UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE LINCOLN MEMORIAL UNIVERSITY, DUNCAN SCHOOL OF LAW, I Case No. 3:11-cv-608 Plaintiff, Judge Varlan v, Magistrate Judge Shirley THE AMERICAN BAR ASSOCIATION, Defendant. MOTION FOR RECONSIDERATION Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Plaintiff, Lincoln Memorial University, Duncan School of Law, moves the Court to reconsider its Memorandum Opinion and Order of January 18, 2012, (Doc. 35), denying Plaintiffs Motion for Temporary Restraining Order and for Preliminary and Permanent Injunction. On January 31, 2012, the ABA filed a Notice of Supplementation of Record and Supplemental Declaration of Hulett H. Askew (Docs. 37, 37-1) which give rise to this Motion. ln its Order, this Court concluded that DSOL did not meet the requirements for injunctive relief imposed by Rule 65 of the Federal Rules of Civil Procedure, including the necessity that the DSOL exhaust its administrative remedies prior to seeking relief in this Court. Given that the ABA's representations regarding the Appeals Panel - which the Court expressly relied upon in reaching its decision inaccurately portrayed the Appeals Panel as an impartial administrative review body appointed prior to the ABA's denial decision, Plaintiff respectfully requests that the 1 Case 3:11-cv-00608 Document 38 Filed Page1 of 5 PageID #28029 Court reconsider its finding that Plaintiffs failure to exhaust its administrative remedies is unexcused. Furthermore, as demonstrated by the Supplemental Declaration of DSOL Dean Sydney Beckman, filed this same date, the irreparable harm to the law school caused by the ABA now includes the actual withdrawal of at least eight students and the expressed intent to transfer by additional students. A court may grant a motion pursuant to Federal Civil Rule 59(e) if there is a clear error of fact or law; newly discovered evidence; an intervening change in controlling law, or to prevent manifest injustice. Gencorp Inc. v. Ani Inz?'l Underwriters Co., l78 F.3d 804, 834 (661 Cir. l999); Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005), cert. denied, 547 U.S. 1070 (2006). The ABA's recently tiled Notice of Supplementation constitutes newly discovered evidence with respect to the issue of exhaustion of administrative remedies decided by this Court. The ABA's misrepresentation also caused the Court to base its decision on a clear error of fact. Justice and fairness require a different result. The ABA's recent admission that the Appeals Panel was not constituted until after the Council made the decision to deny the DSOL's application for provisional approval supports the conclusion that any efforts by the DSOL to exhaust its administrative remedies would be futile. Moreover, the record clearly demonstrates that DSOL satisfies the requirements for injunctive relief pursuant to ed. R. Civ. P. 65, including evidence that DSOL is likely to succeed on the merits of its claims and that DSOL is suffering irreparable harm as a result of the ABA's decision denying provisional accreditation. Furthermore, when one reviews the ABA's decision in light of recent case law of the United States Supreme Court governing administrative review, Judulang v. Holder, l32 S. Ct. 476, 483-84 (2011), and its progeny, Union Pacnic Railroad Company v. United States 2 Case 3:11-Cv-00608 Document 38 Filed Page 2 of 5 PageID 8030 Department of]-Iomeland Security, 2011 U.S. Dist. LEXIS 146567, at *27-30 (D. Neb. Dec. 19, 2011), it is evident that the ABA's decision cannot stand upon proper district court review. For these reasons and as explained more fully in the Memorandum in Support of Plaintiffs Motion tiled this same date, DSOL asks the Court to exercise its discretion to reconsider its Memorandum Opinion and Order, and tind that DSOL is excused from exhausting its administrative remedies and further find that based on newly discovered evidence under the applicable legal standards, DSOL is entitled to injunctive relief to forestall the irreparable injury it presently endures as a result ofthe arbitrary and capricious actions of Defendant ABA. ln the Sixth Circuit, a Motion for Reconsideration is construed by the court as a Motion to Alter or Amend Judgment pursuant to Fed. R. Civ. P. 59(e). Moody v. Pepsi-Cola Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990). Accord Summer v. Cunningham, U.S. District Court, E.D. Tenn., Case No. (May 12, reviewed a pro se litigant's motion for reconsideration as if it had been made pursuant to Fed. R. Civ. P. United States v. Jarnigcin, U.S. District Court, E.D. Tenn., Case No. 3:08-cr-7 (Dec. 17, 2008)(Varlan, Federal Rules of Criminal Procedure do not provide for motion to reconsider, courts typically evaluate such motions under the same standards applicable to a Rule 59(e) motion to alter or amend judgment). The Sixth Circuit has held: court may grant a Rule 59(e) motion to alter or amend if there is (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice." Intern Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005); Trent/iam v. Hidden Mountain Resorts, Inc., 2010 U.S. Dist. LEXIS 70311, at *11 (E.D. Tenn. July 13, 2010)(Var1an, I.). "W'here, however, 'something material was overlooked or disregarded [which] point[s] to substantial error of fact or law' reconsideration may be warranted. Miller v. Norfolk S. Rwy. Co., 208 F. Supp. 2d 3 Case 3:11-Cv-00608 Document 38 Filed Page 3 of 5 PageID 8031 851, 853 (N.D. Ohio 2002) (citations omitted)." Downey v. Reich Installation Services, Inc., 2009 U.S. Dist. LEXIS 81559 (N.D. Ohio Sept. 9, 2009). The Court should reconsider its Memorandum Opinion and Order based upon the ABA's Notice of Supplementation of the Record (Doc. 37) which is tantamount to newly discovered evidence regarding the ABA Appeals Panel. The ABA's misrepresentation also caused the Court to base its decision on a substantial error of fact. The Court should also reconsider based upon new evidence that has arisen since the hearing on the issue of irreparable harm as more fully described in the Supplemental Declaration of Dean Beckman filed this same date, and to prevent manifest injustice and to correct a clear error of law pertaining to the proper standard of review. Respectfully submitted, WATSON ROACH BATSON ROWELL LAUDERBACK Robert H. Watson, Jr. Robert H. Watson, r. (001702) Attorneys at Law 1500 Riverview Tower 900 South Gay Street P.O, Box 131 Knoxville, TN 37901-0131 Telephone: (865) 637-1700 Facsimile: (865) 525-2514 rwatson@watsonroach.com BLANK ROME LLP Michael L. Cioffi Michael L. Cioffi (0031098) 1700 PNC Center 201 East Fifth Street Cincinnati, OH 45202 Telephone: (513) 362-8700 Facsimile: (513) 362-8702 cioffi@blankrome.com 4 Case 3:11-Cv-00608 Document 38 Filed Page 4 of 5 Page|D 8032 CERTIFICATE OF SERVICE I hereby certify on February 8, 2012, I am tiling the foregoing Motion for Reconsideration via the Court's which will automatically generate a Notice of Electronic Filing that will be emailed to the following registered Filing Users: Anne E. Rea P. Alexander Vogel Sidley Austin LLP (Chicago) O'Neil, Parker Williamson One South Dearborn Street 7610 Gleason Drive, Suite 200 Chicago, IL 60603 Knoxville, TN 37919 Howard H. Vogel Patricia Larson O'Neil, Parker Williamson American Bar Association 7610 Gleason Drive, Suite 200 321 N. Clark Street Knoxville, TN 37919 Chicago, IL 60654 Jeffrey R. Thompson Stephanie A. Giggetts O'Neil, Parker Williamson American Bar Association 7610 Gleason Drive, Suite 200 321 N. Clark Street Knoxville, TN 37919 Chicago, IL 60654 Linda R. Friedlieb Michael P. Doss Sidley Austin LLP (Chicago) Sidley Austin LLP (Chicago) One South Dearborn Street One South Dearborn Street Chicago, IL 60603 Chicago, IL 60603 Michael L. Ciofii Counsel for Plainfgf 5 Case 3:11-Cv-00608 Document 38 Filed Page 5 of 5 PageID 8033