ORIGINAL

3111 the 03mm étates QEuurt of erheraI Claims
No. 09—796C

FILED

MAR — 4 2015

U.S. COURT OF
FEDERAL CLAJMS

(Filed: March 4, 2015)

F LORENTINO L. MATA,

Plaintiff,
Rule 59(a)(1) Motion for Reconsideration;

v. Rule 60(b) Motion for Relief

THE UNITED STATES,

Defendant.

V'vvvvvvvvvv

Lorenzo W. Tijerina, San Antonio, TX, for plaintiff.1

Jane C. Dempsey, Trial Attorney, with whom were Joyce R. Branda, Acting Assistant
Attorney General, Robert E. Kirschman Jr., Director, and Reginald T. Blades, Jr.,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant. Rebecca Ausprung, Chief,

Civilian Personnel Branch, United States Army Litigation Division, Fort Belvoir, VA, of
counsel.

 

ORDER

 

CAMPBELL-SMITH, Chief Judge

Florentino L. Mata (plaintiff or Mr. Mata), a former employee of the United States
Army (the Army or defendant), alleges that the Army breached three provisions of a
settlement agreement entered into by the parties. E Compl. 1111 1, 40, ECF No. 7. On

February 26, 2014, the court granted summary judgment in favor of defendant as to two
of these provisions, Mata v. United States, 114 Fed. Cl. 736, 746—51 (2014), and, on

1 On December 12, 2014, Mr. Tijerina ﬁled a motion to withdraw his appearance as

attorney of record, ECF No. 82, which the court granted on January 6, 2015, ECF No. 85.
Plaintiff‘s Motion for Reconsideration—the subject of the instant order—was submitted
by Mr. Tijerina on October 1, 2014, prior to his withdrawal from this case.

September 3, 2014, the court concluded that it lacked jurisdiction over the third provision
and transferred the case to the United States District Court for the Western District of
Texas—the court from which this case originated, Mata v. United States, 118 Fed. Cl. 92,
94 (2014). Plaintiff has ﬁled a motion for reconsideration of the court’s September 2014
decision, Pl.’s Mot., ECF No. 80, which defendant opposes, Def.’s Opp’n, ECF No. 83.
For the reasons stated below, plaintiff’s Motion is DENIED.

I. Background2

On June 20, 2007, Mr. Mata and the Army entered into a negotiated settlement
agreement (NSA) to resolve an employment discrimination complaint made by Mr. Mata
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000c. E Compl. 11
10.

Fourteen months later, on August 25, 2008, Mr. Mata ﬁled suit in the United
States District Court for the Western District of Texas, claiming, inter alia, that the Army
breached the NSA. m Compl., Mata v. Green, No. 08-709 (W.D. Tex. Aug. 25, 2008),
ECF No. 1. The district court determined that it lacked jurisdiction to hear Mr. Mata’s
claims and transferred the action to this court. & Order, Mata v. Green, No. 08-079
(W.D. Tex. Aug. 20, 2009), ECF No. 26. On March 5, 2010, Mr. Mata ﬁled his transfer
complaint in this court. E Compl. at 1.

Nearly eight months later, on October 27, 2010, defendant ﬁled its ﬁrst motion to
dismiss for lack of subject matter jurisdiction, arguing that the NSA was not money-
mandating, as is required for this court to possess jurisdiction under the Tucker Act.
Def.’s Mot. to Dismiss 5, ECF No. 21. The court stayed the proceedings pending a
decision by the United States Court of Appeals for the Federal Circuit in an unrelated but
potentially instructive case, Holmes v. United States, 92 Fed. Cl. 311 (2010), appeal
docketed, No. 2010-5119 (Fed. Cir. May 14, 2010). Order, ECF No. 28. Subsequently,
on December 3, 2012, the court denied defendant’s motion to dismiss following the
guidance provided in the Federal Circuit’s decision in Holmes, 657 F.3d 1303 (Fed. Cir.
2011). & Mata v. United States, 107 Fed. Cl. 618, 623—24 (2012). The court
concluded that the NSA could be fairly interpreted as contemplating money damages and
therefore the court had jurisdiction to consider plaintiff’ s claims. I_d. at 622—24.

 

The parties then ﬁled cross-motions for summary judgment on Mr. Mata’s claims
that the Army breached paragraphs 3a, 3b, and 3c of the NSA. Pl.’s Summ. J. Mot., ECF
No. 50-1; Def.’s Summ. J. Mot., ECF No. 53. On February 26, 2014, the court granted
summary judgment in favor of defendant as to paragraphs 3a and 3c and stayed the
parties’ cross-motions for summary judgment as to the Army’s breach of paragraph 3b.
m, 114 Fed. Cl. at 746—5 1. Paragraph 3b of the NSA provides in relevant part:

2 The facts and procedural history of this case are set forth in detail in the court’s

February 2014 decision. & Mata v. United States, 114 Fed. C1. 736, 740—43 (2014).

2

As soon as possible during the 120 calendar day period from the effective
date of this agreement with the right of Complainant to request an extension
of time from the Chief of Staff, based on good cause due to no openings
available during the 120 calendar day period, [U.S. Army South
(USARSO)] shall make a good faith attempt to laterally transfer/reassign
[C]omplainant to an equivalent position for which he is qualiﬁed, in a
directorate outside of [Deputy Chief of Staff, Engineer (DCSENG)] but
within USARSO. USARSO HR shall forward to the Complainant and [the
Civilian Personnel Advisory Center (CPAC)] notice of any valid vacancy
for which the Complainant could be deemed to be qualiﬁed by CPAC.
CPAC will determine if Complainant is qualiﬁed for the vacancy and will
notify the Chief of Staff of any positions for which he qualiﬁes. The Chief
of Staff will make the ﬁnal determination as to the acceptability of the
recommendation . . . .

Compl. at 26 (NSA 11 3b).

Following a March 14, 2014 telephonic status conference with the parties, the
court granted defendant leave to ﬁle another motion to dismiss for lack of jurisdiction on
the ground that paragraph 3b of the NSA is not money-mandating. & Order 1, Mar. 18,
2014, ECF No. 67; Def.’s Mot. to Dismiss, ECF No. 68. On September 3, 2014, the
court issued an order ﬁnding that paragraph 3b of the NSA is not money-mandating and
that it therefore lacked jurisdiction over plaintiff’s “sole surviving breach of contract
claim.” m, 118 Fed. Cl. at 97. Rather than entering judgment in favor of defendant,
however, the court found that it was in the interest of justice to transfer the case back to
the Western District of Texas. I_d. at 99.

On October 1, 2014, plaintiff ﬁled a motion for reconsideration of the court’s
September 2014 decision. Pl.’s Mot. 1.

11. Legal Standards

Plaintiffs motion seeks reconsideration and relief from the court’s September
2014 decision, the standards for which are set forth in Rules 59(a)(1) and 60(b) of the

Rules of the United States Court of Federal Claims (RCFC). & Pl.’s Mot. 2 (invoking
both rules).3 Rule 59(a)(1) provides that reconsideration may be granted as follows:

3 Plaintiff’s motion also references Rule 59(e), Pl.’s Mot. 3, which governs motions

to alter or amend judgments, RCFC 59(e). However, the court’s September 2014
decision did not result in a judgment. SE Mata v. United States, 118 Fed. C1. 92, 94
(2014) (transferring the case to the Western District of Texas). Accordingly, Rule 59(e)
is not applicable here.

(A) for any reason for which a new trial has heretofore been granted in an
action at law in federal court; (B) for any reason for which a rehearing has
heretofore been granted in a suit in equity in federal court; or (C) upon the
showing of satisfactory evidence, cumulative or otherwise, that any fraud,
wrong, or injustice has been done to the United States.

RCFC 59(a)(l). “Motions for reconsideration must be supported by a showing of
extraordinary circumstances which justify relief.” Caldwell v. United States, 391 F.3d
1226, 1235 (Fed. Cir. 2004) (internal quotation marks omitted). To sustain this heavy
burden, “the moving party must show: (1) the occurrence of an intervening change in the
controlling law; (2) the availability of previously unavailable evidence; or (3) the
necessity of allowing the motion to prevent manifest injustice.” Matthews V. United
States, 73 Fed. Cl. 524, 526 (2006). A party “must do more than merely reassert[ ]
arguments which were previously made and were carefully considered by the court.”
Bannum Inc. V. United States, 59 Fed. Cl. 241, 243 (2003) (internal quotation marks
omitted); see also Seldovia Native Ass’n v. United States, 36 Fed. Cl. 593, 594 (1996)
(“[A] motion for reconsideration . . . should not be based on evidence that was readily
available at the time the motion was heard”). Moreover, a motion for reconsideration “is
not intended to give an unhappy litigant an additional chance to sway the court.” Bishop
V. United States, 26 Cl. Ct. 281, 286 (1992) (internal quotation marks omitted).

 

 

Rule 60(b) provides that a moving party may be relieved from a ﬁnal order on
several grounds, including “(1) mistake, inadvertence, surprise, or excusable neglect” or
“(6) any other reason that justiﬁes relief.” RCFC 60(b)(1), (6); c_f. Pl.’s Mot. 2
(referencing these two grounds). “The inadvertence, surprise, or excusable neglect can
be ‘of any party, party’s attorney, the clerk, or the court.’” CNA Corp. v. United States,
83 Fed. Cl. 1, 8 (2008) (quoting 12 Joseph T. McLaughlin and Thomas D. Rowe, Jr.,
Moore’s Federal Practice § 60.41[3] (3d ed. 2008)), m, 332 F. App’x 638 (Fed. Cir.
2009). Rule 60(b)(6) “authorizes the court to grant relief when appropriate to accomplish
justice.” Wagstaff V. United States, 118 Fed. Cl. 172, 176 (2014) (internal quotation
marks omitted), $3, No. 2014-5136, 2014 WL 6892075 (Fed. Cir. 2014). To qualify
for relief under Rule 60(b)(6), “(1) the grounds asserted for relief must not be the same as
those listed in Rule 60(b)(1)—(5), and (2) there must be a valid reason that justiﬁes
affording the relief, usually broadly described as ‘extraordinary circumstances” Inﬁniti
Info. Solutions LLC v. United States, 93 Fed. Cl. 699, 704 (2010) (quoting Fiskars Inc.
V. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002)); cf. Delpin Aponte v. United

 

 

 

 

 

The court further observes that plaintiff’ 5 citation to Rule 59(a)(1)(C), see Pl.’s
Mot. 2, is inapposite here because relief under Rule 59(a)(1)(C) is available only to the
United States, se_e RCFC 59(a)(1)(C) (providing that the court may grant a motion for
reconsideration “upon the showing of satisfactory evidence, cumulative or otherwise, that
any fraud, wrong, or injustice has been done to the United States” (emphasis added)).

 

States, No. 05-1043C, 2014 WL 3725933, at *1 n.2 (Fed. Cl. July 23, 2014) (observing
that Rules 60(b)(1) and 60(b)(6) are “mutually exclusive”—such that “[a] movant

seeking relief from judgment premised on inadvertence and neglect under RCFC 60(b)(l)
cannot obtain relief under RCFC 60(b)(6) as well”).

 

III. Discussion
A. Relief Under Rule 59(a)(1) Is Not Appropriate

1. There Has Been No Intervenng Change in Controlling Law

As support for his contention that there has been an intervening change in
controlling law, plaintiff argues that the court’s September 2014 decision runs afoul of

the Federal Circuit’s decisions in Holmes and Cunningham v. United States, 748 F.3d
1172 (Fed. Cir. 2014). Pl.’s Mot. 11.

As an initial matter, neither Holmes nor Cunningham can serve as a basis for
plaintiff’s argument that there has been an “intervening” change in controlling law
because both cases were issued prior to the court’s September 2014 decision. Moreover,
the court examined both cases in its September 2014 decision and determined that
“paragraph 3b falls within the category of provisions contemplated by the Federal Circuit
in Holmes and Cunningham as involving ‘purely non-monetary relief.’” Mata, 118 Fed.
Cl. at 97. The court therefore concluded that it lacked jurisdiction over plaintiff’s sole
surviving breach of contract claim. & Plaintiff offers no support for his conclusory
allegation that the court’s determination was “contrary” to both Holmes and
Cunningham. E Pl.’s Mot. 11. Although plaintiff may be dissatisﬁed with the court’s

determination, “dissatisfaction does not warrant reconsideration.” Grifﬁn v. United
States, 96 Fed. Cl. 1, 9 (2010).

 

 

 

2. There Has Been No Newly Discovered Evidence

Plaintiff does not point to any previously unavailable evidence in support of his
motion, and, in fact, plaintiff concedes that “there is no newly discovered evidence.”
Pl.’s Mot. 4. Instead, plaintiff refers the court to evidence already raised in earlier ﬁlings.
Compare Q at 4—10, with, e.g., Pl.’s Resp. to Def.’s Mot. to Dismiss 14—20, ECF No. 73.
Plaintiff cannot prevail on a motion for reconsideration simply by offering previously
available evidence. Se_e Seldovia Native Ass’n, 36 Fed. Cl. at 594 (“[A] motion for
reconsideration . . . should not be based on evidence that was readily available at the time
the motion was heard”).

 

3. Plaintiff Is Unable to Demonstrate Manifest Injustice

The thrust of plaintiff‘s argument appears to be that the court should reconsider its
September 2014 decision to prevent manifest injustice. Speciﬁcally, plaintiff argues that
the court’s September 2014 decision was “contrary to the facts previously submitted

5

[that] provided [the court] with subject matter jurisdiction,” Pl.’s Mot. 11, and that the
court failed to consider the admissions of certain Army personnel, i_d_. at 4.

As defendant correctly observes, however, “Mr. Mata fundamentally
misunderstands the [c]ourt’s jurisdictional analysis.” Def.’s Opp’n 9. Other than simply
alleging, without support, that the court’s decision was contrary to Holmes and
Cunningham, Pl.’s Mot. 11, plaintiff does not address the court’s jurisdictional
determination. Instead, plaintiff relies on previously submitted deposition testimony in

an attempt to persuade the court that the Army breached paragraph 3b of the NSA. E
Q at 4—10.

 

As more fully detailed above in Part I, in December 2012 this court originally held
that it possessed jurisdiction to hear plaintiff’s breach of contract claims, and
subsequently examined the merits of these claims—to include the claim that the Army
breached paragraph 3b of the NSA—in a February 2014 decision. E Mata, 118 Fed.
CI. 97—98. In the February 2014 decision, the court granted summary judgment in favor
of defendant as to paragraphs 3a and 3c and stayed the parties’ cross-motions for
summary judgment as to paragraph 3b, finding that summary resolution of this issue was
premature.4 m, 114 Fed. Cl. at 746—5 1. The court subsequently concluded that
paragraph 3b of the NSA, plaintiff‘s sole surviving breach of contract claim, “involve[d]
purely non-monetary relief” and that, therefore, the court no longer possessed jurisdiction
over plaintiff’ 5 case. Mata, 118 Fed. C1. at 98.

 

 

Having ultimately determined that the Court of Federal Claims lacks jurisdiction
over plaintiff’s sole surviving breach of contract claim, the merits of this claim cannot
now be examined by this court. & Rosales v. United States, 89 Fed. Cl. 565, 577
(2009) (“Before adjudicating the merits of a case, a court must ﬁrst ensure that it has
jurisdiction to hear and decide the matter before it.”). This is an inquiry reserved for the
Western District of Texas—the court to which this case has been transferred. S_ec_: Mata,

 

4 Plaintiff also appears to seek reconsideration of the court’s February 2014 decision

granting summary judgment in favor of defendant as to paragraphs 3a and 3c of the NSA.
& Pl.’s Mot. 6—10 (arguing that certain deposition testimony supports his claim that the
Army breached paragraphs 3a and 3c of the NSA). However, plaintiff pointed to the
same evidence and raised the same arguments in his motion for summary judgment.
Compare g, m Pl.’s Summ. J. Mot. 14—20, ECF No. 50-1. The court carefully
considered—and rejected—these arguments in its February 2014 decision. To prevail on
a motion for reconsideration, a party “must do more than merely reassert[ ] arguments
which were previously made and were carefully considered by the court.” Bannum Inc.
v. United States, 59 Fed. Cl. 241, 243 (2003). Having failed to do so here, plaintiff has
not established any grounds for reconsideration of the court’s February 2014 decision.

 

6

118 Fed. Cl. at 99. Simply put, plaintiff has failed to demonstrate the manifest injustice
necessary to prevail on a motion for reconsideration.

B. Relief Under Rule 60(b) Is Not Appropriate

Plaintiff does not advance any speciﬁc arguments in support of a Rule 60(b)
motion for relief. See generally Pl.’s Mot. And to the extent that plaintiff seeks to rely
on the arguments in support of his Rule 59(a)(l) motion for reconsideration, the court
ﬁnds that plaintiff has failed to establish “(1) mistake, inadvertence, surprise, or
excusable neglect” to justify relief under Rule 60(b)(1) or any other “extraordinary

 

circumstances” to justify relief under Rule 60(b)(6). & Fiskars Inc., 279 F.3d at 1382.

IV. Conclusion

Having failed to identify a valid ground for reconsideration or relief from the
court’s September 2014 decision, plaintiff s motion is DENIED.

   

IT IS SO ORDERED. (xx
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RATRICIA . CAMPBELL-SMITH
Chief Judge

     

