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”), 5 U.S.C. § 2302(b); (2) the
Administrative Judge (“AJ”) and the full MSPB adjudicating Plaintiff’s appeal failed to provide
him with interim relief, in violation of 5 U.S.C. § 7701(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,
2023 WL 196185, at *1 (D.D.C. Jan. 17, 2023). Relevant here, the Court dismissed Plaintiff’s
retaliation claim for failure to exhaust administrative remedies. Id. 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. Id. at *10. Because the Court concluded that
exclusive jurisdiction over those claims lay with the Federal Circuit, the Court transferred
Plaintiff’s claims to that venue. Id. 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, 2023 WL 7039492, 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, 2023 WL 196185, 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. Id. at *2. 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. Id. Plaintiff was also
criminally charged, but he was later acquitted of all charges against him. Id. Following
Plaintiff’s acquittal, the agency did not reinstate Plaintiff to his former position. Id. Instead, it
terminated him. Id.
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.” Id. (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.” Id.
FHFA filed a petition for review of the AJ’s decision with the MSPB. Id. 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. Id. 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.” Id. (internal alteration and
citation omitted).
Plaintiff then brought suit in federal court to challenge the MSPB’s final decision. Id. at
3. 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 5 U.S.C. § 7701(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.” Id. Defendant filed a motion to dismiss or, in the alternative, for
summary judgment. Id. 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. Id.
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.
Id. 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.” Id. at *7.
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.” Id. (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.” Id. (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.” Id. at *10.
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. Id. 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. Id. But rather than dismiss those claims, the Court transferred them to the
Federal Circuit pursuant to 28 U.S.C. § 1631. Id. at *11.
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, 2023 WL 7039492, 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.” Id. The judges, therefore, transferred the case back to this venue.
Id.
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., 566 F.
Supp. 3d 22, 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, 619 F. Supp. 3d
48, 57 (D.D.C. 2022) (quoting Lyles v. District of Columbia, 65 F. Supp. 3d 181, 188 (D.D.C.
2014)). That standard is “flexible,” id., 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, 65 F. Supp. 3d at 188 (quoting
Williams v. Johanns, 555 F. Supp. 2d 162, 164 (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.” Id. (quoting Stewart v. Panetta, 826 F. Supp. 2d 176, 177
(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., 383 F. Supp. 2d 99, 101 (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, 613 F. Supp. 2d 32, 34 (D.D.C. 2009); Shvartser v.
Lekser, 330 F. Supp. 3d 356, 360 (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, 65 F. Supp. 3d at 188
(“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 id. 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, 717 F.2d 1391 (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, 2023 WL 196185, 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, 65 F. Supp. 3d at 188 (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, 2023 WL 7039492, 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, 2023 WL 7039492, 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.” Id. (emphasis added).
7 F. Supp. 2d 6, 10 (D.D.C. 2013)); see also Shvartser, 330 F. Supp. 3d at 360 (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, 319 F. Supp. 3d
70, 81 (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, 319 F. Supp. 3d at 81 (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, 2023
WL 196185, 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 id. at *9; see also id. at *7
(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 id. at *8–9 (distinguishing Rodgers
v. Perez, 139 F. Supp. 3d 67 (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.” 5 C.F.R. § 1201.115(a); see also Strickland-Donald v. Dep’t of the
Army, 657 F. App’x 959, 961 (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.” 5 C.F.R. § 1201.115(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.” Id. (emphasis added); see also Purifoy v. Dep’t of Veterans Affs., 838 F.3d 1367, 1373
(Fed. Cir. 2016); Haebe v. Dep’t of Just., 288 F.3d 1288, 1299 (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, 524 F.3d 1293, 1305 (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, 2023 WL 196185, 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,” 5 C.F.R. § 1201.115(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
Dated: July 10, 2024 RUDOLPH CONTRERAS United States District Judge