United States District Court, D. Hawaii
ORDER DENYING MOTION FOR RECONSIDERATION
Oki Mollway United States District Judge
August 11, 2016, this court issued an order dismissing the
portion of Plaintiff Jay Silverstein's retaliation claim
based on facts alleged in paragraphs 14, 17, 22, 24, 25, and
30 of the First Amended Complaint, the sole exception being
the portion of the retaliation claim relating to a trip to
Laos. The court then granted summary judgment in favor of
Defendant on the portion of the retaliation claim relating to
the Laos trip and all other remaining portions of the
retaliation claim except the portion based on
Silverstein's not having been selected for a Supervisory
Historian position. This court also granted summary judgment
to Defendant on the entire hostile work environment claim.
See ECF No. 68.
August 22, 2016, Silverstein moved for reconsideration of the
order under Rule 59(e) of the Federal Rules of Civil
Procedure. See ECF No. 71. That motion is denied.
Rule 59(e) motion may not be used to relitigate old matters,
or to raise arguments or present evidence that could have
been raised prior to the entry of judgment.” 11 Charles
Alan Wright, Arthur Miller, and Mary Kay Kane, Federal
Practice & Procedure § 2810.1 (3d ed.
West 2015); see also Exxon Shipping Co. v.
Baker, 554 U.S. 471, 486 n.5 (2008).
A district court may properly reconsider its decision if it
“(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” School Dist. No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1263 (9thCir. 1993). Clear
error occurs when “the reviewing court on the entire
record is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948).
Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 955
(9th Cir. 2013). “[R]econsideration of a
judgment after its entry is an extraordinary remedy which
should be used sparingly.” McDowell v.
Calderon, 197 F.3d 1253, 1255 n.1 (9th Cir.
1999) (en banc). The decision on whether to grant or deny a
Rule 59(e) motion is committed to the sound discretion of
this court. Id. n.1 (“the district court
enjoys considerable discretion in granting or denying the
motion”); see also Herbst v. Cook, 260 F.3d
1039, 1044 (9th Cir. 2001) (“denial of a
motion for reconsideration is reviewed only for an abuse of
seeks reconsideration of the court's order granting in
part and denying in part summary judgment in favor of the
United States. Because the court denied summary judgment with
respect to part of one claim, final judgment has not been
entered, making Rule 59(e) inapplicable. The court therefore
construes the reconsideration motion as brought under Local
Rule 60.1, which adopts the same standard for interlocutory
orders such as the one underlying the present motion. See
Preaseau v. Prudential Ins. Co. of Am., 591 F.2d 74,
79-80 (9th Cir. 1979) (“an order denying a
motion for summary judgment is generally interlocutory and
subject to reconsideration by the court at any time”
(quotation marks and citation omitted)); Martin v. ABM
Parking Servs., Inc., 2013 WL 6624124, at *1 (D. Haw.
Dec. 16, 2013) (construing motion seeking reconsideration of
denial of summary judgment motion as brought under Local Rule
60.1); see also Wynn v. Reconstruction Fin. Corp.,
212 F.2d 953, 956 (9thCir. 1954) (noting that
partial summary judgment order is non-appealable prior to
entry of final judgment and should be considered
“interlocutory summary adjudication”).
The Court Does Not Reconsider Its Ruling on the Retaliation
first argues that the court committed clear error in failing
to consider the facts alleged in paragraphs 14, 17, 22, 24,
25, and 30 of the First Amended Complaint as evidence of
retaliation, even though any Title VII retaliation claim
based on those facts was untimely. But Silverstein agreed
that he had not timely exhausted any retaliation claim based
on those allegations. Moreover, in granting summary judgment in
favor of the Government with respect to the Title VII
retaliation claim, the court actually discussed those events,
noting that they were discrete acts, often unrelated to Title
VII, that occurred so long before any alleged adverse
employment action that, on the present record, they did not
raise a genuine issue of fact as to whether Silverstein had
suffered actionable Title VII retaliation.
could not simply allege retaliation or rely on an inference
of retaliation. As the court said on page 16 of its order,
“With respect to his actions supporting women
co-workers, Silverstein does not establish that any of the
acts he complains of were close enough in time to the things
that he said or did that causation can be inferred.”
See ECF No. 68, PageID # 1092. Looking specifically
at Silverstein's support of Dr. Joan E. Baker and Dr.
Kristina Giannotta, the court reiterated that “any
retaliation he says he suffered occurred so long after that
support that . . . causation cannot be inferred.”
Id., PageID #s 1092-93. Silverstein needed to
present some actual evidence connecting that support to
adverse employment actions. He did not do that.
his opposition to the original motion, Silverstein's
reconsideration motion fails to articulate what retaliation
he suffered because he exercised a Title VII right. The
problem in both the original motion and the reconsideration
motion can be divided into categories. In one category are
matters that Silverstein fails to show relate to Title VII at
all. In another category are matters for which Silverstein
fails to identify what, if any, retaliation occurred. In yet
another category are matters for which Silverstein provides
only allegations or conclusions, not admissible evidence.
Many of the matters fall into more than one category, as this
court notes in the paragraphs that follow. This court is not
saying that many of the things Silverstein points to as
having happened to people working for the Department of
Defense, POW/MIA Accounting Agency (fka the Joint POW/MIA
Accounting Command) were justified. However, even if
unjustified, many matters simply do not create a triable
issue with respect to Silverstein's Title VII retaliation
example, with respect to Silverstein's support of Dr.
Elliot Moore in 2005, Silverstein submits no evidence
demonstrating that the treatment of Moore or the treatment of
Silverstein for having opposed the treatment of Moore related
to anyone's race, color, religion, sex, or national
origin, the classes protected by Title VII. 42 U.S.C. §
2000e-2(a)(1). Silverstein notes that Moore was deaf and
large, and this court has no difficulty understanding that
Silverstein objected to Moore's being allegedly
discriminated against because of his disability or size, but