Perry v. U.S. Department of Education

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
GUENEVERE PERRY, )
)
Plaintiff, )
v. ) Civil Action No. 21-3116 (RBW)
)
UNITED STATES DEPARTMENT OF )
EDUCATION, )
)
Defendant. )
)
MEMORANDUM OPINION
On November 22, 2021, the plaintiff, proceeding pro se, initiated this civil action against
the defendant, the United States Department of Education (the “Department”), see Complaint for
a Civil Case (“Compl.”) at 1–2, ECF No. 1, alleging that the Department failed to review her
February 10, 2021 Borrower Defense Application and failed to complete her Privacy Act and
Freedom of Information Act (“FOIA”) requests, in violation of “the Individual Process for
Borrower[] Defense §[]685.403[, which is a Department Regulation,] . . . the [FOIA], the
Privacy Request Act of 1974, and the Open [Government] Data Act of 2019[,]” Complaint for a
Civil Case (“Am. Compl.”) at 5, ECF No. 4. On January 12, 2022, the Court closed the case in
light of the Plaintiff[’]s[] Motion [for] Dismissal Without Prejudice (“Pl.’s Voluntary
Dismissal”), ECF No. 6, which the Court construed as a notice of voluntary dismissal without
prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). See Minute (“Min.”) Order
(Jan. 12, 2022); see also Pl.’s Voluntary Dismissal at 1 (stating that, “[p]ursuant to Fed[eral]
Rule 41, [t]he [p]laintiff . . . respectfully moves the court to dismiss the case without prejudice”
and noting that “[a] plaintiff, under [R]ule 41[](a)[](i), is permitted to dismiss voluntarily only
once” (emphasis omitted)). Currently pending before the Court are: (1) the plaintiff’s Motion
[f]or Relief from a Judgment or Order Pursuant [to] Fed[eral] Rule 60(b)(2) (“Pl.’s 3d Mot. to
Reopen” or the “plaintiff’s third motion to reopen”), ECF No. 14; (2) the plaintiff’s Motion to
Request Court to Post-Pone Review of Docket 12 (“Pl.’s Mot. to Postpone” or the “plaintiff’s
motion to postpone”), ECF No. 15; and (3) the plaintiff’s Motion to Withdraw Docket #12 from
the Docket System (“Pl.’s 2d Mot. to Withdraw” or the “plaintiff’s second motion to withdraw”),
ECF No. 13. Upon careful consideration of the plaintiff’s submissions,1 the Court concludes for
the following reasons that it must (1) deny the plaintiff’s third motion to reopen, (2) deny as
moot the plaintiff’s motion to postpone, and (3) grant the plaintiff’s second motion to withdraw.
I. BACKGROUND
Following the plaintiff’s December 26, 2021 voluntary dismissal of this case without
prejudice, see generally Pl.’s Voluntary Dismissal, and the Court’s January 12, 2022 Minute
Order closing the case, see Min. Order (Jan. 12, 2022), the plaintiff filed a series of motions
relating to her desire to reopen the case. First, on March 10, 2022, the plaintiff filed a motion
requesting that the Court reopen the case. See Motion to Reopen Case and Cure Defect
Complaint (“Pl.’s Mot. to Reopen” or the “plaintiff’s first motion to reopen”) at 1, ECF No. 7.
However, in light of the plaintiff’s representations to the Court in her subsequent filing on
April 4, 2022, in which she requested that the Court “post[]pone her case review[,]” Plaintiff
Postpones Review of Motion to Reopen Case at 1, ECF No. 10, the Court denied without
prejudice the plaintiff’s first motion to reopen, see Min. Order (May 19, 2022).
Subsequently, on June 28, 2022, the plaintiff filed a second motion to “cure her
complaint and reopen her case.” Pl.’s 2d Mot. to Reopen at 1. In the plaintiff’s second motion
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the plaintiff’s Motion to Reopen Case & Amend Complaint under Fed[eral] Rule 60 (“Pl.’s 2d Mot. to
Reopen” or the “plaintiff’s second motion to reopen”), ECF No. 11; and (2) the plaintiff’s Motion to Withdraw
Request # to Reopen Case (“Pl.’s Mot. to Withdraw” or the “plaintiff’s first motion to withdraw”), ECF No. 12.
2
to reopen, she alleges that an “amendment would not prejudice the defendant as no one [has
been] summoned and the request is within the [one]-year statute of limitations.” Id. However,
on July 21, 2022, at the plaintiff’s written request, see Pl.’s Mot. to Withdraw at 1, her second
motion to reopen was withdrawn by the Clerk of the Court.
On July 25, 2022, despite the fact that the Clerk of the Court had already withdrawn the
plaintiff’s second motion to reopen, she filed a motion requesting that the Court “post[]pone
review of docket 12[, i.e., the plaintiff’s withdrawal of her second motion to reopen,] for
[twenty-one] days.” Pl.’s Mot. to Postpone at 1. Finally, on July 28, 2022, before the Court
could resolve the plaintiff’s request to postpone review of her withdrawal of the second motion
to reopen, the plaintiff filed another motion in which she “res[ci]nd[ed] her request in docket
#12.” Pl.’s 2d Mot. to Withdraw at 1. In other words, the plaintiff’s July 28, 2022 motion
rescinded her request to withdraw the second motion to reopen the case. See id.
Additionally, on July 15, 2022, the plaintiff filed another motion, which the Court
construes as a third motion to reopen this case, in which she requested “relief from O[rder] #6
that [granted] the [p]laintiff’s request for a dismissal.” Pl.’s 3d Mot. to Reopen at 1. The
plaintiff’s third motion to reopen states that, “[o]n July 23, 2020, the [ ] Dep[artmen]t . . . sent a
message that [the plaintiff’s] request [for] reconsideration of [her] Borrower Defense Application
0136889[3] was incomplete and not accepted under review” because the Department needed the
plaintiff to provide “the reasons [she] believed the original determination was incorrect.” Id.
The plaintiff further states that she “submitted her response on July 27, 2020[.]” Id. However,
the plaintiff represents that, on “July 15[], 2022[], [she] was notified by customer service [that]
3
the July 27[][,] 202[0][2] response was not officially entered [in]to [the] record []because the
application has not been assigned to an investigator[][,] and the application is still incomplete
and [was] not being reviewed.” Id. Thus, the plaintiff argues that, “[b]ased on the[se] newly
discovered facts[,] the original agency determination is open for judicial review and
intervention.” Id.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 60(b), the Court, “[o]n motion and just
terms, . . . may relieve a party . . . from a final judgment, order, or proceeding[,]” Fed. R. Civ. P.
60(b), for one of six reasons:
(1) [M]istake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(1)–(6).
Motions brought pursuant to Rule 60(b)(2), i.e., on grounds of “newly discovered
evidence[,]” Fed. R. Civ. P. 60(b)(2), must be filed “within a reasonable time[—]and . . . no
more than a year after the entry of the judgment or order or the date of the proceeding[,]” Fed. R.
Civ. P. 60(c)(1). And, “[a] trial court enjoys a large measure of discretion in deciding whether to
grant or deny a [Rule] 60(b) motion[.]” Randall v. Merrill Lynch, 820 F.2d 1317, 1320 (D.C.
Cir. 1987).
2
The plaintiff first states that she “submitted her response on July 27, 2020[,]” id., but then references “the July
27[][,] 2021 response[,]” id., so it is unclear from this contradiction whether her response was submitted to the
Department in 2020 or 2021. However, because the plaintiff’s second motion to withdraw states that “[the p]laintiff
thought the [application] was complete, as [she] submitted the info[rmation] requested by the [Department] in
2020[,]’” Pl.’s 2d Mot. to Withdraw at 1, the Court will construe the plaintiff’s reference to July 27, 2021, as a
typographical error and conclude that the plaintiff intended to refer to the year 2020 instead of the year 2021.
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III. ANALYSIS
As best as the Court can discern from the plaintiff’s multiple confusing filings, she
desires to have the Court reopen this case. See Pl.’s 2d Mot. to Withdraw at 1 (stating that “[the
p]laintiff res[ci]nds her request in docket #12[,]” i.e., the request to withdraw her second motion
to reopen); Pl.’s 3d Mot. to Reopen at 1 (requesting “relief from O[rder] #6 that [granted] the
[p]laintiff’s request for a dismissal” and stating that, “[b]ased on the newly discovered facts[,]
the original agency determination is open for judicial review and intervention”). As a
preliminary matter, the Court must first address whether it has the authority to vacate the
plaintiff’s voluntary dismissal of this case. Because the Court ultimately concludes that the
plaintiff’s voluntary dismissal is subject to vacatur under Federal Rule of Civil Procedure 60(b),
see infra Section III.A, the Court will then proceed to address the merits of the plaintiff’s
requests to reopen the case.3
A. Authority Under Rule 60(b) to Vacate Voluntary Dismissals
Voluntary dismissals are governed by Rule 41(a) of the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 41(a). Rule 41(a)(1)(A)(i) provides that a “plaintiff may dismiss an action
without a court order by filing . . . a notice of dismissal before the opposing party serves either an
answer or a motion for summary judgment[.]” Fed. R. Civ. P. 41(a)(1)(A)(i). “When the
plaintiff files a notice of dismissal before service by the adverse party of an answer or of a
motion for summary judgment, the dismissal takes effect automatically[.]” Randall, 820 F.2d at
1320. “Unless the notice . . . states otherwise, the dismissal is without prejudice.” Fed. R. Civ.
3
The Court concludes that the plaintiff’s second motion submitted to the Court, see generally Pl.’s Mot. to
Postpone, is moot because it requested that the Court “post[]pone [ ] review of docket 12[, i.e., the plaintiff’s
withdrawal of her second motion to reopen,] for [twenty-one] days[,]” id. at 1, and more than twenty-one days
elapsed between the filing of the plaintiff’s motion on July 25, 2022, and her subsequently filed motion requesting
that the Court “withdraw doc[ument] 12[,]” Pl.’s 2d Mot. to Withdraw at 1. Additionally, the Court will grant the
plaintiff’s motion to “withdraw doc[ument] 12[,]” id., thus permitting the plaintiff to rescind her request to withdraw
her second motion to reopen.
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P. 41(a)(1)(B). However, “if the plaintiff previously dismissed any federal- or state-court action
based on or including the same claim, a notice of dismissal operates as an adjudication on the
merits.” Id.The District of Columbia Circuit has held that district courts have authority to vacate a
voluntary dismissal pursuant to Rule 60(b). See Randall, 820 F.2d at 1322 (holding that “Rule
60(b)(6) can be used to vacate voluntary dismissals resulting in final judgments”); see also Sack
v. Central Intelligence Agency, 53 F. Supp. 3d 154, 178 (D.D.C. 2014) (“The D.C. Circuit has
held that voluntary dismissals under Rule 41(a) . . . may be subject to Rule 60(b) motions.”
(citing Randall, 820 F.2d at 1320)). As the Circuit has explained, “nothing in the language of
Rule 41(a)(1)[A](i)4 exempts voluntary dismissals from the scope of judicial authority under
Rule 60(b).” Randall, 820 F.2d at 1320. Although the Circuit has not explicitly held that
voluntary dismissals without prejudice under Rule 41(a)(1)(A) are subject to relief under Rule
60(b), see id. (concluding that the plaintiff’s second voluntary dismissal, which “operated as an
adjudication on the merits, [ ] was a ‘final judgment’ under Rule 60(b)”), at least four other
federal circuits have concluded that a district court may vacate a voluntary dismissal without
prejudice under Rule 60(b), see Yesh Music v. Lakewood Church, 727 F.3d 356, 362–63 (5th
Cir. 2013) (holding that “a Rule 41(a)(1)(A) voluntary dismissal without prejudice qualifies as a
‘final proceeding’” and is “subject to vacatur under Rule 60(b)”); Nelson v. Napolitano, 657 F.3d
586, 589 (7th Cir. 2011) (concluding that “there may be instances where a district court may
grant relief under Rule 60(b) to a plaintiff who has voluntarily dismissed the action” under Rule
4
“Fed[eral] R[ule of] Civ[il] P[rocedure] [ ] 41(a)(1)(i) is now Fed[eral] R[ule of] Civ[il] P[rocedure] [ ]
41(a)(1)(A)(i).” Norris v. District of Columbia, No. 05-cv-1122 (HHK/DAR), 2008 WL 7994986, at *1 n.1 (D.D.C.
Aug. 1, 2008); see 2007 Amendment of Federal Rule of Civil Procedure 41 (“The language of Rule 41 . . . [was]
amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style
and terminology consistent throughout the rules. These changes [we]re intended to be stylistic only.”).
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41(a)(1)(A)(i)); Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371 (6th Cir. 1976) (concluding
that “the [c]ourt below was clearly correct in vacating its order of dismissal” following a
stipulation of dismissal without prejudice because “a court may relieve a party from a final
judgment when a ‘reason justifying relief from the operation of the judgment’ exists” (quoting
Fed. R. Civ. P. 60(b)(6)5)); Williams v. Frey, 551 F.2d 932, 934–35 (3d Cir. 1977), abrogated in
part on other grounds by Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988) (concluding that
the district court “had the power to consider the petition to modify the agreement to dismiss the
suit” because Rule 60(b) “speaks of relief from a final ‘proceeding’” and “[t]he [Rule 41(a)(1)
voluntary] dismissal of the suit was . . . a proceeding, and it was clearly final”).
Furthermore, this Court has previously applied the Rule 60(b) standard to a motion to
vacate the Court’s dismissal of a case pursuant to a notice of voluntary dismissal without
prejudice. See THEC International-Hamdard Cordova Group-Nazari Construction Co., Ltd.
Joint Venture v. Cohen Mohr, LLP, 301 F. Supp. 3d 1, 8–11 (D.D.C. 2018) (Walton, J.) (denying
the plaintiffs’ motion to vacate their voluntary dismissal without prejudice because “the plaintiffs
[ ] failed to satisfy their heavy burden of demonstrating that their requested relief under Rule
60(b) is justified”). Cf. Goddard v. Serv. Emps. Int’l Union Loc. 32BJ, 310 F.R.D. 190, 192–93
(D.D.C. 2015) (analyzing the plaintiff’s motion to reopen under Rule 60(b) after dismissing the
case without prejudice at the plaintiff’s oral request). And, another member of this Court has
implied that a motion to reopen under Rule 60(b) is the appropriate remedy to seek vacatur from
the Court of a voluntary dismissal. See Blackmon-Malloy v. United States Capitol Police, No.
01-cv-2221 (EGS/JMF), 2012 WL 13070086, at *4 (D.D.C. Dec. 14, 2012) (stating that, to be
5
The quoted text of Rule 60(b)(6) has since changed, see Fed. R. Civ. P. 60(b)(6) (providing that “the court may
relieve a party . . . from a final judgment, order, or proceeding” for “any other reason that justifies relief”), but the
substance of the rule remains the same, compare id., with Aro Corp., 531 F.2d at 1371 (quoting Fed. R. Civ. P.
60(b)(6)).
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reinstated into the case, plaintiffs who were voluntarily dismissed “must [ ] move [under Rule
60(b)] to vacate their dismissal from the case”).
In light of the rulings in the aforementioned cases, the Court concludes that a Rule
41(a)(1)(A) voluntary dismissal without prejudice constitutes a final proceeding subject to
vacatur under Rule 60(b). See Fed. R. Civ. P. 60(b). Having concluded that the Court can
consider the plaintiff’s requests to vacate the prior voluntary dismissal without prejudice, the
Court will now address the plaintiff’s requests to reopen this case.
B. Whether Reopening of the Case is Warranted Under Rule 60(b)
The plaintiff’s third motion to reopen was brought pursuant to Rule 60(b)(2). See Pl.’s
3d Mot. to Reopen at 1. In her motion, the plaintiff states that, “[o]n July 23, 2020, the [ ]
Dep[artmen]t . . . sent a message[,]” id., which notified her that her “[r]equest for
[r]econsideration of [the Department’s] decision regarding [her] borrower defense application
01368893[,]” id. at 2, “is not complete[,]” id. Although the plaintiff states that she “submitted
her response [to the Department] on July 27, 2020[,]” id. at 1, she also alleges that she “was
notified by customer service[,]” id., on July 15, 2022, that her “response was not officially
entered [in]to [the] record []because the application has not been assigned to an investigator[][,]
and the application is still incomplete and [was] not being reviewed[,]” id. The plaintiff argues
that, “[b]ased on the[se] newly discovered facts[,] the original agency determination is open for
judicial review and intervention.” Id.
Under Rule 60(b)(2), the Court may “relieve a party . . . from a final judgment, order, or
proceeding” based on “newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b)[.]” Fed. R. Civ. P.
60(b)(2). To prevail on a Rule 60(b)(2) motion,
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the movant must demonstrate that: (1) the newly discovered evidence is of facts
that existed at the time of trial or other dispositive proceeding; (2) the party
seeking relief was justifiably ignorant of the evidence despite due diligence; (3)
the evidence is admissible and is of such importance that it probably would have
changed the outcome; and (4) the evidence is not merely cumulative or
impeaching.
Duckworth v. United States ex rel. Locke, 808 F. Supp. 2d 210, 216 (D.D.C. 2011). “The party
seeking relief under Rule 60(b) bears the burden of showing that he or she is entitled to the
relief.” Jarvis v. Parker, 13 F. Supp. 3d 74, 77 (D.D.C. 2014).
Here, the plaintiff has not satisfied her burden to show that she is entitled to relief under
Rule 60(b) because she has not established that the customer service representative’s notification
on July 15, 2022, see Pl.’s 3d Mot. to Reopen at 1, is “newly discovered evidence[,]” Fed. R.
Civ. P. 60(b)(2), that could not have been discovered through “reasonable diligence,” id. The
plaintiff has not demonstrated that she made any attempt to determine the status of either her
Borrower Defense Application 01368893 or her request for reconsideration of such borrower
defense application prior to being notified by the Department on July 15, 2022, that the
application was still incomplete,6 see generally Pl.’s 3d Mot. to Reopen, despite the fact that she
submitted her response to the Department regarding the “reasons [she] believed the original
determination was incorrect” id. at 1, almost two years earlier, “on July 27, 2020[,]” id. See
Manhattan Cent. Studios v. Nat’l Labor Relations Bd., 452 F.3d 813, 817 n.6 (D.C. Cir. 2006)
(“Relief under Rule 60(b)(2) requires that the moving party show, among other requirements,
6
It is unclear whether the purported “newly discovered facts[,]” i.e., that the plaintiff’s July 27, 2020 response to the
Department “was not officially entered to record . . . and the application is still incomplete and [was] not being
reviewed[,]” Pl.’s 3d Mot. to Reopen at 1, pertain to the plaintiff’s Borrower Defense Application 01368893 or her
request for reconsideration of the Department’s decision regarding that application. See id. (describing “a message”
from the Department regarding the plaintiff’s “request [for] reconsideration of Borrower Defense Application
0136889[3,]” and the plaintiff’s response to the Department’s message, but arguing that, “[b]ased on the newly
discovered facts, the original agency determination is open for judicial review” (emphasis added)). Under either
scenario, the Court concludes that the information does not qualify as “newly discovered evidence” under Rule
60(b)(2). See Fed. R. Civ. P. 60(b)(2).
9
that he[ or she] was diligent in discovering the new evidence.”). With the exercise of due
diligence, the plaintiff could have determined that her application was “still incomplete and not
being reviewed[,]” Pl.’s 3d Mot. to Reopen at 1, in advance of her voluntary dismissal, by
contacting a customer service representative to inquire about the status of the relief she was
seeking. See Lans v. Gateway 2000, Inc., 110 F. Supp. 2d 1, 6 (D.D.C. 2000) (“[T]he diligence
inquiry looks not to what the litigant actually discovered, but what he or she could have
discovered.” (internal quotation marks omitted) (emphasis in original)). Thus, the Court
concludes that the plaintiff is not entitled to relief under Rule 60(b)(2) because she was not
“justifiably ignorant of the evidence despite due diligence[.]”7 Duckworth, 808 F. Supp. 2d at
216.
7
The plaintiff’s second motion to reopen, which the Court now considers after granting the plaintiff’s second
motion to withdraw, also appears to be brought pursuant to Rule 60(b). See Pl.’s 2d Mot. to Reopen at 1 (citing
Federal Rule 60 in the title of the motion). However, because the plaintiff’s second motion to reopen does not cite
to any specific grounds for relief under Rule 60(b) or any rationale for why the Court should reopen the case, see
generally id., the Court denies the plaintiff’s second motion to reopen for the same reason it denies her third motion
to reopen.
Additionally, both the plaintiff’s second motion to reopen and her third motion to reopen appear to assert new claims
that are unrelated to the claims in her amended Complaint, see Am. Compl. at 5, which was the operative complaint
when this case was closed on January 12, 2022, see Min. Order (Jan. 12, 2022). The plaintiff’s amended Complaint
contains allegations regarding her February 10, 2021 Borrower Defense Application and her FOIA and Privacy Act
requests related to this application, see Am. Compl. at 5; see also Pl.’s 2d Mot. to Withdraw at 2 (indicating that the
case number for the plaintiff’s February 10, 2021 application is 03482215), whereas the plaintiff’s second motion to
reopen and third motion to reopen appear to refer to a prior Borrower Defense Application, see Pl.’s 2d Mot. to
Reopen, Exhibit (“Ex.”) 1 (Complaint for a Civil Case) at 6, ECF No. 11-1 (describing a 2017 Borrower Defense
Application that the Department denied in December 2019); Pl.’s 3d Mot. to Reopen at 1–2 (describing a Borrower
Defense Application with the case number 01368893). Because this case is closed and the Court has determined
that reopening is not warranted, the Court will not address the new claims in the plaintiff’s motions to reopen or the
plaintiff’s request to further amend the Complaint. See Pl.’s 2d Mot. to Reopen at 1 (“[The p]laintiff is submitting a
motion to cure her complaint[.]”); id., Ex. 1 (Complaint for a Civil Case) at 1–8. Rather, so long as “procedural bars
such as the statute of limitations so permit[,]” Goddard, 310 F.R.D. at 191, “[t]he proper recourse[,]” id. at 193, for
the plaintiff “is to file another suit, particularly since the case was dismissed without prejudice[,]” id. (emphasis in
original).
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IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must deny the plaintiff’s third
motion to reopen, deny as moot the plaintiff’s motion to postpone, and grant the plaintiff’s
second motion to withdraw.
SO ORDERED this 21st day of March, 2023.8
REGGIE B. WALTON
United States District Judge
8
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
11