LAWRENCE E. KAHN, District Judge.
Plaintiff Donald J. Dibble claims in this action that his former employer, the New York Air National Guard ("Air Guard"), wrongfully denied his request to renlist in 1994, and thereby compelled the termination of his employment as a service technician with the Air Guard, in retaliation for his activities as a union steward for the Association of Civilian Technicians, and in violation of his statutory and constitutional rights. (Decl. Daniel M. Schember at 2, ¶ 1 (Doc. 40, 19 Oct. 1998).) Although he was a federal civilian employee, 32 U.S.C. § 709(b) required that he maintain military membership in the Air Guard as a condition of this employment.
On 19 January 2000 this Court denied Secretary of the Air Force F. Whitten Peters's ("Federal Defendant") motion to dismiss the complaint, or, in the alternative, for summary judgment against Plaintiff; denied Major General John H. Fenimore, V's (State Defendant) motion to dismiss the complaint; granted Plaintiff's cross motion for partial summary judgment; and remanded the case to the Air Force Board for Correction of Military Records ("Correction Board") for proper inquiry, reconsideration, and issuance of proper findings and reasons, in accordance with the directions specified in the Court's decision. (See Memorandum-Decision and Order at 15 (Doc. 59).)
Now before the Court is State Defendant's motion for reconsideration of the Court's denial of his motion to dismiss the complaint. (See Notice Mot. Recons. (Doc. 60, 31 Jan. 2000); Bruce J. Boivin Decl. at 3 ¶ 16 (Doc. 61, 31 Jan. 2000).)
I. Standard of Review for Motions for Reconsideration
Motions for reconsideration proceed in the Northern District of New York under Local Rule 7.1(g), unless otherwise governed by Federal Rule of Civil Procedure 60. The "clearly erroneous" standard of review applies to motions for reconsideration. The moving party must "point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court."Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (Calabresi, J.). Generally, the prevailing rule in the Northern District "recognizes only three possible grounds upon which motions for reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice." In re C-TC 9th Ave. Partnership, 182 B.R. 1, 3 (N.D.N.Y. 1995) (McAvoy, C.J.).
In the present case, State Defendant does not contend that the first ground, an intervening change in controlling law, applies. Nor does he contend that the second ground, the availability of new evidence not previously available, applies. Defendant is instead arguing on the basis of the third ground, that his motion for reconsideration should be granted in order to correct a clear error of law or prevent a manifest injustice.
This is a demanding standard.
It is not enough . . . that [the moving party] could now make a more persuasive argument. . . . "[M]ere doubt on our part is not enough to open [up] the point for full reconsideration." The law of the case will be disregarded only when the court has "a clear conviction of error" with respect to a point of law on which its previous decision was predicated.
Fogel v. Chestnutt,
668 F.2d 100, 109 (2d Cir. 1981) (Friendly, J.) (citations omitted) (quoting
White v. Higgins,
116 F.2d 312, 317 (1st Cir. 1940), and
Zdanok v. Glidden Co.,
327 F.2d 944, 953 (2d Cir. 1964) (Friendly, J.)). A simple difference of opinion, no matter how deep it runs, will not warrant reconsideration. "[A]ny litigant considering bringing a motion for reconsideration must evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant."
In re C-TC 9th
Ave. Partnership,
182 B.R. at 3.
II. Discussion
A review of this Court's 19 January 2000 Memorandum-Decision and Order, the Boivin Declaration, the State Defendant's memorandum of law supporting the motion for reconsideration (Doc. 62, 31 Jan. 2000), and the Plaintiff's memorandum of law in opposition to the motion for reconsideration (Doc. 67, 18 Feb. 2000), reveals a great deal of dispute, but no clear error. Notably, even if the Court were to accept Defendant's arguments regarding the applicability of a requirement to exhaust State administrative remedies, the record indicates that Plaintiff was indeed pursuing State administrative appeals when the State's Acting Inspector General for the Air Force National Guard diverted his appeals to the federal government's Correction Board. (See letter from McInerney to Schember of 12/18/95.) Defendant cannot demonstrate that the Court's earlier decision was clearly erroneous with respect to the issue of Plaintiff's exhaustion of State administrative remedies, when a colorable interpretation of the record before the Court is that by adhering to this direction from the State, Plaintiff complied with any requirement to exhaust State administrative appeals. Moreover, it would appear manifestly unjust if the State, having shepherded Plaintiff away from further pursuit of administrative remedies in the State arena, were now to benefit by contending that Plaintiff — by doing as the State asked him to do — had failed to fulfill prerequisites to the pursuit of remedies in federal court.
As cited in State Defendant's memorandum, the Second Circuit has identified one important aspect of a requirement that National Guard members exhaust State administrative appeals to be that the failure to do so deprives the Governor of an opportunity to review the matter, and perhaps "obviate any need for judicial interference in military affairs." Jones v. New York State Div. of Mil. and Naval Affairs, 166 F.3d 45, 54 (2d Cir. 1999). When the State itself has directed Plaintiff's appeals away from a route that would lead to review by the Governor, then the rationale that the Second Circuit identified for avoiding judicial involvement dissolves.
With respect to justiciability, State Defendant invokes this Court's earlier analysis of the applicability of the test developed in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). See Jones v. New York State Div. of Mil. and Naval Affairs, No. 93-CV-862, 1997 WL 266765 (N.D.N.Y. 7 May 1997) (Kahn, J.). In that case, however, this Court did not conclude that Jones's claims were nonjusticiable per se, but that Jones's failure to exhaust State administrative remedies rendered them nonjusticiable. See id. at *10. That holding is sharply at variance with Defendant's adamant position that Plaintiff's claims are in a realm of nonjusticiable discretionary military decisions. As indicated supra, it is not clear that Plaintiff Dibble did fail to exhaust his State administrative appeals. Defendant's arguments no more reveal clear error with respect to the question of justiciability than they do with respect to the question of the exhaustion of State administrative remedies.
CONCLUSION
For the reasons stated above, it is hereby:
ORDERED that State Defendant's motion for reconsideration of the Court's 19 January 2000 denial of his motion to dismiss the complaint is DENIED; and
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this order by regular mail upon the parties to this action.
IT IS SO ORDERED.