JAMES O. BROWNING, District Judge.
This case arises out of the City of Santa Fe's termination of M. Lujan's employment after he allegedly attempted to embezzle City of Santa Fe funds. The Court set forth detailed findings of fact in the Memorandum Opinion and Order, filed February 24, 2015 (Doc. 62)("MOO"), and neither party has expressly challenged those findings or offered additional evidence to contradict them.
On April 18, 2013, M. Lujan filed an amended Petition for Writ of Certiorari and a Complaint in the First Judicial District Court for the State of New Mexico, County of Santa Fe. See First Amended Petition for Writ of Certiorari and Complaint for Violation of First Amendment Rights, Retaliatory Discharge and the Whistle Blower Act, filed in state court on April 18, 2015, filed in federal court on May 9, 2013 (Doc. 1-2).
M. Lujan asks the Court to issue a Writ of Certiorari, pursuant to Constitution of the State of New Mexico, and reverse Ms. Maynes' decision, for three reasons. See Complaint & Petition at 8-9. First, M. Lujan contends that there is not substantial evidence that he committed theft, attempted theft, or carelessly or negligently used City of Santa Fe funds under the City of Santa Fe's Personnel Rules and Regulations. See Complaint & Petition at 8. M. Lujan points out that Ms. Maynes questioned her own finding on the issue of theft and stated that the evidence demonstrated only "statements showing an intent to steal." Complaint & Petition at 8 (citation omitted)(internal quotation marks omitted). M. Lujan notes that City Manager Robert Romero testified at M. Lujan's post-termination hearing that the City of Santa Fe never paid the Santa Fe Junior Wrestling Association ("SFJWA")
Second, M. Lujan asserts that Ms. Maynes "misinterpreted and/or misapplied the law or rules which govern[ed]" his alleged conduct. Complaint & Petition at 8. M. Lujan points out that the City has not presented any evidence that it paid money either to the SFJWA or to the Amateur Athletic Union ("AAU") because of M. Lujan's actions. Complaint & Petition at 8-9. M. Lujan says: "Therefore it is inconsistent as a matter of law for Martin to have been careless, negligent or improper with City funds." Complaint & Petition at 8. M. Lujan also argues that the electronic mail transmissions between him and his brother — Larry Lujan — on which Ms. Maynes relied "do not demonstrate that Martin handled any City funds." Complaint & Petition at 9. M. Lujan states that there is no evidence that he incurred any personal expenses, purchased an airline ticket, or received reimbursement for any expenses. See Complaint & Petition at 9.
Third, M. Lujan asserts that the City of Santa Fe acted fraudulently, arbitrarily, and capriciously. See Complaint & Petition at 9. M. Lujan argues that R. Romero was his friend until M. Lujan began investigating concerns about R. Romero's girlfriend violating "time clock" policies. Complaint & Petition at 9. M. Lujan explains that he "instituted measures to control the abuses that were being carried out regarding employees clocking in for other employees," and that R. Romero's "subordinates and cronies" granted R. Romero's girlfriend an exemption from those measures. Complaint & Petition at 9. M. Lujan concludes:
Complaint & Petition at 9.
M. Lujan also alleges that the Defendants: (i) violated his rights under the First Amendment to the Constitution of the United States of America when they retaliated against him for exercising his right to free speech, see Complaint & Petition ¶¶ 1-14, at 11-12 ("Count I"); (ii) unlawfully discharged him for raising issues of public concern, see Complaint & Petition ¶¶ 15-24, at 12-13 ("Count II"); and (iii) violated the New Mexico Whistleblower Protection Act, N.M. Stat. Ann. §§ 10-16C-2(1) and 10-16C-2(4)("WPA"), when they terminated him after he raised concerns that City of Santa Fe officials had violated the City of Santa Fe's Personnel Rules, Regulations, and Policies, Complaint & Petition ¶¶ 25-45, at 14-17 ("Count III").
M. Lujan filed a brief on the Petition for Writ of Certiorari on September 18, 2013. See Petitioner Martin Lujan's Appeal Brief at 1,
On February 24, 2015, the Court issued the MOO, which granted in part and denied in part M. Lujan's requests in the Appeal Brief.
M. Lujan filed the Motion on March 24, 2015. M. Lujan asks the Court to reconsider five of its rulings in the MOO under the Court's inherent "equitable power to process litigation to a just and equitable conclusion," or under the Court's authority to alter or amend a judgment under rule 59(e) of the Federal Rules of Civil Procedure. Motion at 2. See id. at 5. First, M. Lujan asserts that he did not waive his due process claim by failing to raise it in the Complaint or in the Petition for Writ of Certiorari, because whether Ms. Maynes was impermissibly biased is a jurisdictional question that "may be raised at any point in the proceedings." Motion at 6-7. M. Lujan contends that,
Motion at 7-8 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)).
Second, M. Lujan says that the Court applied the incorrect standard in the MOO to determine whether "there was an impermissible conflict in Ms. Maynes['] authority to hear Petitioner's appeal." Motion at 8-9. M. Lujan points out that the Court improperly relied on Flores v. State, 1986-NMCA-017, 79 N.M. 47, 439 P.2d 565, as the closest analogy to this case, and inaccurately held that M. Lujan "must demonstrate a direct connection between actual bias and the matter submitted to Ms. Maynes for her consideration." Motion at 9. M. Lujan contends:
Motion at 9-10.
M. Lujan asserts that the Court of Appeals of New Mexico adopted Caperton v. A.T. Massey Coal Co.'s objective bias standard in City of Albuquerque v. Chavez. See Motion at 10. According to M. Lujan, in City of Albuquerque v. Chavez, the Court of Appeals of New Mexico said that the bias inquiry does not focus on "`whether the Board members are actually biased or prejudiced,'" but on whether, "`in the natural course of events, there is an indication of a possible temptation to an average man [or woman] sitting as a judge to try the case with bias for or against any issue presented to him [or her].'" Motion at 10 (quoting City of Albuquerque v. Chavez, 1997-NMCA-054, ¶ 16, 123 N.M. 428, 941 P.2d 509) (emphases omitted)(alterations in Motion but not in quoted case). M. Lujan argues that the MOO "requires that Petitioner not only prove actual bias but also the bias or conflict must be connected to the specific matter pending before Ms. Maynes." Motion at 12. In M. Lujan's view, "this is inconsistent with the standard announced by the United States Supreme Court, the New Mexico Supreme Court and the New Mexico Court of Appeals subsequent to the Flores opinion." Motion at 12. M. Lujan adds that City of Albuquerque v. Chavez "is more on point and correctly applied the `objective standard test' to the facts of that case." Motion at 13. M. Lujan says that "the authority of the Board members [in City of Albuquerque v. Chavez] was identical to Ms. Maynes' authority to act as the hearing officer having been appointed by the City of Santa Fe." Motion at 13 (internal quotation marks omitted). M. Lujan says that, under the objective bias standard, the City of Santa Fe "should not have appointed Ms. Maynes and Ms. Maynes should have refused to hear Petitioner's appeal." Motion at 13.
Third, M. Lujan challenges the MOO's conclusion that M. Lujan's proposed impermissible-bias standard "`is unworkable.'" Motion at 14 (quoting MOO at 61). M. Lujan says that the Court's holding "does [not] reflect the reality of the legal community in Santa Fe and the availability of un-biased attorneys that could have heard Petitioner's administrative appeal and the voluntary disclosures of potential conflicts before agreeing to hear any case." Motion at 14. M. Lujan then lists a number of retired judges who could have served as his hearing officer, asserting that "[t]hese are only a few of a number of legal professionals who were available to act as the hearing officer regarding Petitioner's appeal and who would not have presented a possible bias — based on objective and reasonable perceptions." Motion at 15.
Fourth, M. Lujan contends that the MOO wrongly held that he attempted to obtain City of Santa Fe funds under false pretenses. See Motion at 16 (citing MOO at 81-82). M. Lujan says that "the evidence does not support a finding of the prerequisite intent required for there to have been intent to obtain funds under false pretenses" and that "there was ... no overt act with respect to the $750 SFJWA invoice." Motion at 16. M. Lujan says that he "refuted every e-mail from Larry Lujan and does not, in any instance, confirm the existence of a scheme to fraudulently obtain funds from the City of Santa Fe." Motion at 20.
Fifth, and finally, M. Lujan asks the Court to remand his case to the City of Santa Fe "for a determination of whether a less severe discipline, other than dismissal, is warranted in this case." Motion at 21 (capitalization removed for readability). M. Lujan points out that the MOO reversed Ms. Maynes' findings that M. Lujan: (i) stole from the City of Santa Fe;
Id. at 563. Petitioner based upon the sound reasoning of the above-referenced Appellate Courts, request that the matter, if remanded, be remanded to a different Hearing Officer.
Motion at 23-25 (bold in original).
The City of Santa Fe responded to the Motion on April 17, 2015, attacking the Motion on five grounds. See Respondent City of Santa Fe's Response to Petitioner's Motion for Reconsideration, filed April 17, 2015 (Doc. 65)("Response"). First, the City of Santa Fe argues that rule 54(b) of the Federal Rules of Civil Procedure provides the Court discretion to revise interlocutory orders at any time before the entry of final judgment. See Response at 3. The City of Santa Fe says that, when evaluating whether to reconsider an interlocutory order under rule 54(b), courts apply the same legal standard used for a motion to alter or amend a judgment under rule 59(e). See Response at 3. Second, the City of Santa Fe contends that M. Lujan has failed to demonstrate that the Court should reconsider its decision that M. Lujan waived his due process claim by failing to raise it in his Complaint or Petition for Writ of Certiorari. See Response at 4. The City of Santa Fe points out that M. Lujan does not dispute that he raised his due process claim for the first time in the Appeal Brief; he similarly does not challenge "the well-established rule that courts should not consider issues that were not presented in a complaint or petition for writ of certiorari." Response at 5 (citing Rule 12-505(D)(3) N.M.R.A.; San Pedro Neighborhood Ass'n v. Santa Fe Cnty. Bd. of Cnty. Comm'rs, 2009 NMCA-045, ¶ 29, 146 N.M. 106, 206 P.3d 1011, 1019). The City of Santa Fe contends that M. Lujan attempts to avoid waiver by arguing that having an impartial hearing officer is a jurisdictional issue that cannot be waived. See Motion at 5. The City of Santa Fe says that, although it agrees with M. Lujan that jurisdictional issues are not subject to waiver, M. Lujan fails to cite any support for his contention that "a conflict-free hearing officer ... is a jurisdictional prerequisite." Response at 5. The City of Santa Fe also points out that one of the Court's prior opinions appears to implicitly foreclose M. Lujan's argument, because, in that case, the Court treated the questions of impermissible conflict and jurisdiction as two separate and unrelated issues. See Response at 6 (citing Kassabji v. Baca, No. CIV 07-0710 JB/ACT, 2007 WL 505345, at *6 (D.N.M. Jan. 8, 2007) (Browning, J.)("[E]ven if Judge Campbell had a conflict of interest, he had jurisdiction over the case.")).
Second, the City of Santa Fe asserts that the MOO applied the proper impermissible-bias standard. See Response at 6. The City of Santa Fe contends that, although the Court "clearly applied the objective standard advocated by Petitioner," it "simply did not reach the conclusion that Petitioner had hoped for." Response at 7. The City of Santa Fe says that, "[i]n reviewing the conflict issue, the Court indicated that it had not found any evidence of `potential' bias on the part of the hearing officer, and stated that Petitioner had not offered any `evidence demonstrating even the appearance of bias.'" Response at 7 (quoting MOO at 59, 61). The City of Santa Fe also highlighted the Court's holding that it "`does not think a reasonable person would have serious doubts about
The City of Santa Fe also attacks M. Lujan's reliance on Caperton v. A.T. Massey Coal Co. Response at 9. The City of Santa Fe asserts:
Response at 9. The City of Santa Fe asserts that Caperton v. A.T. Massey Coal Co. would only be analogous if Ms. Maynes "had received a large percentage of her revenues from representing the City in the past, with an expectation of receipt of a similar percentage of work in the future." Response at 10. The City of Santa Fe argues that, "if anything, the contrast with Caperton demonstrates how extreme the appearance of a conflict must be before disqualification is required, and just how far from this extreme conflict the circumstances of this case presented." Response at 10.
Third, the City of Santa Fe contends that, in the MOO, the Court considered all of the evidence in the record and all of the parties' legal arguments in upholding Ms. Maynes' determination that M. Lujan attempted to obtain City of Santa Fe funds under false pretenses. See Response at 11. The City of Santa Fe maintains that, although M. Lujan contends that the evidence in the record does not support the Court's ruling, "his argument is based on the same spin and implausible explanations for his emails and actions that were already made and rejected" in the MOO. Response at 12. Fourth, the City of Santa Fe urges that, because M. Lujan's attempt to obtain City of Santa Fe funds under false pretenses provided just cause to terminate his employment, remand to consider other potential discipline is unwarranted. See Response at 14. The City of Santa Fe asserts that, as the Court recognized in the MOO, M. Lujan "`had a responsibility to manage the City of Santa Fe's funds with honesty and integrity, set an example to his subordinates, and maintain the public's trust in the City of Santa Fe. Because of his misconduct, he failed on all counts.'" Response at 15 (quoting MOO at 79).
M. Lujan replied to the Response on May 18, 2015. See Petitioner Martin Lujan's Reply Brief, filed May 18, 2015 (Doc.
The Court held a hearing on the Motion on June 18, 2015. See Transcript of Hearing (taken June 18, 2015)("June 18, 2015, Tr.").
Next, the Court said that it did not see how a hearing officer's bias is a jurisdictional issue and that it was inclined to conclude that M. Lujan waived his due process claim. See Tr. at 4:10-24 (Court). Without addressing the waiver issue — or expressly conceding it — M. Lujan proceeded to his argument that the MOO used the wrong impermissible-bias standard. See Tr. at 5:11-18 (Thompkins). M. Lujan and the Court then had an exchange over whether hearing officers and judges must recuse themselves in cases involving a party that they have previously represented, with the Court suggesting that M. Lujan's standard would require the Court to recuse itself in a large number of cases. See Tr. at 6:17-8:20 (Court, Thompkins); id. at 8:7-14 (Court). M. Lujan pushed back, noting that Ms. Maynes was impermissibly biased not only because of her prior representation of the City of Santa Fe, but also because her firm — Miller Stratvert, P.A. — has "an ongoing relationship with the City [of Santa Fe]." Tr. at 8:21-24 (Thompkins); id. at 9:19-23 (Thompkins); id. at 10:5-10 (Court, Thompkins). M. Lujan ultimately said that whether recusal is required turns on "the facts and the circumstances" of each case, Tr. at 7:1-2 (Thompkins), and suggested that courts look to the following factors to determine if recusal is warranted:
Tr. at 20:4-16 (Thompkins).
When the City of Santa Fe took the lectern, it repeated its arguments from the Response: the Court correctly held that M. Lujan waived his due process claim, and, even if M. Lujan did not waive that claim, the Court applied the proper impermissible-bias standard. See Tr. at 14:14-15:16 (Roman). The City of Santa Fe argued that M. Lujan was "misinformed" about Miller Stratvert having an ongoing relationship with the City of Santa Fe and clarified that Miller Stratvert "is [currently] suing the City of Santa Fe rather than representing" it. Tr. at 15:15-19 (Roman); id. at 17:4-12 (Court, Roman). The City of Santa Fe pointed out that Ms. Maynes has represented it in only two cases — one in 2005 and another in 2008. See Tr. at 15:20-17:3 (Court, Roman). The City of Santa Fe argued that such a tenuous relationship between Ms. Maynes and the City of Santa Fe would not lead a reasonable person to believe that Ms. Maynes could not be impartial in M. Lujan's post-termination hearing. See Tr. at 17:15-20 (Roman). Although the Court agreed with the parties that the objective appearance-of-bias standard applies, it said that it was inclined to stick with its ruling in the MOO that Ms. Maynes' sparse history with the City of Santa Fe and the lack of an ongoing relationship between her firm and the City of Santa Fe did not give rise to an impermissible bias. See Tr. at 22:4-17 (Court). The parties then repeated their arguments from the briefing on the remaining issues, and the Court said that it was not inclined to alter any of the MOO's remaining holdings. See Tr. at 24:15-38:7 (Court, Roman, Thompkins).
Rule 59(e) provides: "A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment." Rule 60 provides in relevant part:
Fed.R.Civ.P. 60(b)-(c). The Tenth Circuit has recognized:
Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir.2005). The time limit in rule 59(e) is now twenty-eight days rather than ten days. See Fed.R.Civ.P. 59(e).
A motion for reconsideration under rule 59(e) is an "inappropriate vehicle[] to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does, 204 F.3d at 1012. "Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Servants of Paraclete v. Does, 204 F.3d at 1012. A district court has considerable discretion in ruling on a motion to reconsider under rule 59(e). See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
Rule 60 authorizes a district court to, "[o]n motion and just terms[,] ... relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons," including "any other reason that justifies relief." Fed.R.Civ.P. 60(b). A court cannot enlarge the time for filing a rule 59(e) motion. See Brock v. Citizens Bank of Clovis, 841 F.2d 344, 347 (10th Cir.1988) (holding that district courts lack jurisdiction over untimely rule 59(e) motions); Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp., No. CIV 11-0103, 2012 WL 869000, at *2 (D.N.M. Mar. 8, 2012) (Browning, J.)("The Court may not extend the time period for timely filing motions under Rule 59(e)...."). "A motion under rule 59 that is filed more than 28 days after entry of judgment may be treated as a Rule 60(b) motion for relief from judgment." 12 James Wm. Moore, et al., Moore's Federal Practice § 59.11[4][b], at 59-32 (3d ed.2012) (citations omitted). Nevertheless, a court will not generally treat an untimely rule 59(e) motion as a rule 60(b) motion when the party is seeking "reconsideration of matters properly encompassed in a decision on the merits' contemplated by Rule 59(e)." Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir.2005).
Under some circumstances, a party can rely on rule 60(b)(1) to rectify a mistake by his or her attorney, or when their attorney acted without the party's authority. See Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir.1999) ("Rule 60(b)(1) motions premised upon mistake are intended to provide relief to a party... when the party has made an excusable litigation mistake or an attorney has acted without authority...."). Mistake in this context entails either acting without the client's consent or making a litigation mistake, such as failing to file or comply with
Courts will not grant relief when the mistake of which the movant complains is the result of an attorney's deliberate litigation tactics. See Cashner v. Freedom Stores, Inc., 98 F.3d at 577. This rule exists because a party
Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507 U.S. at 397, 113 S.Ct. 1489 (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962))(internal quotation marks omitted). The Tenth Circuit has held that there is nothing "novel" about "the harshness of penalizing [a client] for his attorney's conduct" and has noted that those "who act through agents are customarily bound," even though, when "an attorney is" poorly prepared to cross-examine an expert witness, the client suffers the consequences." Gripe v. City of Enid, Okla., 312 F.3d 1184, 1189 (10th Cir.2002). The Court has previously stated:
Wilson v. Jara, No. 10-0797, 2012 WL 1684595, at *7 (D.N.M. May 10, 2012) (Browning, J.).
952 F.2d at 1244-45.
Considerable confusion exists among the bar regarding the proper standard for a district court to apply when ruling on a motion to reconsider one of its prior "interlocutory" or "interim" orders, i.e., an order that a district court issues while the case is ongoing, as distinguished from a final judgment. This confusion originates from the fact that the Federal Rules of Civil Procedure — the normal starting point for figuring out how to use various procedural devices in the federal courts — do not mention motions to reconsider, let alone set forth a specific procedure for filing them or a standard for analyzing them. A loose conflation in terminology in Servants of the Paraclete v. Does, which refers to rule 59(e) motions — "motion[s] to alter or amend a judgment" — as "motions to reconsider,"
Final judgments are different from interlocutory orders. See Fed. R.Civ.P. 54(a) ("`Judgment' as used in these rules includes a decree and any order from which an appeal lies." (emphasis added)). In addition to ripening the case for appeal, see 28 U.S.C. § 1291 ("The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts...."), the entry of final judgment narrows the district court's formerly plenary jurisdiction over the case to: (i) for the first twenty-eight days after the entry of judgment, motions under rules 50(b), 52(b), 59, and 60 — the district court's jurisdiction, while limited, trumps that of the Court of Appeals during this time period, and, even if a party files a notice of appeal, the Court of Appeals will wait until after the district court has ruled on the post-judgment motion to touch the case, see Fed. R.App. P. 4(a)(4)(B); (ii) after twenty-eight days, if a party has filed a notice of appeal, motions under rule 60 — the Court of Appeals' jurisdiction trumps the district court's during this period, and the district court needs the Court of Appeals' permission even to grant a rule 60 motion;
Final judgments implicate two important concerns militating against giving district courts free reign to reconsider their judgments. First, when a case is not appealed, there is an interest in finality. The parties and the lawyers expect to go home,
Basically, rather than suddenly divesting the district court of all jurisdiction over the case — potentially resulting in the district court being unable to rectify easily fixable problems with the final judgment before the case goes to the Tenth Circuit, or even requiring appeal of a case that might otherwise not need to be appealed — the Federal Rules set forth a jurisdiction phased de-escalation process, wherein the district court goes from pre-final judgment plenary jurisdiction, to limited review for the first twenty-eight days post-final judgment, and, finally, to solely rule 60 review after twenty-eight days. In defining the "limited review" that rule 59(e) allows a district court to conduct in the 28-day flux period, the Tenth Circuit, in Servants of the Paraclete v. Does, incorporated traditional law-of-the-case grounds — the same grounds that inform whether a court should depart from an appellate court's prior decision in the same case — into rule 59(e).
United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.1998) (citation omitted).
Neither of these concerns — finality or jurisdictional overlap — is implicated when a district court reconsiders one of its own interlocutory orders. The Federal Rules do not specifically mention motions to reconsider interlocutory orders, but rule 54(b) makes the following open-ended proclamation about their mutability:
Fed.R.Civ.P. 54(b) (emphases added). Rule 54(b) thus (i) provides that a district court can freely reconsider its prior rulings; and (ii) puts no limit or governing standard on the district court's ability to do so, other than that it must do so "before the entry of judgment." Fed.R.Civ.P. 54(b).
The Tenth Circuit has not cabined district courts' discretion beyond what rule 54(b) provides: "[D]istrict courts generally remain free to reconsider their earlier interlocutory orders." Been v. O.K. Indus., 495 F.3d at 1225. In the Tenth Circuit, "law of the case doctrine has no bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one judge to another." Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1252 (10th Cir.2011) (emphasis added)(citing Been v. O.K. Indus., Inc., 495 F.3d at 1225). In this context, "the doctrine is merely a `presumption, one whose strength varies with the circumstances.'" Been v. O.K. Indus., Inc., 495 F.3d at 1225 (quoting Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1227 (7th Cir.1995)). In short, a district court can use whatever standard it wants to review a motion to reconsider an interlocutory order. It can review the earlier ruling de novo and essentially reanalyze the earlier motion from scratch, it can review the ruling de novo but limit its review, it can require parties to establish one of the law-of-the-case grounds, or it can refuse to entertain motions to reconsider altogether.
The best approach, in the Court's eyes, is to analyze motions to reconsider differently depending on three factors. Cf. Been v. O.K. Indus., Inc., 495 F.3d at 1225 ("[T]he doctrine is merely a `presumption, one whose strength varies with the circumstances.'" (citation omitted)). The Court set forth these factors in Anderson Living Trust v. WPX Energy Prod., 308 F.R.D. 410 (D.N.M.2015) (Browning, J.).
Anderson Living Trust v. WPX Energy Prod., 2015 WL 4040616, at *21-22.
The Court will deny the Motion. Although M. Lujan has presented some new law and arguments regarding whether he waived his claim that Ms. Maynes was impermissibly biased, the Court remains persuaded that its ruling on the issue in the AMOO is correct. Although M. Lujan has presented some new argument and new law whether Ms. Maynes' decision that M. Lujan attempted to obtain City of Santa Fe funds by false pretenses was fraudulent, arbitrary, or capricious, and that substantial evidence supported it, the Court remains convinced that its conclusion on the issue in the AMOO is correct, and will not alter its previous ruling. As for Court's ruling that the City of Santa Fe had just cause to terminate M. Lujan's employment, although M. Lujan presents some new authority and argument on the Court's authority to remand a case, he has not presented any new authority, evidence, or arguments regarding whether the City of Santa Fe had just cause to terminate his employment. The Court will therefore leave that ruling intact. Consequently, the Court will deny the Motion.
Because M. Lujan has presented new arguments and new law regarding whether Ms. Maynes acted arbitrarily or capriciously when she failed to recuse herself from M. Lujan's post-termination hearing, the Court will reconsider that portion of its AMOO. Despite reconsidering this issue, however, the Court will stick with the AMOO's conclusions. First, the Court will not alter the AMOO's holding that M. Lujan waived his due process claim by failing to raise it either in his Complaint or in his Petition for Writ of Certiorari. Second, the Court will not alter the AMOO's holding that, even if M. Lujan had included his due process challenge in his Complaint or in his Petition for Writ of Certiorari, he would not have a valid due process claim.
In the AMOO, the Court held that M. Lujan waived his due process claim when he failed to raise it in either his Complaint or his Petition for Writ of Certiorari.
AMOO at 55-56.
M. Lujan does not dispute that he failed to raise his due process claim in his Complaint or in his Petition for Writ of Certiorari. Nor does he challenge the well-established rule that New Mexico courts do not consider issues on appeal which were not presented in a petition for a writ of certiorari. See N.M.R.A. Rule 12-505(D)(3) (stating that a petition for a writ of certiorari "shall contain a concise statement showing ... the questions presented for review by the Court of Appeals; only the questions set forth in the petition will be considered by the Court"); San Pedro Neighborhood Ass'n v. S.F. Cnty. Bd. of Cnty. Cmm'rs, 2009-NMCA-045, ¶ 29, 146 N.M. 106, 206 P.3d 1011, 1019 ("The issue now raised was not set forth by either the Board or Applicant in their petitions for certiorari. We therefore do not consider it."). Instead, he likens his due process claim to a jurisdictional issue that can never be waived. See Motion at 6 ("Because the existence of a Conflict divests a hearing officer of jurisdiction, `a want of jurisdiction can be claimed at any time, even after judgment and for the first time on appeal.'" (emphasis omitted)(quoting N.M. Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606)).
While the Court agrees with M. Lujan that jurisdictional challenges can be raised at any time, the Court disagrees that having an impartial hearing officer — or judge — is a jurisdictional prerequisite. Every case which M. Lujan cites supports only the proposition that jurisdictional issues are not subject to waiver. See Motion at 6 (citing, e.g., Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (holding that a party does not waive subject-matter jurisdiction "by failing to challenge [it] early in the proceedings"); Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373 (9th Cir.1997) ("This is not to say that a defect in jurisdiction can be avoided by waiver or stipulation to submit to federal jurisdiction. It cannot.")). M. Lujan has not provided, and the Court has been unable to find, a case in which a court said that it is a jurisdictional prerequisite to have an impartial hearing officer or judge. The only case which M. Lujan cites that even involves an appeal of an administrative law judge's decision — Bender v. Clark — is strictly concerned with whether the Tenth Circuit has jurisdiction to hear an appeal of a district court's remand of a case back to an administrative law judge. See 744 F.2d at 1426 ("We must decide whether a remand order by a federal district court to an administrative agency, in which the agency is directed to apply a legal standard contrary to its usual standard, is a `final decision' within the meaning of 28 U.S.C. § 1291."). That case provides no insight into whether a hearing officer's impartiality is a jurisdictional issue. Moreover, the Court implicitly foreclosed M. Lujan's argument in Kassabji v. Baca by holding that, even if the judge in that case had a conflict of interest, "he had jurisdiction over the case." 2007 WL 505345, at *6. Given that the Court has — at
M. Lujan argues that the AMOO wrongly applied an actual-bias test to his due process claim rather than the correct objective appearance-of-bias test. See Motion at 8-9. The Court disagrees. After reviewing the evidence in the record, the AMOO concluded that, "aside from pointing to her prior representation of the City of Santa Fe, M. Lujan has offered no evidence demonstrating even the appearance of bias." AMOO at 61. Consequently, the Court held that it "does not think `a reasonable person would have serious doubts about whether the hearing officer could be fair.'" AMOO at 59 (quoting City of Albuquerque v. Chavez, 1997-NMCA-054, ¶ 16, 123 N.M. 428, 941 P.2d 509). The Court applied the identical standard that M. Lujan provided in the Motion and in the Appeal Brief. See Motion at 8 ("`[W]here a reasonable person would have serious doubts about whether the hearing officer could be fair, it is inappropriate for the hearing officer to hear the case.'" (quoting City of Albuquerque v. Chavez, 1997-NMCA-054, ¶ 16, 123 N.M. 428, 941 P.2d 509)); Appeal Brief at 16 ("[W]here a reasonable person would have serious doubts about whether the hearing officer could be fair, it is inappropriate for the hearing officer to hear the case.'" (quoting City of Albuquerque v. Chavez, 1997-NMCA-054, ¶ 16, 123 N.M. 428, 941 P.2d 509)). Moreover, the Court explained why City of Albuquerque v. Chavez is inapposite:
MOO at 60-61. Accordingly, the Court rejected M. Lujan's reliance on City of Albuquerque v. Chavez, because it was factually distinguishable, and not because it applied the wrong standard.
M. Lujan contends that the AMOO's reliance on Flores v. State demonstrates that the Court improperly applied an actual-bias standard rather than an objective appearance-of-bias standard. See Motion at 9. M. Lujan's argument is flawed in two respects. First, Flores v. State did not apply an actual-bias test. Under more extreme circumstances than were present in this case, Flores v. State held that there was no basis for disqualification, because the facts were "wholly insufficient to establish bias or prejudice, or from which bias or prejudice can reasonably be inferred." 1968-NMCA-017, ¶ 8, 79 N.M. 47, 439 P.2d 565 (emphasis added). Accordingly, the Court of Appeals of New Mexico did not say that actual bias was required for recusal, but instead used an objective test by looking to whether the facts gave rise to a reasonable inference of prejudice. Second, the AMOO did not imply or suggest that Flores v. State applied an actual-bias test; it analogized M. Lujan's situation to that case, because that case concerned when a judge's prior representation of a party could give rise to the appearance of bias. The Court said:
AMOO at 57-59. The Court never said that actual bias was required or that Flores v. State set forth an actual-bias standard; instead, it looked to whether there was any evidence indicating even a reasonable inference that Ms. Maynes was biased and found that no such evidence existed. M. Lujan's argument that the AMOO improperly relied on Flores v. State is therefore unpersuasive.
M. Lujan asserts that Caperton v. A.T. Massey Coal Co. is more analogous to this case than Flores v. State. See Motion at 9-10. In that case, Don Blankenship — the head of a coal company which had just lost a fifty-million-dollar jury verdict that it planned to appeal — donated three million dollars to support the election of a candidate for the Supreme Court of West Virginia. See 556 U.S. at 872-73, 129 S.Ct. 2252. Blankenship's three-million-dollar donation was more than all of the candidates' other donations combined, and three times the amount that the candidate's own election committee spent. See 556 U.S. at 873, 129 S.Ct. 2252. In opinion which the Honorable Anthony M. Kennedy, Associate Justice of the Supreme Court, authored, and Justices Stevens, Souter, Ginsburg, and Breyer, joined, the Supreme Court of the United States held that the state supreme court justice's failure to recuse himself from hearing the coal company's appeal violated the opposing party's due process rights. See 556 U.S. at 884, 129 S.Ct. 2252. Justice Kennedy said that there is "a serious risk of actual bias ...
Although M. Lujan says that "[i]n the instant case the City had a significant and disproportionate influence in placing Ms. Maynes on the case as the hearing officer," Motion at 9, he does not cite any authority or evidence in the record to support this assertion. Presumably, M. Lujan is referring to rule 7.51(A) of the City of Santa Fe's Personnel Rules, which states that "[t]he Human Resources Director shall appoint a hearing officer" to preside over post-termination hearings. City of Santa Fe Personnel Rules at 28, filed May 23, 2013 (Doc. 8-13)("Personnel Rules"). In other words, M. Lujan argues that anyone whom the City of Santa Fe appoints will be impermissibly biased in a case involving the City of Santa Fe, because of the city's "significant and disproportionate influence" in deciding who serves as the hearing officer. Motion at 9. It is unclear if M. Lujan is relying on Caperton v. A.T. Massey Coal Co. to advance a due process claim under the New Mexico Constitution or under the federal constitution. Either way, his argument is unpersuasive.
To the extent that M. Lujan relies on Caperton v. A.T. Massey Coal Co. to advance a due process claim under the New Mexico Constitution, the Court of Appeals of New Mexico has already foreclosed his argument. In Las Cruces Professional Fire Fighters v. City of Las Cruces, 1997-NMCA-031, 123 N.M. 239, 938 P.2d 1284, the plaintiff was a firefighters union which sought to invalidate a city ordinance that prohibited union activities on city property during business hours. See 1997-NMCA-031, ¶¶ 2-4, 123 N.M. 239, 938 P.2d 1384. After the union's claim was successful before both the administrative board and the State District Court, the City of Las Cruces appealed the decision to the Court of Appeals of New Mexico. See 1997-NMCA-031, ¶ 4, 123 N.M. 239, 938 P.2d 1384. The City of Las Cruces argued — as M. Lujan argues here — that the proceeding before the administrative board was defective, because one board member was impermissibly biased, given that he was a union appointee. See 1997-NMCA-031, ¶ 21, 123 N.M. 239, 938 P.2d 1384. The Court of Appeals of New Mexico rejected that argument, noting that the solitary fact that union interests appointed the board member was insufficient to disqualify him. See 1997-NMCA-031, ¶ 29, 123 N.M. 239, 938 P.2d 1384. The Honorable Harris L. Hartz, then-Chief Judge of the Court of Appeals of New Mexico, now-United States Circuit Judge for the Tenth Circuit, said that, "[e]ven if he had previously expressed support for aggressive unionization of the public sector, he would not be disqualified. Members of tribunals are entitled to hold views on policy, even strong views, and even views that are pertinent to the case before [them]." 1997-NMCA-031, ¶ 29, 123 N.M. 239, 938 P.2d 1384. Echoing the Court's concerns in the AMOO, Judge Hartz said that a panel member is not required to recuse himself just because his "prior conduct ... indicates
M. Lujan's reliance on Caperton v. A.T. Massey Coal Co. to advance a federal due process claim is similarly unavailing. The cases that the Supreme Court in Caperton v. A.T. Massey Coal Co. cited as examples of impermissible bias involved two sets of situations. The first category consisted of cases where a judge had a financial interest in the case's outcome. See 556 U.S. at 877-79, 129 S.Ct. 2252. For example, in one case, the mayor of a village had authority to sit as a judge and received a salary supplement based on the fines he assessed. See Caperton v. A.T. Massey Coal Co., 556 U.S. at 878, 129 S.Ct. 2252 (citing Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972)). In another case, a justice casting the deciding vote to uphold a punitive damages award against an insurance company for bad faith was, at the time he cast his vote, the lead plaintiff in a "nearly identical suit" pending in his state's lower courts. Caperton v. A.T. Massey Coal Co., 556 U.S. at 879, 129 S.Ct. 2252 (citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986)). The Supreme Court also pointed to Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), in which a licensing board composed of optometrists had a pecuniary interest of "`sufficient substance'" so that it could not preside over a hearing against competing optometrists. Caperton v. A.T. Massey Coal Co., 556 U.S. at 878-79, 129 S.Ct. 2252 (quoting Gibson v. Berryhill, 411 U.S. at 567, 93 S.Ct. 1689).
The second category consisted of cases arising in the criminal contempt context, where a judge had no pecuniary interest in the case, but was challenged because of a conflict arising from his participation in an earlier proceeding. See Caperton v. A.T. Massey Coal Co., 556 U.S. at 880-81, 129 S.Ct. 2252. In one case — In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955) — the Supreme Court described the challenged judge's participation in the earlier proceeding as a "`one-man grand jury.'" 349 U.S. at 133, 75 S.Ct. 623. In the earlier proceeding, a judge examined witnesses to determine whether charges should be brought. See 349 U.S. at 134, 75 S.Ct. 623. The judge became convinced that one of the witnesses had committed perjury, charged him with perjury, and ordered him to appear and show cause why he should not be punished for criminal contempt. See 349 U.S. at 134, 75 S.Ct. 623. The second witness refused to answer questions based on his entitlement, under state law, to have counsel present. As a result of the witness' refusal to answer questions, the judge also charged him with criminal contempt and ordered him to appear and show cause. See 349 U.S. at 134, 75 S.Ct. 623.
At the subsequent proceeding, the same judge who had charged the two witnesses with criminal contempt presided over their trial for criminal contempt. See 349 U.S. at 134, 75 S.Ct. 623. The judge declined to recuse himself, despite the two defendants' objections to him presiding over the trial. See 349 U.S. at 136, 75 S.Ct. 623. Under those circumstances, the Supreme Court found that the judge's decision to preside
Thus, as the Supreme Court has admonished, only in "extreme" and "exceptional" cases will a risk of bias render a proceeding in front of that judge unconstitutional on due process grounds. Caperton v. A.T. Massey Coal Co., 556 U.S. at 887, 129 S.Ct. 2252 ("This Court's recusal cases are illustrative. In each case the Court dealt with extreme facts that created an unconstitutional probability of bias."). This case is neither extreme nor exceptional. Unlike the mayor in Ward v. Monroeville, who was impermissibly biased because he received a salary supplement based on the fines he assessed, or the optometrists in Gibson v. Berryhill, who were impermissibly biased because they were deciding whether to grant licenses to competing optometrists, M. Lujan has not established that Ms. Maynes had a financial stake in his case's outcome. M. Lujan has presented no evidence suggesting that Ms. Maynes would profit or benefit in any way from upholding the City of Santa Fe's decisions in M. Lujan's case. As the Court observed in the AMOO, "[t]here is similarly no indication that either [Ms.] Maynes or her law firm expect to represent the City of Santa Fe again in any future matters." AMOO at 59. Further, unlike the state supreme court justice in Caperton v. A.T. Massey Coal Co., whose campaign received a sizeable donation from a party whose case would soon be before the court, there is no indication that Ms. Maynes has ever run for any elected position or plans to run for any elected position. For these reasons, Caperton v. A.T. Massey Coal Co. does not require the Court to alter its decision in the AMOO that Ms. Maynes was not impermissibly biased when she served as M. Lujan's administrative hearing officer.
M. Lujan also attacks the AMOO's observation that his proposed impermissible-bias standard — under which an attorney who represented the City of Santa Fe twice over her thirty-year career cannot serve as an administrative hearing officer — is unworkable. See Motion at 14. The AMOO noted that
AMOO at 61-62. M. Lujan does not challenge the Court's characterization of his proposed rule. Nor does he offer a limiting principle that would allow the Court to avoid recusal in cases involving its former clients, like the State of New Mexico. Instead, M. Lujan provides only a list of three retired judges who would pass his impermissible-bias test in his case without explaining why. See Motion at 14. Accordingly, after re-reading the AMOO, the Court remains convinced that M. Lujan's proposed rule is unworkable.
When pressed at the hearing about the limits of his proposed impermissible-bias rule, M. Lujan finally said that whether recusal is required turns on "the facts and the circumstances" of each case, Tr. at 7:1-2 (Thompkins), and suggested that courts look to the following factors to determine if recusal is warranted:
Tr. at 20:4-16 (Thompkins). Even if the Court credits these factors — for which M. Lujan has provided no authority — they do not dictate a different result in this case. Aside from noting that Ms. Maynes' representation of the City of Santa Fe — which occurred four years before she served as M. Lujan's hearing officer — was too recent to avoid impermissible bias, M. Lujan does not provide a specific timeframe for his first factor or explain why four years was too short of a gap for her to avoid the appearance of bias. The Court sees no reason why a four-year gap between Ms. Maynes' prior representation of the City of Santa Fe and her serving as M. Lujan's hearing officer would lead her to be impermissibly biased. If anything, that so much time elapsed with Ms. Maynes not representing the City of Santa Fe underscores how tenuous their relationship was. As to M. Lujan's second factor — the existence of "an ongoing or a possible ongoing relationship" between the hearing officer and the party — there is no evidence that either Ms. Maynes or her firm has an ongoing relationship with the City of Santa Fe or that either of them expects to establish a relationship in the future. The City of Santa Fe said at the hearing that, not only does it not have an ongoing relationship with Miller Stratvert, the firm is presently litigating a lawsuit against the City of Santa Fe. See Tr. at 15:15-19 (Roman); id. at 17:4-12 (Court, Roman). M. Lujan's final factor — "[w]ould a reasonabl[y] prudent person believe that those would be factors
M. Lujan argues that the evidence in the record does not show that he attempted to steal City of Santa Fe funds. See Motion at 17-21. M. Lujan contends that he never "actually attempted to submit expenses to the City for reimbursement," and that the City of Santa Fe, Ms. Maynes, and the Court have all misinterpreted the electronic-mail transmissions between him and his brother. Motion at 17-21. In M. Lujan's view, he "refuted every e-mail from Larry Lujan and does not, in any instance, confirm the existence of a scheme to fraudulently obtain funds from the City of Santa Fe." Motion at 20. M. Lujan made a similar argument in the Appeal Brief, see Appeal Brief at 17-20, 23, and the Court addressed his argument in detail in the AMOO, see AMOO at 65-71. The Court explained:
AMOO at 66-71.
In a recent opinion, the Court listed three factors that it should use in considering the standard to use in addressing a motion to reconsider:
Anderson Living Trust v. WPX Energy Prod., LLC, 308 F.R.D. at 434-35. Under this framework, the Court will decline M. Lujan's invitation to give a full, in-depth new look into its ruling on this issue.
The first factor — how thoroughly the Court considered the challenged issue — weighs heavily against granting M. Lujan's request. The Court thoroughly considered whether Ms. Maynes' decision that M. Lujan attempted to obtain City of Santa Fe funds by false pretenses is fraudulent, arbitrary, or capricious, and whether substantial evidence supports the decision. After a comprehensive review of the evidence in the administrative hearing record and M. Lujan's arguments, the Court upheld Ms. Maynes' decision. Accordingly, this factor weighs in favor of giving a less comprehensive review of its prior decision.
The second factor — the case's overall progress and posture — is neutral. The Court has not litigated any of M. Lujan's remaining claims and the AMOO does not seem to have dramatically changed the parties' litigation strategy, given that M. Lujan's remaining claims do not turn on the Court's resolution of the issues in the AMOO. It does not appear that granting any of M. Lujan's request would have a significant prejudicial effect on the City of Santa Fe, because trial is still a long way down the road. Accordingly, this factor is neutral.
The third factor — whether there is new law or evidence, and whether there is a clear indication that the Court erred — also weighs in favor of the Court giving a less comprehensive review of its prior decision. M. Lujan does not direct the Court to a case or statute that was decided or passed in between the time the Court ruled on the Appeal Brief and the time M. Lujan filed the Motion. Finally, M. Lujan does not present any evidence on this ruling to show that the Court clearly erred in its decision. To be sure, M. Lujan presents a few new cases which set forth the proposition that attempt requires both "an intent to commit the substantive offense," and "the commission of an act which constitutes a substantial step towards the commission of the substantive offense" — a proposition with which the Court has no qualms. Motion at 16 (quoting United States v. Washington, 653 F.3d 1251, 1264 (10th Cir.2011))(internal quotation marks omitted)(citing United States v. Irving, 665 F.3d 1184, 1195 (10th Cir.2011); United States v. Gordon, 710 F.3d 1124 (10th Cir. 2013)). Aside from offering some new authority, however, the Motion reiterates the same position that M. Lujan advances in the Appeal Brief — that Ms. Maynes misinterpreted the electronic mail transmissions between him and his brother as setting forth a plan to steal City of Santa Fe funds when, in M. Lujan's view, "there was nothing in the e-mail exchanged that established an agreement ... to get [M.] Lujan reimbursed through the PO or SFJWA's contract with the City for the 2012 Tournament." Appeal Brief at 26. Although the AMOO did not address M. Lujan's new authority, it rejected his interpretation of the electronic mail transmissions between him and his brother, and agreed with Ms. Maynes' interpretation that those electronic mail transmissions — combined with M. Lujan's submission of the fraudulent $750.00 invoice to J. Romero for processing and payment — exhibited the Lujan brothers' scheme to cover "the remainder
Addressing the crux of M. Lujan's argument — that he did not attempt to obtain City of Santa Fe funds under false pretenses — the same facts on which the Court relied in the AMOO satisfy attempt under the cases which M. Lujan cites. "The electronic-mail transmissions between M. Lujan and his brother demonstrate that their plan was to double-bill the City of Santa Fe for the 2012 Grand Nationals Tournament program advertisements," AMOO at 66 — thus demonstrating M. Lujan's "intent to commit the substantive offense," United States v. Washington, 653 F.3d at 1264. M. Lujan also forwarded the fraudulent $750.00 invoice to J. Romero for processing and payment, see AMOO at 68 — which was "an act which constitutes a substantial step towards the commission of the substantive offense," United States v. Washington, 653 F.3d at 1264. Accordingly, the Court will not revise the AMOO's holding that Ms. Maynes' interpretation of M. Lujan's electronic mail transmissions and actions as setting forth and attempting to execute a scheme to cover "the remainder of their personal expenses by having Lovato bill the City of Santa Fe as if Elevate Media had placed an advertisement in the tournament program on the City of Santa Fe's behalf," was not fraudulent, arbitrary, or capricious, and that substantial evidence supported her decision. AMOO at 68. The Court has re-read its findings of fact in full, and its analysis of the issue, and remains convinced that Ms. Maynes' and the Court's decisions are sound. Both Ms. Maynes and the Court reached the same conclusions, and M. Lujan has not presented any arguments, evidence, or authority to persuade the Court that it should alter those conclusions. Accordingly, the Court will not alter its ruling that Ms. Maynes' decision that M. Lujan attempted to obtain City of Santa Fe funds by false pretenses was not fraudulent, arbitrary, or capricious, and that substantial evidence supports it.
M. Lujan argues that the Court should remand this case to the City of Santa Fe for further consideration of a less drastic punishment, because the Court reversed three of Ms. Maynes' decisions in the AMOO. See Motion at 23. Aside from providing a collection of authority on appellate courts' authority to remand cases to lower courts — a proposition with which the Court has no qualms — M. Lujan does not provide any new arguments, evidence, or authority why the Court should alter the MOO's holding that the City of Santa Fe had just cause to terminate his employment. The Court thoroughly addressed this issue in the AMOO:
Decision ¶ 9, at 29. Moreover, Ms. Maynes said that, even if
AMOO at 77-82.
Because the Court's ruling in the AMOO thoroughly explained why the Court was upholding Ms. Maynes' just-cause determination — despite reversing two of her other decisions — and because M. Lujan has not offered any additional evidence, argument, or authority challenging that conclusion, the Court sees no reason to alter it. M. Lujan did not, in his Appeal Brief, ask for a remand to consider lesser sanctions, see Appeal Brief at 24 ("For all the forgoing reasons, Lujan request[s] that this Court reverse the Decision of the Hearing Officer and reinstate his employment with the City."), so this part of his request is new. Although M. Lujan's request is creative, it lacks a sound basis in the law or facts. Although M. Lujan now asks the Court for remand to impose less severe disciplinary measures, the Court's only task on appeal is determining whether just cause existed for M. Lujan's termination under the City of Santa Fe's Personnel Rules. Once that decision was made, the Court's task is done. Cf. Martinez v. N.M. State Eng'r Office, 2000-NMCA-074, ¶ 36, 129 N.M. 413, 9 P.3d 657 ("[O]nce it is determined that just cause exists to terminate, termination is appropriate under the Board Rules"). For the Court to go further and give M. Lujan a second bite at the apple by remanding the case would needlessly
Motion at 21.
The City of Santa Fe responds:
Respondent City of Santa Fe's Response to Petitioner's Motion for Reconsideration at 13, filed April 17, 2015 (Doc. 65)("Response").
To the extent that M. Lujan's argument that "Elevate Media never submitted its own invoice with a copy of the SFJWA's $750 invoice," means that Elevate Media did not submit a separate invoice on its own letterhead in addition to the $750.00 invoice from the SFJWA that Lovato submitted to M. Lujan for approval, the Court agrees. This argument does not, however, alter the Court's analysis.
M. Lujan does not dispute the Court's finding in the MOO that, "[a]t some point on Friday, June 29, 2012, Lovato [— the owner of Elevate Media —] sent to M. Lujan for approval by facsimile transmission a $750.00 invoice from Elevate Media for an advertisement in the 2012 Grand Nationals Tournament program." MOO at 15-16. The Court used the phrase "Elevate Media's $750 Invoice" as a shorthand in the findings of fact to refer to the invoice that Elevate Media submitted to M. Lujan purportedly for an advertisement in the 2012 Grand Nationals Tournament program. Whether the Court titles the document which Lovato submitted "Elevate Media's $750 Invoice," "SFJWA's $750 invoice," or "the $750 invoice," the fact remains that M. Lujan — through J. Romero and Lovato — submitted a fraudulent $750 invoice to the City of Santa Fe. MOO at 68-69. The document's shorthand title, and the fact that Lovato later rescinded the document before the City of Santa Fe paid it, "does not change the fact that she fraudulently submitted the invoice for processing." MOO at 69. Accordingly, the Court will not alter the MOO's findings of fact.
AMOO at 1 n. 1. Because the Court filed the AMOO after the parties submitted briefing on the Motion, the parties' briefing cites and quotes only the MOO. Accordingly, where the Court cites or quotes the parties' briefing and the briefing cites or quotes the MOO, the Court will provide the same citation or quotation that the parties used. Otherwise, the Court will cite or quote the AMOO to explain its previous holdings.
The Court concludes that, when the client acknowledges that he or she has hired the attorney, there is a difference between decisions which terminate the litigation, such as settlement or a stipulation of dismissal, and other litigation decisions, because decisions to terminate the litigation are ordinarily left to the client. See Chavez v. Primus Auto. Fin. Servs., 125 F.3d 861, 1997 WL 634090, at *4-5 (10th Cir.1997) (unpublished)(citing Navajo Tribe of Indians v. Hanosh Chevrolet-Buick, Inc., 106 N.M. 705, 749 P.2d 90, 92 (1988); Bolles v. Smith, 92 N.M. 524, 591 P.2d 278, 280 (1979)). "Otherwise the Court has difficulty explaining attorney decisions which are made without authority and attorney decisions for which it is acceptable that the client suffer the consequences." Wilson v. Jara, 2012 WL 1684595, at *7 n. 7. In Chavez v. Primus Automotive Financial Services, the Tenth Circuit recognized that "the mere employment of an attorney does not give him the actual, implied or apparent authority to compromise his client's case." 1997 WL 634090, at *4. Few Tenth Circuit cases analyze whether an attorney has acted without authority. The cases in which the Tenth Circuit has found a lack of authority appear to fall into two categories: (i) cases in which the attorney entered an appearance without the client's knowledge, see, e.g., FDIC v. Oaklawn Apts., 959 F.2d at 175-76 (finding that there were factual issues which the district court needed to resolve where "[t]here is nothing in the record indicating when Appellants became aware of the lawsuit and of Newcombe's purported representation"); and (ii) cases in which the attorney's actions terminate the litigation, see, e.g., Thomas v. Colo. Trust Deed Funds, Inc., 366 F.2d 136, 139-40 (10th Cir.1966) (finding that, as to one of the plaintiffs, "the record shows that he did not participate in the transactions and negotiations with the S.E.C. and did not consent to the execution of the stipulation of the judgment"); Cashner v. Freedom Stores, Inc., 98 F.3d at 577 (citing with approval Surety Ins. Co. of Cal. v. Williams, 729 F.2d 581, 582-83 (8th Cir.1984), which held that a "judgment entered upon an agreement by the attorney may be set aside on affirmative proof that the attorney had no right to consent to its entry"). Because decisions that terminate the litigation are ordinarily the client's prerogative, those decisions fit more squarely within rule 60(b)(1)'s "lack of consent" prong. Decisions where the purported client is unaware of the litigation, or of the attorney's attempt to act on his or her behalf, would also fit within rule 60(b)(1)'s "lack of consent" prong, because an individual has the right to choose his or her own attorney, or whether he or she wishes to have any attorney. Other litigation decisions are made jointly or are within the attorney's control, see Model Code of Prof'l Conduct R. 1.2 cmt. 1 (2011)("With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client ... and may take such action as is impliedly authorized to carry out the representation."); Pittman ex rel. Sykes v. Franklin, 282 Fed.Appx. 418, 427 n. 6 (6th Cir.2008) (unpublished)("[T]he decision to allege comparative fault as an affirmative defense falls within a narrow band of circumstance in which an attorney may act without consulting his or her client."), and, thus, to give final judgments meaning and allow cases to terminate. It is logical that those decisions must fall within the "excusable litigation mistake" prong, or be based on a substantive mistake of law or fact.
Although the Tenth Circuit does not appear to have expressed its views on where the line is drawn between attorneys acting without consent and litigation mistakes, or acknowledged the tension between these two categories, the Court concludes that the appropriate division is, when the client is aware that the attorney is acting on his or her behalf, between decisions which dispose of the case and ordinarily require client consent, and other routine attorney decisions which take place over the course of the case. The Court also notes that rules of professional conduct require, "[i]n a criminal case," for a lawyer to "abide by the client's decision, after consultation with the lawyer, as to the plea to be entered, whether to waive a jury trial and whether the client will testify." Model Rules of Prof'l Conduct R. 1.2(a). While a decision on the plea to be entered in a criminal case is comparable to whether to settle a civil case, the Court has not located any decisions permitting rule 60(b) relief when a civil attorney waives his or her client's right to a jury trial. One unpublished decision from the United States Court of Appeals for the Fourth Circuit discussed briefly a scenario where, without resolving the merits of the issue, a criminal defendant raised through a rule 60(b) motion in a habeas preceding that "his trial counsel had prevented him from testifying in his defense." United States v. McMahan, 8 Fed. Appx. 272, 274 (4th Cir.2001) (unpublished).
The disparity between the one-time, heightened obligations of rule 4 service and the ongoing, easy-to-follow obligations of rule 5 service makes sense. It would be unfair for a plaintiff to win a default judgment against a defendant who has no idea he or she is being sued. On the other hand, once the defendant has been put on notice of the case, judicial efficiency dictates that the defendant should have an affirmative obligation to stay abreast of anything that pops up on CM/ECF.
That obligation, however, must end with the case. If it did not, then anyone ever named as a party in a judicial proceeding would have to spend the rest of his or her life looking out for new motions in the long-closed case, keeping his or her former adversaries updated with current contact information, and periodically checking the old docket sheet or calling the clerk's office to verify that nothing new has happened. The Court had such a case in 2014. In Macias v. New Mexico Department of Labor, 300 F.R.D. 529 (D.N.M.2014) (Browning, J.), a group of Spanish-speaking farmworkers in the El Paso, Texas, and Sunland Park, New Mexico, area had banded together and sued the New Mexico Department of Labor ("NMDOL") in 1991. 300 F.R.D. at 533-34. The case had settled in 1992, with the NMDOL agreeing, as a part of the settlement agreement, to keep a claim office open in Sunland Park indefinitely. See 300 F.R.D. at 534. In 2013, however, NMDOL — now named the New Mexico Department of Workforce Solutions — filed a motion to reopen the case and exercise an escape clause in the settlement agreement purporting to allow it "`to motion the Court for appropriate relief'" in the event of "`a reduction in funding to NMDOL.'" 300 F.R.D. at 534 (quoting the settlement agreement). NMDOL was unable to locate the plaintiffs and instead served its motion on the attorney, Nancy Simmons, who had represented the plaintiff-farmworkers in 1991 and 1992 in connection with her employment with Texas Rural Legal Aid, Inc. See 300 F.R.D. at 534-37. Ms. Simmons had moved through several different public-interest legal jobs since 1992, and she had not had contact with the plaintiffs — whom she represented to be itinerant — in over a decade. See 300 F.R.D. at 534-37. Ms. Simmons argued that she was no longer the plaintiffs' lawyer and that service on her was inappropriate, but she nonetheless entered "`a special entry of appearance exclusively for the purpose of challenging subject-matter jurisdiction and personal jurisdiction.'" 300 F.R.D. at 536 (citation omitted). On the personal jurisdiction issue, Ms. Simmons argued that NMDOL's motion was a new suit, which required new service of process on the farmworkers; in the alternative, she argued that, even if the motion was properly styled as a motion in the 1991 case, she was no longer a proper recipient of even non-process service under rule 5. See 300 F.R.D. at 536-37. She argued that, even if it were fair — in the context of more recent cases — to continue to hold parties accountable for everything posted on CM/ECF, even years after final judgment, CM/ECF had not existed in the 1990s, and the plaintiffs, thus, most likely neither knew about the suit nor had any reasonable way of learning about it. The Court ultimately denied NMDOL's motion for lack of subject-matter jurisdiction and did not decide whether sending an electronic mail transmission to Ms. Simmons constituted sufficient service on the plaintiffs. See 300 F.R.D. at 571 ("The Court will reserve judgment whether it has personal jurisdiction over UTAF." (emphasis omitted)).
Although the Court did not decide the question because it lacked subject-matter jurisdiction, it would be unfair to allow former parties to ancient cases to come back, years after the cases' resolution, and effectively receive ex parte reconsideration of rulings that the opposing parties and the Court put behind them long ago. From the parties' perspective, the initial service of summons and final judgment are the jurisdictional bookends signifying the beginning and end of their responsibility to be diligently engaged in the case. The same due process considerations that give rise to the service-of-process requirement also demand that the case eventually end and that the parties eventually be set free from their obligations to stay on top of it.
Fed.R.Civ.P. 52(b). This rule appears to limit motions to reconsider orders with findings of fact and conclusions of law to twenty-eight days. The rule's use of the term "entry of judgment," its reference to rule 59, and its adoption of the same time period that applies to motions to alter or amend a judgment, all lead the Court to conclude, however, that rule 52(b) — and its 28-day time limit — does not apply to interlocutory orders. The time limit applies only to findings of fact and conclusions of law supporting a case-ending judgment — such as those entered after a bench trial — and to those giving rise to an interlocutory appeal that, if filed, divests the district court of its jurisdiction — such as those entered in support of a preliminary injunction.
