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In the United States Court of Federal Claims

No. 17-581C
Filed: June 21, 2018

F l L E D
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=i JUN 21 2018
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U.S. COURT
ERIC DRAKE, : FEDERAL cLA?A/i:g
. . Rule of the United States Court of Federal
Plaintlff, pro se, * . .
* Claims (“RCFC”) 59 (Motlon F or
V' s Reconsideration).
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THE UNITED STATES, *
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Defendant. *
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s

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Eric Drake, Dallas, Texas, Plaintiff, pro Se.

Jeffrey M. Lowry, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Govermnent.

MEMORANDUM OPINION AND FINAL ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION

BRADEN, Chfef.]udge.
I. BACKGROUND.1

On May 30, 1990J Mr. Eric Dral<e Was arrested after attempting to make a suspicious
deposit at the Banl< of Tidewater. 1 1/15/17 Am. Cornpl. 1[ 18. One day after his arrest, Mr. Drake
Was ordered to “liquidate his gun collection or his automobile to pay the full cost of the court
appointed [attorney’s] fees[.]” 11/15/17 Am. Cornpl. EX. D.

On August 14, 1990, Mr. Drake pleaded guilty to a violation of 18 U.S.C. § 1028(a)(1)
(1988) for production of false identificationl 11/15/17 Am. Compl. 1[ 15; 11/15/17 Am. Compl.
Exs. H, J. On October 17, 1990J Mr. Dral<e Was sentenced to “a term of one hundred and forty

 

l The facts discussed in this section were derived from the November 15, 2017 Amended
Complaint (“11/15/17 Am. Compl.”) and attached exhibits (“1 1/15/17 Am. Compl. Exs. A~K”);,
see also Drake v. Ur)ited Sia)‘es, No. 17-58€, 2018 WL 1613869, at *1-2 (Fed. Cl. Apr. 3, 2018).

 

one (141) days of incarceration, Which time had already been served[,]” twenty-four months of
supervised release, and a fine of $2,570. 11/15/17 Am. Compi. Ex. 1~1.

Mr. Drake petitioned the Governor of Louisiana for a pardon in 1994. 11/15/17 Am.
Compl. 11 16. 'l`he Governor of Louisiana pardoned Mr. Drai<e in September of 1995. 11/15/17
Am. Compi. EX. J.

On September 6, 2005, Mr. Drake filed a motion for expungement in the United States
District Court for the Eastern District of Virginia, that Was denied on December 19, 2005. 1 1/15/17
Am. Compl. 11 16.

On April 27, 2017, l\/lr. Di'ake filed a Complaint in the United States Court of Federal
Claims that alleged the United States breached an implied contract under the United States
Constitution and violated various constitutional and statutory provisions during the course of Mr.
Drake’s 1990 conviction 11/15/17 Arn. Compl. 1111 82~157. On December 5, 2017, the
Governrnent moved to dismiss the April 27, 2017 Complaint, pursuant to RCFC 12(b)(1).

On April 3, 2018, the court issued a Memorandum Opinion And Final Order that dismissed
the Aprii 27, 2017 Complaint. See Drake, 2018 WL 1613869, at *6. Therein, the court determined
that it did not have jurisdiction to adjudicate the claims alleged in the April 27, 2018 Complaint,
because they Were time~barred by the statute of limitations lot

On April 13, 2018, Mr. Drake filed a Motion To Reconsider And For NeW Trial, Motion
To Set Aside Judgrnent, And Motion For The Court To Expand Statute of Lirnitations,2 requesting
that the court reconsider the April 3, 2018 Memorandum Opinion And Finai Order (“4/ 13/ 18
Mot.”). 4/13/18 Mot. 11 1. On June 11, 2018, Mr. Drake filed a Notice regarding the April 13,
2018 Motion For Reconsideration (“6/1 1/18 Notice”).3

II. STANDARD OF REVIEW.

The court may reconsider and alter or amend its judgment, if the movant can show that:
(1) there has been an intervening change in controlling law; (2) previously unavailable evidence is
now available; or (3) the motion is necessary to prevent manifest injustice See RCFC 59(a)(1);
See also Dairyland power Co~op v. United Sl‘ales, 106 Fed. Cl. 102, 104 (Fed. Ci. 2012)
(“Reconsideration is not to be construed as an opportunity to relitigate issues already decided
Rather, the moving party must demonstrate either an intervening change in controlling iaW,
previously unavailable evidence, or a manifest error of law or mistake offact.” (citation omitted)).
A motion f`or reconsideration requires “a showing of extraordinary circumstances.” Cnldwefl v.
UnitedSIafes, 391 F.3d 1226, 1235 (Fed. Cir. 2004) (citation omitted), cert denied 546 U.S. 826
(2005). Moreover, it is not intended to give an “unhappy litigant an additional chance to sway”

 

2 The court construes this as a Motion F or I"\econsiderationJ pursuant to RCFC 59.

3 The June 11, 2018 Notice provides “additional support for [Mr. Dral<e’s April 13, 201 81
l\/lotion To Reconsider.” 6/11/18 Notice at 1. RCFC 59, howeverJ does not contemplate additional
pleadings in support of a Motion For Reconsideration. See RCFC 59. Therefore, the court does
not consider the additional arguments made therein

 

 

the court. See Matthews v. United Smtes, 73 Fed. Cl. 524, 526 (Fed. Cl. 2006). Nor may a party
prevail by raising an issue for the first time on reconsideration When it Was ripe for adjudication
at the time the complaint Was filed. Id.

III. DISCUSSION.
A. Plaintiff’s Argument.

Mr. Drai<e requests reconsideration of the court’s April 3, 2018 Memorandum Opinion
And Final Order. 4/13/18 Mot. 11 1. Specifically, Mr. Dral<e insists that the court should equitably
toll the statute of limitations, “When a [United States] citizen’s rights have been violated by agents
of the [United States] government,” as Mr. Dral<e asserts happened in his case. 4/13/18 l\/Iot. 11 13.
ln addition, the statute of limitations shouid not be enforced in such cases, “because the [United
States c]ourts are controlled by the same government that tortured [l\/lr. Dral<e].” 4/13/18 l\/iot. 11
13. Lastly, Mr. Dral<e requests that he be given a new trial, because the statute of limitations, that
prevented the court from exercising jurisdiction should be tolled for the reasons above. 4/13/18
Mot. 11 15.

B. The Court’s Resolution.

The April 3, 2018 Memoranduln Opinion And Final Order explained that the court must
consider jurisdiction as a “threshold matter . . . before reaching the substantive merits of a case.”
Drake, 2018 WL 1613869, at *3 (citing Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (“When a
requirement goes to subject~matter jurisdiction courts are obligated to consider sua sponte issues
that the parties have disclaimed or have not presented.”)). The April 3, 2018 l\/lemorandum
Opinion And Finai Order also explained that the United States Court of Federal Claims has
jurisdiction to adjudicate c‘any claim against the United States founded either upon the
Constitution, or any act of Congress or any regulation of an executive department, or upon any
express or implied contract for liquidated or unliquidated damaged in cases not sounding in tort.”
Dmke, 2018 WL 1613869, at °*‘5 (citing 28 U.S.C. § 1491(a)(1)). The Tucl<er Act is a jurisdictional
statute, Which does not confer substantive rights and is limited by a statute of limitations spanning
six years from the accrual of a claim. 28 U.S.C. § 2501. As the April 3, 2018 Memorandum
Opinion And Final Order explained, because the statute of limitations in 28 U.S.C. § 2501 is
“jurisdictional,” it cannot be equitably tolled. Drake, 2018 WL 1613869, at *5 (citing John R.
Sand & Gr‘avel Co. v. United Slates, 457 F.3d 1345, 1354 (Fed. Cir. 2006), a]j"’d, 552 U.S. 130
(2008)).

Mr. Dral<e’s claim “flrst accrued no later than October 17, 1990.” Drake, 2018 WL
1613869, at *6 (quotations omitted). As determined in the April 3, 2018 l\/lemorandum Opinion
And Final Order, this accrual occurred 26 years prior to the filing of the April 27, 2017 Complaint.
Dmke, 2018 WL 1613869, at ’*‘5. The April 13, 2018 l\/Iotion For Reconsideration does not identify
any intervening change in controlling laW, i,e. , it does not allege that the statute of limitations has
changed or that it is no longer a jurisdictional requirement See 4/13/ 18 Mot.; see also RCFC
59(a)(1). The April 13, 2018 Motion For Reconsideration also does not allege new facts that Were
not available at the time of the April 3, 2018 l\/lemorandun'i Opinion And Final Order, nor does the
April 13, 2018 Motion For Reconsideration identify a mistake of fact or law that Would result in
injustice See 4/13/ 18 Mot.

For these reasons, the court has determined that Mr. Dral<e has not established that he is
entitled to reconsideration of the court’s April 3, 2018 Memorandum Opinion And Final Order,
pursuant to RCFC 59(a)(1).

IV. C()NCLUSI()N.
For these reasons, Mr. Dral<e’s April 13, 2018 Motion For Reconsideration is denied.
IT IS SO ORDERED.

SUSAN G. RADEN
Chief Judge

