United States District Court, W.D. Washington, Seattle
ORDER ON MOTION TO REOPEN
MARSHA J. PECHMAN, Chief District Judge.
THIS MATTER comes before the Court on Plaintiff Willie Hugh Walker, Jr.'s Motion for Reinstatement of His Employment Discrimination Action. (Dkt. No. 66.) Having reviewed the Motion and all related papers, the Court hereby DENIES the Motion.
Plaintiff's first Title VII case was opened in 1985. (See Case No. C85-1049.) Plaintiff represents in his Motion that after his request for court-appointed counsel was denied, the Court granted the Defendant's Motion to Dismiss without prejudice for failure to oppose a motion to dismiss. (Dkt. No. 66 at 6.) Plaintiff explains that he later re-filed his same case (see C86-1103); the second time, his request for court-appointed counsel was granted. (Id. at 6.) However, his second case was dismissed for lack of subject matter jurisdiction based on untimely filing pursuant to former 5 U.S.C. § 7703(b)(2). See Walker v. Puget Sound Naval Shipyard et al., No. 88-3983, slip op. at 1 (9th Cir. Sept. 14, 1989). With the assistance of counsel, Plaintiff appealed to the Ninth Circuit, arguing that the district court erred in failing to consider principles of equitable tolling, waiver, and estoppel to excuse his late filing. (Id.) The Ninth Circuit affirmed. (Id.) Plaintiff asked his counsel to appeal the decision to the Supreme Court; Plaintiff alleges that his counsel did not do so. (Dkt. No. 66 at 8-9; see also id., Ex. F at 35; Ex. G at 37; Ex. H at 39.)
Plaintiff's apparent position in his Ninth Circuit appeal - that, contrary to Ninth Circuit precedent at the time, an untimely complaint under 5 U.S.C. § 7703(b)(2) does not deprive the court of jurisdiction and the statute of limitations is subject to equitable tolling - was ultimately vindicated by the Supreme Court just over a year after the Ninth Circuit opinion in Plaintiff's case. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990).
Plaintiff now argues that the first district court violated his equal protection and due process rights by refusing to appoint counsel on his behalf and that his appointed counsel violated his equal protection and due process rights by failing to appeal to the Supreme Court. (Dkt. No. 66 at 5; 9-10.) Plaintiff asks this Court to reopen his case on the basis of these alleged constitutional violations.
Motions to reopen cases are considered either under Federal Rule of Procedure 59 or 60. Because Rule 59(e) motions to alter or amend the judgment must be brought within 28 days after the entry of the judgment, Rule 59 is inapplicable to Mr. Walker's request.
Rule 60(b) provides, "On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...