UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) KARL OLSON, ) ) Plaintiff, ) ) v. ) Civil Action No. 06-1205 (GK) ) HILLARY CLINTON, ) in her capacity as ) Secretary of State ) ) Defendant. ) ______________________________)

MEMORANDUM OPINION1

Plaintiff, Karl Olson, a Foreign Service Officer in the United

States Department of State (“DOS” or the “Department”), brings this

action against Hillary Clinton, Secretary of the DOS, pursuant to

the Administrative Procedure Act (“APA”),

.

Plaintiff seeks judicial review of a Foreign Service Grievance

Board (“FSGB” or “Board”) decision, alleging that it was “arbitrary

and capricious” and “tainted by prejudicial procedural errors.”

(2).

On March 12, 2009, Plaintiff’s Motion for Summary Judgment was

denied and Defendant’s Cross-Motion for Summary Judgment was

granted [Dkt. No. 40].

This matter is now before the Court on Plaintiff’s Motion to

1 Because Plaintiff filed all his pleadings under seal, it is necessary to redact various sections of this Opinion. Alter or Amend Judgment [Dkt. No. 45].2 Upon consideration of the

Motion, Opposition, and Reply, the entire record herein, and for

the reasons set forth below, Plaintiff’s Motion for Reconsideration

is denied.

Motions for reconsideration are “disfavored and relief from

judgment is granted only when the moving party establishes

extraordinary circumstances.” Andreen v. Lanier,

(D.D.C. 2008) (quoting Niedermeier v. Office of Baucus,

(D.D.C. 2001)). A motion for

reconsideration is granted only when “there is an intervening

change of controlling law, the availability of new evidence, or the

need to correct clear error or manifest injustice.” Anyanwutaku v.

Moore,

(D.C. Cir. 1998) (quoting Firestone v.

Firestone,

(D.C. Cir. 1996)); see also Pl.’s

Mot. at 1. Even if evidence is “newly raised,” it is not

considered “new” evidence if it was “previously available.”

Schoenbohm v. FCC,

(D.C. Cir. 2000) (quoting ICC

v. Bhd. of Locomotive Eng’rs,

(1987)).

Here, Plaintiff argues that his Motion for Reconsideration

2 Motions filed under Fed. R. Civ. P. 59(e) are often referred to as “motions for reconsideration.” See, e.g., Anyanwutaku v. Moore,

(D.C. Cir. 1998) (stating the standard of review for “Rule 59(e) motions for reconsideration”). For the purposes of maintaining consistency with this Court’s prior opinions, see, e.g., Wright v. FBI,

(D.D.C. 2009), the term “motion for reconsideration” will be used hereinafter.

2 “did not simply repeat arguments” but instead “raised important

issues that the Court did not address.” Pl.’s Reply at 1.

Specifically, he argues that his Motion for Reconsideration raises

two such issues: the “personal and managerial dysfunction” of

Plaintiff’s supervisor Edwin Beffel, Pl.’s Mot. at 2-3, and the

Board’s decision to make credibility determinations without a

hearing, id. at 7-8.

Plaintiff raised both of these issues in his Motion for

Summary Judgment [Dkt. No. 30]. Pl.’s Mot. for Summ. J. at 14, 26-

30. Because he raised them previously, they were “previously

available.” Accordingly, they are not “new” evidence.

In addition, neither of these arguments presents evidence of

“clear error” or “manifest injustice.” First, Plaintiff presented

no evidence that the FSGB is required to hold a hearing prior to

making credibility decisions. See generally Pl.’s Mot. at 7-8.

Second, the record contained substantial evidence from numerous

sources that corroborated Plaintiff’s Employee Evaluation Reports

(“EERs”). See Mem. Op. at 19-20 (“For each of Plaintiff’s

allegations, the Board cites to evidence from numerous sources

affirming the statements made in the EERs at issue.”).

Plaintiff also argues that the Court made “at least two

significant errors.” Pl.’s Reply at 2. The first error, according

to Plaintiff, is that the Court “said that the FSGB’s decision made

no mention of the Cable targeting plaintiff.” Id. In fact, the

3 Court stated only that the “Discussion and Findings” section fails

to mention the Cable. Mem. Op. at 18 (“It is problematic that the

Discussion and Findings section of the FSGB’s decision makes no

mention of the Cable.”). Therefore, Plaintiff’s reading of the

Opinion is mistaken.

Plaintiff next argues that the Court erred when it stated that

“plaintiff’s co-workers consistently made negative statements about

him” because eight of his co-workers made “consistently positive

and inherently credible” statements. Pl.’s Reply at 2. Plaintiff

argues that “only one co-worker had anything negative” to say about

him. Id.

In fact, the Court never stated that all of Plaintiff’s co-

workers made negative statements about him. See Mem. Op. at 6-7

(describing statements made in support of Plaintiff by his co-

workers). Instead, it stated that “numerous sources . . . provide

strong support for the Board’s conclusion that the EERs were

accurate.” Id. at 19-20. As detailed in the Opinion, statements

by James Thiede, Mark Lore, Layton Russell, Nadia Tongour, Charles

Trotter, Roland Estrada, Melvyn Levitsky, and James Derham support

the Board’s conclusion. Id. at 4-6.

In addition, as the Opinion noted several times, the law is

well-settled that it is not a court’s role to “determine the facts

anew or to reach its own conclusions about whether Plaintiff’s EERs

were accurate.” Id. at 19. It was the Board’s job, and not the

4 Court’s, to weigh the evidence. Id. at 14 (“The FSGB is

responsible for making findings of fact.”) (citing Toy v. United

States,

(D.D.C. 2002)); see also Mem. Op. at

18-19 (“[T]he Court must determine not whether the Board’s decision

was perfectly correct, but whether it was arbitrary.”). Based on

the substantial amount of supporting evidence in the record, the

Board did not act arbitrarily or capriciously in determining that

the evidence in the record showed that the EERs were not falsely

prejudicial.

Finally, Plaintiff argues that the Court “wrongly determined

that plaintiff’s evaluations were accurate despite the existence of

bias, dysfunction, and motive.” Pl.’s Mot. at 2. The Court found

that bias existed, but it recognized that the existence of “bias,

dysfunction, and motive” does not necessarily require the

conclusion that the EERs were falsely prejudicial. See Mem. Op.

at 19 (“[E]ven biased raters and reviewers can prepare valid EERs.

Therefore the critical question is not whether bias existed -- it

did -- but whether the FSGB’s decision was arbitrary and capricious

when it determined that the EERs were not falsely prejudicial.”)

(internal quotation marks and citations omitted).

As discussed supra, there is substantial support in the record

for the Board’s conclusions. Therefore the Board did not act

arbitrarily or capriciously in determining that the EERs were not

falsely prejudicial.

5 For the reasons set forth above, Plaintiff’s Motion to Alter

or Amend Judgment is denied. An Order shall accompany this

Memorandum Opinion.

/s/ July 2, 2009 Gladys Kessler United States District Judge

Copies to: Attorneys of record via ECF

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