             In the United States Court of Federal Claims
                                     No. 13-353 T
                               (Filed January 18, 2017)

                                  UNPUBLISHED

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J.J. POWELL, INC.,          *
                            *
                Plaintiff,  *  Reconsideration; RCFC 59.
                            *
          v.                *
                            *
THE UNITED STATES,          *
                            *
                Defendant.  *
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                           ORDER

       The court has before it plaintiff’s Motion for Modification of Order, filed
November 28, 2016. Despite its title, plaintiff’s motion is, in effect, a motion for
reconsideration of the court’s opinion on the merits of plaintiff’s claims and the
government’s counterclaims (Opinion), issued February 4, 2016, as well as the
court’s Order of November 14, 2016 (Clarification Order). That order provided
clarification, at plaintiff’s request, of the specific impact of the Opinion on the
government’s counterclaim for “failure to pay tax” penalties (hereinafter,
“penalties”). For the reasons discussed below, plaintiff’s motion is denied.
Familiarity with the Opinion and Clarification Order is presumed.

I.    Background

       Since the beginning of this litigation the government has asserted a
counterclaim including, among other components, “failure to pay tax” penalties.
See Def.’s Answer ¶¶ 31-36; Def.’s Amended Answer ¶¶ 35-38. Plaintiff
repeatedly denied the legitimacy of penalties assessed by the government for the
tax quarters in question. See Pl.’s Answer at 2; Pl.’s Amended Answer at 2. The
parties embarked upon the litigation of all of plaintiff’s tax liabilities, as presented
in the complaint and in the government’s counterclaim, through cross-motions for
summary judgment. See Jt. Status Report of March 9, 2015, at 1; Pl.’s Mot. for
Summary Judgment of April 8, 2015, at 1; Def.’s Cross-Mot. for Summary
Judgment of June 10, 2015, at 4. The only issue reserved for further discussion
between the parties, once the court had ruled on the merits of the claims and
counterclaims in this suit, was “any necessary recomputation of tax liabilities and
interest due.” Jt. Preliminary Status Report at 2; see Def.’s Cross-Motion for
Summary Judgment of June 10, 2015, at 3 n.1 (“The amount of judgment upon
defendant’s counterclaim would be increased by the amount of accrued and
assessed interest. . . . If the Court decides in its favor, defendant requests that the
parties be allowed a period of thirty days in which to file a stipulation for entry of
judgment reflecting their agreement with respect to the exact amount of the
judgment to be entered on defendant’s counterclaim.”).

       Thus, plaintiff’s opportunity to challenge the legitimacy of penalties
asserted in the government’s counterclaim was confined to its summary judgment
briefing. No such challenge, however, was raised, either in plaintiff’s motion for
summary judgment, or in its opposition to the government’s cross-motion.
Instead, plaintiff finally mustered a belated challenge to these penalties in two
motions filed after the Opinion issued, first in its Motion for Clarification of
Order, filed September 15, 2016, and now, in its Motion for Modification of
Order. Unfortunately, it is simply too late to raise this latest challenge to the
court’s ruling on the merits of this case because plaintiff was required to have
raised its arguments against these penalties in its summary judgment briefing. The
court turns now to the standard of review for motions for reconsideration. Such
motions are governed by Rule 59 of the Rules of the United States Court of
Federal Claims (RCFC).

II.   Standard of Review for RCFC 59

       Pursuant to the rules of this court, a plaintiff may be granted reconsideration
of the court’s disposition of a case “for any reason for which a new trial has
heretofore been granted in an action at law in federal court [or] for any reason for
which a rehearing has heretofore been granted in a suit in equity in federal court.”
RCFC 59(a)(1)(A)-(B). “The decision whether to grant reconsideration lies
largely within the discretion of the [trial] court.” Yuba Natural Res., Inc. v. United
States, 904 F.2d 1577, 1583 (Fed. Cir. 1990) (citations omitted). The court must

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be persuaded: “‘(1) that an intervening change in the controlling law has
occurred; (2) that previously unavailable evidence is now available; or (3) that the
motion is necessary to prevent manifest injustice.’” Griswold v. United States, 61
Fed. Cl. 458, 461 (2004) (quoting First Fed. Lincoln Bank v. United States, 60
Fed. Cl. 501, 502 (2004)).

        It is important to note that a motion for reconsideration functions not as
another round of briefing, but as a request for extraordinary relief. See Caldwell v.
United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004) (“Motions for reconsideration
must be supported ‘by a showing of extraordinary circumstances which justify
relief.’” (quoting Fru Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300
(1999), aff’d, 250 F.3d 762 (Fed. Cir. 2000) (table))). “The purpose served is not
to afford a party dissatisfied with the result an opportunity to reargue its case.”
A.A.B. Joint Venture v. United States, 77 Fed. Cl. 702, 704 (2007) (citations
omitted). RCFC 59, it should be noted, does not provide an occasion for a party to
raise arguments that it could have raised previously, but did not. Four Rivers
Invs., Inc. v. United States, 78 Fed. Cl. 662, 664 (2007) (citation omitted), aff’d,
330 F. App’x 919 (Fed. Cir. 2009) (table); see also Gelco Builders & Burjay
Constr. Corp. v. United States, 369 F.2d 992, 1000 n.7 (Ct. Cl. 1966) (“Litigants
should not, on a motion for reconsideration, be permitted to attempt an extensive
re-trial based on evidence which was manifestly available at time of the hearing.”)
(citation omitted). Absent extraordinary circumstances, a motion for
reconsideration will not be granted. See Caldwell, 391 F.3d at 1235.

III.   Analysis

        As the court noted in its Clarification Order, plaintiff failed to meet its
burden on summary judgment to invalidate penalties on its diesel fuel excise tax
liabilities. Clarification Order at 2-3 (citing Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); Dallin ex rel. Estate of Young v. United States, 62 Fed. Cl. 589,
600 (2004)). When the court granted summary judgment on the merits of the
government’s counterclaim regarding diesel fuel excise taxes, it also granted
summary judgment on that portion of the counterclaim asserting associated
penalties for failure to pay those diesel fuel excise taxes. Id. at 2-3 & n.1.
Plaintiff now seeks extraordinary relief which would, in essence, invalidate one of
the holdings encompassed in the summary judgment ruling of the Opinion issued
February 4, 2016.

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       Plaintiff’s arguments presented in its motion and reply brief, whatever their
potential merit, could have been presented in plaintiff’s summary judgment
briefing, but were not. For this reason, reconsideration of the court’s rulings
regarding penalties on diesel fuel excise taxes is not warranted. Four Rivers, 78
Fed. Cl. at 664. The court observes, in addition, that plaintiff does not cite to an
intervening change in controlling law since the Opinion issued, or to newly
discovered evidence that was heretofore unavailable, and has not pointed to any
manifest injustice that would flow from the court’s ruling on the penalties in the
government’s counterclaim. Reconsideration is not available under these
circumstances. See Griswold, 61 Fed. Cl. at 461.

       Finally, the court must disagree with plaintiff that “it is impossible” for the
parties to calculate the amount due on the government’s counterclaim. Pl.’s Reply
at 4. Reference to the certified tax assessments proffered by the government,
Def.’s Exs. 4-6, and the language of the counterclaim itself, see Def.’s Amended
Answer ¶¶ 35-37, along with the Internal Revenue Code provisions cited by
defendant in its response brief, Def.’s Resp. at 2-5, provide the structure for
determining the figure in question. Although plaintiff may disagree with the
legitimacy of the penalties asserted by the government, such a disagreement is no
impediment to the drafting of a Joint Stipulation for Entry of Judgment.1

IV.    Conclusion

       Accordingly, it is hereby ORDERED that

       (1)     Plaintiff’s Motion for Modification of Order, filed November 28,
               2016, is DENIED; and,

       (2)     On or before February 10, 2017, the parties shall FILE their Joint
               Stipulation for Entry of Judgment, to which they shall ATTACH a
               Proposed Draft Order for the Entry of Judgment.




       1
        / The Joint Stipulation may include language which preserves plaintiff’s legal position
for an appeal. The court shall not entertain further requests for reconsideration of its holdings on
the merits of this case.

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    s/Lynn J. Bush
    LYNN J. BUSH
    Senior Judge




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