UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

VALERIE KLINE,

Plaintiff, Case No. 1:07-cv-451-RCL v.

KIRAN AHUJA, in her official capacity as Director ofthe Office of Personnel Management,

Defendant.

VALERIE KLINE,

Plaintiff, Case No. 1:10-cv-1802-RCL v.

KIRAN AHUJA, in her official capacity as Director of the Office of Personnel Management,

Defendant.

VALERIE KLINE,

Plaintiff, Case No. 1:14-cv-1498-RCL v.

KIRAN AHUJA, in her official capacity as Director of the Office of Personnel Management, et al.,

Defendants.

1 MEMORANDUM OPINION

On March 8, 2007, plaintiff Valerie Kline filed a lawsuit against her employers at the U.S.

Office of Personnel Management ("OPM"), alleging race and sex discrimination and retaliation

during her employment as an analyst. On March 13, 2009, the court granted defendant's motion

for summary judgment and the D.C. Circuit affirmed. Kline v. Springer,

(D.D.C. 2009), aff'd sub nom., Kline v. Berry,

(D.C. Cir. 2010) ("Kline I"). But

that was only the first of four actions filed by plaintiff against her employers at OPM (collectively,

"OPM"). In all four actions, the Court entered judgment for OPM. Kline v. Archuleta,

(D.D.C. 2015), amended in part, No. 10-cv-1802 (RCL),

(D.D.C. July

1, 2015), aff'd sub nom. Kline v. Cobert, No. 15.:5226,

(D.C. Cir. Feb. 10,

2016) ("Kline IF'); Kline v. Archuleta,

(D.D.C.), amended in part,

(D.D.C. 2015), aff'd sub nom. Kline v. Cobert, No. 15-5248,

(D.C. Cir. Feb.

10, 2016) ("Kline III"); Kline v. Weichert, No. 1:16-cv-262-RCL,

(D.D.C. May

23, 2020), aff'd sub nom. Kline v. Ahuja, No. 20-5220, slip op. (D.C. Cir. Nov. 23, 2021) ("Kline

IV'').

On April 14, 2021, plaintiff moved to vacate and reopen the Court's final judgments in

favor of OPM in Kline I, II, and III. She argues that reopening is warranted based on new evidence

discovered during Kline IV and because the Court's prior judgments were the result of fraud on

the Court. OPM opposes. Plaintiffs motion, OPM's opposition, and plaintiffs reply in support of

her motion are identical in all three cases. 1 Upon consideration of the parties' filings, including

plaintiffs motion to reopen ("Pl.'s Mot."), OPM's opposition ("Def.'s Opp'n"), plaintiffs reply

1 See Kline I, No. 07-cv-451, ECF Nos. 87, 98, 10 I; Kline II, No. 10-cv-1802, ECF Nos. 162, 172, 175; Kline 111, No. 14-cv-1498, ECF Nos. 42, 52, 55.

2 in support of her motion ("Pl. 's Reply"), applicable law, and the entire record in these cases, the

Court will DENY Ms. Kline's motion for relief from judgement in Kline I, II, and III.

I. BACKGROUND A. Factual Background

Plaintiffs four lawsuits (Kline I-IV) arise from a common factual background. In each, she

sued her employers at OPM, so the Court will refer to defendants collectively as OPM. 2 The

relevant facts are as follows.

In October 2002, OPM hired plaintiff as a GS-12 Management Analyst to perform

regulatory duties in its Publications Management Group ("PMG"). Kline II, 102 F. Supp. 3d. at

26. Plaintiffs position description ("PD") described that, "under the guidance of the Regulatory

Team Leader," she would be responsible for "executing the regulatory processing components of

the Regulatory Issuance System," "analyz[ing] and evaluat[ing] OPM's regulatory processes,"

. "and implement[ing] improvements to the Regulatory Issuance System." Kline 2002 Original PD

at 2, Kline III, No. 14-cv-1498 (D.D.C.), ECF No. 23-3 Ex. 2. In plaintiffs words, she "was hired

to perform regulatory work on a full-time basis for OPM's [PMG] and act as the 'backup' to

[Regulatory Team Leader] Jacqueline Carter." Kline II, 102 F. Supp. 3d. at 26.

In May 2003, however, plaintiffs PD was changed to include nonregulatory duties because

there were not enough regulatory duties to support both her and Carter. Id. (citing Kline 2003 PD

at 2, Kline II, No. 10-cv-1802 (D.D.C.) ECF No. 134-1 Ex. 4). Plaintiffs new PD "consist[ed]

primarily of publications duties," and "clearly reassigned her into a new, non-regulatory position."

Kline III,

. The new PD listed four major duties, only one of which involved

regulatory work: plaintiff was to "[a]ssist[] the Regulatory Team by performing activities related

2 The Court recognizes that, in Kline III, not all of the parties are necessarily directly associated with OPM.

3 to Regulatory Issuance by providing editorial review and interpretation of policy. 1' Kline II, 102 F.

Supp. 3d. at 26-27 (citing Kline 2003 PD at 2).

Notwithstanding that plaintiff agreed to her new position description, plaintiffs claims in

Kline I-IV all originate in part from her "dissatisfaction with her job requirements following her

reassignment." Kline III,

. In particular, plaintiffs lawsuits stem from her

"obstinate-and unsupported-insistence that .her new position was still categorized as a

regulatory position or gave her primary responsibility of regulatory duties." Kline II, I 02 F. Supp.

3d. at 32.

1. Kline I

In Kline I; plaintiff sued OPM for discrimination and hostile work environment based on

three primary theories. See Kline I,

, 242--43. The court rejected each

theory and granted summary judgment to OPM. First, plaintiff argued that OPM had a

demonstrated track record of reverse race discrimination because white women employees were

allegedly underrepresented at OPM.

. However, the court found that the statistics

introduced by plaintiff, "even if ... properly supported with record evidence," were insufficient

to sustain her discrimination action.

at 239 & n.2.

Next, plaintiff asserted that OPM created a hostile work environment and discriminated

against her when, "several years before she filed suit, [her supervisor] was 'flirty' with her, felt

spurned, and retaliated against her_when she ignored him."

. Again, the court rejected

plaintiffs claims because her "unsubstantiated allegations and assumptions" were generally

"unsupported by record evidence, [we]re completely unconnected to impermissible motive, [we]re

not objectively offensive, or [we]re simply employee grievances completely untied to

discriminatory animus."

4 Finally, plaintiff argued that-OPM discriminated and retaliated against her through several

"adverse employment actions" after her PD changed in 2003. These alleged "adverse actions"

included OPM denying plaintiffs request to telework and a "bad" performance evaluation for

duties assigned to her under her new position.

, 239 n.3; see Kline III,

(discussing the same). The court rejected plaintiffs contention that the telework denial resulted

from illicit race discrimination. Kline I,

. 3 Instead, the court determined

that the denial was consistent with plaintiffs 2003 PD change and the business needs of the

office-plaintiff "needed to be onsite to better complete her day-to-day assignments and, among

other things, to be available to customers and because of a lack of coverage in her absence."

The court likewise held that plaintiffs "fully successful"4 annual performance appraisal was

neither discriminatory nor retaliatory.

Besides finding that "plaintiffs assertions about her own

performance [we ]re self-serving[, ]unsupported[,] and . . . [did] not give rise to an inference of

impermissible motive," OPM had introduced "significant undisputed evidence in the record ...

that the plaintiff had been warned about her performance long before the issuance of the

evaluation," and deserved her evaluation.

.

The D.C. Circuit affirmed in an unpublished opinion. Kline v. Berry, 404 Fed. App'x. 505

(D.C. Cir. 2010). The D.C. Circuit held that most of the alleged injuries were not actionable under

Title VII, that they did not result from illicit discrimination, and that OPM offered legitimate,

nondiscriminatory reasons for- plaintiffs mediocre performance evaluation.

at 505·.

3 For example, the court found unconvincing plaintiffs assertion that "an inference of [race] discrimination c[ould] be drawn from the fact that Carter, a black female whose husband suffered several strokes, was allowed to telework." Kline I,

. Carter was not similarly situated to plaintiff because Carter "was an employment grade higher than the plaintiff and had different responsibilities, including review of the plaintiffs work."

4 Plaintiff argued she should have received an "Outstanding" evaluation. Kline I,

.

5 2. Kline II

In October 2010, plaintiff initiated her second action against OPM. In Kline II, plaintiff

argued that OPM retaliated against her by diminishing her substantive regulatory duties after she

returned from administrative leave in June 2006. 5 Kline II,

. She

alleged that she was "constructively reassigned into a new non-regulatory and unclassified

position."

(internal quotation marks omitted).

This Court rejected plaintiffs claims and granted OPM's motion for summary judgment.

First, the "allegations that [plaintiffs] work assignments were significantly changed after her

return from Administrative Leave [we ]re unsupported by the record."

. The Court reasoned

I• that:

"[e]ven before going on Administrative Leave, Ms. Kline did not have primary responsibility over any regulatory work. While Ms. Kline was initially hired as a GS-12 Management Analyst on the Regulatory Team ... in October 2002, her updated PD from 2003 was very different. ... [The] updated PD clearly state[d] that she was to perform mostly publications duties and assist the Regulatory Team.

(internal citations omitted). Even if plaintiff had suffered a diminution in duties, plaintiffs

"own testimony suggest[ed that] it was minor and therefore could not have been a materially

adverse consequence affecting the terms, conditions, or privileges of her employment."

.

For example, plaintiff reported that "in the months before she was placed on Leave there were very

few regulations to process".and that "she had only four hours of work per week to perform." Id_.

at 33. In any event, OPM offered a "legitimate, non-discriminatory reason for any minor changes

in Ms. Kline's duties."

.

5 Plaintiff was placed on administrative leave in April 2006 pending an investigation by the Inspector General's Office into allegations that plaintiff was "using her work computer inappropriately and was attempting to procure weapons and ammunition from someone she knew online." Kline fl,

.

6 Plaintiff also made several allegations about the hiring of Stephen Hickman, including that

"her regulatory duties were 'stripped from her' once Mr. Hickman came on board."

. In

August 2006, PMG advertised a new, full-time GS-12 Management Analyst position focused on

regulatory work.

. This position's PD was "virtually identical" to plaintiffs original PD.

Hickman was hired into this position in October 2006.

The Court recognized in Kline II that

Hickman was hired "to take over Ms. Carter's duties when she retired," and that after he was hired,

Hickman took over from Carter the primary responsibility for the regulatory issuances program.

.

But the Court concluded that Hickman's hiring was "irrelevant" to the lawsuit.

.

"Despite plaintiffs repeated assertations that her duties were transferred to ... Mr. Hickman, it is

an inescapable fact that Ms. Kline was not performing significant regulatory work even before she

went on Administrative Leave."

In light of that "inescapable fact" and because plaintiff"herself

admitted she did very little regulatory work even before her Administrative Leave," the Court held

that plaintiff "did not suffer an adverse employment action upon her return from [a]dministrative

[l]eave" and no reasonable jury could infer that she had been retaliated against.

.

The D.C. Circuit summarily affirmed. Kline,

, at* 1. The D.C. Circuit

concluded that plaintiff "ha[ d] not shown that she suffered an adverse employment action based

on the lack ofregulatory assignments when she returned from administrative leave."

And even

if plaintiff had suffered an adverse employment 8:ction, the D.C. Circuit reasoned that "she ha[d]

not produced sufficient evidence for a reasonable jury to find that the [OPM's] asserted non-

retaliatory reason for not giving her regulatory assignments was pretextual • and that [OPM]

retaliated against her."

.

7 3. Kline III

Meanwhile, in August 2014, plaintiff initiated yet another employment discrimination

action against OPM. This case, like her earlier two actions, stemmed from plaintiffs

dissatisfaction with her reassignment to a position consisting primarily of nonregulatory duties.

See Kline III,

. In Kline III, plaintiff brought a "failure to promote" claim and

alleged that OPM discriminated _or retaliated against her "by giving responsibility for the

regulatory issuances system" to Hickman instead ofto her.

.

As mentioned above, in August 2006-and in anticipation of Carter's upcommg

retirement-OPM advertised a full-time regulatory, "GS-12-classified position nearly identical to

the one plaintiff applied for and was hired to fill in 2002."

The advertised position described

"full-time, substantive regulatory duties."

. While plaintiff had agreed in 2003 to

reassignment to a revised PD consisting primarily of nonregulatory publication duties, plaintiff

failed to apply for the new position.

. And in October 2006, OPM hired Hickman into the

GS-12 regulatory position.

.

In 2008, OPM advertised a GS-13-level position, like that vacated by Carter upon her

retirement, with responsibility for managing the regulatory issuances system in USAJOBS. See

. Hickman was ultimately promoted to this position.

6

The Court granted summary judgment to OPM. Plaintiffs failure to promote claim was

based on her erroneous belief that the GS-12 regulatory position advertised in 2006 (to which

Hickman was hired) was "a kind of promotion rather than a different position," and that OPM was

obligated to "reassign" or "promote" plaintiff into that position without her having to apply.

6 OPM's decision to hire Hickman instead of plaintiff for the GS-13 position forms the basis of plaintiffs fourth lawsuit. See Kline IV,

, at* 1.

8 But even if the GS-12 position was properly considered a promotion, the record demonstrated that

plaintiff was currently at the "full performance level" for her position, so she would only have

been eligible for promotion after applying and competing for the position.

at 3--4. She did not. ·

The Court also rejected plaintiffs "unsupported and unavailing" allegations that plaintiffs

supervisors verbally expressed that her position reassignment was "temporary" and that plaintiff

would "still assume responsibility for managing the regulatory issuances after Ms. Carter retired."

at 3--4. The Court reasoned that plaintiffs PD, "which [wa]s undisputed, clearly reassigned her

into a new, non-regulatory position" and therefore, "despite her unsupported and subjective belief

to the contrary, [plaintiff] had no 'right' to be assigned primary responsibility ofregulatory duties."

Id. at 3.

Finally, the Court rejected plaintiffs assertion that "a GS-12 employee could not take over

Ms. Carter's duties, which were GS-13-level responsibilities." Id. at 4. Besides plaintiffs failure

to cite any law prohibiting such a practice, OPM introduced testimony that it was "normal practice

for Federal agencies to fill a position at a lower grade level than the previous incumbent." Id.

Indeed, plaintiff herself alleged that "when she was originally hired as a GS-12 employee-with a

nearly identical PD-it was with the intent that she take over Ms. Carter's duties when she retired."

Id. Because plaintiff failed to apply for the GS-12 regulatory position, "apparently still

misunderstanding the contours of her own, different, position," the Court determined that plaintiff

did not suffer any adverse action in this ca~e. Id.

The D.C. Circuit summarily affirmed. Kline,

, at* 1. The D.C. Circuit

found that no "reasonable jury could infer discrimination or retaliation from [OPM's] decision to ·

assign another employee the responsibility of managing the Regulatory Issuances System."

(citations omitted). To the extent that plaintiffs claim of relation was based on OPM's failure to

9 advertise a GS-13 position in 2006, the D.C. Circuit found that plaintiff "offer[ed] no evidence

that suggests this decision was made to retaliate against her for engaging in protected activity." Id.

4. Kline IV

On February 16, 2016, plaintiff filed her fourth action against OPM, alleging age

discrimination, sex discrimination, and retaliation. Kline IV,

, at * 1. In Kline IV,

plaintiff first alleged that she "was not selected for the GS.,..13 position"-Carter' s former position

for which Hickman was hired-"due to age and sex discrimination." Id. at *5.

On November 25, 2008, OPM advertised availability for a GS-13 Management Analyst

position. Id. at *2. Plaintiff and Hickman were the only two applicants. Id. Although plaintiff "had

believed that she would be assuming this position once the previous employee in that position,

Jacqueline Carter, retired," Hickman was ultimately selected for the position. Id. Plaintiff argued

that OPM's failure to select her for the GS-13 position was based on age and sex discrimination

because Hickman is "a male in his twenties." Id. at *6.

The Court granted OPM's motion for summary judgment. First, OPM provided "a

legitimate, non-discriminatory reason" for its choice-"Hickman had more experience with the

Federal Register and was highly recommended by his previous supervisor at the Federal Register."

Id. at *5. And plaintiff failed to establish that OPM' s rationale was pretextual: her only evidence

linking the adverse action to her age and sex other was Hickman's age and sex, which was not

enough. Id. a~ *6-7. The Court also rejected plaintiffs arguments that the failure to fill the GS-13

position two years earlier-when it first became vacant-violated the Administrative Procedure

Act ("APA"). Id. at *6. Because plaintiffs complaint did not assert an APA claim, the Court

reasoned that these allegations would only be relevant in the instant action if plaintiff showed .that

"the delay was specifically engineered to deny her the position based on her age and/or sex." Id. But plaintiff"ha[d] not brought forth even a shred of evidence that this was the case." Id. Similarly,

the Court found "even if Mr. Hickman's GS-12 responsibilities did constitute an APA violation,"

plaintiff could not establish that OPM gave Hickman "this responsibility in order to prevent

[plaintiff] from ultimately getting the GS-13 position based on her sex and age." Id. 7

The D.C. Circuit affirmed in an unpublished opinion. Kline v. Ahuja, No. 20-5220, slip op.

at 1 (D.C. Cir. Nov. 23, 2021). The D.C. Circuit concluded that Kline did not provide "even a

shred of evidence" to support a reasonable inference that any of OPM's actions were "motivated

by discriminatory or retaliatory intent." Id. at 4 (citation omitted).

B. Kline's Present Motion

Plaintiff, invoking Federal Rules of Civil Procedure 60(b)(6) and 60(d)(3), now asks this

Court to set aside the more than five-year-old judgments in Kline I, 11, and III and reopen these

cases for a trial on the merits. See Pl. 's Mot. 35. Her motion invokes three main theories. First,

plaintiff argues that Kline I should be reopened-based on the "totality of the circumstances." Id. at

12. In her view, the totality of the circumstances includes "the allegations and outcomes of Kline

II, III, and IV," and "the current lens with which sexual harassment cases are viewed," which stems

from "the awareness brought on by the Me Too movement, of the prevalence of sexual and other

forms of harassment and discrimination and retaliation in the workplace." Id. at 12.

Next, plaintiff argues that Kline II and III should be reopened because the Court's prior

rulings against her were a product of misrepresentations and "fraud on the court" perpetrated by

OPM's attorneys. Id. at 12-25. OPM's alleged misrepresentations in Kline II and III all relate to

Hickman's hiring in 2006. Id. at 10-11. While her allegations are sometimes unclear (and often

7 The Court also granted summary judgment to OPM on plaintiffs other counts, which are not relevant to the present motion.

11 repetitive), plaintiff contends that OPM or its counsel misrepresented: (1) that Hickman "was not

hired as a GS-12 in 2006 to take over for Carter," id.; (2) that Hickman neither took over nor was

"promoted" to Carter's position in 2006, id. at 10-11, 15; and (3) that Carter's "Team Leader

position was not filled until 2008 and that Hickman did not take over for Carter until 2008," id. at

14-15. Plaintiff also claims that ·OPM's false representations led the Court to wrongfully adopt

OPM' s characterizations of her claims in Kline II and III. Id. at 19-24.

Plaintiffs third theory builds on her second-she argues that OPM allegedly "admitted"

the falsity of its prior representations during the Kline IV litigation and that OPM's admissions

constitute an "extraordinary circumstance" warranting reopening. Id. at 26-30. The first alleged

admission is found in OPM's motion for summary-judgment, which states that Hickman "was in

charge of managing the Regulatory System" in his role GS-12 Management Analyst. Id. The

second is found in OPM's statement of undisputed material facts, which state_s that "Hickman's

position was a full-time regulatory position on the Regulatory Team of the PMG, and ·his

responsibilities included managing the Regulatory Issuance System [RIS], analyzing legislation

and processing documents to upload to the system." Id. at 26-28. These statements apparently

contradict OPM's representations in Kline II and III that "Carter's Team Leader position was not

filled until 2008," "that Hickman did not take over for Carter until 2008," and that "Hickman did

not assume [Carter's] position [in 2006]." Id. at 28. Plaintiff argues that these statements amount

to an "extraordinary circumstance" that justifies relief under Rule 60(b)(6), and evidence that OPM

committed fraud on the court in Kline II and III. Id.

OPM opposes plaintiffs request. See Def. 's Opp'n. First, OPM contends that there are no

extraordinary circumstances warranting relief in Kline I .Id. at 5-6. Next, OPM argues that

plaintiffs motion is time-barred. See, e.g., id. at 7-9. Finally, OPM argues that plaintiff fails to

12 show any fraud or misrepresentations, which in any event, are not valid grounds for relief under

Rule 60(b)( 6). See id. at 9-14. Plaintiff filed a reply in support of her request and responding to

OPM's arguments. See Pl.'s Reply.

Plaintiffs arguments are meritless. Her "new" evidence has already been thoroughly

considered and rejected by the Court. And plaintiff fails to establish the falsity of OPM's

representations in Kline II and III, let alone demonstrate that the representations rise to the level

of "fraud on the court" or an "extraordinary circumstance." Her motion must be denied.

II. LEGAL STANDARD

A. Rule 60(b )(6)

. Federal Rule of Civil Procedure 60(b) authorizes a court to relieve a party from a previous

judgment or order for six enumerated reasons: (1) mistake, inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct by an

opposing party; (4) a void judgment; (5) a satisfied, released, or discharged judgment; or (6) "any

other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b). Relief

under Rule 60(b)(6) is available only if the motion "is not premised on one of the grounds for relief

enumerated in clauses (b)(l) through (b)(5)." Liljeberg v. Health Servs. Acquisition Corp.,

(1988).

A motion brought under any clause of Rule 60(b) "must be made within a reasonable time,

which, for reasons (1), (2), and (3) [means] no more than a year after the entry of the judgment or

order." Austin v. Donahoe,

(D.D.C. 2014) (citing Fed. R. Civ. P. 60(c)(l))

(internal quotation marks omitted). Motions invoking any of the latter three grounds for Rule 60(b)

relief have no specific time limit but must be brought within a "reasonable time," which depends

on the facts and circumstances of the case. See Salazar ex rel. Salazar v. District of Columbia,

, 1118 n.5 (D.C. Cir. 2011). The D.C. Circuit will consider prejudice to the

13 nonmoving party as a factor in determining whether a Rule 60(b) motion was ·timely filed. See

. But lack of prejudice does not make a motion timely. See Carvajal v. Drug Enf't Admin.,

(D.D.C. 2012) (citing In re Sealed Case (Bowles),

(D.C.

Cir. 2010)). And because the provisions of Rule 60(b) are "mutually exclusive," Rule 60(b)(6)

· cannot be used to avoid the one-year limitation applicable to subsections (1)-(3). Salazar,

(citations omitted); see Liljeberg,

& n.11.

A movant seeking relief under Rule 60(b )( 6) bears the additional burden of demonstrating

"extraordinary circumstances" that justify the reopening of a final judgment. Gonzalez v. Crosby,

(2005). This requirement imposes a "very high bar." Kramer·v. Gates,

(D.C. Cir. 2007). Indeed, while "a district court enjoys significant discretion in deciding

whether to grant or deny a Rule 60(b) motion," Comput. Pros. for Soc. Resp. v. US. Secret Serv.,

(D.C. Cir. 1996); the D.C. Circuit has cautioned that Rule 60(b)(6) "should be

only·sparingly used," Twelve John Does v. District of Columbia,

(D.C. Cir.

1988). A motion brought under Rule 60(b )(6) "is not an opportunity for unsuccessful litigants to

take a mulligan." Kramer,

. Instead, the movant must make a sufficiently

"compelling showing of inequity or hardship." Twelve John Does,

. The Court

may consider a "wide range of factors," including "the risk of injustice to the parties," the "risk of

undermining the public's confidence in the judicial process," Buck v. Davis,

(2017) (quoting-Liljeberg,

); and the "litigant's diligence in pursuing review of

a decision," Salazar,

-19 (citing Gonzalez,

).

· B. Rule 60(d)(3)

Plaintiff has also moved for relief pursuant .to Rule 60( d)(3 ), which .acknowledges the

Court's authority "to set aside a judgment for fraud on the court." Fed. R. Civ. P. 60(d)(3).

14 Although the "reasonable time" requirement imposed by Rule 60(c)( 1) is not applicable to Rule

60(d)(3), Rule 60(d)(3) is much more limited in scope than Rule 60(b)(3) and only applies in "very

unusual cases." Jordan v: US. Dep 't of Lab.,

, 451 (D.D.C. 2019), ajf'd, No. 19-

5201,

(D.C. Cir. Jan. 16, 2020). "Although the requirements for a successful

claim of fraud on the court elude precise definition, several guiding principles emerge from the

case law." Bowie v. Maddox,

(D.D.C. 2010).

First, the fraud must be "egregious." More v. Lew,

(D.D.C. 2014)

(citation omitted). In Baltia Air Lines, Inc. v. Transaction Management., Inc., the D.C. Circuit

explained that

[f]raud on the court ... is fraud which is directed to the judicial · machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. Fraud upon the court refers only to very unusual cases involving far more than an injury to a single litigant. Examples include the bribery of a judge or the knowing particip<Jtion of an attorney in the presentation of perjured testimony.

, 642--43 (D.C. Cir. 1996). Stated differently, the inquiry asks whether the alleged

fraud constitutes a "deliberate scheme to directly subvert the judicial process." Great Coastal

Express, Inc. v. Int'l Bhd. Of Teamsters,

, 1356 (4th Cir. 1982). Second, "[a]n

indispensable element is that the fraud prevented a party from presenting his case." Bowie,

(citation omitted). Finally, "the extraordinary step of setting aside a judgment

requires 'clear and convincing' evidence of fraud on the court."

(citing Shepherd v. Am. Broad.

Cos.,

(D.C. Cir. 1995)).

With these lofty requirements in mind, it may be obvious that "[a] plaintiff cannot assert

fraud or fraud on the court simply because [s]he disagrees with the rulings of this Court and of the

D.C. Circuit." Jordan, 331 F.R.D. at 452.

15 III. ANALYSIS . . . The motion before the Court presents nothing more than an attempt to relitigate claims and

arguments that this Court has already rejected. Plaintiffs motion falls well short of the high bar

imposed by Rule 60(b)(6) for "extraordinary circumstances" and 60(d)(3) for "fraud on the court."

As explained in the following analysis, the Court will deny her request for relief from judgment in . . Kline I, II, '1nd Ill.

A. Plaintiff Is Not Entitled To Relief From The Judgment In Kline I

Plaintiff argues that Kline · I "should be reopened and consolidated with the other Kline

cases" to "incorporate by reference the allegations and outcomes of Kline II, Ill, and IV'' and to·

consider both "the pertinent record and evidence as a whole" and "the current lens with which

sexual harassment cases are viewed." Pl.' s Mot. 12. Plaintiff believes that consideration of the

"totality of circumstances" justifies this Court's undoing the judgment in Kline I "on at least the

hostile work environment claim, that the complained of actions were not severe or pervasive

enough." Id.

Plaintiff has not met her burden to establish that the Court's judgment in Kline I should be

set aside. Plaintiff fails to explain, and the Court does not see, how either Rule 60(b )( 6) or Rule

60(d)(3) provide a basis for plaintiffs requested relief. The essence of plaintiffs claim is that the

Court made a legal error when it "found the numerous complained of issues to be trivial or

unsupported by the record, without holding any evidentiary hearing to resolve disputed facts." Id.

at 12. However, plaintiffs mere discontent with this Court's ruling is not a valid basis for relief

under Rule 60(b)(6) or Rule 60(d)(3). See Jordan, 331 F.R.D. at 452.

B. Plaintiff Is Not Entitled To Relief From The Judgments In Kline II And III

The Court will also deny plaintiffs motion for relief from the judgments in Kline II and

III Plaintiff argues that OPM and its counsel perpetrated a fraud on the court by misleading the

16 Court about the circumstances surrounding Hickman's hiring, the nature of the position at issue,

and plaintiff's overall claims in the earlier actions. Pl.' s Mot. 10-11. Her arguments fail.

1. Plaintifrs motion fails under Rule 60(b)(6)

Though the basis of plaintiff's motion is clearly fraud and misrepresentation by OPM and

OPM's attorneys, she relies on Fed. R. Civ. P. 60(b)(6) and 60(d)(3), rather than 60(b)(3), which

provides for relief on the basis of "fraud (whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party." Fed. R. Civ. P. 60(b)(3). Unlike motions

invoking Rule 60(b)(6), which must be filed within a "reasonable time," a Rule 60(b)(3) motion

must be filed no more than a year after the entry of judgment. Fed. R. Civ. P. 60(c)(l). A motion

cannot be filed pursuant to Rule 60(b)(6) if it is premised on one of the other enumerated bases for

relief. See Liljeberg,

.

Here, plaintiff invokes OPM's alleged "fraud," which would be encompassed by Rule

-60(b)(3). But the provisions of Rule 60(b) are "mutually exclusive," Salazar ex rel. Salazar, 633

F .3d at 1116, and the Court can think of no reason why plaintiff would file a motion pursuant to

Rule 60(b)(6)'s residual clause other than to circumvent the timing requirements of Rule 60(c).

That alone is sufficient to deny plaintiff's motion. Plaintiff's allegations of false representations

and fraud by OPM and OPM's counsel fall squarely under Rule 60(b)(3), and thus cannot provide

a basis for relief under Rule 60(b)(6) now that the one-year limitation has passed. See, e.g., Fed.

R. Civ. P. 60(b)(3); 11 Charles Alan \Yright & Arthur R. Miller, Federal Practice & Pro[!edure

§ 2864 (3d ed.) (distinguishing fraud that may be cognizable under Rule 60(b)(6) with fraud

cognizable underRule 60(b)(3)).

Even if the Court were to consider plaintiff's motion, she has Jiot met her burden to

demonstrate the "extraordinary circumstances" required for relief under Rule 60(b)(6). Indeed,

17 plaintiff has failed to show any false representations of the type required to support a claim of

fraud. Plaintiff argues that OPM's statements in Kline IV regarding Hickman's hiring in 2006 as a

GS-12 Management Analyst and the position he occupied until he was promoted to a GS-13 role'

in December 2008 contradict OPM' s prior representations in the Kline 11 and JI! litigation. Pl.' s

Mot. 27. Plaintiff correctly observes that, in Kline IV, OPM stated that at the time Hickman was

hired in 2006, his "position was a full-time regulatory position on the Regulatory Team of the

PMG, and his responsibilities included managing the Regulatory Issuance System [RIS]." Id.

Plaintiff is mistaken that these statements contradict OPM' s representations in·Kline 11 and Kline

III "that Hickman had not assumed Carter's position for managing the RIS." Indeed, in Kline 11

and 111, OPM represented, and this Court found, exactly that: Hickman took over Carter's

responsibility for managing the regulatory issuances program when he was hired in October 2006.

See Kline 11,

("Ms. Carter ... had primary responsibility for the regulatory

issuances program in the PMG. After Mr. Hickman was hired, he had primary responsibility of the

regulatory issuance." (internal citation omitted)); Kline 111,

(explaining that

"[i]n 2006, in preparation for Ms. Carter's retirement, OPM advertised a GS-12-classified

position" which was a "full-time regulatory position" that "focused almost exclusively on the

regulatory issuances program of the PMG" (internal quotation marks omitted))

Plaintiff fails now, as she did when this Court decided Kline 111, to demonstrate that when

Hickman .assumed responsibility for managing the regulatory issuances he necessarily "filled

Carter's Team Leader position in 2006 upon her retirement." Pl. 's Mot. 28; Kline 111,

(rejecting plaintiff's argument ':that a GS-12 employee could not take over Ms. Carter's

duties, which were GS-13-level responsibilities"). OPM's so-called "admission" in Kline.IV that

"Hickman assumed Carter's duties immediately after she retired," Pl. 's Mot. 10, does not establish

18 that "Hickman was de facto promoted to the Team Leader position in 2006 and de facto assumed

Carter's position in 2006 immediately after she retired."

. Plaintiff erroneously conflates

Hickman's regulatory duties with Carter's leadership role.

Even if plaintiff could have sought relief under Rule 60(b)(6) based on OPM's alleged

misrepresentations, plaintiff fails to establi_sh that OPM's prior representations are false. Th~s,

plaintiff cannot demonstrate the necessary "extraordinary circumstances" and her motion under .

Rule 60(b)(6) shall be denied.

2. Plaintiff's motion fails under Rule 60(d)(3)

Plaintiffs request for relief under Rule 60(d)(3) must also be denied. None of plaintiffs

allegations meet the high bar required to demonstrate fraud on the court, which is "rarely warranted

and is typically confined to the most egregious cases ... in which the integrity of the court and its

ability to function impartially is directly impinged." More,

(internal quotation

marks omitted). Plaintiff not only fails to -provide clear and convincing evidence that OPM's

conduct rises to the level of fraud on the court, she provides no evidence of fraud at all.

First, plaintiff argues that OPM perpetrated fraud on the court by failing to admit "that it

hired Hickman to do the duties associated with taking over for Carter immediately after she retired

in 2006." Pl. 's Mot. 10. But plaintiff provides no evidence that OPM's earlier representations were

false. Indeed, in Kline 11 and Kline III, this Court recognized that "Mr. Hickman was hired to take

over Ms. Carter's duties when she retired." Kline II, 102 F._Supp.3d at 32; see Kline III,

; see also supra.

Next, plaintiff asserts that OPM committed fraud on the Court in Kline II and 111 by

"represent[ing], albeit falsely, that Carter's Team Leader position was not filled until 2008 and

that Hickman did not take over for Carter until 2008." Pl. 's Mot. 27. As support for this allegation

19 plaintiff points to the alleged "truth" that OPM admitted in Kline JV: "that Hickman did in fact

take over Carter's Team Leader 'managing' responsibilities immediately after Carter's retirement

in 2006." Pl. 's Mot. 10. Plaintiffs semantic games are unavailing. OPM's so-called "admission"

in Kline IV refers to Mr. Hickman's responsibility for "managing" the Regulatory Issuances

System-which does not contradict OPM's prior statements. See Kline II,

(':After Mr. Hickman was hired, he had primary responsibility of these regulatory issuances.").

And despite plaintiffs insistence to the contrary, assigning Hickman responsibility for "managing

the RIS as a GS-12 .in 2006" is not clear and .convincing evidence thatOPM promoted Hickman

into Carter's GS-13 Team Leader "management" position·in 2006. See Pl. 's Mot. 13..:._16. Plaintiffs

bare allegations and word games do not establish that OPM perpetrated fraud on the court. Yet

again, plaintiff erroneously conflates Hickman's regulatory duties with Carter's leadership role.

Plaintiff next argues that OPM mischaracterized the nature and substance of her argument

in Kline Ill. See id. at 23 (alleging that OPM "omitted the word 'primary' in order to fraudulently

represent that Kline[] was complaining about not being hired into the GS-12 position that Hickman

was hired to fill rather than Kline's actual claim that she was not given Carter's Team Leader

position for 'primary [lead] responsibility for regulatory assignments' after she retired"). This too

falls far short of proving "fraud on the court." Beyond her speculative assertions as to the OPM's

bad faith, plaintiff offers no proof that OPM's alleged "misrepresentations" were backed by fraud.

See Jordan, 331 F.R.D. at 452. At most, plaintiff has demonstrated that she disputes OPM's

position on a substantive issue in Kline Ill. However, plaintiff cannot relitigate the merits of those

issues now by claiming that OPM committed "fraud on the court" in merely arguing its case. Id.

("It has long been the rule in this Circuit that 'a motion for relief from judgment on the ground of

20 misrepresentation will be denied if it is merely an attempt to relitigate the case[.]"' (quoting Am.

Cetacean Soc. v. Smart,

(D.D.C. 1987))).

Finally, even if there was some perjured testimony offered or misrepresentation in this

case-and there is not-plaintiff has failed to show such egregious fraud that the Court could

conclude that OPM's misconduct was a "deliberate scheme to ~irectly subvert the judicial process"

affecting more than just her. Great Coastal Express, 675 F.2d at 1356. And plaintiff has been

disputing these same arguments for years, so the Court is not convinced that the alleged fraud here

prevented her from presenting her case. See Bowie, 677 F. Supp. 2d.at 279.

Plaintiff fails to prove even the falsity of OPM's representations in Kline II and III, let

alone clearly and convincingly show that any intentional misconduct occurred. Accordingly,

plaintiffs allegations do not establish a fraud on the court and her motion under Rule 60(d)(3)

shall be denied.

IV. CONCLUSION

Based on the foregoing, the Court will DENY Ms. Kline's motion to reopen by separate

order.

Date: November '1--"f, 2021 Royce C. Lamberth United States District Judge

21