Muslow v. Louisiana State University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KATHERINE MUSLOW AND CIVIL ACTION

MEREDITH CUNNINGHAM

VERSUS NO. 19-11793

BOARD OF SUPERVISORS OF LOUISIANA

STATE UNIVERSITY AND AGRICULTURAL SECTION M (2)

AND MECHANICAL COLLEGE, THOMAS

SKINNER, LARRY HOLLIER, AND JON

HARMAN

ORDER & REASONS

Before the Court is a motion for reconsideration filed by plaintiffs Katherine Muslow and

Meredith Cunningham (collectively, “Plaintiffs”).1 Plaintiffs seek reconsideration of dismissal of

their claims seeking injunctive and declaratory relief in the Court’s April 14, 2020 Order &

Reasons (the “O&R”).2 Defendants Board of Supervisors of Louisiana State University and

Agricultural and Mechanical College (“the LSU Board”), Thomas Skinner, Larry Hollier, and Jon

Harman (collectively, “Defendants”) oppose the motion.3 Plaintiffs reply in support of the

motion.4 Having considered the parties’ memoranda, the record, and the applicable law, the Court

clarifies its prior ruling.

I. BACKGROUND

This case arises out of an employment dispute involving Plaintiffs, former in-house counsel

at the LSU Health Sciences Center in New Orleans (“LSU (New Orleans)”), and the LSU Board,

their former employer. The pertinent facts and procedural history of this case were fully recited

1 R. Doc. 62.

2 R. Doc. 45.

3 R. Doc. 68.

4 R. Doc. 80.

in the O&R,5 and will not be restated herein.

In the O&R, the Court dismissed Plaintiffs’ requests for a permanent injunction and

declaratory judgment for lack of standing because they are no longer employed with the LSU

Board, and hence there exists no continuing harm or threat of future injury.6 Plaintiffs now argue

that because they seek reinstatement, which the Court did not dismiss as an available remedy,

permanent injunctive and declaratory relief should be available to them to prevent any further

discriminatory or retaliatory actions upon reinstatement.7 Defendants reiterate that a permanent

injunction and declaratory judgment cannot be sought for alleged past acts, and that Plaintiffs are

improperly rehashing old arguments.8

II. LAW & ANALYSIS

A. Reconsideration Standard

Motions for reconsideration of interlocutory orders are governed by Rule 54(b) of the

Federal Rules of Civil Procedure, which provides in pertinent part:

[A]ny order or other decision, however designated, that adjudicates fewer than all

the claims or the rights and liabilities of fewer than all the parties does not end the

action as to any of the claims or parties and may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.

Under Rule 54(b), a district court “is free to reconsider and reverse its decision for any reason it

deems sufficient, even in the absence of new evidence or an intervening change in or clarification

of the substantive law.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017). Unlike

motions to alter or amend a judgment under Rule 59(e), “Rule 54(b)’s approach to the interlocutory

presentation of new arguments as the case evolves can be more flexible, reflecting ‘the inherent

5 R. Doc. 45 at 1-6.

6 Id. at 25-26.

7 R. Docs. 62-1 at 3-8, 10-11; 80 at 4-5.

8 R. Doc. 68 at 18-24.

power of the rendering district court to afford such relief from interlocutory judgments as justice

requires.’” Id. at 337 (quoting Cobell v. Jewell, 802 F.3d 12, 25-26 (D.C. Cir. 2015)) (internal

citations and quotations omitted). However, the district court must exercise this broad discretion

sparingly to forestall the perpetual reexamination of orders and the resulting burdens and delays.

See Calpecto 1981 v. Marshall Expl., Inc., 989 F.2d 1408, 1414-15 (5th Cir. 1993) (“if the district

court was required to reconsider [an interlocutory order] simply because [the losing party]

belatedly came forward with evidence not submitted prior to the ruling[,] … the cycle of

reconsideration would be never-ending”); Domain Protection, LLC v. Sea Wasp, LLC, 2019 WL

3933614, at *5 (E.D. Tex. Aug. 20, 2019) (“although a district court may revisit an interlocutory

order on any ground it sees fit, it may also use its discretion to prevent parties from, without

justification, raising new arguments for the first time”) (emphasis in original; alterations, internal

quotation marks, and citation omitted); 18B CHARLES A. WRIGHT, ARTHUR R. MILLER, & EDWARD

H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4478.1 (3d ed. 2019).

B. Analysis

In the O&R, the Court explained that Plaintiffs are precluded from seeking injunctive and

declaratory relief for lack of standing because they allege only past acts and practices and do not

allege “either continuing harm or a real and immediate threat of repeated injury in the future.”9

But this equitable relief remains available if reinstatement is granted. To the extent this was

unclear in the O&R, the Court now clarifies that because Plaintiffs seek reinstatement, they have

standing to seek a permanent injunction and declaratory judgment, though such relief may only be

granted if coupled with reinstatement. See Tolton v. Day, 2020 WL 2542129, at *37-38 (D.D.C.

May 19, 2020) (“[N]umerous decisions … have recognized that, ‘where a plaintiff seeks

9 R. Doc. 45 at 25-26 (citation omitted).

reinstatement with a former employer[,] the former employee does have standing to seek

prospective relief.’ … Here, Plaintiffs seek reinstatement … and that request for relief is both

legally cognizable and sufficient to reject [Defendant’s] motion for judgment on the pleadings on

their injunctive claims.”) (quoting Kassman v. KPMG LLP, 925 F. Supp. 2d 454, 466 (S.D.N.Y.

2013)) (alterations omitted); Chen-Oster v. Goldman, Sachs & Co., 251 F. Supp. 3d 579, 589

(S.D.N.Y. 2017) (“The Court … joins the chorus of opinions in this district that hold that a former

employee seeking reinstatement has standing to seek injunctive and declaratory relief.”);

McGinness v. Nazareth Borough, 2015 WL 1511051, at *3 (E.D. Pa. Apr. 2, 2015) (denying the

defendants’ motion to dismiss the plaintiff’s request for declaratory relief where the plaintiff

requested reinstatement making the “injuries alleged … subject to repetition”); Levin v. Madigan,

697 F. Supp. 2d 958, 975 (N.D. Ill. 2010) (“If Plaintiff’s employment is reinstated, he may indeed

be subject to the same allegedly discriminatory policy that he challenges in this lawsuit. To the

extent that Plaintiff seeks an injunction requiring Defendants to cease engaging in sex or age

discrimination, such relief would remedy a harm that Plaintiff is likely to suffer again.”) (citing

City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)) (emphasis in original).

Previously, the Court did not address Defendants’ argument that even if Plaintiffs’ request

for declaratory judgment is not dismissed for lack of standing, it should be dismissed under Rule

12(b)(6) of the Federal Rules of Civil Procedure because it is duplicative of Plaintiffs’ substantive

legal claims and hence superfluous, adding nothing to the suit.10 Because Plaintiffs’ request for

declaratory judgment remains available, albeit only to the extent that reinstatement remains

available, i.e., as prospective relief, the request for declaratory judgment is distinct from claims

for compensatory damages and it is not obvious at this stage that resolution of Plaintiffs’

10 R. Doc. 35-1 at 10-11.

substantive legal claims would render declaratory relief superfluous. See Robinson v. Hunt Cty.,

921 F.3d 440, 450-51 (5th Cir. 2019) (explaining that the plaintiff’s request for a declaratory

judgment as a remedy for her constitutional claims is not duplicative of her claims for damages

because “[t]his request for prospective relief appears distinct from her claim for monetary

damages”).11

Thus, Plaintiffs may seek injunctive and declaratory relief, but only as prospective relief

accompanying reinstatement.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Plaintiffs’ motion for reconsideration (R. Doc. 62) is GRANTED

IN PART and DENIED IN PART.

New Orleans, Louisiana, this 4th day of August, 2020.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE

11 Indeed, Defendants themselves argued that Robinson was not applicable here because “the Robinson

plaintiff sought prospective declaratory relief for an ongoing constitutional violation.” R. Doc. 43 at 5 (emphasis in

original).