United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, U.S. District Court Judge.
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
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
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.
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.
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)
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).
The Retaliation Claims
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.
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.
The Emotional ...