UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________________ ) WILLIAM E. SHEA , ) ) Plaintiff , ) ) v. ) ) Civil Action No. 02
- 577 (RCL) HILLARY CLINTON , Secretary , ) Department of State, ) ) Defendant. )

______________________________________ ) MEMORANDUM OPINION Before the Court are defendant’s Motion for Reconsideration [93] and plaintiff’s Motion for Reconsideration of Four Matters [85] (“Shea Mot. Recons.”) . E ach party requests reconsideration of the Court’s denial of cross

- motions for summary judgment , and each party requests reconsideration of part of the Court’s order granting defendant’s Motion for Leave to File and denying defendant’s Motion to Strike

. See generally Aug. 11, 2009 Mem. Order [69] ; Feb. 2, 2010 Order [78]. At an April 6, 2011 status hearing, Judge Sullivan 1 stayed the proceedings until defendant’s Motion for Reconsideration was fully briefed and addressed by the Court. Subsequently, plaintiff’ s Motio n of Application of Judicial Estoppel to Defendant’s Rule 56(f) Motion (“Estoppel Motion”) [106], defendant’s Consent Motion to Enlarge Time to Respond [107], and plaintiff’s Motion for Clarification [108] were filed. Upon consideration of the parties’ mo tions and supporting briefs , as well as the record upon which the original orders were based, the court will deny each party ’s Motion for Reconsideration , will grant defendant’s

1 This case was most recently reassigned by consent from Judge Sullivan to Chief Judge Lamberth on October 7, 2011. Reassignment of Civil Case [105]. Previously the case had been randomly reassigned from Judge Robertson to Judge Kennedy on June 4, 2010, a nd then randomly reassigned to Judge Sullivan on June 30, 2010. Reassignment of Civil Case [80]; Reassignment of Civil Case [83].2 Consent Motion to Enlarge Time to Respond , and will deny plaintiff’s Motion fo r Clarification
as moot

. I. BACKGROUND This case is a long

- running employment discrimination case in which Mr. William Shea (“Shea”) alleges that the State Department (“State”) violated his rights under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 200 0e et seq .). See generally Compl. [1]. A. Basis for the Complaint State’s Mid

- Level Minority Hiring Program (“MLAAP”) was in force when Shea was hired in 1992

. See Mem. P. & A. Supp. Def.’s Mot. Recons. (“State Recons. P. & A.”) at 3 (noting that the MLAA P ran from 1987 to 1993). Mid

- level hiring allowed a Foreign Service candidate to be hired directly into a higher grade rather than into an entry

- level grade

. See Def.’s Mot. Summ. J. (“State MSJ”) [46] Statement of Material Facts Not in Genuine Dispute (“State
Mat. Facts ”) ¶ 6. M id

- level hiring required either a “certification of need” that an outside hire was required , or membership in one of a set of specified minority group s under the MLAAP

. 2
See id

. ¶ 7. C andidates for mid

- level hiring were also required (a) to have substantial professional experience , (b) to receive a passing grade on an oral examination, and (c) to pass a background check. See id. ¶ 8. Shea a lleged that he would have passed the screening process but w as excluded from consideration for mid

- level hiring solely on the basis of his race , as there was no certification of need

. See Compl. ¶ 6. Specifically, Shea alleged harm because his hiring at entry

- level rather than mid

- level ha s subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, on an ongoing

2 State’s Motion for Reconsideration states that the MLAAP required both a certification of need and minority status. See St ate Recons. P. & A. at 3. However, State’s Statement of Material Facts and its supporting exhibits are clear that members of specified minorities were exempt from the formal certification of need under the MLAAP. It may be that the Motion for Reconsidera tion was referring to mid

- level hiring in general and that reference to the MLAAP in this context was inadvertent.3 basis, in violation of his rights under Title VII. See id. Shea also alleged constitutional violations, but the Court d ismissed that claim, and Shea did not appeal the dismissal, State Recons. P. & A. at 8 n.5, so the Title VII claim is the only one before the Court.
B. Procedural History The Court originally granted State’s Motion to Dismiss for failure to state a claim
purs uant to Rule 12(b)(6) of the Federal Rules of Civil Procedure , on the basis that the statute of limitations had expired

. See Sept. 30, 2003 Order [15] ; Sept. 30, 2003 Mem. [16]

. On appeal, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded. Shea v. Rice , 409 F.3d 448 (D.C. Cir. 2005) (holding that each time an employer pays an employee less than another for a discriminatory reason, that pay event is a discrete dis criminatory event with its own statute of limitation s )

. In light of the Supreme Court’s subsequent decision in Ledbetter v. Goodyear Tire & Rubber Co. , 550 U.S. 618 (2007), which brought the D.C. Circuit’s analysis into question, th is Court granted State’s Motion for Summary Judgment. Nov. 21, 2008 Order [64] ; Nov. 21, 2008 Mem. [63] . While this case was again on appeal, Congress passed the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111

- 2, 123 Stat. 5 (2009) , which abrogated the Supreme Court’s hol ding in Ledbetter . The D.C. Circuit remanded for reconsideration in light of the intervening change of law. Shea v. Clinton , No. 08

- 5491, 2009 WL 1153448 , at *1 (D.C. Cir. Apr. 2, 2009). This Court then denied the remaining portions of both parties’ Mot ions for Summary Judg ment. Aug. 11, 2009 Mem. Order [69]. State ’s subsequent Motion for Reconsideration was denied. Aug. 20, 2009 Order [71].4 The parties have been in discovery since that time. Shea filed a new Motion for Summary Judgment 3 [74] and a subsequent Motion for Reconsideration [85] of the denial of his original Motion for Summary Judgment. On March 9, 2011, Judge Sullivan stayed proceedings in this case pending a status hearing on April 6, 2011, at which the parties were to addr ess Shea’s Motion for Reconsideration and answer the Court’s questions regarding discovery. On April 5, 2011, State filed a second Motion for Reconsideration [93] of the denial of their Motion for Summary Judgment. At the April 6, 2011 hearing, Judge Sul livan extended the stay pending the parties fully briefing State ’s Motion for Reconsideration. See Apr. 8, 2011 Minute Order. The parties’ motions for reconsideration and the subsequent motions filed aft er the stay are now before the C ourt. II. STANDARD OF REVIEW A. Legal Standard Both of the parties’ motions for reconsideration request that the Court reevaluate its earlier interlocutory orders pursuant to Federal Rule of Civil Procedure 54(b). State Recons. P.
& A. at 1; Shea Mot. Recons. at 1. A c ourt’s int erlocutory orders “may be revised at any time before the entry of judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). “[R]elief upon reconsideration

. . . pursuant to Rule 54(b) is available ‘as just ice requires.’” Hoffman v. Dist

. of Columbia , 681 F. Supp. 2d 86, 90 (D.D.C. 2010) (quoting Childers v. Slater , 197 F.R.D. 185, 190 (D.D.C. 2000)). Although Rule 54(b) provides the court with significant discretion, “in order to promote finality, predictability and economy of judicial

3 Shea’s earlier filing [51] was entitled “Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, and Cross

- Motion for Partial Su mmary Judgment,” while the later filing is entitled “Plaintiff’s Motion for Summary Judgment.” In ruling on the earlier cross

- motions, Judge Robertson noted “ Shea asserts that his cross

- motion is for ‘partial’ summary judgment, but it seems to seek across

- the

- board relief.” Aug. 11, 2009 Mem. Order [69] at 2 n.1. Shea notes in his Motion for Summary Judgment that it is not a request for reconsideration of the earlier denial, but does not address Judge Robertson’s note. Pl.’ s Mem. P. & A. [74

- 2] at 1 n.1. Because Shea’s Motion for Summary Judgment is not yet fully briefed and hence not yet before the Court, this discrepancy is simply noted.5 resources, ‘as a rule [a] court should be loathe to [revisit its own prior decisions] in the absence of extraordinary circumst ances 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) (quoting Lederman v. United States , 539 F. Supp. 2d 1, 2 (D.D.C.
2 008)). Clear errors of law are grounds for reconsideration of a prior order. See Nat’l Ctr. for Mfg. Sciences v. Dep’ t of Def. , 199 F.3d 507, 511 (D.C. Cir. 2000). “Reconsideration may be warranted where there was a patent misunderstanding of the partie s, where a decision was made that exceeded the issues presented, where a court failed to consider controlling law, or where a significant change in the law occurred after the decision was rendered. The moving party has the burden of showing that reconside ration is warranted, and that some harm or injustice would result if reconsideration were to be denied.” Pueschel , 606 F. Supp. 2d at 85 (internal citations omitted).
B. Application of the Legal Standard Both parties filed their motions for reconsideration after this case was transferred from Judge Robertson to Judge Sullivan. See Pl.’s Reply to Def.’s Opp. to Pl.’s Mot. Recons. [89] at 2 (noting that Shea filed his motion to allow Judge Sullivan to “fix legal errors [of] the previous judge.”); Apr. 6, 2011 Tr. at 13 ( explaining that State filed its motion despite internal debate over the propriety of doing so based on the change of judge). Parties should not use motions for reconsideration to attempt to relitigate matters already settled. See Solomon v. U niv. of S. Cal. , 255 F.R.D. 303, 305 (D.D.C. 2009) (such motions “may not be used to relitigate old matters” (internal citations and quotations omitted))

. This is State’s second request for reconsideration of the legal standard under which the MLAAP shoul d be analyzed , s ee generally Def.’s Mo t. Recons. [70], and normally this request would be denied outright. However, because the prior motion was denied without a supporting memorandum, Aug. 20, 2009 Order [71], the Court is6 entertaining this particular qu estion again in order to more fully explain its reasoning. T he Court is applying the standard for reconsideration equally to all issues the parties have presented, and will deny reconsideration unless the party has shown “ that reconsideration is warranted , and that some harm or injustice would result if reconsideration were to be denied. ” Pueschel , 606 F. Supp. 2d at 85.
III. ANALYSIS State argues that the C ourt erred as a matter of law by analyzing the MLAAP under Title
VII , but the statutory text , legislativ e history, and State’s supporting evidence do not support State’s argument , and hence State’s request for reconsideration of that issue will be denied

. Neither party demonstrates the extraordinary circumstances leading to harm or injustice that would warr ant reconsideration of the remaining issues raised in their motions, hence both parties’ motions for reconsideration will be denied

. B ecause resolution of Shea’s Estoppel Motion wi ll impact State’s response to Shea’s Motion for Summary Judgment , State’s M otion to Enlarge Time to R espond will be granted, and Shea’s Motion for Summary Judgment will remain in abeyance pending the Court’s resolution of the Estoppel Motion. Shea’ s Motion for Clarification is now moot, and hence will be denied

. A. State Has Not Met Its Burden of Showing that the Court Applied Incorrect Law in Analyzing the MLAAP . State argues that the MLAAP was a c ongressionally

- mandated affirmative action program that created an exception to Title VII , and tha t the Court erred as a matter of law by interpreting the program as a voluntary affirmative action program under Title VII

. See State
Recons. P. & A. at 2. Such an error would be valid ground s for reconsideration of the Court’s prior order. However, State has not demonstrate d that Congress intended its enactment to be construed as an exception to (and hence immune from challenge under) Title VII, has not7 demonstrated that the MLAAP itself was Congress’ mandated solution , and has not demonstrated that its “ interpretation ” is e ntitled to Chevron deference. State also has not shown that some harm or injustice will result by denial o f reconsideration

. In 1985, Congress enacted the Foreign Relation s Authorization Act for Fiscal Y ears 1986

- 87 (“FRAA”). In that Act, Congress required the State Department to develop plans to increase representation of minorities and women in the Foreign Service, with a special emphasis

on mid

- level employees. Pub. L. 99

- 93 § 152. T he relevant sect io n, in its entirety , requires : (a) Development of program

— The head of each agency utilizing the Foreign Service personnel system shall develop, consistent with section 7201 of Title 5, a plan designed to increase significantly the number of members of min ority groups and women in the Foreign Service in that agency. (b) Emphasis on mid

- levels

— Each plan developed pursuant to this section shall, consistent with section 7201 of Title 5, place particular emphasis on achieving significant increases in the number s of minority group members and women who are in the mid

- levels of the Foreign Service. 4 22 U.S.C. § 3922a (2006). While this statutory language clearly requires State to implement a plan to address mid

- level positions, it is silent on to the means by which State is to accomplish this goal. State instituted the MLAAP in response to this directive , and argues that it w as required to create the MLAAP specifically

. See State Recons. P. & A. at 3 ; Def.’s Rep. to Pl.’s Opp. t o Def.’s Mot. for Recons

. (“State Recons. Reply”) [98] at 4

. State argues that the FRAA created a narrow exception to Title VII , State Recons. P. & A

. at 5, hence the MLAAP cannot be challenged under Title VII , i d. at 7 , and that its interpretation is entitled to Chevron deference. Id. at 7 n.7; see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 844 (1984). State posits that such a finding would be dispositive of Shea’s claims

. See State Recons. P. & A. at 8.

4 The original enactment also included subsection (c), pertaining to reporting requirements, which was repealed in a subsequent reauthorization of the FRAA, when reporting requirements from several sections were consolidated.8 Nothing in the language of § 3922a supports the contention that Congress intended that State’s solution would be immune from challenge under Title VII. The D.C. C ircuit has held that Title VII analysis applies to federal agencies as it does to private employers. See , e.g. , George v. Leavitt , 407 F.3d 405, 411 (D.C. Cir. 2005) (citing Singletary v. Dist. o f Columbia , 351 F.3d 519, 523

- 24 (D.C. Cir. 2003)). State h as provided no case law holding that a congressional requirement to increase minority hiring should be construed as an exception to Title VII, and the Court was unable to locate any. State argues , citing to a single off

- point case, 5 that the absence of any mention of Title VII in § 3922a means that Congress intended an exception to Title VII. See State Recons. Reply at 11. That argument doesn’t pass the smell test. In fact, a closer reading of th e statut e implies the opposite of S tate’s conclusion. Section 3922a include s , by reference, the federal government’s employmen t nondiscrimination requirement : “It is the policy of the United States to insure equal employment opportunities for employees without discrimination because of rac e, color, religion, sex, or national origin.” 5
U.S.C. § 7201(b) (2006). Where the statute expressly references federal employment

non discrimination law, imputing an exception from the law that provides remedies for federal employment discrimination is n ot a reasonable interpretation

. 6 As the Court noted in its prior order, “[w]hat § 3922a mandated was race[

- ]conscious action that was lawful.” Aug. 11, 2009 Order [69] at 5. In the absence of any supporting case law, State relies on other methods of statutory interpretation. State argues that canons of statutory construction as well as legislative history lead to the conclusion that the FRAA creates a n exception to Title VII, and further argues that

5 State cites to Commodity Futures Trading Comm’n v. Schor , 478 U.S. 833 (1986), but that case has nothing to do with employment or Title VII, deals only with the language of a specific statute rather than a potential conflict between statutes, and concerns interpretation of the scope of an agency’s rule

- making authority under the statute in question. 6 Arguably § 3922a also include s Title VII by reference, as § 7201 requires reporting on federal affirmative action programs under Title VII’s federal employment provisions. See 5 U.S.C. § 7201(e) (2006)

.9 the Court must accede to State’s interpretation under Chevron deference See State Recons. P. & A. at 5

- 8 ; State Recons. Reply at 6

- 7 . None of these arguments avail s State.
S tate correctly notes that the Court has a duty to inter pret statutes in a fashion that upholds the intent of each statute. See State Recons. P. & A. at 5 . Thus the Court should interpret Title VII and the FRAA together where such an interpretation is possible. State then
notes that where two statutes confli ct, a more specific statute controls over a general statute in the same field

. See i d. at 6

. State argues that the FRAA is a more specific statute where Title VII is a general statute. Id. But absent a showing that it was not possible to comply with th e FRAA without violating Title VII, this argument does not prevail over the broad requirement for the Court to give effect to all of Congress’ enactments and construe the two statutes together. State has made no such showing.
State also argues that the Court should look beyond the statutory text to the statutory preambles and to the legislative history

. See State Recons. P. & A. at 6

- 7 (citing to congressional findings in statutory preambles ) ; State Recons. Reply at 6

- 7 (citing to congressiona l hearings in support of reauthorization of the FRAA)

. W h ere statutory text is ambiguous, courts may look to the preamble and legislative history for clarification

. See , e.g. , Ass'n of Am. Railroads v. Surface Transp. Bd. , 237 F.3d 676, 680 (D.C. Cir. 20 01) (finding that the lower court erred in not considering the preamble to resolve a clear ambiguity in statutory text) ; Nat. Rifle Ass’n of Am., Inc. v. Reno , 216 F.3d 122, 127 (D.C. Cir. 2000) ( noting that courts may examine legislative history t o review congressional intent). But on the questions of whether an exception to Title VII was intended and of the form of the plan State was to enact, § 3922a is not ambiguous. I t is silent. State asks the Court to construe a statutory exception and a specific structural mandate from that silence, by way of the preambles to and legislative history of the FRAA’s multiple reauthorizations.10 Even were the Court to follow that interpretive model, it is clear that the various preambles and the cited legislative histo ry do not support State ’s argument

. These congressional findings explain that the Foreign Service does not reflect the diversity of our population, and

a dmonish State to try harder to address that situation. See State Recons. P. & A. at 6

- 7; State
MSJ Me m. P. & A. at 11

- 12 ; State Recons. Reply at 6

- 7 . Nothing in the findings and hearings quoted by State, nor anything in the remaining congressional findings in the relevant enactments, supports an argument that Congress meant an exception to Title VII or m andated the form of the plan State was to create to resolve the issue that Congress wanted addressed

. Cf. Pub. L. No.
100

- 204 § 183, 101 Stat. 1331 (1987); Pub. L. 101

- 246 § 149 , 104 Stat. 15 (1990) ; State Recons. Reply at 6

- 7

. Admonitions to “do better” do not imply “do better and ignore Title VII in the process.” The 1990 appropriations enactment is p articularly noteworthy for another reason entirely

. This enactment established the Foreign Service Internship Program , by name

. See generally Pub. L. 101

- 246 § 149, 104 Stat. 15 (1990). It also specifies the form of the internship program in detail. See i d. § 149(b) (codified at 22 U.S.C. § 4141a). Conversely, § 3922a specifies neither the name nor the form of the MLAAP, the program that Sta te asserts Congress mandated. The difference between these two enactments could not be more striking, and strongly militates against State’s interpretation of § 3922a. 7 It is clear from a side

- by

- side examination of these two enactments that had Congress intended to mandate the form of the program to meet the requirements of § 3922a, it would have drafted language defining the MLAAP as it did for the Foreign Service Internship Program.

7 S tate failed to bring to the Court’s attention two critical points . First, Sta te failed to note that the 1990 appropriation to which it cites speaks only to the internship program and mentions m id

- level employment not at all. Yet State used those congressional findings to bolster its argument regarding how the MLAAP should be interpreted. Second, State failed to mention § 4141a, citing only to § 4141, when both statutory sections were created by the same enactment. As the structure of § 4141a st rongly rebuts State’s argument about congressional intent for § 3922a, this discrepancy clearly should have been addressed, and the Court is troubled by this oversight.11 State further argues that irrespective of these issues, the Court shou ld defer to the
E xecutive’s construction of the FRAA under the doctrine known as “ Chevron deference.” See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 84 3 (1984)

. However, Chevron deference only applies when the interpretation carries the force of law. See Gonzales v. Oregon , 546 U.S. 243, 255

- 56 (2006)

. The FRAA is a requirement that the agency address deficiencies, as perceived by Congress, in State’s own operations. There is no “ interpretation ” under s uch an enactment that “carr[ ies ] the force of law,” id. , that would make Chevron deference applicable. Additionally, t he law is clear that agencies are not entitled to deference for interpretations offered by their counsel in legal briefs. City of Kansas City, Mo. v. Dep’ t o f Hous. & Urban Dev. , 923 F.2d 188, 192 (D.C. Cir. 1991) (“ In whatever context we defer to agencies, we do so with the understanding that the object of our deference is the result of agency decisionmaking, and not some post hoc rationale developed as part of a litigation strategy. ”). State has adduced no evidence th at its interpretation that the FRAA mandated establishment of the MLAAP immune to Title VII challenge is one that was promulgated by the agency prior to commencement of litigation or in a rule c arrying the force of law . State brought forward neither regulations nor adjudications applying this interpretation. In fact, State’s own evidence refutes its stated interpretation. State’s Motion for Summary Judgment attached a copy of an Equal Employmen t Opportunity Commission (“EEOC”) final determination of a complaint under the MLAAP. See generally State MSJ Ex. 2 [46

- 2] . State included this exhibit to describe the lifespan of the MLAAP

. See State Mat. Facts ¶

¶ 4 , 13 . But this memorandum expressly contradicts State’s assertion that the MLAAP was not a voluntary affirmative action program under Title VII

. See State MSJ Ex. 2, at 3 (referring to the MLAAP as “[State’s] voluntarily adopted affirmative action plan”). The EEOC is chartered with promulgating the guidelines for agency affirmative education programs, as well as any12 program State implemented in response to FRAA. See 5 U.S.C. § 7201(d) (2006); 29 C.F.R. §
161 4 (2009); see also 22 U.S.C. § 3922a (2006) (incorporating 5 U.S.C. § 7201 by reference). The EEOC’s interpretation of the MLAAP as a voluntary affirmative action program, while not conclusive, is persuasive. State has not met its burden of showing that t he Court made an error of law by finding that the FRAA must be interpreted in conjunction with Title VII. The FRAA clearly does not mandate an exception to Title VII and does not mandate creation of the MLAAP specifically , and the related legislative mate rials fail to support State’s argument. Further, Chevron deference is not applicable to State’s interpretation , and even if it were applicable , State’s own evidence contradicts the interpretation the Court is being asked to defer to. Therefore State’s re quest for reconsider ation of the applicable law for review of the MLAAP will be denied.
B. State Has Not Shown that the Court Erred in Failing to Strike Shea’s Motion for Summary Judgment. State also requested reconsideration of the Court’s denial of its mot ion to strik e Shea’s Motion for Summary Judgment [74] , on the basis that the evidence submitted by Shea w ould not be admissible at trial as is required by the Federal Rules of Civil Procedures. See State Recons.
P. & A. at 11 ; Feb. 2, 2010 Order [78]

. In denying State’s motion, the Court made clear that State should be prepared to respond to Shea’s Motion for Summary Judgment, rather than requesting that it be stricken, and allowed State to defer filing its opposition until after the close of discovery. Feb. 2, 2010 Order [78] at 2. This decision is not clearly erroneous, as it simply reserves judgment on State’s argument until the motion is fully briefed. Nor has State shown that an y harm arises from the decision. A decision in State’s favor would b e in no way dispositive, and hence the proceedings would simply continue towards trial. The Court will consider State’s objection pursuant to Rule 56(c)(2) of the Federal Rules of Civil Procedure13 when Shea’s Motion for Summary Judgment is fully briefed an d properly before the Court

. Therefore S tate’s request for reconsider ation of the decision not to strike Shea’s motion will be denied. C. Shea Has Not Met His Burden of Showing that Reconsideration of the Court’s Title VII Analysis is Warranted . Upon remand, the Court denied the parties’ cross

- motions for summary judgment. Having addressed the issues State raised for reconsideration, the Court now turns to the issues that Shea has raised. Three of the four issues Shea posits (items numbered 1, 2 , and 4) relate to the Court’s analysis of Shea’s Title VII claim : (1) that the Court placed the burden on Shea to establish the amount of damages to which he was entitled, (2) that the Court failed to give conclusive effect to certain requests for admissi ons, and (4) that the MLAAP must be presumed lawful until Shea demonstrates that it is not. See Shea Mot. Recons. at 1. Because a decision in Shea ’s favor here would still not result in the Court granting summary judgment, Shea has not met his burden of demonstrating that harm or injustice would result from the denial of reconsideration of these three issues

. In reviewing Shea’s Title VII claim, the Court noted that Shea had to satisfy three elements of the claim: (1) that the MLAAP was unlawful, (2) that except for his race, Shea was qualified for the program, and (3) that Shea was damaged during the period in question by the continuing effects of the MLAAP. Aug. 11, 2009 Mem. Order [69] at 5

- 6. The threshold issue for a court addressing a Motion for Summary Judgment is to ensure “that there is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56( a). Shea’s requests for reconsideration fail at this point. Shea’s fourth issue for reconsideration is the Court’s finding that the MLAAP must be presumed lawful until Shea demonstrates otherwise. Shea Mot. Recons. at 1. Shea notes that14 this finding is correct under Supreme Court precedent, and presents his request for reconsideration as a proffer for the record in the event this case is appealed to the Supreme Court. Shea Mot. Recons. at 23. As the Court’s decision was admittedly correct under the law , Shea’s fourth issue for reconsideration will be denied. More importantly, in its original decision, the Court found that “[t]he necessary conclusion is that genuine issues of material fact remain in dispute as to the lawfulness of State’s affirmative ac tion program.” Aug. 11, 2009 Mem. Order [69] at 9. Shea has not contested this conclusion, only the presumption that the program is lawful until proven otherwise. See generally Shea Mot. Recons. at 23

- 28. Arguably, the Court’s analysis of Shea’s Title V II claim might have ended here , as the summary judgment motion fails for the Title VII claim on this finding alone . But the Court went ahead and addressed the other two prongs of the Title VII test that it enumerate d

. See Aug. 11, 2009 Mem. Order [69] at 9

- 11. The first and second issue in Shea’s motion for reconsideration address the Court’s finding with respect to Shea’s demonstration of harm. Were the Court to change its decision on these two issues, Shea’s summary j udgment motion would still fail on the unlawfulness element . Shea cannot show that any harm or injustice would result from denial of reconsideration of these issues when he already conceded the point on the unlawfulness of the
MLAAP. Therefore Shea’s first two issues for reconsideration will also be denied.
D. Shea Has Not Shown that the Court Erred by Allowing State to File Responses to His Request for Admissions Out of Time Shea’s third issue for reconsideration concerns the Court’s decision to grant State’s motion for leave to file respon ses to Shea’s requests for admissions out of time. See Shea Mot. Recons. at 1; see generally Def.’s Mot. Leave to File [75]; Feb. 2, 2010 Order [78]. Shea argues that the Court misapplied the standard for withdrawing or amending an admission under Rule
3 6(b) of the Federal Rules of Civil Procedure. Shea Mot. Recons. at 19

- 23. Shea’s opposition to15 State’s motion only objected to allowing State to respond to admission number 10. Pl.’s Opp. to Def.’s Rule 36(b) Mot. [76] at 1; Shea Mot. Recons. at 20. Ad mission number 10 stated: Plaintiff met the minimum objective qualifications to have applied to start at a mid

- level FSO grade under the MLAAP, with this one exception: as a white non

Hispanic, he was not eligible to participate in the program. Shea Mot. R econs . at 20. In granting State’s motion for leave to file, the Court limited State’s response to this request for admission: [U]nless the government is prepared to demonstrate that any non

- minority person applied for and was denied acceptance to MLAAP because of his or her qualifications , the plaintiff will be deemed to have been qualified for MLAAP

– except for his race (or national origin, or ethnicity). Feb. 2, 2010 Order [78] at 1

- 2 (emphasis in original). Shea himself notes that in allowing St ate to late file its admissions subject to this limitation, State’s “victory [was] a hollow one

. ” Shea
Mot. Recons. at 21. Hence Shea has not met his burden of showing that harm or injustice would arise by the Court’s failure to change its de cision on this m atter. Therefore Shea’s third issue for reconsideration will also be denied.
E. Resolution of Motions File d Subsequent to the Court’s Stay of the Proceedings . Judge Sullivan stayed the proceedings in this case on March 9, 2011, pending a status hearing to be held April 6, 2011. Mar. 9, 2011 Minute Order. Prior to the hearing, Shea filed a notice of matters he felt useful to discuss at the April 6 hearing, to which State filed a response. See generally Pl.’s N otice [92]; Def.’s Resp. t o Pl.’s Notice [94]. State also filed its Motion for Reconsideration. See generally Def.’s Mot. Recons. [93]. At the April 6, 2011 hearing, Judge Sullivan extended the stay pending resolution of State’s Motion for Reconsiderati on. Apr. 8, 2011 Minute Order. Subsequently Shea filed his Estoppel Motion, State filed its motion for extension of time to reply, and Shea filed a motion requesting clarification of the status of the16 April 8 stay. See generally Estoppel Motion [106]; Def’s Mot. Ext. Time [107]; Pl.’s Mot. Clarif. [108]. While it is clear from the transcript of the April 8, 2011 hearing that Shea filed his Estoppel Motion in violation of the stay, the purpose of the stay was to address State’s mo tion for reconsideration. 8 This now having been accomplished, that stay is no longer in force, and striking Shea’s Estoppel Motion serves no purpose. When the Court denied State’s Motion to Strike, it held Shea’s Motion for Summary Judgment in abeyance, ruling that State was not obliged to respond to it until the c ompletion of discovery. Feb. 2 , 2010 Order [78] at 2. At the April 6, 2011 hearing , the parties stipulated that discovery is complete. See A pr . 6, 2011 Tr. at
10

- 11. However, because the Cou rt’s resolution of Shea’s Estoppel Motion will a ffect State’s response to Shea’s Motion for Summary Judgment, it is appropriate for the Court to continue to hold the summary judgment motion in abeyance. Therefore, in consideration of the current state of these proceedings, the Court will deny Shea’s Motion for Clarificati on as moot, will grant
State’s m otion for e xtension of t ime, will continue to hold Shea’s Motion for Summary Judgment in abeyance, and will extend the stay of the proceedings until Shea’s Estoppel Motion is fully briefed.
IV. CONCLUSION State has failed to meet its burden of showing that the Court erred as a matter of law in requiring that the FRAA be interpreted alongside, not as an exception to, Title VII, and State has failed to show that th is finding works an injustice. S tate has also failed to show that the Court’s failure to strike Shea’s Motion for Summary Judgment was in error or results in injustice. Therefore, State’s Motion for Reconsideration [93] will be denied.

8 “ After

. . . a preliminary review of Defendant’s motion , t he Court has determined tha t the best way to proceed is to continue the temporary stay of this action while Plaintiff responds to Defendant’s motion for reconsideration

. . . . Following the resolution of this issue the Court will be in a better position to determine how to address t he remaining issues before the Court. ” Apr. 6, 2011 Tr. at 6

- 7 (emphasis added).17 Shea has failed to meet his burden of showing harm from the Court’s failure to reconsider its decision that Shea bears the burden of persuasion of showing that he suffered injury due to the MLAAP as such a finding would not reverse the denial of Shea’s Motion for Summary
Ju dgment

. Nor has Shea shown that the Court’s order allowing State , subject to limitation , to late file responses to his request for admission s will prejudice his case. Therefore Shea’s Motion for Reconsideration of Four Matters [85] will be denied

. As the reason for the prior stay has been resolved , Shea’s Motion for Clarification [108] is now moot, and hence will be denied. State’s Consent Motion to Enlarge Time [107] will be granted. State will have fourteen (14) days from this date to file its o pposition to Shea’s Estoppel Motion [106] , and Shea will then have seven (7) days to file a reply. Shea’s Motion for Summary Judgment [74] remains in abeyance, and the proceedings remain stayed , pending resolution of Shea’s Estoppel Motion. When the Cour t rules on the Estoppel Motion, t he Court will also issue a schedule to complete briefing Shea’s Motion for Summary Judgment and will reconsider the status of the stay

. So that there is no f urther ambiguity about the stay: u ntil the Court orders otherwise, the parties must seek leave to file any briefs other than the required opposition and reply for Shea’s Estoppel Motion. Such leave will only be granted if the Court, at its discretion , feels that the issue raised would prejudice one of the parties in mee ting a requirement to timely complete briefing of Shea’s Motion for Summary Judgment after the Court rules on the Estoppel Motion. Any such requests must include a copy of the proposed filing. A separate order consistent with this memorandum opinion shall issue this date. Signed by Royce C. Lamberth, Chief Judge, on March 23 , 2012

.