                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 MICHAEL FOURTE,

                        Petitioner,
                                                            Civil Action No. 18-2023 (BAH)
                        v.
                                                            Chief Judge Beryl A. Howell
 RICHARD V. SPENCER, in his official
 capacity as Secretary of the Navy and his
 successors in office,

                        Respondent.


                          MEMORANDUM OPINION AND ORDER

       The pro se petitioner, Michael Fourte, is a Reserve Naval Officer who seeks

reconsideration of the denial of his petition for a writ of habeas corpus, reviving his request that

this Court order the respondent, Richard V. Spencer, the Secretary of the Navy, to demobilize

him from his active duty assignment in Africa and to reassign him within the Navy. See Pet’r’s

Mot. Reconsideration, ECF No. 14; Fourte v. Spencer, No. 18-cv-2023 (BAH), 2019 WL

340713, at *1–7 (D.D.C. Jan. 28, 2019) (“Mem. Op.”) (denying Fourte’s Petition for Writ of

Habeas Corpus and Complaint for Declaratory and Injunctive Relief (“Pet.”), ECF No. 1). In the

alternative, Fourte asks for a certificate of appealability (“COA”). See Pet’r’s Reply in Support

of His Mot. Reconsideration (“Pet’r’s Reconsideration Reply”) at 6, ECF No. 16. For the

reasons explained below, Fourte’s Motion for Reconsideration and request for a COA are denied.

I.     BACKGROUND

       The Court’s previous Memorandum Opinion laid out this matter’s background in detail,

see Mem. Op. at *1–4, so only a brief overview of the relevant facts is necessary. Fourte is a

“Reserve Naval Officer with 20 years of service in the United States Navy, including over 16


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years of active duty service.” Id. at *1. While stationed on “active duty” in Washington, D.C.,

Fourte was “ordered to active duty” for a different assignment as “Officer in Charge” of a

military base in Africa, id., “[r]esponsible for the overall safety, security, and well-being of the

[base] and all troops therein,” id. at *2 (alterations in original). Upon receiving the Africa

assignment, Fourte believed that the Navy needed “a waiver and justification” to mobilize him

because he would accumulate over 16 years of active duty service by the time the Africa

assignment began. Id. at *1. Fourte pointed to the Navy’s waiver process for Navy reservists

with 16 years of active duty service, provided in Chief of Naval Operations Instruction 1001.27.

Id. at *2 n.1. This particular instruction is designed to protect “the Navy from inadvertent,

unnecessary spending” on higher retirement pay owed to officers who ultimately achieve twenty

years of active duty service while on active duty. See id. The Navy obtained the waiver, and in

compliance with “the Africa orders,” Fourte was “mobilized to active duty involuntarily.” Id. at

*2.

       Fourte challenges his assignment to active duty in Africa in this case, but the instant

petition is not Fourte’s first bite at the apple. Before arriving in Africa, Fourte filed a habeas

petition in this Court because he believed the waiver paperwork for the Africa assignment did

not comply with the Navy’s waiver procedures. Id. at *3. Fourte’s action was transferred to the

United States District Court for the District of South Carolina (“D.S.C.”) since at that time,

Fourte was stationed at Fort Jackson in South Carolina. See Fourte v. Spencer, No. 18-cv-1847,

Mem. & Order at 1–6 (D.D.C. Aug. 10, 2018) (citing Rooney v. Sec’y of the Army, 405 F.3d

1029, 1032 (D.C. Cir. 2005)). D.S.C. then dismissed the action because Fourte’s petition was

not justiciable, and he had not exhausted his intraservice remedies, including presentation of his

objections to a Special Cases Board (“SCB”). See Fourte v. Spencer, No. 18-cv-2212, 2018 WL




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3845136, at *1 (D.S.C. Aug. 12, 2018) (D.S.C. Magistrate Judge’s report recommending

dismissal of Fourte’s first habeas petition); Fourte v. Spencer, No. 18-cv-2212, 2018 WL

3829232, at *1–3 (D.S.C. Aug. 13, 2018) (D.S.C. Order and Opinion dismissing Fourte’s first

habeas petition (“D.S.C. 2018 Dismissal Order”)); Fourte v. Spencer, No. 18-cv-2212, 2018 WL

3980209, at *1–3 (D.S.C. Aug. 21, 2018) (denying Fourte’s motion for reconsideration).

       In a bold move, after arriving in Africa, Fourte filed this action in this Court, challenging

his mobilization to Africa again, based on “nearly identical allegations to those in the first habeas

petition,” Mem. Op. at *3, without exhausting intraservice remedies as required by the D.S.C.

2018 Dismissal Order. Rather than making a “modest request” to correct the Navy’s alleged

waiver processing errors, Fourte instead sought an extraordinary remedy, asking this Court to

interfere with the Navy’s personnel decisions, order his demobilization, and restore him to his

former active duty assignment in Washington, D.C. Id. at *6. As a result, the Court denied

Fourte’s petition because the relief he sought—reassignment within the Navy by judicial

decree—was not justiciable, and Fourte still had not presented his objections to the SCB. See

generally id.

       Undeterred, Fourte filed the instant motion, seeking reconsideration of the denial of his

petition, and in the alternative, a COA. See Pet’r’s Mot. Reconsideration at 1; Pet’r’s

Reconsideration Reply at 6. Each of Fourte’s requests is discussed in turn, and for the reasons

explained below, both requests are denied.

II.    MOTION FOR RECONSIDERATION

       While Fourte fails to specify the Federal Rule of Civil Procedure under which he seeks

reconsideration, Fourte filed the instant motion within twenty-eight days after the Court’s




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January 28, 2019 Order, and thus, the motion is considered under Rule 59(e).1 See Pet’r’s Mot.

Reconsideration; see also Owen–Williams v. BB & T Inv. Servs., Inc., 797 F. Supp. 2d 118, 121–

22 (D.D.C. 2011) (“As a general matter, courts treat a motion for reconsideration as originating

under Rule 59(e) if it is filed within 28 days of the entry of the order at issue and as originating

under Rule 60(b) if filed thereafter.” (footnote omitted)); accord Bowser v. Smith, No. 16-cv-

01455 (TNM), 2019 WL 450670, at *1 (D.D.C. Feb. 4, 2019).

              Rule 59(e) allows a party to file “[a] motion to alter or amend a judgment.” FED. R. CIV.

P. 59(e). A Rule 59(e) motion is “discretionary and need not be granted unless the district court

finds that there is an intervening change of controlling law, the availability of new evidence, or

the need to correct a clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d

755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).

As the D.C. Circuit recently stressed, “the reconsideration or amendment of a judgment is

nonetheless an extraordinary measure.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217

(D.C. Cir. 2018). A Rule 59(e) motion “may not be used to relitigate old matters, or to raise

arguments or present evidence that could have been raised prior to the entry of judgment,” id.

(quoting Exxon Shipping v. Baker, 554 U.S. 471, 486 n.5 (2008)), and “is ‘not a vehicle to

present a new legal theory that was available prior to judgment,’” id. (quoting Patton Boggs LLP

v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012)). Thus, “Rule 59(e) is not available to a

party who ‘could have easily avoided the outcome, but instead elected not to act until after a final




                                                            
1
         Construing the pending motion in this way is to Fourte’s benefit, since “[t]he standards that govern Rule
60(b) are even more restrictive” and “‘in most cases, the bar stands even higher for a party to prevail on a Rule 60(b)
motion for relief from judgment’ than on a Rule 59(e) motion.” Taitz v. Obama, 754 F. Supp. 2d 57, 58 (D.D.C.
2010) (quoting Uberoi v. EEOC, 271 F. Supp. 2d 1, 2 (D.D.C. 2002)); see also 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.”).


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order had been entered.’” Id. at 220 (quoting Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir.

2004)).

              Here, Fourte identifies no “intervening change of controlling law,” newly available

evidence, or “manifest injustice.” Messina, 439 F.3d at 758. He only claims that the Court was

wrong, primarily by repeating points already rejected. See Pet’r’s Mot. Reconsideration.

Specifically, Fourte resurrects his arguments that (1) he is not lawfully in the Navy because he

only volunteered for an assignment in Washington, D.C., not in Africa, id. at 2; (2) he disagrees

with the choice to deploy him to Africa because he believes “[n]o sane General Officer” would

mobilize him, id. at 4–6; and (3) he is exempt from the exhaustion requirement because he has

shown irreparable injury, id. at 6–7.2 The prior Memorandum Opinion rejected these points

already. See Mem. Op. at *4–7 (reasoning that Fourte is lawfully in the Navy because he

concedes he is a reservist who may be recalled to active duty, that Fourte’s petition improperly

asks the Court to second-guess military personnel decisions, and that Fourte’s petition alleges

paperwork errors rather than irreparable harm). Those reasons continue to pertain and need not




                                                            
2
          Fourte’s irreparable injury argument has previously been rejected because he only alleged that the Navy
improperly processed his waiver paperwork and conceded the Navy’s authority to order him to active duty. See
Mem. Op. at *7. Fourte nonetheless renews his claim of irreparable injury, citing Qualls v. Rumsfeld, 357 F. Supp.
2d 274 (D.D.C. 2005), and Patton v. Dole, 806 F. 2d 24 (2d Cir. 1986). These two cases are not binding, and do not
establish clear error justifying reconsideration. In both cases, the plaintiffs challenged whether they were enlisted in
the military, claiming irreparable injury if ordered to active duty. See Qualls, 357 F. Supp. 2d at 280 (contesting
active duty order based on allegation that term of enlistment had been improperly extended); Patton, 806 F.2d at 26
(disputing “involuntary induction” into the Navy after voluntary resignation from a Marine Academy). In stark
contrast, Fourte admits that he is, and seeks to remain, a member of the Navy Reserves who may be ordered to
active duty. See Pet’r’s Mot. Reconsideration at 3 (seeking order placing him “back into the reserves”); see also
Pet’r’s Reply in Support of Habeas Petition (“Pet’r’s Habeas Reply”) at 8, ECF No. 11 (“It is undisputed that the
military may recall reservists.”). Thus, for Fourte, who is undoubtedly a member of the Navy, “no harm” arises
from his activation to duty. Qualls, 357 F. Supp. 2d at 286 (citing Doe v. Rumsfeld, No. CIV. S-04-2080 FCD K,
2004 WL 2753125, at *3 (E.D. Cal. Nov. 5, 2004) (finding no irreparable injury because “Petitioner is enlisted in
the military . . . subject to activation and deployment,” and as a result, injury from activation to duty “does not
commence with activation, it occurs when his enlistment expires.”)).



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be rehashed in detail here. See Leidos, Inc., 881 F.3d at 217 (recognizing that a Rule 59(e)

motion “may not be used to relitigate old matters”).

       Fourte also raises two new arguments, neither of which justifies alteration or amendment

of the denial of his petition. First, Fourte contends that he never sought reassignment to his

previous active duty assignment in Washington, D.C. Pet’r’s Mot. Reconsideration at 3.

Fourte’s prior submissions contradict this assertion. Fourte originally asked the Court to

“declare [his] orders unlawful,” demobilize him, and “restore [him] to [his] previous duty,”

explaining that just before his mobilization to Africa, he was on active duty in Washington, D.C.

See Pet. ¶¶ 13–15, 23; Civil Case Form for Habeas Petitions Under 28 U.S.C. § 2241 (“§ 2241

Habeas Form”) at 8 (Request for Relief), ECF No. 1. Fourte doubled down on his request for

reassignment back to Washington, D.C. in his reply brief in support of his petition, again asking

the Court to “demobilize [him] and restore him to his premobilization status.” Pet’r’s Habeas

Reply at 26. In fact, Fourte concedes that he contemplated reassignment to Washington, D.C.

when he drafted his requested relief, explaining that he “was willing to finish out . . . the DC

orders.” Pet’r’s Mot. Reconsideration at 3.

       Having failed to obtain the relief he initially requested, Fourte now belatedly claims that

he meant to seek an order placing him “back into the reserves” because his prior Washington,

D.C. active duty assignment has expired. See id. Fourte adds that the Court should review his

original petition as a request to be restored to the Reserves because, notwithstanding that he has a

J.D., he is entitled to the “benefit of the doubt given to other Pro Se litigants,” and his requested

relief was sufficiently vague to give the Court “flexibility.” Id. at 3–4.

       Fourte overlooks that a pro se pleading, “like any other, must present a claim upon which

relief can be granted by the court.” Henthorn v. Dep’t of Navy, 29 F.3d 682, 684 (D.C. Cir.




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1994) (quoting Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981)). Fourte’s petition did

not specify that he sought to be placed back into the Reserves, see generally Pet., and the Court

“‘need not accept inferences drawn by [the petitioner] if such inferences are unsupported by the

facts set out’” in the petition, as is the case here. Id. (quoting Kowal v. MCI Commc’ns Corp., 16

F.3d 1271, 1276 (D.C. Cir. 1994)).

       Nonetheless, Fourte’s point that he meant to seek an order returning him to the Reserves

is a red herring because he again “asks the Court, in the form of a writ of habeas corpus, to

countermand and revise his active duty orders.” Mem. Op. at *4 (citing Orloff v. Willoughby,

345 U.S. 83, 94 (1953)). Even with his revised request for relief, Fourte’s petition remains non-

justiciable, requiring the Court to “second-guess the military’s decision about how best to

allocate military personnel in order to serve the security needs of the Nation.” See Mem. Op. at

*5 (collecting D.C. Circuit cases denying similar requests for relief as non-justiciable). Thus,

Fourte’s belated edit does not warrant reconsideration of the denial of his petition.

       Second, Fourte argues that exhaustion of intraservice remedies should not be required

because the SCB is an invalid intraservice avenue for relief, asserting for the first time that the

Navy might construe a presentation to the SCB as a concession that Fourte’s mobilization to

Africa is “valid,” and would require Fourte to “fabricate a hardship.” Pet’r’s Mot.

Reconsideration at 7–8. Fourte may not pursue this “new legal theory” on reconsideration. See

Leidos, Inc., 881 F.3d at 217. Moreover, as the prior Memorandum Opinion concluded, the

preclusive effect of the D.S.C. 2018 Dismissal Order bars him from relitigating the exhaustion

requirement in this case. See Mem. Op. at *6–7. Additionally, even if Fourte could relitigate

exhaustion now, the declaration on which Fourte previously relied contradicts his new rationale

for why the SCB is an invalid intraservice remedy. Indeed, that declaration stated the SCB “is




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available to Sailors who have significant personal, legal, . . . or other issues that could affect their

mobilization, or require special consideration.” See id. at *7 (citing Pet’r’s Habeas Reply at 3).

Thus, Fourte has failed to establish clear error justifying reconsideration, and his continued

refusal to seek relief before the SCB bars him from bringing his claims in this Court.

        In sum, Fourte’s claims of “error” fall flat. See Pet’r’s Mot. Reconsideration. The prior

Memorandum Opinion correctly concluded that Fourte’s petition is non-justiciable, and even if

his petition were justiciable, Fourte is barred from raising his claims in federal court until he

exhausts his intraservice remedies. See generally Mem. Op.

III.    REQUEST FOR CERTIFICATE OF APPEALABILITY

        As an alternative to reconsideration, Fourte requests a COA in his reply brief. Pet’r’s

Reconsideration Reply at 6. Fourte brought his habeas petition pursuant to 28 U.S.C. § 2241.

See § 2241 Habeas Form; see also Schlanger v. Seamans, 401 U.S. 487, 489 (1971) (explaining

that the term “prisoner” in 28 U.S.C. § 2241(c) “has been liberally construed to include members

of the armed services who have been unlawfully detained, restrained, or confined”); Rooney, 405

F.3d at 1031–32 (construing a serviceman’s challenge to his “orders calling him to active duty”

as seeking habeas relief under 28 U.S.C. § 2241). Although 28 U.S.C. § 2253 requires a COA

for a petitioner to appeal the denial of certain habeas petitions, § 2253 “does not refer to § 2241

claims.” Sugarman v. Pitzer, 170 F.3d 1145, 1146 (D.C. Cir. 1999). As a result, the “COA

requirement does not apply to” Fourte’s § 2241 petition, see id., and a COA is unnecessary.

Fourte’s request for a COA is therefore denied.




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IV.       CONCLUSION AND ORDER

          Upon consideration of Michael Fourte’s Motion for Reconsideration, ECF No. 14, the

related legal memoranda in support and in opposition, and the entire record herein, for the

reasons set forth in this Memorandum Opinion and Order, it is hereby

          ORDERED that Fourte’s Motion for Reconsideration, ECF No. 14, is DENIED; and it is

further

          ORDERED that Fourte’s request for a COA, see Pet’r’s Reconsideration Reply at 6, is

DENIED as unnecessary.



          SO ORDERED.



          This is a final and appealable order.

          Date: March 29, 2019



                                                      __________________________
                                                      BERYL A. HOWELL
                                                      Chief Judge




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