Cohen v. Board of Trustees of the University

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2015 Decided April 22, 2016

No. 15-7005

ROBERT COHEN,

APPELLANT

v.

BOARD OF TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF

COLUMBIA, C/O CHAIR, DR. ELAINE CRIDER, IN THEIR

OFFICIAL CAPACITIES AS TRUSTEES FOR THE UNIVERSITY

SYSTEM FOR THE UNIVERSITY OF THE DISTRICT OF COLUMBIA

AND ITS FLAGSHIP UNIVERSITY OF THE DISTRICT OF

COLUMBIA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00754)

Tyler Jay King argued the cause and filed the briefs for

appellant.

Anessa Abrams argued the cause and filed the brief for

appellees. With her on the briefs was B. Patrice Clair.

2

Before: GRIFFITH, MILLETT, and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: In the summer of 2010, the

University of the District of Columbia fired Robert Cohen

from his position as a tenured professor. Cohen filed a

complaint in D.C. Superior Court against the Board of

Trustees and three university officials alleging, among other

things, a violation of his procedural due process rights under

the U.S. Constitution. According to Cohen, the university

fired him without notice or an opportunity to be heard.

The defendants removed Cohen’s case to federal court

and moved to dismiss his claims under Federal Rule of Civil

Procedure 12(b)(6). Cohen missed the deadline to file a brief

in opposition to the motion to dismiss. He later sought an

extension of time to respond, filed an opposition, and moved

to amend his complaint. The district court enforced the missed

deadline against Cohen and refused to consider his late

opposition to the defendants’ motion to dismiss. Invoking

Local Rule 7(b), the district court granted the motion to

dismiss on the ground that its merits were unopposed and thus

conceded by Cohen, thereby dismissing Cohen’s complaint

and case with prejudice. The district court then denied

Cohen’s motion to amend the complaint as moot and, in the

alternative, for failure to consult with opposing counsel

pursuant to Local Rule 7(m). Cohen filed a motion for

reconsideration under Federal Rules 59(e) and 60(b), which

the district court also denied.

The district court’s application of prejudice to Cohen’s

complaint and case carried res judicata effect and barred

Cohen from ever bringing his claims again. See Ciralsky v.

CIA, 355 F.3d 661, 669 (D.C. Cir. 2004). Had the district

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court dismissed only Cohen’s complaint without prejudice

and not dismissed the case at all, Cohen could have filed a

new complaint in his original case and the statute of

limitations would have been tolled from the date of his

original complaint. See id. at 666, 672. Alternatively, had the

district court dismissed Cohen’s complaint and case, both

without prejudice, Cohen could have filed a new complaint in

a new case only if the claims were still timely as of the new

filing. See id. at 672 (recognizing that this statute-of-

limitations difference between dismissing a case and

dismissing only a complaint can mean that a case dismissed

“nominally without prejudice” is de facto with prejudice, even

though dismissal of only the complaint without prejudice

would have allowed the case to go forward).

Cohen appeals the district court’s rulings. We have

jurisdiction under 28 U.S.C. § 1291 and our review is for

abuse of discretion. See Smith v. District of Columbia, 430

F.3d 450, 456 (D.C. Cir. 2005) (motion to extend time); Fox

v. Am. Airlines, Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004)

(application of Local Rule 7(b) to failure to oppose a motion

to dismiss). For the reasons set forth below, we affirm the

district court’s denial of Cohen’s motion to extend time and

its dismissal of the complaint. But we reverse the district

court insofar as it dismissed the complaint with prejudice and

dismissed the case. In light of our disposition, we need not

reach Cohen’s remaining challenges.

I

Cohen sought an extension of time to file his opposition

to the motion to dismiss on the ground that his counsel made a

mistake. According to Cohen, counsel misread the electronic

docket and thus did not believe the defendants’ motion to

dismiss had been filed properly. While trying to find the

motion to dismiss on the electronic docket, Cohen’s counsel

clicked the wrong link, and the file he opened included only

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exhibits, but no motion. Counsel’s assistant made the same

mistake, confirming in the mind of Cohen’s counsel his

mistaken belief that the defendants had not properly filed the

motion to dismiss. By the time counsel realized his error, the

time for him to respond had run out.

Rule 6(b) of the Federal Rules of Civil Procedure permits

a court to extend deadlines, even after the time to act has

expired, if there is good cause and the party “failed to act

because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B).

Excusable neglect is an equitable concept that considers “all

relevant circumstances” surrounding the failure to act.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507

U.S. 380, 395 (1993). Generally, “excusable neglect” does not

require counsel to have been faultless, and “inadvertence,

mistake, or carelessness” can fall within the rule. Id. at 388;

4B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 1165 (4th ed. 2015). But

counsel typically must have “some reasonable basis” for not

meeting a filing deadline. WRIGHT & MILLER, supra, § 1165.

To determine whether the district court permissibly exercised

its discretion to find counsel’s neglect inexcusable, we

consider four factors set forth by the Supreme Court in

Pioneer: (1) the risk of prejudice to the other side; (2) the

length of the delay and the potential impact on judicial

proceedings; (3) the reason for the delay and whether it was

within counsel’s reasonable control; and (4) whether counsel

acted in good faith. See 507 U.S. at 395; Yesudian ex rel.

United States v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir.

2001) (applying the four Pioneer factors).

The district court carefully considered the four Pioneer

factors, finding that two weighed in Cohen’s favor and two

against. On the one hand, granting the extension would cause

minimal prejudice to the defendants, and the court found no

bad faith by counsel. On the other hand, his repeated failure

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“to meet almost every relevant deadline” created a pattern that

could, taken together, burden judicial proceedings. Cohen v.

Bd. of Trs., 305 F.R.D. 10, 13 (D.D.C. 2014). Most

importantly, counsel “put forth no reasonable excuse” for the

delay; there was no suggestion that anything went wrong with

the court’s electronic docket. Id. at 14. Instead, Cohen’s

counsel and later his assistant simply misread its contents.

We give “great deference” to a district court’s Rule 6(b)

decision, Yesudian, 270 F.3d at 971, and the district court here

was well within its discretion to find that Cohen did not show

excusable neglect. If we were to require the district court to

excuse the type of mistake made by Cohen’s counsel, it would

be “hard to fathom the kind of neglect that we would not

deem excusable.” Lowry v. McDonnell Douglas Corp., 211

F.3d 457, 464 (8th Cir. 2000). His repeated late filings further

justify the court’s “case-management decision[].” Yesudian,

270 F.3d at 971 (quoting Maldonado-Denis v. Castillo-

Rodriguez, 23 F.3d 576, 583-84 (1st Cir. 1994)). This was

counsel’s fourth missed deadline: counsel not only missed the

deadline to respond to the motion to dismiss, but he was also

late filing a motion to extend time to respond to the motion to

dismiss, a reply brief in support of that motion to extend time,

and a second motion to extend time to file his reply in support

of his first motion to extend time. The district court did not

abuse its discretion when it denied Cohen’s motion to extend

time to file his opposition brief.

II

Having rejected Cohen’s tardy opposition, the district

court treated the defendants’ unopposed motion to dismiss as

conceded pursuant to Local Rule 7(b) and dismissed Cohen’s

complaint and case with prejudice. We reluctantly affirm the

court’s decision to grant the motion to dismiss the complaint.

To do so with prejudice, however, and to dismiss the case as

well were an abuse of discretion.

6

A

Local Rule 7(b) permits a court to “treat . . . as conceded”

a motion not met with a timely opposing memorandum of

points and authorities. D.D.C. Local Rule 7(b). Local Rule

7(b) is a “docket-management tool that facilitates efficient

and effective resolution of motions,” and we have yet to deem

a “straightforward application of Local Rule 7(b)” an abuse of

discretion. Fox, 389 F.3d at 1294; see also Texas v. United

States, 798 F.3d 1108, 1113-15 (D.C. Cir. 2015).

We have upheld district courts’ application of Local Rule

7(b) to grant unopposed motions to dismiss complaints with

prejudice under Federal Rule 12(b)(6). See, e.g., Fox, 389

F.3d at 1292; Jackson v. Todman, 516 F. App’x 3 (D.C. Cir.

2013) (per curiam) (unpublished). In Fox, the defendant

moved to dismiss the complaint, at which point the plaintiffs

filed both an amended complaint and an opposition to the

motion to dismiss. The defendant responded by moving to

dismiss the amended complaint, but this time the plaintiffs

failed to respond. We affirmed the district court’s use of

Local Rule 7(b) to dismiss the complaint with prejudice even

though plaintiffs’ counsel claimed that he never saw the

second motion to dismiss, an explanation we found “plainly

unacceptable” because counsel was obliged to monitor the

electronic docket. Fox, 389 F.3d at 1294-95. We found it

difficult to understand how counsel did not realize his

mistake, particularly because counsel referenced the

“pending” motion to dismiss in other filings submitted after

the defendant filed its second motion to dismiss. Id.

We face a similar situation here. Because the district

court properly denied Cohen’s motion to extend time, the

court did not consider Cohen’s opposition brief. At that point

the tardy opposition was equivalent to no opposition at all.

Under our precedent, the district court did not commit

reversible error in granting the defendants’ unopposed motion

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to dismiss the complaint under Federal Rule 12(b)(6), at least

insofar as dismissal was without prejudice.

B

Even so, we have concerns about that precedent. The

local rules of a district court must be consistent with the

Federal Rules of Civil Procedure, Fed. R. Civ. P. 83(a)(1) (“A

local rule must be consistent with—but not duplicate—federal

statutes and rules[.]”), and Local Rule 7(b) stands in tension

with Federal Rule 12(b)(6). To the extent that it allows a

district court to treat an unopposed motion to dismiss as

conceded, Local Rule 7(b) effectively places the burden of

persuasion on the non-moving party: when he fails to respond,

he loses. But Federal Rule 12(b)(6) places this burden on the

moving party. See 5B CHARLES A. WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed.

2015) (“All federal courts are in agreement that the burden is

on the moving party to prove that no legally cognizable claim

for relief exists.”). Accordingly, when faced with a 12(b)(6)

motion, the district court must answer the “single question”

whether the movant met that burden—in other words, whether

the complaint “includes ‘enough facts to state a claim to relief

that is plausible on its face.’” Mediacom Se. LLC v. BellSouth

Telecomms., Inc., 672 F.3d 396, 399 (6th Cir. 2012) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

We have yet to wrestle with the tension between Local

Rule 7(b) and Federal Rule 12(b)(6), but most circuits that

have considered the application of similar local rules in this

context prohibit district courts from granting a motion to

dismiss solely because the plaintiff failed to respond. See

McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000) (“If a

complaint is sufficient to state a claim on which relief can be

granted, the plaintiff’s failure to respond to a Rule 12(b)(6)

motion does not warrant dismissal.”); Carver v. Bunch, 946

F.2d 451, 454-55 (6th Cir. 1991) (recognizing that, in the

8

absence of “bad faith or contumacious conduct,” a district

court abuses its discretion by dismissing a plaintiff’s

complaint “solely for his failure to respond to defendants’

motion to dismiss”); Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

Cir. 1995) (permitting dismissal as a sanction only if other

factors are met); Issa v. Comp USA, 354 F.3d 1174, 1177-78

(10th Cir. 2003) (reasoning that failure to oppose a motion to

dismiss cannot be the sole basis for dismissal because “the

district court must still examine the allegations in the

plaintiff’s complaint and determine whether the plaintiff has

stated a claim upon which relief can be granted” but

permitting dismissal as a sanction if other conditions are met);

see also Servicios Azucareros de Venezuela, C.A. v. John

Deere Thibodeaux, Inc., 702 F.3d 794, 806 (5th Cir. 2012)

(recognizing in the context of a different procedural failure

that “Rule 12 does not by its terms require an opposition;

failure to oppose a 12(b)(6) motion is not in itself grounds for

granting the motion”). The Fourth Circuit also has recognized,

albeit in dicta, that district courts are obliged to review the

merits of a motion to dismiss even if the plaintiff fails to

respond. Stevenson v. City of Seat Pleasant, 743 F.3d 411,

416 n.3 (4th Cir. 2014) (citing cases where other circuits

address such dismissals for failure to comply with local rules).

And the Third Circuit requires district courts to consider the

merits of a claim before granting an unopposed 12(b)(6)

motion pursuant to a local rule, Shuey v. Schwab, 350 F.

App’x 630, 633 (3d Cir. 2009) (unpublished) (collecting

cases), although it previously recognized in dicta that there

could be exceptions to that general approach, see Stackhouse

v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991).

In contrast, the First Circuit has said that there is no

conflict between its version of Local Rule 7(b) and Federal

Rule 12(b)(6). ITI Holdings, Inc. v. Odom, 468 F.3d 17, 18-19

(1st Cir. 2006) (reasoning that the text of Rule 12(b)(6) does

not “compel[] the court to apply any particular standard”). But

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see Vega-Encarnación v. Babilonia, 344 F.3d 37, 40-41 (1st

Cir. 2003) (reasoning, in the context of uncertainty about the

basis for dismissal, that “[i]f the merits are at issue, the mere

fact that a motion to dismiss is unopposed does not relieve the

district court of the obligation to examine the complaint itself

to see whether it is formally sufficient to state a claim”). And

the Eleventh Circuit’s cases reflect tension within that circuit

on this issue. Compare Rex v. Monaco Coach, 155 F. App’x

485, 486 (11th Cir. 2005) (per curiam) (unpublished) (holding

that dismissal for failure to comply with a local rule requiring

a timely response is appropriate “only as a last resort” when

there is a pattern of delay or willful contempt and lesser

sanctions would not suffice), with Magluta v. Samples, 162

F.3d 662, 664 (11th Cir. 1998) (noting that “the district court

could have dismissed the action” under a similar local rule).

Cf. Tobel v. City of Hammond, 94 F.3d 360, 362 (7th Cir.

1996) (recognizing in the context of failure to respond to a

motion for judgment on the pleadings that “the district court

clearly has authority to enforce strictly its Local Rules, even if

a default results”).

Our sister circuits recognize a similar tension between

Local Rule 7(b) and the Federal Rules in the related context

of summary judgment. See Grimes v. District of Columbia,

794 F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring)

(collecting cases). Federal Rule 56 places the burden of

persuasion on the movant by requiring him to “show[]” that

he is entitled to summary judgment. Fed. R. Civ. P. 56. This is

why a court may grant summary judgment “only if the motion

and supporting materials . . . show that the movant is entitled

to it.” Fed. R. Civ. P. 56(e) advisory committee’s note. There

may be a problem when a district court applies its local rules

to grant a motion for summary judgment even if the movant

has not met that burden under Rule 56—a burden that does

not shift simply because the non-moving party fails to oppose

the motion. See Grimes, 794 F.3d at 95-98 (Griffith, J.,

10

concurring) (highlighting the tension between this principle

and our holding in FDIC v. Bender, 127 F.3d 58, 68 (D.C.

Cir. 1997)). In line with that concern, the Advisory

Committee Note that accompanies Rule 56 explains that

“summary judgment cannot be granted by default even if

there is a complete failure to respond to the motion[.]” Fed. R.

Civ. P. 56(e) advisory committee’s note.

We have a second concern as well. Applying Local Rule

7(b) to grant an unopposed motion to dismiss under Federal

Rule 12(b)(6) risks circumventing the clear preference of the

Federal Rules to resolve disputes on their merits. This

preference is particularly strong when dismissal has

preclusive effect. See Krupski v. Costa Crociere S. p. A., 560

U.S. 538, 550 (2010) (recognizing the preference to resolve

disputes on their merits); Rudder v. Williams, 666 F.3d 790,

794 (D.C. Cir. 2012) (same when dismissal is with prejudice).

For this reason, heightened protections attach when courts

dismiss cases with prejudice on procedural grounds under

Federal Rules 41(b) or 55, which are the tools that the Federal

Rules provide to address the same docket-management

concerns of “efficient and effective resolution of motions,”

Texas, 798 F.3d at 1113-14, that inform Local Rule 7(b). For

example, this preference is why, when dismissing a case

under Federal Rule 41(b) for a plaintiff’s failure to prosecute,

a court ordinarily may order that “harsh sanction” only if the

conduct is “egregious” and “less dire alternatives” have not

worked. Peterson v. Archstone Cmtys. LLC, 637 F.3d 416,

418 (D.C. Cir. 2011). And for the same reason, when a court

enters default judgment against a defendant under Federal

Rule 55, procedural protections nevertheless allow relief in

certain circumstances, such as when a defendant with a valid

argument on the merits has not “willfully defaulted” and the

plaintiff would not suffer prejudice. Jackson v. Beech, 636

F.2d 831, 832 (D.C. Cir. 1980).

11

Local Rule 7(b) works against that weighty preference in

favor of deciding cases on their merits when applied to a case-

dispositive motion under Federal Rule 12(b)(6). Not only

does Local Rule 7(b) effectively shift the burden of

persuasion to the non-moving party, allowing the district

court to dispose of cases without examining their merits, but it

also provides none of the procedural protections that attach

when the court dismisses a case under Federal Rules 41(b) or

55 instead. See Carver, 946 F.2d at 454 (refusing to uphold a

similar application of a local rule because doing so “would, at

a minimum, expand the district court’s authority over that

which it possesses under Rule 41(b)”).

Although in Fox we did not require the district court to

consider less harsh alternatives before granting a dispositive

motion based on the plaintiff’s procedural failure, 389 F.3d at

1295, we typically do require consideration of such

alternative sanctions in similar situations. See Peterson, 637

F.3d at 418 (discussing requirements for dismissal under

Federal Rule 41(b)). Because “[g]ranting an unopposed

motion is similar to granting a default judgment against a

defendant who fails to respond,” Hosseinzadeh v. Green Point

Mortg. Funding, Inc., 577 F. App’x 925, 929 (11th Cir. 2014)

(per curiam) (unpublished), this use of Local Rule 7(b) in a

way that seems to undermine the Federal Rules’ protections is

troubling.

In an appropriate case, we may wish to revisit en banc

our approach to Local Rule 7(b) in the context of a Rule

12(b)(6) motion. In any event, district courts may in their

discretion consider alternatives that are less harsh to parties,

and should find alternatives to merits dismissals under Local

Rule 7(b) especially appropriate where the attorney’s, not the

party’s, conduct is the problem.

C

12

Although our decision in Fox v. American Airlines

compels us to affirm the district court’s decision insofar as it

granted the motion to dismiss the complaint, it does not

require us to affirm the court’s decision to do so with

prejudice or to affirm the dismissal of the case.

Cohen’s case is different from Fox, where the district

court faced a “straightforward” situation in which to apply

Local Rule 7(b) to dismiss a complaint with prejudice. Id. at

1294. In Fox, counsel had failed to respond at all to the

motion to dismiss for the eight months that preceded the

district court’s dismissal of the complaint. Id. at 1293. Here,

Cohen filed an opposition to the motion to dismiss, albeit a

few weeks late, as well as an amended complaint, both

attempts to remedy what the district court treated as his

effective concession. Cohen’s relatively prompt attempt to

respond to the motion to dismiss, as well as the absence of

any bad faith or prejudice to the defendants, makes all the

difference.

Our decision in Rudder v. Williams illustrates why this is

so. In Rudder, we reversed the district court’s application of

prejudice to a dismissal under Rule 12(b)(6), because the

plaintiffs had made a “belated attempt” to retract the

concession that drove dismissal. 666 F.3d at 794-95. In that

case, adult and juvenile plaintiffs brought an excessive force

case against the District of Columbia and two police officers,

asserting common law and Fourth Amendment claims. They

conceded to the district court that all of their common law

claims were untimely when, in fact, only the adult plaintiffs’

claims were barred by the statute of limitations. Id. at 794.

The plaintiffs sought to change their position to pursue the

juveniles’ claims, but we affirmed the dismissal because their

attempt to do so came too late to undo their “unambiguous

concession” below. Id. Nevertheless, we reversed the decision

to dismiss with prejudice, crediting instead the plaintiffs’

13

attempt to remedy the procedural error that led to dismissal.

Id. at 795 (reasoning that “the deficiency” in their case lay

“not in the complaint but in the plaintiffs’ erroneous

concession, which requires no cure beyond simply filing the

complaint anew”). We saw “no reason” in Rudder to deny the

plaintiffs another opportunity to pursue their claims,

particularly in light of the aspiration of the Federal Rules to

resolve disputes on their merits. Id. at 794-95.

Neither do we here. Rudder’s reasoning carries equal

force in this case where the district court granted a case-

dispositive motion because Cohen failed to respond. It seems

an onerous bar to preclude Cohen from ever having his claims

heard because of an inadvertent concession—one that he

never made in fact, that was created through the suspect

application of a local rule, and that he promptly sought to

remedy. The defendants here offer no reason to deny Cohen

the opportunity to pursue his claims in an amended complaint,

and we see none. See id. at 795. In light of Cohen’s efforts to

respond, his lack of bad faith, the absence of any prejudice to

the defendants, and the short delay involved, dismissal of the

complaint without prejudice would have been the proper route

to accomplish Local Rule 7(b)’s docket-management

objectives. The district court abused its discretion by instead

dismissing the complaint with prejudice. We note that our

holding comports with our approach to other “case-ending

sanction[s]” like Rule 41(b) as well. See Peterson, 637 F.3d at

417-19 (“[T]he court must ‘explain why the harsh sanction of

dismissal was necessary under the circumstances of th[e]

case,’” id. at 418 (quoting English-Speaking Union v.

Johnson, 353 F.3d 1013, 1016 (D.C. Cir. 2004))). For the

same reasons, the district court also abused its discretion by

dismissing the case when its dismissal of the complaint under

Local Rule 7(b) should have been, at most, without prejudice.

III

14

In light of our disposition, Cohen is free to file an

amended complaint in this case. We are not aware of any bar

that would prevent him from doing so. Accordingly, we need

not address whether the district court properly denied Cohen’s

motion for leave to amend, because our disposition allows

Cohen simply to file his proposed amended complaint with

the district court if he so chooses. “[T]he cardinal principle of

judicial restraint—if it is not necessary to decide more, it is

necessary not to decide more—counsels us to go no further.”

PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004)

(Roberts, J., concurring in part and concurring in the

judgment).

We note as well, however, that should this case continue,

the district court is also free to fashion an appropriate remedy

to protect the interests of the defendants given the significant

delay they have already experienced. We recognize that our

holding seemingly benefits Cohen by allowing him to file the

amended complaint he wanted to file all along, despite the

fact that Cohen’s repeated tardiness was what prompted

dismissal in the first place. But our partial reversal of the

district court’s judgment of dismissal under Local Rule 7(b)

does not prevent the district court from acting to protect the

defendants’ interests, whether by appropriately sanctioning

Cohen’s counsel or otherwise. Indeed, the better practice

would be for district courts generally to treat dismissal under

Local Rule 7(b) as a sanction of last resort.

Finally, Cohen does not raise any new arguments in

support of his motion for reconsideration under Federal Rules

59(e) and 60(b). Having fully considered his arguments

above, we decline to rehash them here. Federal Rule 59(e)

provides for relief to “correct a clear error or prevent manifest

injustice,” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.

Cir. 1996) (per curiam), while Federal Rule 60(b) applies in

cases of “mistake, inadvertence, surprise, or excusable

15

neglect,” or for “any other reason that justifies relief.” Fed. R.

Civ. P. 60(b)(1), (6). To the extent we hold that the district

court abused its discretion, there is no need to address

whether its ruling was also clear error. And to the extent we

hold the district court was within its discretion, there is no

“need to correct a clear error or prevent manifest injustice”

under Rule 59(e), Firestone, 76 F.3d at 1208, or otherwise

grant relief under Rule 60(b), Hall v. CIA, 437 F.3d 94, 99

(D.C. Cir. 2006) (“Relief under Rule 60(b)(1) motions is rare;

such motions allow district courts to correct only limited

types of substantive errors.”); Kramer v. Gates, 481 F.3d 788,

790 (D.C. Cir. 2007) (recognizing that relief under Rule

60(b)(6) is appropriate only in “‘extraordinary

circumstances’” (quoting Ackermann v. United States, 340

U.S. 193, 199 (1950))).

IV

We reverse the district court insofar as it dismissed the

complaint with prejudice and dismissed the case, and remand

for further proceedings consistent with this opinion.