El-Hewie v. Governor of New Jersey ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2014
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MOHAMED F. EL-HEWIE,
Appellant
v.
GOVERNOR OF STATE OF NEW JERSEY; FAITH S. HOCHBERG, U.S.D.J.;
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; LOUISE T. LESTER,
CHIEF SPECIAL PROSECUTIONS BUREAU; MELISSA T. DUTTON, DEPUTY
ATTORNEY GENERAL; MARGARET M. MONACO, A.L.J.; WALTER M.
BRASWELL, A.L.J.; LAURA SANDERS, DIRECTOR AND CHIEF A.L.J.; LUCILLE
E. DAVY, COMMISSIONER OF EDUCATION; ROBERT R. HIGGINS, ACTING
SECRETARY; M. KATHLEEN DUNCAN, DIRECTOR OF BUREAU OF
CONTROVERSIES AND DISPUTES; AARON R. GRAHAM, BCTS BOARD
MEMBER AND BERGEN COUNTY SUPERINTENDENT; DENNIS MCNERNEY,
BERGEN COUNTY EXECUTIVE; JAMES M. CARROLL, FREEHOLDER
CHAIRMAN, DEMAREST; JULIE O'BRIEN, FREEHOLDER VICE CHAIRWOMAN,
RAMSEY; ELIZABETH CALABRASE, FREEHOLDER CHAIRPERSON PRO
TEMPORE, WALLINGTON; DAVID L. GANZ, FREEHOLDER, FAIR LAWN;
BERNADETTE P. MCPHERSON, FREEHOLDER, RUTHERFORD; TOMAS J.
PADILLA, FREEHOLDER, UPPER SADDLE RIVER; VERNON C. WALTON,
FREEHOLDER, ENGLEWOOD; BRADLEY M. WILSON, BOARD ATTORNEY;
WILLIAM C. SOUKAS, BOARD ATTORNEY
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On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 09-cv-00927
(Honorable Mary L. Cooper)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 6, 2010
Before: SCIRICA, JORDAN and VANASKIE, Circuit Judges.
(Filed: October 12, 2010)
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OPINION OF THE COURT
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PER CURIAM.
Mohamed F. El-Hewie, proceeding pro se, appeals an order of the United States
District Court for the District of New Jersey denying a “Motion to Reopen Plaintiff’s
Closed Case.” We will affirm.
In 2006, El-Hewie filed a petition with the New Jersey Department of Education
challenging the non-renewal of his one-year provisional contract to work as a teacher for
the Board of Education of the Bergen County Vocational School District. Following a
six-day hearing, an administrative law judge (“ALJ”) dismissed the petition, concluding
that El-Hewie’s claims were without merit. On April 10, 2008, the New Jersey
Commissioner of Education affirmed the dismissal of El-Hewie’s claims. The New
Jersey Superior Court affirmed the decision of the Commissioner, see El-Hewie v. Board
of Educ., No. A-6310-07T3, 2009 WL 4981212 (N.J. Super. Ct. App. Div., Dec. 24,
2009), and the Supreme Court of New Jersey denied El-Hewie’s petition for certification.
See El-Hewie, v. Board of Educ., 992 A.2d 792 (N.J. 2010).
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Meanwhile, El-Hewie raised essentially the same claims in a complaint filed in the
United States District Court for the District of New Jersey. The District Court granted the
defendants’ motions to dismiss, and we affirmed. See El-Hewie v. Bergen County, C.A.
No. 10-1284, 2010 WL 3370978 (3d Cir. Aug. 26, 2010); El-Hewie v. Bergen County,
C.A. No. 08-4900, 348 Fed. Appx. 790 (3d Cir. Sept. 17, 2009). In particular, we held
that El-Hewie had no property interest in his non-tenured teaching position, that his bare
allegations about a conspiracy failed to state a claim, and that his employment
discrimination claims were barred by the doctrine of res judicata.
El-Hewie filed another complaint in February 2009. At bottom, his allegations
arose out of the non-renewal of his employment contract, although he primarily
challenged the results and propriety of the prior administrative, state, and federal
proceedings. In addition to several defendants named in his previous lawsuit, El-Hewie
brought claims against the District Court judge, various county freeholders, and certain
New Jersey state officials, including the Governor and Attorney General. He alleged that
the defendants “deprived [him of] his state and federal constitutional rights . . . by
committing acts of fraud, negligence, concealment, perjury, intentional employment
discrimination, corruption, reprisal, delay, and favoritism.” The District Court granted
the defendants’ motions to dismiss, holding that El-Hewie could not challenge the prior
District Court decisions in a new complaint, that the judges were entitled to immunity,
and that any claims mirroring those adjudicated in the prior state and federal proceedings
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were barred by the Rooker-Feldman doctrine and res judicata. El-Hewie filed a motion
for reconsideration, which the District Court denied in August 2009. In February 2010,
El-Hewie filed a “Motion to Reopen Plaintiff’s Closed Case.” The District Court denied
the motion, stating that El-Hewie was “rais[ing] the same arguments that he raised
previously” and that the “Court’s previous reasoning still applies.” El-Hewie appealed.
The “Motion to Reopen” appears to be a request for relief from judgment under
Federal Rule of Civil Procedure 60(b)(6).1 Cf. Ahmed v. Dragovich, 297 F.3d 201, 208
(3d Cir. 2002) (stating that “we are free to recharacterize the motion to amend to match
the substance of the relief requested.”). An appeal from an order denying a motion for
relief from a judgment under Rule 60(b) brings up only the correctness of the order
denying that motion, not the underlying order. See Torres v. Chater, 125 F.3d 166, 167
(3d Cir. 1997). We review the District Court’s denial of the motion to reopen for abuse
of discretion. See Brown v. Philadelphia Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003).
We may affirm the District Court’s judgment on any basis supported by the record. See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).
El-Hewie claimed that his case should be reopened because the District Court
failed to apply relevant caselaw. In limited circumstances, an intervening change in
controlling law can support a motion under Rule 60(b)(6). See Foraker v. Chaffinch, 501
1
El-Hewie has not advanced a plausible basis for relief under any other subsection of
Rule 60(b).
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F.3d 231, 246 n.10 (3d Cir. 2007). Significantly, however, all of the cases cited by El-
Hewie in his “Motion to Reopen” pre-date the District Court’s decision granting the
defendants’ motions to dismiss. Therefore, he could have raised arguments based on
those cases in his opposition to the motions to dismiss. In any event, “[i]ntervening
developments in the law by themselves rarely constitute the extraordinary circumstances
required for relief under Rule 60(b)(6) . . . .” Agostini v. Felton, 521 U.S. 203, 239
(1997). El-Hewie has not pointed to any extraordinary circumstances that would warrant
a grant of Rule 60(b)(6) relief. Accordingly, we conclude that the District Court did not
abuse its discretion in denying El-Hewie’s “Motion to Reopen.”
For the foregoing reasons, we will affirm the judgment of the District Court.
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