United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C BRACK SENIOR U.S. DISTRICT JUDGE
matter is before the Court on the Albuquerque Police
Officers' (APOA) Motion to Reconsider in Part the
Memorandum Opinion and Order on the City of Albuquerque's
Motion for Court Acceptance of the City's Proposed
Promotional Policy, filed on September 12, 2018. (Doc. 402.)
Having considered the submissions of counsel and relevant
law, the Court will DENY the APOA's
Motion to Reconsider Standard
Federal Rules of Civil Procedure do not recognize a
‘motion to reconsider.'” Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
Litigants seeking such relief may “file either a motion
to alter or amend the judgment pursuant to Fed.R.Civ.P.
59(e)” within 28 days of final judgment “or a
motion seeking relief from the judgment pursuant to
Fed.R.Civ.P. 60(b)” after 28 days have passed.
Id.; see also Ysais v. Richardson, 603 F.3d
1175, 1178 n.3 (10th Cir. 2010) (noting that Rule 59 was
amended effective December 1, 2009 “to provide that a
motion to alter or amend a judgment may be filed within 28
days after the entry of judgment”; the previous version
required the motion to be filed within ten days).
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.'”
Jarita Mesa Livestock Grazing Ass'n v. U.S. Forest
Serv., 58 F.Supp.3d 1191, 1218 (D.N.M. 2014) (quoting
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.” Id. (quoting Servants of
Paraclete, 204 F.3d at 1012 (internal citation
omitted)). “It is not appropriate to revisit issues
already addressed or advance arguments that could have been
raised in prior briefing.” Servants of
Paraclete, 204 F.3d at 1012 (citing Van Skiver,
952 F.2d at 1243).
APOA moves the Court to reconsider its earlier decision on
the issue of the “rule of three” in the
City's proposed 2018 Promotional Policy. (See
Doc. 402.) As grounds for its motion, the APOA cites language
from the Court's decision, wherein the Court stated that
“[t]he APOA neither included the language from the
contract, nor explained how the contract dictates
selection.” (Id. at 3 (quoting Doc. 395 at
5).) While the Court disagrees that it “misapprehended
the APOA's position and/or failed to fully consider to
APOA's submission in making its ruling[, ]”
(id. at 3-4), it will take this opportunity to more
fully explain its previous decision.
APOA's previous arguments on the rule of three.
response to the City's Motion for Court Acceptance of the
City's Proposed Promotional Policy, the APOA included two
short paragraphs on the rule of three:
Further, the APOA would comment that the rule of three (3)
contained in the promotional policy does remain an issue. The
City and the APOA have just finished a new Collective
Bargaining Agreement [(CBA)] that contains language which is
in direct conflict with the rule of three (3) selection
process (See Section 21(B)(3)(a) as contained in the
City's Exhibit 1). The language contained in the
[CBA] provides that promotions shall be based off the
seniority of the candidates who were available for promotion
(see Section 7.3.2 of Exhibit A attached hereto).
The APOA would argue that the [CBA] is a contract which has
been entered into between the parties and that such
contractual provisions take precedence over the language as
proposed in a new promotional policy. Further, this Court
should uphold the protection that has been afforded to such
(Doc. 374 at 2.)
As the APOA argued above, there is a dispute between the
parties concerning Section 21(B)(3), wherein it states that
the Chief may apply the rule of three (3) to promotional
eligibility. The APOA would argue the current Contract
contains a provision which says that such promotional
selection shall be done on a seniority basis. As the APOA
argued above, the Contract was just negotiated and executed
between the parties and contains language which has been in
the existing APOA contracts for years. The APOA would argue
that its Contract should be protected under the law and that
the Albuquerque Police Department should not be able to
change its promotional policy with regard to this issue.
(Id. at 7 (citing LB&B Assocs., Inc. v.
Int'l Bhd. of Elec. Workers, Local No. 113, 461, 461