Robert Cohen v. Board of Trustees , 819 F.3d 476 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2015 Decided April 22, 2016
No. 15-7005
ROBERT COHEN,
APPELLANT
v.
BOARD OF TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF
COLUMBIA, C/O CHAIR, DR. ELAINE CRIDER, IN THEIR
OFFICIAL CAPACITIES AS TRUSTEES FOR THE UNIVERSITY
SYSTEM FOR THE UNIVERSITY OF THE DISTRICT OF COLUMBIA
AND ITS FLAGSHIP UNIVERSITY OF THE DISTRICT OF
COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00754)
Tyler Jay King argued the cause and filed the briefs for
appellant.
Anessa Abrams argued the cause and filed the brief for
appellees. With her on the briefs was B. Patrice Clair.
2
Before: GRIFFITH, MILLETT, and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In the summer of 2010, the
University of the District of Columbia fired Robert Cohen
from his position as a tenured professor. Cohen filed a
complaint in D.C. Superior Court against the Board of
Trustees and three university officials alleging, among other
things, a violation of his procedural due process rights under
the U.S. Constitution. According to Cohen, the university
fired him without notice or an opportunity to be heard.
The defendants removed Cohen’s case to federal court
and moved to dismiss his claims under Federal Rule of Civil
Procedure 12(b)(6). Cohen missed the deadline to file a brief
in opposition to the motion to dismiss. He later sought an
extension of time to respond, filed an opposition, and moved
to amend his complaint. The district court enforced the missed
deadline against Cohen and refused to consider his late
opposition to the defendants’ motion to dismiss. Invoking
Local Rule 7(b), the district court granted the motion to
dismiss on the ground that its merits were unopposed and thus
conceded by Cohen, thereby dismissing Cohen’s complaint
and case with prejudice. The district court then denied
Cohen’s motion to amend the complaint as moot and, in the
alternative, for failure to consult with opposing counsel
pursuant to Local Rule 7(m). Cohen filed a motion for
reconsideration under Federal Rules 59(e) and 60(b), which
the district court also denied.
The district court’s application of prejudice to Cohen’s
complaint and case carried res judicata effect and barred
Cohen from ever bringing his claims again. See Ciralsky v.
CIA, 355 F.3d 661, 669 (D.C. Cir. 2004). Had the district
3
court dismissed only Cohen’s complaint without prejudice
and not dismissed the case at all, Cohen could have filed a
new complaint in his original case and the statute of
limitations would have been tolled from the date of his
original complaint. See id. at 666, 672. Alternatively, had the
district court dismissed Cohen’s complaint and case, both
without prejudice, Cohen could have filed a new complaint in
a new case only if the claims were still timely as of the new
filing. See id. at 672 (recognizing that this statute-of-
limitations difference between dismissing a case and
dismissing only a complaint can mean that a case dismissed
“nominally without prejudice” is de facto with prejudice, even
though dismissal of only the complaint without prejudice
would have allowed the case to go forward).
Cohen appeals the district court’s rulings. We have
jurisdiction under 28 U.S.C. § 1291 and our review is for
abuse of discretion. See Smith v. District of Columbia, 430
F.3d 450, 456 (D.C. Cir. 2005) (motion to extend time); Fox
v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004)
(application of Local Rule 7(b) to failure to oppose a motion
to dismiss). For the reasons set forth below, we affirm the
district court’s denial of Cohen’s motion to extend time and
its dismissal of the complaint. But we reverse the district
court insofar as it dismissed the complaint with prejudice and
dismissed the case. In light of our disposition, we need not
reach Cohen’s remaining challenges.
I
Cohen sought an extension of time to file his opposition
to the motion to dismiss on the ground that his counsel made a
mistake. According to Cohen, counsel misread the electronic
docket and thus did not believe the defendants’ motion to
dismiss had been filed properly. While trying to find the
motion to dismiss on the electronic docket, Cohen’s counsel
clicked the wrong link, and the file he opened included only
4
exhibits, but no motion. Counsel’s assistant made the same
mistake, confirming in the mind of Cohen’s counsel his
mistaken belief that the defendants had not properly filed the
motion to dismiss. By the time counsel realized his error, the
time for him to respond had run out.
Rule 6(b) of the Federal Rules of Civil Procedure permits
a court to extend deadlines, even after the time to act has
expired, if there is good cause and the party “failed to act
because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).
Excusable neglect is an equitable concept that considers “all
relevant circumstances” surrounding the failure to act.
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 395 (1993). Generally, “excusable neglect” does not
require counsel to have been faultless, and “inadvertence,
mistake, or carelessness” can fall within the rule. Id. at 388;
4B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1165 (4th ed. 2015). But
counsel typically must have “some reasonable basis” for not
meeting a filing deadline. WRIGHT & MILLER, supra, § 1165.
To determine whether the district court permissibly exercised
its discretion to find counsel’s neglect inexcusable, we
consider four factors set forth by the Supreme Court in
Pioneer: (1) the risk of prejudice to the other side; (2) the
length of the delay and the potential impact on judicial
proceedings; (3) the reason for the delay and whether it was
within counsel’s reasonable control; and (4) whether counsel
acted in good faith. See 507 U.S. at 395; Yesudian ex rel.
United States v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir.
2001) (applying the four Pioneer factors).
The district court carefully considered the four Pioneer
factors, finding that two weighed in Cohen’s favor and two
against. On the one hand, granting the extension would cause
minimal prejudice to the defendants, and the court found no
bad faith by counsel. On the other hand, his repeated failure
5
“to meet almost every relevant deadline” created a pattern that
could, taken together, burden judicial proceedings. Cohen v.
Bd. of Trs., 305 F.R.D. 10, 13 (D.D.C. 2014). Most
importantly, counsel “put forth no reasonable excuse” for the
delay; there was no suggestion that anything went wrong with
the court’s electronic docket. Id. at 14. Instead, Cohen’s
counsel and later his assistant simply misread its contents.
We give “great deference” to a district court’s Rule 6(b)
decision, Yesudian, 270 F.3d at 971, and the district court here
was well within its discretion to find that Cohen did not show
excusable neglect. If we were to require the district court to
excuse the type of mistake made by Cohen’s counsel, it would
be “hard to fathom the kind of neglect that we would not
deem excusable.” Lowry v. McDonnell Douglas Corp., 211
F.3d 457, 464 (8th Cir. 2000). His repeated late filings further
justify the court’s “case-management decision[].” Yesudian,
270 F.3d at 971 (quoting Maldonado-Denis v. Castillo-
Rodriguez, 23 F.3d 576, 583-84 (1st Cir. 1994)). This was
counsel’s fourth missed deadline: counsel not only missed the
deadline to respond to the motion to dismiss, but he was also
late filing a motion to extend time to respond to the motion to
dismiss, a reply brief in support of that motion to extend time,
and a second motion to extend time to file his reply in support
of his first motion to extend time. The district court did not
abuse its discretion when it denied Cohen’s motion to extend
time to file his opposition brief.
II
Having rejected Cohen’s tardy opposition, the district
court treated the defendants’ unopposed motion to dismiss as
conceded pursuant to Local Rule 7(b) and dismissed Cohen’s
complaint and case with prejudice. We reluctantly affirm the
court’s decision to grant the motion to dismiss the complaint.
To do so with prejudice, however, and to dismiss the case as
well were an abuse of discretion.
6
A
Local Rule 7(b) permits a court to “treat . . . as conceded”
a motion not met with a timely opposing memorandum of
points and authorities. D.D.C. Local Rule 7(b). Local Rule
7(b) is a “docket-management tool that facilitates efficient
and effective resolution of motions,” and we have yet to deem
a “straightforward application of Local Rule 7(b)” an abuse of
discretion. Fox, 389 F.3d at 1294; see also Texas v. United
States, 798 F.3d 1108, 1113-15 (D.C. Cir. 2015).
We have upheld district courts’ application of Local Rule
7(b) to grant unopposed motions to dismiss complaints with
prejudice under Federal Rule 12(b)(6). See, e.g., Fox, 389
F.3d at 1292; Jackson v. Todman, 516 F. App’x 3 (D.C. Cir.
2013) (per curiam) (unpublished). In Fox, the defendant
moved to dismiss the complaint, at which point the plaintiffs
filed both an amended complaint and an opposition to the
motion to dismiss. The defendant responded by moving to
dismiss the amended complaint, but this time the plaintiffs
failed to respond. We affirmed the district court’s use of
Local Rule 7(b) to dismiss the complaint with prejudice even
though plaintiffs’ counsel claimed that he never saw the
second motion to dismiss, an explanation we found “plainly
unacceptable” because counsel was obliged to monitor the
electronic docket. Fox, 389 F.3d at 1294-95. We found it
difficult to understand how counsel did not realize his
mistake, particularly because counsel referenced the
“pending” motion to dismiss in other filings submitted after
the defendant filed its second motion to dismiss. Id.
We face a similar situation here. Because the district
court properly denied Cohen’s motion to extend time, the
court did not consider Cohen’s opposition brief. At that point
the tardy opposition was equivalent to no opposition at all.
Under our precedent, the district court did not commit
reversible error in granting the defendants’ unopposed motion
7
to dismiss the complaint under Federal Rule 12(b)(6), at least
insofar as dismissal was without prejudice.
B
Even so, we have concerns about that precedent. The
local rules of a district court must be consistent with the
Federal Rules of Civil Procedure, Fed. R. Civ. P. 83(a)(1) (“A
local rule must be consistent with—but not duplicate—federal
statutes and rules[.]”), and Local Rule 7(b) stands in tension
with Federal Rule 12(b)(6). To the extent that it allows a
district court to treat an unopposed motion to dismiss as
conceded, Local Rule 7(b) effectively places the burden of
persuasion on the non-moving party: when he fails to respond,
he loses. But Federal Rule 12(b)(6) places this burden on the
moving party. See 5B CHARLES A. WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed.
2015) (“All federal courts are in agreement that the burden is
on the moving party to prove that no legally cognizable claim
for relief exists.”). Accordingly, when faced with a 12(b)(6)
motion, the district court must answer the “single question”
whether the movant met that burden—in other words, whether
the complaint “includes ‘enough facts to state a claim to relief
that is plausible on its face.’” Mediacom Se. LLC v. BellSouth
Telecomms., Inc., 672 F.3d 396, 399 (6th Cir. 2012) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
We have yet to wrestle with the tension between Local
Rule 7(b) and Federal Rule 12(b)(6), but most circuits that
have considered the application of similar local rules in this
context prohibit district courts from granting a motion to
dismiss solely because the plaintiff failed to respond. See
McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000) (“If a
complaint is sufficient to state a claim on which relief can be
granted, the plaintiff’s failure to respond to a Rule 12(b)(6)
motion does not warrant dismissal.”); Carver v. Bunch, 946
F.2d 451, 454-55 (6th Cir. 1991) (recognizing that, in the
8
absence of “bad faith or contumacious conduct,” a district
court abuses its discretion by dismissing a plaintiff’s
complaint “solely for his failure to respond to defendants’
motion to dismiss”); Ghazali v. Moran, 46 F.3d 52, 53-54 (9th
Cir. 1995) (permitting dismissal as a sanction only if other
factors are met); Issa v. Comp USA, 354 F.3d 1174, 1177-78
(10th Cir. 2003) (reasoning that failure to oppose a motion to
dismiss cannot be the sole basis for dismissal because “the
district court must still examine the allegations in the
plaintiff’s complaint and determine whether the plaintiff has
stated a claim upon which relief can be granted” but
permitting dismissal as a sanction if other conditions are met);
see also Servicios Azucareros de Venezuela, C.A. v. John
Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012)
(recognizing in the context of a different procedural failure
that “Rule 12 does not by its terms require an opposition;
failure to oppose a 12(b)(6) motion is not in itself grounds for
granting the motion”). The Fourth Circuit also has recognized,
albeit in dicta, that district courts are obliged to review the
merits of a motion to dismiss even if the plaintiff fails to
respond. Stevenson v. City of Seat Pleasant, 743 F.3d 411,
416 n.3 (4th Cir. 2014) (citing cases where other circuits
address such dismissals for failure to comply with local rules).
And the Third Circuit requires district courts to consider the
merits of a claim before granting an unopposed 12(b)(6)
motion pursuant to a local rule, Shuey v. Schwab, 350 F.
App’x 630, 633 (3d Cir. 2009) (unpublished) (collecting
cases), although it previously recognized in dicta that there
could be exceptions to that general approach, see Stackhouse
v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991).
In contrast, the First Circuit has said that there is no
conflict between its version of Local Rule 7(b) and Federal
Rule 12(b)(6). ITI Holdings, Inc. v. Odom, 468 F.3d 17, 18-19
(1st Cir. 2006) (reasoning that the text of Rule 12(b)(6) does
not “compel[] the court to apply any particular standard”). But
9
see Vega-Encarnación v. Babilonia, 344 F.3d 37, 40-41 (1st
Cir. 2003) (reasoning, in the context of uncertainty about the
basis for dismissal, that “[i]f the merits are at issue, the mere
fact that a motion to dismiss is unopposed does not relieve the
district court of the obligation to examine the complaint itself
to see whether it is formally sufficient to state a claim”). And
the Eleventh Circuit’s cases reflect tension within that circuit
on this issue. Compare Rex v. Monaco Coach, 155 F. App’x
485, 486 (11th Cir. 2005) (per curiam) (unpublished) (holding
that dismissal for failure to comply with a local rule requiring
a timely response is appropriate “only as a last resort” when
there is a pattern of delay or willful contempt and lesser
sanctions would not suffice), with Magluta v. Samples, 162
F.3d 662, 664 (11th Cir. 1998) (noting that “the district court
could have dismissed the action” under a similar local rule).
Cf. Tobel v. City of Hammond, 94 F.3d 360, 362 (7th Cir.
1996) (recognizing in the context of failure to respond to a
motion for judgment on the pleadings that “the district court
clearly has authority to enforce strictly its Local Rules, even if
a default results”).
Our sister circuits recognize a similar tension between
Local Rule 7(b) and the Federal Rules in the related context
of summary judgment. See Grimes v. District of Columbia,
794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)
(collecting cases). Federal Rule 56 places the burden of
persuasion on the movant by requiring him to “show[]” that
he is entitled to summary judgment. Fed. R. Civ. P. 56. This is
why a court may grant summary judgment “only if the motion
and supporting materials . . . show that the movant is entitled
to it.” Fed. R. Civ. P. 56(e) advisory committee’s note. There
may be a problem when a district court applies its local rules
to grant a motion for summary judgment even if the movant
has not met that burden under Rule 56—a burden that does
not shift simply because the non-moving party fails to oppose
the motion. See Grimes, 794 F.3d at 95-98 (Griffith, J.,
10
concurring) (highlighting the tension between this principle
and our holding in FDIC v. Bender, 127 F.3d 58, 68 (D.C.
Cir. 1997)). In line with that concern, the Advisory
Committee Note that accompanies Rule 56 explains that
“summary judgment cannot be granted by default even if
there is a complete failure to respond to the motion[.]” Fed. R.
Civ. P. 56(e) advisory committee’s note.
We have a second concern as well. Applying Local Rule
7(b) to grant an unopposed motion to dismiss under Federal
Rule 12(b)(6) risks circumventing the clear preference of the
Federal Rules to resolve disputes on their merits. This
preference is particularly strong when dismissal has
preclusive effect. See Krupski v. Costa Crociere S. p. A., 560
U.S. 538, 550 (2010) (recognizing the preference to resolve
disputes on their merits); Rudder v. Williams, 666 F.3d 790,
794 (D.C. Cir. 2012) (same when dismissal is with prejudice).
For this reason, heightened protections attach when courts
dismiss cases with prejudice on procedural grounds under
Federal Rules 41(b) or 55, which are the tools that the Federal
Rules provide to address the same docket-management
concerns of “efficient and effective resolution of motions,”
Texas, 798 F.3d at 1113-14, that inform Local Rule 7(b). For
example, this preference is why, when dismissing a case
under Federal Rule 41(b) for a plaintiff’s failure to prosecute,
a court ordinarily may order that “harsh sanction” only if the
conduct is “egregious” and “less dire alternatives” have not
worked. Peterson v. Archstone Cmtys. LLC, 637 F.3d 416,
418 (D.C. Cir. 2011). And for the same reason, when a court
enters default judgment against a defendant under Federal
Rule 55, procedural protections nevertheless allow relief in
certain circumstances, such as when a defendant with a valid
argument on the merits has not “willfully defaulted” and the
plaintiff would not suffer prejudice. Jackson v. Beech, 636
F.2d 831, 832 (D.C. Cir. 1980).
11
Local Rule 7(b) works against that weighty preference in
favor of deciding cases on their merits when applied to a case-
dispositive motion under Federal Rule 12(b)(6). Not only
does Local Rule 7(b) effectively shift the burden of
persuasion to the non-moving party, allowing the district
court to dispose of cases without examining their merits, but it
also provides none of the procedural protections that attach
when the court dismisses a case under Federal Rules 41(b) or
55 instead. See Carver, 946 F.2d at 454 (refusing to uphold a
similar application of a local rule because doing so “would, at
a minimum, expand the district court’s authority over that
which it possesses under Rule 41(b)”).
Although in Fox we did not require the district court to
consider less harsh alternatives before granting a dispositive
motion based on the plaintiff’s procedural failure, 389 F.3d at
1295, we typically do require consideration of such
alternative sanctions in similar situations. See Peterson, 637
F.3d at 418 (discussing requirements for dismissal under
Federal Rule 41(b)). Because “[g]ranting an unopposed
motion is similar to granting a default judgment against a
defendant who fails to respond,” Hosseinzadeh v. Green Point
Mortg. Funding, Inc., 577 F. App’x 925, 929 (11th Cir. 2014)
(per curiam) (unpublished), this use of Local Rule 7(b) in a
way that seems to undermine the Federal Rules’ protections is
troubling.
In an appropriate case, we may wish to revisit en banc
our approach to Local Rule 7(b) in the context of a Rule
12(b)(6) motion. In any event, district courts may in their
discretion consider alternatives that are less harsh to parties,
and should find alternatives to merits dismissals under Local
Rule 7(b) especially appropriate where the attorney’s, not the
party’s, conduct is the problem.
C
12
Although our decision in Fox v. American Airlines
compels us to affirm the district court’s decision insofar as it
granted the motion to dismiss the complaint, it does not
require us to affirm the court’s decision to do so with
prejudice or to affirm the dismissal of the case.
Cohen’s case is different from Fox, where the district
court faced a “straightforward” situation in which to apply
Local Rule 7(b) to dismiss a complaint with prejudice. Id. at
1294. In Fox, counsel had failed to respond at all to the
motion to dismiss for the eight months that preceded the
district court’s dismissal of the complaint. Id. at 1293. Here,
Cohen filed an opposition to the motion to dismiss, albeit a
few weeks late, as well as an amended complaint, both
attempts to remedy what the district court treated as his
effective concession. Cohen’s relatively prompt attempt to
respond to the motion to dismiss, as well as the absence of
any bad faith or prejudice to the defendants, makes all the
difference.
Our decision in Rudder v. Williams illustrates why this is
so. In Rudder, we reversed the district court’s application of
prejudice to a dismissal under Rule 12(b)(6), because the
plaintiffs had made a “belated attempt” to retract the
concession that drove dismissal. 666 F.3d at 794-95. In that
case, adult and juvenile plaintiffs brought an excessive force
case against the District of Columbia and two police officers,
asserting common law and Fourth Amendment claims. They
conceded to the district court that all of their common law
claims were untimely when, in fact, only the adult plaintiffs’
claims were barred by the statute of limitations. Id. at 794.
The plaintiffs sought to change their position to pursue the
juveniles’ claims, but we affirmed the dismissal because their
attempt to do so came too late to undo their “unambiguous
concession” below. Id. Nevertheless, we reversed the decision
to dismiss with prejudice, crediting instead the plaintiffs’
13
attempt to remedy the procedural error that led to dismissal.
Id. at 795 (reasoning that “the deficiency” in their case lay
“not in the complaint but in the plaintiffs’ erroneous
concession, which requires no cure beyond simply filing the
complaint anew”). We saw “no reason” in Rudder to deny the
plaintiffs another opportunity to pursue their claims,
particularly in light of the aspiration of the Federal Rules to
resolve disputes on their merits. Id. at 794-95.
Neither do we here. Rudder’s reasoning carries equal
force in this case where the district court granted a case-
dispositive motion because Cohen failed to respond. It seems
an onerous bar to preclude Cohen from ever having his claims
heard because of an inadvertent concession—one that he
never made in fact, that was created through the suspect
application of a local rule, and that he promptly sought to
remedy. The defendants here offer no reason to deny Cohen
the opportunity to pursue his claims in an amended complaint,
and we see none. See id. at 795. In light of Cohen’s efforts to
respond, his lack of bad faith, the absence of any prejudice to
the defendants, and the short delay involved, dismissal of the
complaint without prejudice would have been the proper route
to accomplish Local Rule 7(b)’s docket-management
objectives. The district court abused its discretion by instead
dismissing the complaint with prejudice. We note that our
holding comports with our approach to other “case-ending
sanction[s]” like Rule 41(b) as well. See Peterson, 637 F.3d at
417-19 (“[T]he court must ‘explain why the harsh sanction of
dismissal was necessary under the circumstances of th[e]
case,’” id. at 418 (quoting English-Speaking Union v.
Johnson, 353 F.3d 1013, 1016 (D.C. Cir. 2004))). For the
same reasons, the district court also abused its discretion by
dismissing the case when its dismissal of the complaint under
Local Rule 7(b) should have been, at most, without prejudice.
III
14
In light of our disposition, Cohen is free to file an
amended complaint in this case. We are not aware of any bar
that would prevent him from doing so. Accordingly, we need
not address whether the district court properly denied Cohen’s
motion for leave to amend, because our disposition allows
Cohen simply to file his proposed amended complaint with
the district court if he so chooses. “[T]he cardinal principle of
judicial restraint—if it is not necessary to decide more, it is
necessary not to decide more—counsels us to go no further.”
PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)
(Roberts, J., concurring in part and concurring in the
judgment).
We note as well, however, that should this case continue,
the district court is also free to fashion an appropriate remedy
to protect the interests of the defendants given the significant
delay they have already experienced. We recognize that our
holding seemingly benefits Cohen by allowing him to file the
amended complaint he wanted to file all along, despite the
fact that Cohen’s repeated tardiness was what prompted
dismissal in the first place. But our partial reversal of the
district court’s judgment of dismissal under Local Rule 7(b)
does not prevent the district court from acting to protect the
defendants’ interests, whether by appropriately sanctioning
Cohen’s counsel or otherwise. Indeed, the better practice
would be for district courts generally to treat dismissal under
Local Rule 7(b) as a sanction of last resort.
Finally, Cohen does not raise any new arguments in
support of his motion for reconsideration under Federal Rules
59(e) and 60(b). Having fully considered his arguments
above, we decline to rehash them here. Federal Rule 59(e)
provides for relief to “correct a clear error or prevent manifest
injustice,” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.
Cir. 1996) (per curiam), while Federal Rule 60(b) applies in
cases of “mistake, inadvertence, surprise, or excusable
15
neglect,” or for “any other reason that justifies relief.” Fed. R.
Civ. P. 60(b)(1), (6). To the extent we hold that the district
court abused its discretion, there is no need to address
whether its ruling was also clear error. And to the extent we
hold the district court was within its discretion, there is no
“need to correct a clear error or prevent manifest injustice”
under Rule 59(e), Firestone, 76 F.3d at 1208, or otherwise
grant relief under Rule 60(b), Hall v. CIA, 437 F.3d 94, 99
(D.C. Cir. 2006) (“Relief under Rule 60(b)(1) motions is rare;
such motions allow district courts to correct only limited
types of substantive errors.”); Kramer v. Gates, 481 F.3d 788,
790 (D.C. Cir. 2007) (recognizing that relief under Rule
60(b)(6) is appropriate only in “‘extraordinary
circumstances’” (quoting Ackermann v. United States, 340
U.S. 193, 199 (1950))).
IV
We reverse the district court insofar as it dismissed the
complaint with prejudice and dismissed the case, and remand
for further proceedings consistent with this opinion.