United States District Court, M.D. Pennsylvania
LISA M. DAVENPORT, Plaintiff
RICHARD SPENCER, SECRETARY of the DEPT. of the NAVY, Defendant
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
8, 2019, the court issued a Memorandum, (Doc. 42), in which
it found that the Merit Systems Protection Board's
(“MSPB”) Final Decision removing plaintiff Lisa
M. Davenport from her position as Supervisory Security
Specialist at the Navy Depot in Mechanicsburg, Pennsylvania,
was not arbitrary or capricious, was not unsupported by the
evidence, and did not violate any procedures required by law.
The court then issued an Order, (Doc. 43), affirming the
MSPB's Final Decision and, granting the defendant
Secretary of the Department of the Navy judgment with respect
to Count I of plaintiff's amended complaint, (Doc.
In particular, plaintiff's Count I was an appeal from the
February 19, 2015 Final Decision of the MSPB affirming the
decision of the Administrative Judge (“AJ”)
finding that the Navy properly removed her from her position
for physical inability to perform her job and denied her
affirmative defense of failure to accommodate.
pending before the court is plaintiff's June 4, 2019
motion for reconsideration, pursuant to Fed.R.Civ.P. 59(e),
of the court's May 8, 2019 Order. (Doc. 49). The motion
has been fully briefed. After reviewing the filings, as well
as the record, the court will DENY
plaintiff's motion for reconsideration.
59(e) provides the procedural mechanism for altering or
amending a judgment that has been entered. It may be used to
seek remediation for manifest errors of law or fact or to
present newly discovered evidence which, if discovered
previously, might have affected the court's decision.
Schumann v. Astrazeneca Pharmaceuticals, L.P., 769
F.3d 837, 848 (3d Cir. 2014) (citing Max's Seafood
Café v. Quineros, 176 F.3d 669, 677 (3d Cir.
1999)); Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909
(3d Cir. 1985). A party seeking reconsideration must
demonstrate at least one of the following grounds prior to
the court altering, or amending, a standing judgment: (1) an
intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.
Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.
2010); Max's Seafood Café, 176 F.3d at
677 (citing North River Ins. Co. v. CIGNA Reinsurance
Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). However,
“[b]ecause federal courts have a strong interest in the
finality of judgments, motions for reconsideration should be
granted sparingly.” Continental Casualty Co. v.
Diversified Indus. Inc., 884 F.Supp. 937, 943 (E.D. Pa.
is generally appropriate in instances where the court has
“misunderstood a party, or has made a decision outside
the adversarial issues presented to the [c]ourt by the
parties, or has made an error not of reasoning, but of
apprehension.” York Int'l Corp. v. Liberty Mut.
Ins. Co., 140 F.Supp.3d 357, 360-61 (3d Cir. 2015)
(quoting Rohrbach v. AT & T Nassau Metals
Corp., 902 F.Supp. 523, 527 (M.D. Pa. 1995)). It may not
be used as a means to reargue unsuccessful theories that were
presented to the court in the context of the matter
previously decided “or as an attempt to relitigate a
point of disagreement between the [c]ourt and the
litigant.” Id. at 361 (quoting Ogden v.
Keystone Residence, 226 F.Supp.2d 588, 606 (M.D. Pa.
2002)). Thus, “a motion for reconsideration may not be
used to give a litigant a ‘second bite at the
apple,' and therefore should not be ‘grounded on a
request that a court rethink a decision already
made.'” Jarzyna v. Home Properties, L.P.,
185 F.Supp.3d 612, 622 (E.D.Pa. 2016) (internal citations
omitted). As such, “a motion for reconsideration may
address ‘only factual and legal matters that the Court
may have overlooked' and may not ‘ask the Court to
rethink what it had already thought through-rightly or
wrongly.'” Id. (citations omitted).
Further, “[m]ere ‘disagreement with the
Court's decision' does not suffice.” Rich
v. State, 294 F.Supp.3d 266, 273 (D.N.J. 2018) (citation
argues that a clear error of law was committed by both the
MSPB and this court since a potential remedy under the
Rehabilitation Act of 1973, 29 U.S.C. §794(a)(1), that
was not considered “is holding Navy Region
Mid-Atlantic/NSA responsible for continuing [her] reasonable
accommodation of situational teleworking under the theory of
‘successor liability.'” To the extent
plaintiff now raises a new claim regarding successor
liability under the RA for the first time in her motion for
reconsideration, the court will not consider it since she did
not raise it during the administrative process, during her
appeal to the MSPB, and in her prior briefs filed with this
court. Nor was there any reason why plaintiff
could not have raised this issue in any of the prior
proceedings. Significantly, this case was not at the
pleadings stage when the court entered judgment in favor of
defendant on Count I of plaintiff's amended complaint.
Rather, this March of 2016 case was at the summary judgment
stage with respect to Count I and both parties had submitted
evidence. Further, it does not appear that any discovery was
conducted on the successor liability issue since it was not
previously raised by plaintiff. Additionally, as the court
previously stated, plaintiff's civil service appeal in
Count I challenging her removal from the Navy and seeking
reinstatement must be decided by the court solely upon the
administrative record as developed at the agency level. 5
U.S.C. §7703(c); see also Makky v. Chertoff,
541 F.3d 205, 211 (3d Cir. 2008); Vanyan v. Hagel, 9
F.Supp.3d 629, 642 (E.D.Va. 2014) (“a district
court's review of any discrimination claims presented
before the MSPB is limited to the administrative record and
is thus subject to a more deferential standard established by
for reconsideration may not be used ‘as a means to
argue new facts or issues that inexcusably were not presented
to the court in the matter previously decided'”,
and “a motion for reconsideration [may not] be used to
revisit or raise new issues with the benefit of ‘the
hindsight provided by the court's analysis.'”
Romero v. Allstate Ins. Co., 1 F.Supp.3d 319, 420
(E.D.Pa. 2014) (citations omitted). See also York
Internat'l Corp. v. Liberty Mutual Ins. Co., 140
F.Supp.3d 357, 361 (M.D.Pa. 2015) (“reconsideration
motions may not be used to raise new arguments or present
evidence that could have been raised prior to the entry of
judgment.”) (citations omitted); Rich v.
State, 294 F.Supp.3d 266, 271 (D.N.J. 2018) (“A
motion for reconsideration ‘may not be used to
re-litigate old matters, nor to raise arguments or present
evidence that could have been raised prior to the entry of
judgment.'”) (citation omitted); Rocco v.
Gordon Food Service, 609 Fed.Appx. 96, 98 (3d Cir. 2015)
(“Rule 59 motions, ..., do not present an opportunity
to raise new arguments that could or should have been
presented to the district court prior to judgment.”).
Although “issues which have not been properly raised
before the District Court will only be considered on appeal
[by the Third Circuit] under exceptional
circumstances”, see Rocco, 609 Fed.Appx. at 98
(citing Altman v. Altman, 653 F.2d 755, 758 (3d Cir.
1981)), this case is not an appeal to the Third Circuit.
Regardless, the court does not find any exceptional
circumstances in this case. See Id. In fact,
plaintiff offers no explanation as to why she could not have
asserted the issue of successor liability before the ALJ and
the MSPB. Nor does plaintiff claim that she was not
previously aware of this issue.
such, the court refuses to consider plaintiff's new
argument and plaintiff is deemed as waiving any argument
regarding the issue of successor liability with respect to
her claim under the RA.
as plaintiff argues that some of the facts in the court's
May 8, 2019 Memorandum were incorrect, these facts were minor
and clearly not significant to the court's finding that
there was substantial evidence in the record to support the
MSPB's Final Decision. Specifically, none of these facts
alter in any respect the court's finding that the
decisions of the MSPB that plaintiff was properly removed
from her position with the Navy and that plaintiff did not
establish her defense of failure to accommodate were not
arbitrary or capricious, were not obtained without compliance
with lawful procedures, and were based on substantial
evidence. A court can only overturn the MSPB's decision
if it is: (1) arbitrary, capricious or an abuse of
discretion; (2) unsupported by substantial evidence or
otherwise not in accordance with law; or (3) obtained without
compliance with lawful procedures. See 5 U.S.C.
§7703(c); Vanyan v. Hagel, 9 F.Supp.3d at 642;
Barnes v. Small, 840 F.2d 972, 979 (D.C.Cir. 1988).
The burden is on the plaintiff to demonstrate errors in the
MSPB's decision. Hawkins v. Soc. Sec. Admin.,
368 Fed.Appx. 136, 139 (Fed. Cir. 2010). Plaintiff has failed
to show errors in the MSPB's Final Decision.
points out that she was promoted to the position of
Supervisory Security Specialist at Naval Supply Systems
Command Weapons System Support (“NAVSUP WSS”) and
not at the Naval Support Activity, Commander Navy Region
Mid-Atlantic (“CNRMA”) as the court stated in its
Memorandum. This does not constitute a manifest error
of fact as the court then correctly stated,
“[f]ollowing the functional realignment of security
from NAVSUP WSS to CNRMA, plaintiff was not eligible for
situational telework since the equivalent Security Supervisor
positions across the other fifteen CNRMA installations were
ineligible for telework ....” The court also correctly
detailed plaintiff's duties and responsibilities as
Supervisory Security Specialist. The court also found that
substantial evidence supported the MSPB's decision that
neither permanent, full-time telework nor situational
telework was a reasonable accommodation for plaintiff. Thus,
as the defendant explains (Doc. 51 at 9),
“[plaintiff's] argument that the reorganization of
her workplace was the direct cause of her ineligibility for
telework is completely meritless, because [plaintiff] would
not have been eligible for situational telework as Security
Specialist at NSA, CNRMA at Mechanicsburg.” Next,
plaintiff argues that although the court was aware that she
had been approved for situational telework by Zinsky, her
former supervisor at WSS, in her Security Specialist position
while she was employed by WSS, it is not clear if the court
was aware that she was also approved for situational telework
by Zinsky while still employed by WSS after she was promoted
to Security Director. After Zinsky approved plaintiff's
situational telework request, she was functionally realigned
to CNRMA. Regardless, as defendant explains, (Doc. 51 at 9),
these facts are not material to either the MSPB's Final
Decision or to this court's May 8, 2019 decision because:
[Plaintiff was removed from her position based upon the
charge of “Inability to Perform as a Result of a
Medical Condition” since March of 2013, well after
[plaintiff] had transferred to CNRMA from WSS. Whether Zinsky
approved [plaintiff's] situational telework arrangement
is irrelevant to the issue of whether, at the time she was
removed, she was able to perform the essential functions of
her job. Finally, ...