UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD HORNSBY, : : Plaintiff, : Civil Action No.: 22-1472 (RC) : 23-3204 (RC) v. : : Re Document No.: 18 SANDRA L. THOMPSON, : : Defendant. :

MEMORANDUM OPINION

DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

I. INTRODUCTION

Plaintiff Richard Hornsby brings the instant action against Sandra L. Thompson

(“Defendant”), the Director of the Federal Housing Finance Agency (“FHFA” or “the agency”),

for claims arising out of the termination of his employment as Chief Operating Officer of FHFA

and his subsequent appeal of that termination to the United States Merit Systems Protection

Board (“MSPB”). Specifically, Plaintiff alleges that: (1) in terminating his employment,

Defendant retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-3, and the Civil Service Reform Act (“CSRA”),

(b); (2) the

Administrative Judge (“AJ”) and the full MSPB adjudicating Plaintiff’s appeal failed to provide

him with interim relief, in violation of

(b)(2)(A); and (3) the MSPB’s affirmation

of the agency’s decision to terminate Plaintiff’s employment was arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in accordance with the law.

Compl. ¶¶ 44–48, ECF No. 1. 1

Earlier in this litigation, the Court granted in part and denied in part Defendant’s motion

to dismiss or for summary judgment. See Hornsby v. Thompson (“Hornsby I”), No. 22-cv-1472,

, at *1 (D.D.C. Jan. 17, 2023). Relevant here, the Court dismissed Plaintiff’s

retaliation claim for failure to exhaust administrative remedies.

at *6–10. After finding that

Plaintiff had failed to exhaust his retaliation claim, the Court held that it lacked subject-matter

jurisdiction to hear Plaintiff’s remaining claims.

. Because the Court concluded that

exclusive jurisdiction over those claims lay with the Federal Circuit, the Court transferred

Plaintiff’s claims to that venue.

at *10–11. That court, however, disagreed with this Court’s

jurisdictional analysis, found that it lacked jurisdiction, and transferred the case back to the U.S.

District Court for the District of Columbia. Hornsby v. Fed. Hous. Fin. Agency (“Hornsby II”),

No. 2023-1518,

, at *1–2 (Fed. Cir. Oct. 26, 2023) (per curiam). 2

Back where he started, Plaintiff now moves the Court to reconsider its order dismissing

his retaliation claim. For the reasons explained below, Plaintiff’s motion for reconsideration is

denied.

1 Unless otherwise noted, citations to ECF docket numbers reference the docket in Hornsby v. Thompson, No. 22-cv-1472. All future filings in this case should be docketed only in case number 23-cv-3204. 2 Both parties share fault for the resulting ping-ponging jurisdiction between courts. In her motion to dismiss, Defendant argued—incorrectly, it turned out—that if the Court dismissed Plaintiff’s retaliation claims, the Court would “lack[] subject matter jurisdiction over” the remaining claims. See Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss or, in the Alternative, for Summ J. at 12, ECF No. 8-1. Plaintiff, however, made no effort to rebut or even acknowledge Defendant’s legally erroneous argument in opposing dismissal. See generally Pl.’s Opp’n to Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J., ECF No. 10.

2 II. BACKGROUND

The Court’s earlier opinion described the background of this case in detail. See Hornsby

I,

, at *2–3. The ensuing discussion will therefore focus only on the factual and

procedural context necessary for resolving the instant motion.

Plaintiff formerly served as the Chief Operating Officer of FHFA.

. At one point

during his tenure, an FHFA employee falsely accused Plaintiff of threatening to harm his

supervisor, after which the agency placed Plaintiff on administrative leave.

Plaintiff was also

criminally charged, but he was later acquitted of all charges against him.

Following

Plaintiff’s acquittal, the agency did not reinstate Plaintiff to his former position.

Instead, it

terminated him.

Plaintiff “appealed his termination to the MSPB, challenging his removal on the

substantive merits and also raising an affirmative defense of retaliation for his prior EEO

activity.”

(cleaned up). Upon review of Plaintiff’s claims, an AJ reversed Plaintiff’s

termination but separately “found that Plaintiff had failed to prove his claim of retaliation.”

FHFA filed a petition for review of the AJ’s decision with the MSPB.

Plaintiff filed a

response to the agency’s petition, but he did not file a cross-petition to contest the AJ’s findings

concerning his retaliation claim.

Though the MSPB ultimately reversed the AJ’s initial

decision on the merits and ordered that Plaintiff’s termination be reinstated, it affirmed the AJ’s

finding that Plaintiff “had not proven the affirmative defense that his removal was the product of

unlawful retaliation based upon his participation in EEO activity.”

(internal alteration and

citation omitted).

Plaintiff then brought suit in federal court to challenge the MSPB’s final decision.

. He alleged that “(1) in terminating his employment, Defendant retaliated against him in

3 violation of Title VII . . . and the [CSRA]; (2) the AJ and MSPB adjudicating Plaintiff’s appeal

failed to provide him with interim relief, in violation of

(b)(2)(A); and (3) the

MSPB’s affirmation of the agency’s decision to terminate Plaintiff’s employment was arbitrary,

capricious, an abuse of discretion, unsupported by substantial evidence, or otherwise not in

accordance with the law.”

Defendant filed a motion to dismiss or, in the alternative, for

summary judgment.

Defendant argued that the Court should dismiss Plaintiff’s retaliation

claim because Plaintiff had failed to administratively exhaust that claim, and that the Court

should then dismiss Plaintiff’s remaining claims for lack of subject matter jurisdiction.

The Court granted in part and denied in part Defendant’s motion to dismiss. Pertinent

here, the Court first held that Plaintiff had failed to administratively exhaust his retaliation claim.

at *6–10. The Court explained that Plaintiff had “abandoned his retaliation claim when he

did not challenge the AJ’s determination that he had failed to prove such a claim.”

.

Indeed, not only had Plaintiff abandoned his claim, he had affirmatively “urged the MSPB to

deny the FHFA’s” petition for review because, in his words, the AJ “made no erroneous findings

of material fact, or erroneous applications of law.”

(citation omitted). The Court further

explained that Plaintiff’s response to the agency’s petition “did not articulate, explicitly or

impliedly, how the agency’s termination of his employment constituted retaliation against him

for his EEO activities.”

(emphasis deleted). For these reasons and others, the Court

concluded that “Plaintiff ha[d] not exhausted his administrative remedies with respect to his

retaliation claim” and that “that claim must be dismissed from this case.”

.

Having dismissed Plaintiff’s retaliation claim, the Court then determined that it lacked

subject-matter jurisdiction over his remaining claims after finding that Plaintiff had conceded

any argument to the contrary by failing to respond to the relevant components of Defendant’s

4 motion.

The Court found that, without the retaliation claim, Plaintiff’s complaint “no longer

[presented] a mixed case” and that the Federal Circuit had “exclusive jurisdiction” over the

claims that remained.

But rather than dismiss those claims, the Court transferred them to the

Federal Circuit pursuant to

.

.

At the Federal Circuit, however, Defendant decided that a position it had taken in this

Court—that this case was not a “mixed case” if the retaliation claim was dismissed—was

incorrect. Hornsby II,

, at *1. The panel agreed, explaining that this Court’s

“dismissal of [Plaintiff’s] discriminatory retaliation claim did not divest [it] of jurisdiction over

the remaining claims or otherwise convert this mixed case into one that [the Federal Circuit]

ha[d] jurisdiction to review.”

The judges, therefore, transferred the case back to this venue.

Now back in federal district court, Plaintiff has filed a motion for reconsideration of the

Court’s order dismissing his retaliation claim. See Pl.’s Mot. for Recons. (“Pl.’s Mot.”), ECF

No. 18. Defendant opposes reconsideration, see Def.’s Mem. in Opp’n to Pl.’s Mot. for Recons.,

ECF No. 20, and Plaintiff has filed a reply, see Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. for

Recons. (“Pl.’s Reply”), ECF No. 21. Plaintiff’s motion is thus ripe for consideration.

III. LEGAL STANDARD

Where, as here, a party seeks reconsideration of an interlocutory order, Federal Rule of

Civil Procedure 54(b) governs the court’s analysis. Mahoney v. U.S. Capitol Police Bd.,

, 25 (D.D.C. 2022); see also Fed. R. Civ. P. 54(b) (stating that “any order or other

decision, however designated, that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties . . . may be revised at any time before the entry of a

judgment adjudicating all the claims and all the parties’ rights and liabilities”). Rule 54(b)

5 allows courts to grant reconsideration “as justice requires.” Williams v. Walsh,

, 57 (D.D.C. 2022) (quoting Lyles v. District of Columbia,

(D.D.C.

2014)). That standard is “flexible,”

and permits courts to consider factors such as “whether

the court ‘patently’ misunderstood the parties, made a decision beyond the adversarial issues

presented, made an error in failing to consider controlling decisions or data, or whether a

controlling or significant change in the law has occurred,” Lyles,

(quoting

Williams v. Johanns,

(D.D.C. 2008)). In general, “a court will grant a

motion for reconsideration of an interlocutory order only when the movant demonstrates: (1) an

intervening change in the law; (2) the discovery of new evidence not previously available; or (3)

a clear error in the first order.”

(quoting Stewart v. Panetta,

(D.D.C. 2011)).

A court’s discretion in considering a reconsideration motion is “limited by the law of the

case doctrine and [is] subject to the caveat that where litigants have once battled for the court’s

decision, they should neither be required, nor without good reason permitted, to battle for it

again.” Singh v. George Washington Univ.,

(D.D.C. 2005) (citation

omitted). In short, “[a]rguments that could have been, but were not, raised previously and

arguments that the court has already rejected are not appropriately raised in a motion for

reconsideration.” United States v. Booker,

(D.D.C. 2009); Shvartser v.

Lekser,

(D.D.C. 2018) (“[A] Rule 54(b) motion cannot be used to

reargue facts and theories upon which a court has already ruled or to present theories or

arguments that could have been advanced earlier.” (cleaned up)); Lyles,

(“A court may deny a motion for reconsideration that raises arguments for reconsideration the

court has . . . already rejected on the merits.” (cleaned up)).

6 IV. ANALYSIS

Generally speaking, Plaintiff argues that reconsideration is warranted for two reasons.

First, he argues that, contrary to the Court’s findings in its earlier opinion, Plaintiff “vigorously

presented his retaliation claim” to the MSPB. See Pl.’s Mot. at 10–11. Second, he argues that

the MSPB’s regulations and applicable case law prevented him from challenging the AJ’s

credibility findings regarding his retaliation claim and thus he did not waive that claim by failing

to file a cross-petition to the MSPB. See

at 8–10. Both contentions lack merit.

Plaintiff’s initial contention is easily dispatched. To illustrate how, in his view, he

“vigorously” pursued his retaliation claim, Plaintiff largely attempts to draw distinctions between

his case and the Federal Circuit’s decision in Lizut v. Department of Army,

(Fed.

Cir. 1983). See Pl.’s Mot. at 10–11. This is not the first time Plaintiff has tried to distinguish his

case from Lizut—he attempted precisely the same maneuver in opposing Defendant’s motion to

dismiss, see Pl.’s Opp’n to Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J. at 10–12,

ECF No. 10, and the Court analyzed both those arguments and Lizut at length in its opinion

granting that motion, see Hornsby I,

, at *6–8. The Court will not grant

reconsideration based on Plaintiff’s attempt to reargue points that the Court has “already rejected

on the merits.” 3 See Lyles,

(quoting Henok v. Chase Home Fin., LLC, 947

3 Insofar as Plaintiff argues that reconsideration is warranted because the Federal Circuit stated that there is no “question that [Plaintiff] has continued to pursue his discriminatory retaliation claim at every stage of these proceedings,” see Pl.’s Mot. at 11 (quoting Hornsby II,

, at *1); see also Pl.’s Reply at 4, the Court disagrees. The Court does not think that the Federal Circuit’s one-sentence statement represents a finding or holding that contradicts the Court’s determination that Plaintiff abandoned his retaliation claim by failing to appeal the AJ’s denial of that claim to the MSPB. Rather, viewed in context, the Federal Circuit’s statement simply helps to explain why Plaintiff’s case remains a “mixed case” over which that court lacked jurisdiction. See Hornsby II,

, at *1. After all, the Federal Circuit transferred the case back to this Court so that it could “conduct appropriate proceedings with respect to the remaining claims.”

(emphasis added).

(D.D.C. 2013)); see also Shvartser,

(explaining that “a

Rule 54(b) motion cannot be used ‘to reargue facts and theories upon which a court has already

ruled’” (quoting Dunlap v. Presidential Advisory Comm’n on Election Integrity,

(D.D.C. 2018))).

Plaintiff’s second argument for reconsideration fares no better. As best the Court can tell,

Plaintiff contends that the Court erroneously concluded that he had waived his retaliation claim

by failing to file a cross-petition for review of the AJ’s initial decision to the MSPB. See Pl.’s

Mot. at 8–10; see also Pl.’s Reply at 1–4 (arguing that “[t]his Court found that by not filing a

cross-petition appealing the [AJ’s] finding on his retaliation claim, [Plaintiff] had failed to

exhaust his administrative remedies”). According to Plaintiff, various statutes and regulations

either prevent a party from challenging an AJ’s credibility determinations on an appeal to the full

MSPB or, at the very least, cabin the scope of the full MSPB’s analysis of such findings. See

Pl.’s Mot. at 8–10. That being so, Plaintiff argues that his decision not to file a cross-petition

challenging the AJ’s adverse conclusion as to his retaliation claim—and his decision not to

contest that same conclusion in his opposition to Defendant’s own petition to the MSPB—should

not be interpreted as waiving his claim of retaliation. See id. at 10 (contending that the

applicable regulations “did not permit [Plaintiff] to challenge the [AJ’s] credibility

determination, . . . either in responding to [Defendant’s] petition for review [or] by filing a cross-

petition for review with the [full MSPB]”); see also Pl.’s Reply at 3 (arguing that “the [MSPB’s]

regulations and case law do not permit a challenge of the [AJ’s] credibility findings” on appeal to

the full MSPB).

Plaintiff’s argument is unpersuasive for multiple reasons. For one thing, the Court cannot

discern—and Plaintiff has not suggested—any reason that this argument could not have been

8 raised in opposition to Defendant’s initial motion to dismiss. It is well-established that a motion

for reconsideration may not be used as “a vehicle for presenting theories or arguments that could

have been advanced earlier.” Dunlap,

(citation omitted). And because

Plaintiff could have and should have raised the argument in opposing Defendant’s motion to

dismiss, that principle provides an independent, sufficient basis upon which to dispose of

Plaintiff’s new theory that the statutory and regulatory regime prevented him from challenging

the AJ’s credibility determinations on appeal to the full MSPB.

For another thing, Plaintiff’s argument rests on a fundamentally flawed premise. That is,

he contends that “[t]his Court found that by not filing a cross-petition appealing the [AJ’s]

finding on his retaliation claim, [Plaintiff] had failed to exhaust his administrative remedies.”

See Pl.’s Reply at 3. While it is true that Plaintiff’s decision not to file a cross-petition was a

factor that led the Court to conclude he had waived his retaliation claim, see Hornsby I,

, at *6–7 (explaining that “Plaintiff abandoned his retaliation claim when he did not

challenge the AJ’s determination that he had failed to prove such a claim”), that was not the only

factor. Rather, the Court emphasized that—in addition to failing to file a cross-petition or

otherwise challenge the AJ’s rejection of his retaliation claim—Plaintiff “expressly endorsed the

AJ’s decision” and that he did so “without reservation.” See

; see also

(recounting that, in his brief to the MSPB, Plaintiff argued that the AJ “made no erroneous

findings of material fact, or erroneous applications of law” and that “[Defendant] has utterly

failed to demonstrate the [AJ] committed any error in her findings in favor of [Plaintiff] which

would warrant overturning the Initial Decision, or even seriously reviewing it” (citations

omitted)). This, the Court explained, distinguished Plaintiff’s case from other cases in which

courts had held that the mere failure to object to, or appeal from, an AJ’s adverse decision—

9 standing alone—was insufficient to demonstrate waiver. See

at *8–9 (distinguishing Rodgers

v. Perez,

(D.D.C. 2015)). In other words, the Court’s finding of waiver did

not rest exclusively on Plaintiff’s failure to file a cross-petition, but instead relied on additional

considerations that illustrated that Plaintiff had “knowingly waived his retaliation claim.” See id.

at *9.

For a third thing, it is far from clear that Plaintiff was, as he asserts, prohibited from

challenging the AJ’s credibility findings on an appeal to the full MSPB. See, e.g., Pl.’s Reply at

3–4 (arguing that the issue of the AJ’s credibility findings “was not and could not be considered

by the [full MSPB]”). The applicable regulations provide that a party may file a cross-petition

for full MSPB review based on allegations that an AJ’s “initial decision contains erroneous

findings of material fact.”

(a); see also Strickland-Donald v. Dep’t of the

Army,

(Fed. Cir. 2016). In such cases, the party “must explain why the

challenged factual determination is incorrect and identify specific evidence in the record that

demonstrates the error.”

(a)(2). The MSPB then reviews the contested

findings and, in doing so, “give[s] deference to an [AJ’s] credibility determinations when they

are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a

hearing.”

(emphasis added); see also Purifoy v. Dep’t of Veterans Affs.,

(Fed. Cir. 2016); Haebe v. Dep’t of Just.,

(Fed. Cir. 2002). “Deference,”

however, is not synonymous with “unreviewable.” Thus, it is unsurprising that the full MSPB

may, under certain circumstances, overturn an AJ’s findings even when those findings are based

on the AJ’s estimation of a witness’s credibility. See Haebe, 288 F.3d at 1301–02 (explaining

that MSPB must give “sufficiently sound reasons” for overruling an “AJ’s demeanor-based

credibility findings”); Leatherbury v. Dep’t of Army,

(Fed. Cir. 2008)

10 (explaining that MSPB must provide “adequate explanation” for rejecting AJ’s credibility

determinations).

All that said, even were the Court to assume—favorably to Plaintiff—that he is correct

that he could not have challenged the AJ’s credibility-based findings on a cross-petition to the

full MSPB, that still would not explain either Plaintiff’s decision not to file a cross-petition or,

more importantly, his “express[] endorse[ment]” of the entirety of the AJ’s decision. See

Hornsby I,

, at *9. That is because, contrary to Plaintiff’s suggestion, the AJ’s

rejection of his retaliation claim did not turn wholly on her assessment of a particular witness’s

(Melvin Watt’s) credibility. See Pl.’s Mot. at 4 (stating that “[t]he [AJ] also concluded [Plaintiff]

had not proven his retaliation claim because she found Mr. Watt to be credible in his testimony

that he would have terminated [Plaintiff] even if there had been no [protected] activity”); see

also Pl.’s Reply at 2 (“Here, the [AJ] made the credibility determination that [Defendant] had not

retaliated against [Plaintiff], because she found the deciding official to be credible when he

testified that there were other reasons for his decision to terminate [Plaintiff].”). Although the

AJ’s assessment of Watt’s credibility did play a significant part in the AJ’s rejection of

Plaintiff’s retaliation claim, the AJ also explained that Plaintiff had failed to prove retaliation by

a preponderance of the evidence because (1) his claim was based on protected conduct in which

Watt, too, had engaged and (2) the motivation underlying certain of the allegedly retaliatory

conduct arose before Plaintiff engaged in protected activity. See Initial Decision, Ex. 1 to Pl.’s

Mot. at 16–17, ECF No. 18-1. Plaintiff makes no attempt to explain how the applicable

regulations—which permit the MSPB to review allegedly “erroneous findings of material fact”

and “the erroneous application of the law to the facts of the case,”

(a), (b)—

11 would have foreclosed him from challenging these aspects of the AJ’s adverse decision

regarding his retaliation claim.

V. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Reconsideration (ECF No. 18) is

DENIED.

Dated: July 10, 2024 RUDOLPH CONTRERAS United States District Judge

12