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Walker v. City of Pocatello

United States District Court, D. Idaho

November 4, 2019

JOHN WALKER, Plaintiff,
CITY OF POCATELLO, a political subdivision of the State of Idaho; SCOTT MARCHAND, in his individual and official capacity; and ROGEL SCHEI, in his individual and official capacity, Defendants.


          B. Lynn Winmill, U.S. District Court Judge.


         Before the Court is the City of Pocatello's Motion for Reconsideration (Dkt. 68). The motion is fully briefed and at issue. For the reasons explained below, the Court will deny the motion.


         Plaintiff John Walker is a police officer with the City of Pocatello. In 2015, he sued the City and three individual defendants alleging various state and federal claims. Most significantly for purposes of this motion, Walker alleged that his constitutional due process rights were violated when he didn't receive a promotion Mayor Brian Blad had promised to him.

         At the conclusion of discovery, defendants moved for summary judgment. The Court granted summary judgment on some claims, but others survived, including Walker's due process claim. The individual defendants filed an interlocutory appeal arguing that they were entitled to qualified immunity on the due process claim. The Ninth Circuit held that there was no constitutional violation in the first place because Mayor Blad lacked authority to promise a promotion to Walker. The circuit thus reversed and remanded for further proceedings “including the dismissal of Walker's due process claim premised on the promotion.” Apr. 28, 2019 Mem. Disp., Dkt. 40-1, at 4.

         In light of the circuit ruling and this Court's earlier pre-trial rulings, Walker now has five claims ready for trial: (1) intentional infliction of emotional distress; (2) negligent infliction of emotional distress; (3) interference under the Family and Medical Leave Act of 1993 (FMLA); (4) retaliation under the FMLA; and (5) retaliation under the Rehabilitation Act. The City now asks the Court to reconsider its earlier summary-judgment ruling on these claims. The City says the Ninth Circuit implicitly dismissed or “rendered impossible” four of Walker's remaining claims (both emotional distress claims and both retaliation claims). As for the fifth claim -the FMLA interference claim - the City says it has new evidence demonstrating that this claim too must be dismissed.


         A motion to reconsider an interlocutory ruling requires an analysis of two important principles: (1) error must be corrected; and (2) judicial efficiency demands forward progress. The former principle has led courts to hold that a denial of a motion to dismiss or for summary judgment may be reconsidered at any time before final judgment. Preaseau v. Prudential Ins. Co., 591 F.2d 74, 79-80 (9th Cir. 1979). While even an interlocutory decision becomes the “law of the case, ” it is not necessarily carved in stone. Justice Oliver Wendell Holmes concluded that the “law of the case” doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444 (1912). “The only sensible thing for a trial court to do is to set itself right as soon as possible when convinced that the law of the case is erroneous. There is no need to await reversal.” In re Airport Car Rental Antitrust Litig., 521 F.Supp. 568, 572 (N.D. Cal. 1981) (Schwartzer, J.).

         The need to be right, however, must co-exist with the need for forward progress. A court's opinions “are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).

         1. The Retaliation Claims

         Walker has alleged two retaliation claims - one under the Family and Medical Leave Act (FMLA) and the other under the Rehabilitation Act. Both require Walker to establish that he suffered an adverse employment action. See Mem. Decision & Order, Dkt. 57, at 15, 24 (citing authorities). The City now argues that when the Ninth Circuit held Walker did not have a protectible property interest in the promotion, it implicitly concluded Walker cannot establish the requisite “adverse employment action” to pursue the retaliation claims.

         The Court is not persuaded. Walker does not need to show a constitutionally protected property interest in his employment (or in a promised promotion) to suffer an “adverse employment action” under either act. See generally Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). The City does not cite any authority supporting its argument to the contrary, and the Court has not located any. Further, Walker complains of other adverse actions besides the failure to promote. The Court will therefore deny the City's motion to reconsider its earlier rulings on the retaliation claims.

         2. The Emotional ...

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