UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

REGINALD G. MOORE, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 00-953 (RWR)

)

JEH JOHNSON, )

)

Defendant. )

______________________________)

MEMORANDUM ORDER

Plaintiffs, African-American current and former special 

agents of the United States Secret Service, bring this employment 

discrimination action individually and on behalf of a class of 

African-American special agents. The government moves to 

reconsider the court’s September 3, 2013 Order (“Order”) denying 

its request to reopen discovery. Because the government fails to 

show that reconsideration is warranted, the government’s motion 

will be denied. 

The government moves under Federal Rule of Civil Procedure 

54(b) to reconsider the Order denying the government’s request to 

reopen expert and fact discovery. Def.’s Mot. for 

Reconsideration of Sept. 3, 2013, Order Denying PostCertification Fact and Expert Discovery (“Govt.’s Mot.”). The 

case was referred to Magistrate Judge Robinson to manage

discovery proceedings. Fact and expert discovery closed in 2008
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and the class was certified in February 2013. The government 

initially asked to reopen discovery in the parties’ July 29, 2013 

Joint Status Report, stating that the government “may explore 

additional areas of expert statistical evidence” and it “has a 

right to seek fact discovery from the class members as to the 

issue of liability and damages.” July 29, 2013 Joint Status 

Report and Proposed Order (“July 2013 JSR”) at 7. The government 

asserts that it was unable to engage in this discovery before now 

because it “did not know at that time that these individuals 

would be presenting anecdotal evidence on behalf of the class” 

and “now that the class is defined, defendant will seek to depose 

other now identified class members.” Id. This request was 

denied at a status hearing held on July 31, 2013 and in the 

Order. 

Courts may reconsider any interlocutory decision, such as a 

discovery ruling, “at any time before the entry of a judgment 

adjudicating . . . all the parties’ rights and liabilities.” 

Fed. R. Civ. P. 54(b); see also DL v. District of Columbia, 274 

F.R.D. 320 (D.D.C. 2011) (denying motion to reconsider discovery 

ruling under Rule 54(b)); Husayn v. Gates, 588 F. Supp. 2d 7 

(D.D.C. 2008) (granting motion to reconsider discovery ruling 

under Rule 54(b)). “[R]elief upon reconsideration . . . is 

available ‘as justice requires.’” Estate of Botvin ex rel. Ellis 

v. Islamic Republic of Iran, 772 F. Supp. 2d 218, 223 (D.D.C. 
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2011) (quoting Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 

2000)). Under this standard, a court considers “whether [it] 

patently misunderstood the parties, made a decision beyond the 

adversarial issues presented, made an error in failing to 

consider controlling decisions or data, or whether a controlling 

or significant change in the law has occurred.” In Def. of 

Animals v. Nat’l Insts. of Health, 543 F. Supp. 2d 70, 75 (D.D.C. 

2008) (internal quotation marks omitted). “However, in order to 

promote finality, predictability, and economy of judicial 

resources, as a rule [a] court should be loathe to [revisit its 

own prior decisions] in the absence of extraordinary 

circumstances such as where the initial decision was clearly 

erroneous and would work a manifest injustice.” Pueschel v. 

Nat’l Air Traffic Controllers’ Ass’n, 606 F. Supp. 2d 82, 85 

(D.D.C. 2009) (alterations in original) (internal quotation marks

omitted). Nor is a motion for reconsideration to be used as an 

opportunity to rehash arguments previously made and rejected. 

Michilin Prosperity Co. v. Fellowes Mfg. Co., Civil Action No. 

04-1025 (RWR), 2006 WL 3208668, at *1 n.1 (D.D.C. Nov. 7, 2006). 

“[W]here litigants have once battled for the court’s decision, 

they should [not] be . . . permitted[] to battle for it again.” 

Pueschel, 606 F. Supp. 2d at 85 (alterations in original) 

(internal quotation marks omitted). 
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The government’s motion reiterates that discovery should be 

reopened and that it would be prejudiced by a refusal to reopen 

discovery. However, as the government points out, it made these 

very arguments at the hearing. See Govt.’s Mot. at 11. The 

government has not shown that the Order resulted from any 

misunderstanding, or exceeded the scope of the parties’ 

arguments, or failed to consider information presented. See

Negley v. FBI, 825 F. Supp. 2d 58, 60-61 (D.D.C. 2011). To the 

contrary, the transcript reflects consideration of the 

government’s argument about its need for additional discovery. 

Hr’g Tr., July 31, 2013, at 5:6-23. Neither has the government 

identified any “controlling or significant” legal changes 

warranting reconsideration. Negley, 825 F. Supp. 2d at 60. 

The government argues that the Order was “based upon the 

misapprehension that the Secret Service was previously permitted 

to engage in full class discovery.” Govt.’s Mot. at 2. However, 

there is no misunderstanding about the facts. The initial

scheduling order “was not limited to class certification, it was 

not limited to . . . experts on class certification; it was an 

order that permitted, essentially, general discovery on liability 

issues and everything else.” Hr’g Tr., July 31, 2013 at 5:20-23; 

see also Hr’g Tr., May 8, 2006 at 32:8-12 (“Simply put, there is 

no basis that has been presented which would suggest that this 

Court would appropriately exercise its discretion to . . . 
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otherwise limit discovery at this time.”). Many of the

government’s arguments center on the inefficiency of conducting 

merits discovery before class certification, e.g., Govt.’s Mot at 

14 (citing the Federal Judicial Center Manual to contend that “it 

is inefficient and inadvisable to require that all discovery 

occur before a class has been certified”); id. at 2 (explaining 

that discovery now “can be appropriately tailored so that it 

focuses on only the certified claims”), but that is not at issue 

here. The government’s request to bifurcate class certification 

and merits discovery was rejected, and discovery on both the 

individual and class claims was ordered to proceed. See Hr’g 

Tr., May 8, 2006 at 32:8-12 (denying bifurcation); id. at 34:14-

16 (ordering plaintiffs’ and defendant’s discovery on individual 

and class claims to begin immediately); Reply in Support of Mot. 

for Reconsideration of Sept. 3, 2013, Order Denying PostCertification Fact & Expert Discovery (“Reply”) at 4 

(acknowledging that discovery on the class claims was ordered in 

2006). The government’s need for the evidence for a trial on the 

class claims, Govt.’s Mot. at 14, does not necessitate 

reconsideration. The government has had an ample opportunity to 

explore the class issues since discovery closed in 2008, over a 

year after the second amended complaint was filed in August 2006. 

This discovery period was not limited to individual claims 

discovery by the second amended complaint, the scheduling order, 
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or any other court orders. Indeed, “there was no surprise that 

this was going to end up being a class case.” Hr’g Tr., July 31, 

2013 at 8:17-22.

The government’s belated assertion that it was denied absent 

class discovery by Magistrate Judge Robinson’s ruling, Govt.’s 

Mot. at 6-7, 17, could -- and should -- have been squarely 

presented before now. Instead, the government merely asserted 

that it had a right to additional discovery, and that it could 

not engage in this discovery earlier because it did not know who 

the potential witnesses were. July 2013 JSR at 7; see also Hr’g 

Tr., July 31, 2013 at 7:6-21. Similarly, the government 

initially only cited general cases that allowed fact and expert 

discovery after the class certification discovery, cases which 

were rejected as inapposite, see Hr’g Tr., July 31, 2013, at 5:7-

18. The government did not provide any legal authority 

justifying its request for absent class discovery, nor did it 

explain why the discovery it already had the opportunity to 

conduct was insufficient. A motion to reconsider is not “a 

vehicle for presenting theories or arguments that could have been 

advanced earlier.” Clay v. District of Columbia, Civil Action 

No. 03-466 (SBC), 2005 WL 1378768, at *1 (D.D.C. June 6, 2005).

The government repeatedly states that it believed that 

“there would be post-certification discovery of absent class 

members,” e.g., Reply at 5-8; Govt.’s Mot. at 7; July 2013 JSR at 
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8 (asserting that “[i]f pre-certification discovery was the only 

discovery to be allowed in this class action case, the parties 

should have been put on notice that no post-certification 

discovery would be allowed”), but as is discussed above, there 

was no indication that the government would be permitted to 

engage in additional discovery after the discovery period had 

ended. Indeed, the government specifically requested that 

discovery be revisited and a new schedule be set if the class was 

ultimately certified, see May 4, 2006 Joint Status Report at 5, 5

n.3, but this request was rejected. See Hr’g Tr., May 8, 2006 at 

32:8-12. While the government moved for reconsideration of that 

order, the motion for reconsideration was denied without 

prejudice in the July 7, 2006 Memorandum Opinion and the 

government did not renew its objection. 

The denial of the government’s motion to compel the 

plaintiffs to produce information “about potential class members 

prior to certification,” Reply at 5, does not compel another 

conclusion. Magistrate Judge Robinson did not say that 

additional discovery from the absent class members would be 

available later, the government did not then request that such 

discovery be available later, and the government did not appeal 

Magistrate Judge Robinson’s decision. The government’s claims

about whether it received sufficient discovery, see, e.g., 

Govt.’s Mot. at 6, Reply at 5-6, from the plaintiffs during the 
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discovery phase is not at issue, nor is it relevant to 

determining whether reopening discovery is appropriate. See

Childers, 197 F.R.D. at 188 (listing factors relevant to 

reopening discovery). Moreover, it is not clear that the 

government requested the same information then that it is 

requesting now. Compare Reply Ex. 4 (“What we’re seeking is 

information that Plaintiffs currently possess regarding people 

who are likely to be members of the class.”) with Govt.’s Mot. at 

17 (asserting that the government should be able to now depose 

absent class members that provided declarations as well as 

“conduct related discovery about their assertions”). Thus,

whether the government’s motion to compel written discovery from 

the plaintiffs was denied has little bearing on whether the 

government was previously foreclosed from pursuing the discovery 

it now seeks. Ultimately, the government provides no legal 

authority that its own misapprehension about the scope of 

discovery suffices to show either that discovery should be 

reopened or that reconsideration should be granted. 

In any event, even if reconsideration was justified and the 

government raised this argument in its first request to reopen 

discovery, the government has not sufficiently demonstrated that 

it is entitled to absent class discovery. The government, as the 

requesting party, has the burden to show that discovery from 

absent class members is warranted, because, for example, the 
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discovery is necessary or unavailable from the representative 

parties. See United States v. Trucking Emp’rs, Inc., 72 F.R.D. 

101, 104-05 (D.D.C. 1976). While the government now contends 

that it was prevented from obtaining discovery about potential 

class members and their claims by Magistrate Judge Robinson’s 

ruling, see Govt.’s Mot. at 6-7, 17, the government still has not 

answered the threshold question of why that discovery is 

warranted. The government rests on its argument that it “should 

be provided the opportunity to depose these declarants who have 

figured prominently in this case,” and because the members “‘may 

be witnesses, [defendant] has the right to discovery beyond what 

the absent class members have said to establish the factual 

incorrectness of what they have said or to see if their 

experiences were frequent or aberrational.’” Govt.’s Mot. at 17

(alteration in original) (quoting Disability Rights Council of 

Greater Wash. v. WMATA, Civil Action No. 04-498 (HHK/JMF), 2006 

WL 2588710, at *1 (D.D.C. Sept. 7, 2006)). This fails to 

demonstrate why absent class member discovery is necessary or 

unavailable from the representative parties, what particular 

information is needed from the absent class members, or how that

information relates to the common class issues. See, e.g.,

Barham v. Ramsey, 246 F.R.D. 60, 64 (D.D.C. Nov. 8, 2007) 

(denying absent class discovery because “[t]he Court is not 

persuaded this information is necessary” to resolve class issues 
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about the defendants’ motivations). Without information about 

how the discovery sought is relevant to the class issues, an 

assessment cannot be made about the necessity of that discovery. 

The government also has not shown that a legal error 

occurred when the request to reopen expert discovery was 

rejected. Pueschel, 606 F. Supp. 2d at 85. The government did 

not offer any substantive arguments in support of its initial 

request to reopen expert discovery. See July 2013 JSR at 7; Hr’g 

Tr., July 31, 2013, at 7:21-8:16 (stating that the expert did not 

provide regression analysis but failing to state why the expert 

did not conduct regression analysis earlier). The government now 

argues that “the Court had suggested that post-certification 

discovery would be available,” e.g., Reply at 12, 12, but fails 

to point to any representation by the Court that postcertification expert discovery would be available. At best, the 

government’s proffered citations refer only to later factual 

discovery, not expert discovery. See Govt.’s Mot at 6-7; Reply 

at 5-9. The government also offers the fact that “[t]he Court 

did not address whether liability-stage expert class discovery 

might later proceed, should a class ultimately be certified on 

the basis of the pre-certification evidence, including that 

provided by plaintiffs’ statistical expert,” id. at 7, as support 

for this contention. Because expert discovery was not limited to 

particular claims and there was no representation that later 
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expert discovery would be permitted, this is insufficient to show 

that a manifest injustice would occur without reconsideration. 

The government’s attempt to re-litigate the same issues in its

motion for reconsideration does not satisfy Rule 54(b)’s 

requirements, particularly when the government did not present 

sufficient arguments supporting its initial request to reopen 

discovery. See Clay, 2005 WL 1378768, at *1. 

Further, the government readily admits that it did not 

initially request a more extensive expert report because, in 

part, “the belief that the substantial cost of a regression

analysis could not be justified prior to the certification of a 

class.” Govt.’s Mot. at 8; see also Govt.’s Mot at 16 (repeating 

that “only now are the parties finally in a position to 

efficiently and cost-effectively evaluate statistically” the 

plaintiffs’ claims). The government also now argues that it 

could not conduct expert analysis before because “the parameters 

of any certified class were unknown,” Govt.’s Mot. at 7, and it 

“would have needed to conduct countless analyses, most of which 

would have been rendered useless.” Govt.’s Mot. at 16. These

strategic decisions offer no reason to reconsider the Order. The 

government does not demonstrate that there would be a manifest 

injustice because of, for example, limitations in previous 

rulings or scheduling orders that prevented it from conducting 

the expert analysis it now desires before discovery closed. 
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Ultimately, regardless of whether bifurcation should have 

occurred, bifurcation of discovery between class certification 

and merits discovery did not happen. The parties each made 

strategic decisions with respect to which fact and expert 

discovery in which to engage and from which to abstain. Thus, 

the government’s failure to engage in full merits discovery 

before the class certification does not require either reopening 

discovery, or reconsidering the decision denying the request to 

reopen discovery. Because no error infected the decision to deny 

reopening discovery, and no manifest injustice will result from 

that decision, the government has not established that justice

requires reconsideration. Accordingly, it is hereby

ORDERED that defendant’s motion [757] for reconsideration 

be, and hereby is, DENIED. It is further

ORDERED that plaintiffs’ motion [769] for leave to file a 

surreply is DENIED as moot.

SIGNED this 4th day of March, 2014.

 /s/ 

RICHARD W. ROBERTS

Chief Judge