
USCA1 Opinion

	




          December 7, 1992      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1440                                              EDWARD D. COWHIG,                                 Plaintiff Appellant,                                          v.                        CHIEF OF CHAPLAINS, U.S. ARMY, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Edward D. Cowhig on brief pro se.               ________________               A.  John Pappalardo,  United  States  Attorney, and  Annette               ___________________                                  _______          Forde, Assistant U.S. Attorney, on brief for appellees.          _____                                  __________________                                  __________________                 Per Curiam.  Plaintiff-appellant Edward  Cowhig filed an                 __________            action   in  the   District   Court  for   the  District   of            Massachusetts   on   May   16,   1990,   claiming   that  the            circumstances  surrounding his discharge in January 1962 from            his  position as  a chaplain  in the  U.S. Army  violated the            Racketeer Influenced and  Corrupt Organizations Act ("RICO"),            18  U.S.C.    1961-68.   Before bringing  that  action Cowhig            already had unsuccessfully challenged his  discharge from the            Army and  sought reinstatement  on numerous occasions.   See,                                                                     ___            e.g.,  Cowhig v. Secretary of the Army, slip op., No. 88-1012            ____   ______    _____________________            (1st  Cir. 10/11/88); Cowhig v. Marsh, 693 F.2d 234 (1st Cir.                                  ______    _____            1982),  cert. denied,  460 U.S.  1092 (1983).   The  district                    ____________            court dismissed Cowhig's action on April 25, 1991, on grounds            of  res judicata,  collateral  estoppel, and  the statute  of            limitations.      The  district court  entered  judgment  for            defendants on July  2, 1991.  This court affirmed.  Cowhig v.                                                                ______            Chief of Chaplains, slip op., No. 91-2027 (1st Cir. 3/27/92).            __________________                 While the  appeal in  Cowhig's case was  pending, Cowhig            filed a Fed. R.  Civ. P. 60(b) motion  in the district  court            requesting that the district court reconsider its judgment on            the grounds of newly discovered evidence.  The district court            summarily  denied  Cowhig's  motion.   Cowhig  appeals.    We            affirm.                 The rule based on which Cowhig sought reconsideration of            the judgment, Rule 60(b), provides as follows:                                         -2-                      "On  motion  and upon  such terms  as are                      just, the court may  relieve a party or a                      party's legal representative from a final                      judgment,  order,  or proceeding  for the                      following   reasons:    ...   (2)   newly                      discovered   evidence    which   by   due                      diligence could not have  been discovered                      in  time to  move for  a new  trial under                      Rule 59(b)."            This court will disturb  a district court's denial of  a Rule            60(b)  motion only  upon a  finding that  the  district court            abused  its discretion  in  denying the  motion.   Rodriguez-                                                               __________            Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.            ______    __________________________            1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir.                   __________    _____________            1988).                 The  putative  "newly  discovered" evidence  offered  by            Cowhig in support  of his Rule  60(b)(2) motion consisted  of            the following four  items:   (1) August 1991  letters of  Lt.            Col. Thomas Kelly  discussing typhoon weather conditions  and            paratroop operations on  Okinawa in 1961;  (2)  October  1991            and  March  1985  letters  of  Dr.  George  Roark  diagnosing            Cowhig's  medical condition  on Okinawa  in 1961-62,  in part            reviewing  Dr. Roark's  1983  testimony on  the same  subject            before the Army Board for the Correction of Military Records;            (3)   an  October 1991  letter from  Dr. John  Day diagnosing            Cowhig's  medical condition in the  early 1960's; and  (4)  a            January 1986  letter from Dr.  William Rohde doing  the same.            None of  these  items  of  evidence meet  the  Rule  60(b)(2)            requirement that the evidence  could not have been discovered                                         -3-            in time  for a  Rule  59 motion,  i.e., by  July  1991.   Dr.            Rohde's January 1986 letter and Dr. Roark's March 1985 letter            were  in existence  before  that time  and  obviously do  not            constitute newly  discovered  evidence.    Lt.  Col.  Kelly's            letter concerning  conditions in  Okinawa in 1961  sets forth            information that should have been available to Cowhig  at any            time  between  his  January  1962 discharge  and  July  1991.            Finally, the October 1991 medical diagnoses of  Dr. Roark and            Dr.  Day could  have been  obtained, in  the exercise  of due            diligence, by July 1991.   Thus, Cowhig in fact  presented no            newly discovered evidence at all.                 Even were it otherwise, "it  is the invariable rule, and            thus,  the  rule  in this  circuit,  that  a  litigant, as  a            precondition to relief under Rule  60(b), must give the trial            court  reason to believe that vacating  the judgment will not            be  an empty exercise."   Teamsters, Chauffeurs, Warehousemen                                      ___________________________________            and Helpers  Union, Local No. 59  v. Superline Transportation            ________________________________     ________________________            Co.,  953 F.2d 17,  20 (1st Cir.  1992).  The  litigant must,            ___            instead, "at least establish  that it possesses a potentially            meritorious  claim or  defense which,  if proven,  will bring            success in its wake."  Id. at 21.  Here, by contrast, even if                                   ___            the trial court  were to  accept as true  all the  assertions            concerning Cowhig's  medical  condition in  1961-62 that  are            contained in  Cowhig's proffered evidence,  that would  avail            Cowhig  nothing.    All  of Cowhig's  proffered  evidence  is                                         -4-            irrelevant  to  the res  judicata,  collateral  estoppel, and            statute of limitations grounds  upon which the district court            based its judgment against Cowhig.                 The district court's denial of Cowhig's Fed. R. Civ.  P.            60(b) motion is affirmed.                            ________                                         -5-
