense motion to continue the hearing without 

his permission, id. at 14-15; and (7) that Mr. Manley accepted 

an offer by Defendant not to move for costs in exchange for 

foregoing an appeal without his permission, id. at 17. 

Though the basis of Mr. Hughes’ motion is clearly fraud and 

misrepresentation by his own counsel and counsel for Defendant, 

he has styled his motion as one pursuant to Fed. R. Civ. P. 

60(b)(6) rather than 60(b)(1) or 60(b)(3), which provide for 

relief on the basis of “mistake, inadvertence, or excusable 

neglect” and “fraud (whether previously called intrinsic or 

extrinsic), misrepresentation, or misconduct by an opposing 
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party.” Fed. R. Civ. P. 60(b)(1), 60(b)(3). Unlike motions 

pursuant to Rule 60(b)(6), which must be filed within a 

“reasonable time,” motions made pursuant Rule 60(b)(1) or 

60(b)(3) must be filed no more than a year after the entry of 

judgment. Fed. R. Civ. P. 60(c)(1). 

The provisions of Rule 60(b) are “‘mutually exclusive’ to 

the extent that subsection (6) cannot be used to avoid the oneyear limitation in subsections (1)-(5), such that ‘a party who 

failed to take timely action due to ‘excusable neglect’ [within 

one year] may not seek relief more than a year after the 

judgment by resorting to subsection (6).’” Salazar, 633 F.3d at 

1118. Nor can a motion 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; Kramer v. Gates, 481 F.3d 788, 

792 (D.C. Cir. 2007) (noting that Rule 60(b)(6) is mutually 

exclusive of the other enumerated grounds for relief in Rule 

60(b)); S. Pac. Commc’ns Co. v. Am. Tel. & Tel. Co., 740 F.2d 

1011, 1017 (D.C. Cir. 1984) (same). The Court can think of no 

reason why Mr. Hughes would file a motion pursuant to this 

residual clause other than to circumvent the timing requirements 

of Rules 60(b)(1) and 60(b)(3). That alone is reason to deny 

Mr. Hughes’ motion.

However, even if the Court were to accept the contention 

that Mr. Hughes’ motion is appropriate pursuant to Rule 
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60(b)(6), Mr. Hughes has not filed his motion within a 

“reasonable time” as required by the rule. Though there is no 

established standard for assessing whether a motion was filed 

within a “reasonable time” in this Circuit, there are a number 

of factors that the court can consider in making such a 

determination, including the reason for the delay and whether 

the non-movant will be prejudiced by granting the motion. 

Salazar, 633 F.3d at 1118 & n.5 (citations omitted). In a 

declaration filed in support of his motion, Mr. Hughes details 

the extensive litigation he engaged in between 2009 and 2012 to 

resolve a fee dispute with Mr. Manley regarding his 

representation of Plaintiff in this matter. Pl.’s Mot., Hughes 

Decl. ¶¶ 30-37. He also notes that because of issues with his 

attorney, he was unable to obtain a transcript of the July 28, 

2009 hearing until after the time to file an appeal had expired. 

Id. ¶¶ 24-27. Mr. Hughes has proffered no other explanation for 

the almost five year delay in filing his motion nor has he 

presented any argument that he was diligent in pursuing relief 

in the meantime. Under such circumstances, Mr. Hughes’ delay in 

filing is patently unreasonable.2

 See Carjaval, 286 F.R.D. at

 2 Though the Court need not reach the question of prejudice 

because Plaintiff has failed to file his motion within a 

reasonable time, granting Mr. Hughes the relief he seeks would 

unquestionably prejudice Defendant. As Defendant argues in its 

opposition, to relitigate Plaintiff’s claims, nearly five years 

after judgment was entered and more than a decade after the 
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26-27. A delay of several years, like that in this case, has 

only been found reasonable when plaintiff bore no fault for the 

delay and filed a motion as soon as feasible. See Klapprott v. 

United States, 335 U.S. 601, 615 (1949) (holding that default 

judgment was properly vacated when plaintiff showed severe 

hardship). That is not the case here.

Finally, separate and apart from the fact that Mr. Hughes 

did not file his motion within a reasonable time, he has not 

made a showing of the “extraordinary circumstances” required for 

relief under Rule 60(b)(6). Indeed, Mr. Hughes’ failure to 

pursue relief from judgment, while he was perfectly capable of 

litigating a fee dispute, counsels against finding that 

“extraordinary circumstances” are present to warrant relief. In 

this Circuit, “[a] litigant’s diligence in pursuing review of a 

decision, either through appeal or through Rule 60(b)(6) relief, 

is relevant in assessing whether extraordinary circumstances are 

present.” Salazar, 633 F.3d at 1118-19. In this case, Mr. 

Hughes’ “‘lack of diligence’ effectively precludes a finding of 

‘extraordinary circumstance.’” Id. at 1121. Moreover, all of 

the bases for relief that Mr. Hughes asserts in his motion 

 

events in question occurred, would “unfairly prejudice defendant 

because the underlying events have become so remote in time that 

evidence would be lost in the form of faded memories of 

witnesses and possible difficulty even locating key witnesses.” 

Def.’s Opp’n at 6. 
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existed prior to entry of judgment or shortly thereafter. As 

such, Mr. Hughes had ample opportunity to raise these issues 

then, and cannot use a Rule 60(b) motion to remedy his failure 

to do so.3

IV. CONCLUSION

Because Mr. Hughes has not shown that relief from judgment 

pursuant to Rules 60(b)(6) and 60(d)(3) is appropriate, his 

motion is hereby DENIED.

SO ORDERED.

Signed: Emmet G. Sullivan

United States District Judge

March 31, 2014

 3 Mr. Hughes’ motion pursuant to Rule 60(d)(3) also fails. As 

noted above, such relief is very rarely warranted except in the 

most egregious cases. See supra Section 2.B. None of the 

arguments advanced by Mr. Hughes comes close to “the more 

egregious forms of subversion of the legal process” that would 

amount to “fraud on the court.” Great Coastal Express, 675 F.2d 

at 1357. The Court therefore denies his motion on these 

grounds.