OR|G|NAL

In the United States Court of Federal Claims

No. 15-1071C
Fi|ed: February 5, 2016

HARRY NiE, : F"_ED

P|aintiff "
’ §  " 5 

16

V_ *
U.S. CO
* FEDERAj_l§,_TAf:/":S

UN|TED STATES, *
Defendant. *

'k * * ~k * * 'k ~k * ~k * 'k * * *

Harry Nie, Mitchells, VA, ;BY.

A|bert S. |arossi, Trial Attorney, Commercia| Litigation Branch, Civi| Division,
United States Department of Justice, Washington, D.C., for the defendant. With her were
Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principa| Deputy Assistant
Attorney General, Commercia| Litigation Branch, Civi| Division, Washington, D.C.

ORDER

HORN, J.

Fo||owing the court’s November 30, 2015 Order granting defendant’s motion to
dismiss prg § plaintiff Harry Nie’s comp|aint, on January11, 2016, plaintiff filed a "motion
to object" to the court's decision to grant defendant’s motion and to grant the motion
before plaintiff had an opportunity to respond to the motion.‘

1 ln his motion to object, plaintiff cites to Ru|e 46 of the Rules of the United States Court
of Federal Claims (RCFC) (2015), which states in fu||:

A formal exception to a ruling or order is unnecessary. When the ruling or
order is requested or made, a party need only state the action that it wants
the court to take or objects to, along with the grounds for the request or
objection. Failing to object does not prejudice a party who had no
opportunity to do so when the ruling or order was made.

As noted in the court’s November 30, 2015 Order, plaintiff filed suit in this court
"seeking $95,000 each year in compensation damages for unjust loss of plaintiff-property
rights to continued employment with General Dynamics Amphibious System, since
government willfully violating due process of law in plaintiff legal case in violation of the
Fifth Amendment, the amount accumulates starting since 2009 till plaintiff' rights will be
restored," as well as "$300,000 each year in punitive damages for unjust loss of liberty
without due process of law in violation of the Fifth Amendment, the amount accumulates
starting since 2009 till plaintiff rights will be restored." Nie v. United States, 124 Fed. Cl.
334, 336 (2015). Plaintiff also alleged that the "Government committed ‘breach of
contract’ with tortious, intentional or egregious misconduct of defendant." l_gL Plaintiff’s
motion to object quotes verbatim pages from plaintiff’s complaint. Plaintiff also quotes
the preamble to the United States Constitution, as well as the Gettysburg Address.

Reconsideration of a judgment is not intended to permit a party to retry its case
when it previously was afforded a full and fair opportunity to do so. The United States
Court of Appeals for the Federal Circuit has stated that: "The decision whether to grant
reconsideration lies largely within the discretion of the [trial] court." _Yuba Natural Res.
lnc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir.), Lh’g denied (Fed. Cir. 1990); §
_al_g; Carter v. United States-,_-_ 207 Ct. Cl. 316, 318, 518 F.2d 1199, 1199 (1975), ce_rt.
denied, 423 U.S. 1076, Lh’g denied, 424 U.S. 950 (1976); Osage Tribe of indians of
Okla., 97 Fed. Cl. 345, 348 (2011) (discussing RCFC 59(a) and 60(b))§ Oenga v. United
States, 97 Fed. Cl. 80, 83 (2011) (discussing RCFC 59(a)); Webster v. United States, 92
Fed. Cl. 321, 324, recons. denied, 93 Fed. Cl. 676 (2010) (discussing RCFC 60(b))§ Alpha
l L.P. ex rel. Sands v. United States, 86 Fed. Cl. 126, 129 (2009) (discussing RCFC 54(b)
and 59(a)); Banks v. United States, 84 Fed. Cl. 288, 291-92 (2008) (discussing RCFC
54(b) and 59(a)); Corrigan v. United States, 70 Fed. Cl. 665, 667-68 (2006) (discussing
RCFC 59(a)); Tritek Techs. lnc. v. United States, 63 Fed. Cl. 740, 752 (2005); Keeton
Corr.-,. lnc. v. United States, 60 Fed. Cl. 251, 253 (2004) (discussing RCFC 59(a)); Paalan
v. United States, 58 Fed. Cl. 99, 105 (2003), affj, 120 F. App’x 817 (Fed. Cir.), ge_rt.
denied, 546 U.S. 844 (2005); Citizens Fed. Bank FSB v. United States, 53 Fed. Cl. 793,
794 (2002) (discussing RCFC 59(a)).

 

 

 

   

   

"Moti0ns for reconsideration must be supported ‘by a showing of extraordinary
circumstances which justify relief."’ Caldwell v. United States, 391 F.3d 1226, 1235 (Fed.

As plaintiff’s case has been dismissed, and because plaintiff is proceeding L Y, the
court treats plaintiff’s motion to object as a motion for reconsideration. _§=e=e Haines v_._
Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a § g complaint
be held to "less stringent standards than formal pleadings drafted by lawyers"), Lh’g
denied, 405 U.S. 948 (1972); se_e § Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Harris v. United States, 113 Fed. Cl. 290, 292
(2013) ("Although plaintiff’s pleadings are held to a less stringent standard, such leniency
‘with respect to mere formalities does not relieve the burden to meet jurisdictional
requirements."’ (quoting Minehan v. United States, 75 Fed. Cl. 249, 253 (2007)).

Cir. 2004) (quoting Fru-Con Constr. Corp. v. United States, 44 Fed. C|. 298, 300 (1999)),
re_h’g g g denied (Fed. Cir.), Lt. denied, 546 U.S. 826 (2005) (discussing RCFC
59(a)); § @._Eisl<a_r.s lnc._. v.=. H-l,l,Qf l\/lfg» :Co... 279 F.3d at 1382 ("Rule 60(b)(6) is
available only in extraordinary circumstances and only when the basis for relief does not
fall within any of the other subsections of Rule 60(b)." (citing l\/larguip, |nc. v. Fosber
America lnc., 198 F.3d 1363, 1370 (Fed. Cir. 1999), @h'g denied (Fed. Cir. 2000);
Provident Sav. Bank v. Popovich, 71 F.3d 696, 700 (7th Cir. 1995))§ Ge-nga v. United
States, 97 Fed. C|. at 83; Se|dovia Native Ass’n |nc. v. United States, 36 Fed. C|. 593,'
594 (1996), L, 144 F.3d 769 (Fed. Cir. 1998) (discussing RCFC 59(a)). Genera||y,
"[t]he cases seem to make [a] fault/no fault distinction the controlling factor in determining
whether extraordinary circumstances will be found or not. in a vast majority of cases
finding that extraordinary circumstances do exist so as to justify relief, the movant is
completely without fault. . .  12 Joseph T. l\/lcLaughlin and Thomas D. Rowe, Jr., Moore's
Federal Practice § 60.48[3][b] (3rd ed. 2008) (discussing RCFC 60(b)(6)); se_e §
Amado v. l\/licrosoft Corp., 517 F.3d at 1363 (citing _Pioneer lnv. Servsl C.o - v Brun.swicl_<
Assoc. Ltd. P'ship, 507 U.S. 380, 393 (1993)) (discussing RCFC 60(b)(6)).

   

 

Courts must address reconsideration motions with "exceptional care." Carter v.
United States, 207 Ct. C|. at 318, 518 F.2d at 1199; se_egs_o Global Computer Enters. v.
United States, 88 Fed. C|. 466, 468 (2009) (discussing RCFC 59(a)). "The three primary
grounds thatjustify reconsideration are: ‘(1) an intervening change in the controlling law;
(2) the availability of new evidence; and (3) the need to correct clear error or prevent

manifest injustice."’ Delaware Valley Floral Group, |nc. v. Shaw Rose Nets, LLC, 597
F.3d 1374, 1383 (Fed. Cir. 2010); §§ also Griffin v. United States, 96 Fed. C|. 1, 7 (2010),

m_ot. t_o amend denied, appeal dismissed, 454 F. App’x 899 (Fed. Cir. 2011) (discussing
RCFC 59(a)); T0tolo/King Joint Venture v. United States, 89 Fed. C|. 442, 444 (2009)
(quoting Stockton E. Water Dist. v. United States, 76 Fed. C|. 497, 499 (2007), affl i_n
;@, vacated i_n _pa_rt, rev’d i_n _r@t L other grounds, 583 F.3d 1344 (2009) (citation
omitted) (discussing RCFC 59(a))) appeal dismissed, 431 F. App’x 895 (Fed. Cir.), Lh’g
denied (2011) (discussing RCFC 59(a)); Dairyland Power Coop. v. United States, 90 Fed.
C|. 615, 652 (2009), recons. denied, No. 04-106C, 2010 WL 637793 (Fed. C|. Feb. 22,
2010), a_ff’g i_p j@, vacated i_n part on other grounds, 2011 WL 2519519 (Fed. Cir. June
24, 2011) (discussing RCFC 59(a)); |\/|atthews v. United States, 73 Fed. C|. 524, 526
(2006) (citations omitted) (discussing RCFC 59); Prati v. United States, 82 Fed. C|. at 376
(discussing RCFC 59(a)); Tritek Techs. |nc. v. United States, 63 Fed. C|. at 752; Bannum

   

|nc. v. United States, 59 Fed. C|. 241, 243 (2003) (discussing RCFC 59(a));_Citizens Fed.

Bank FSB v. United States, 53 Fed. C|. at 794; Strickland v. United States, 36 Fed. C|.
651, 657, recons. denied (1996) (discussing RCFC 59(a)). "l\/lanifest," as in "manifest
injustice," is defined as "clearly apparent or obvious." Ammex |nc. v. United States, 52
Fed. C|. 555, 557 (2002), L, 384 F.3d 1368 (Fed. Cir. 2004), gt denied, 544 U.S.
948 (2005) (discussing RCFC 59). "Where a party seeks reconsideration on the ground
of manifest injustice, it cannot prevail unless it demonstrates that any injustice is ‘apparent
to the point of being almost indisputable."’ Griffin v. United States, 96 Fed. C|. at 7

 

 

(quoting Pac. Gas & E|ec. Co. v. United States, 74 Fed. C|. 779, 785 (2006), §_f_f’_di_n@t,
1 ig §§ g other grounds, 536 F.3d 1282 (Fed. Cir. 2008)). "A court, therefore, will
n_ot grant a motion for reconsideration if the movant ‘mereiy reasserts . . . arguments
previously made . . . all of which were carefully considered by the court."’ Ammex lnc. v.
United States, 52 Fed. C|. at 557 (quoting Principal Mut. Life lns. Co. v. United States, 29
Fed. C|. 157, 164 (1993), Lf§, 50 F.3d 1021 (Fed. Cir.), Lh’gdenied, @@sugga-st`lon
declined (Fed. Cir. 1995)) (emphasis in original); §§ Griffin v. United States, 96 Fed.
C|. at 7; Bowling v. United States, 93 Fed. C|. 551, 562, recons. denied (2010) (discussing
RCFC 59(a) and 60(b)); Webster v. United States, 92 Fed. C|. at 324 (discussing RCFC
59(a) and 60(b)); Pinckney v. United States, 90 Fed. C|. 550, 555 (2009); Tritek Techs.
lnc. v. United States, 63 Fed. C|. at 752,

 

 

ln sum, it is logical and well established that, "‘[t]he litigation process rests on the
assumption that both parties present their case once, to their best advantage;’ a motion
for reconsideration thus should not be based on evidence that was readily available at
the time the motion was heard." _ Seldovia Native Ass’n lnc. v. United States, 36 Fed. Cl..=_
at 594 (quoting Aerolease Long Beach v. United States, 31 Fed. C|. 342, 376, gf@, 39
F.3d 1198 (Fed. Cir. 1994) (table)). "Post-opinion motions to reconsider are not favored,
especially ‘where a party has had a fair opportunity to...litigate the point in issue."’
Aerolease Long Beach v. United States, 31 Fed. C|. at 376 (quoting Prestex lnc. v. United
States, 4 C|. Ct. 317, 318, a\ffj, 746 F.2d 1489 (Fed. Cir. 1984) (citing Gen. E|ec. Co. v._
United States, 189 Ct. C|. 116, 117-18, 416 F.2d 1320, 1321 (1969))) (omission in original;
other citation omitted).

 

Mr. Nie’s motion does not raise any new issues, but, instead, plaintiff repeats the
arguments submitted to the court in his original complaint. As noted above, plaintiff’s
motion to object quotes verbatim from plaintiff’s complaint. in its response to plaintiff’s
motion, defendant notes that plaintiff "attempts to re-argue the merits of his failure to
establish a jurisdictional basis for the Court to entertain his complaint," and that "[n]one
of the arguments in Mr. Nie's motion are new, however, and this Court has already
considered the facts that he alleges support his claim ofjurisdiction."

Defendant also argues that plaintiff’s motion "does not identify ‘a manifest error of
law, or mistake of fact’ in the Court's previous ruling," and claims that "[n]or has Mr. Nie
demonstrated that there has been any intervening change in the controlling law, the
availability of previously unavailable evidence, or that the dismissal of his complaint was
a ‘manifest injustice."’ lndeed, defendant correctly notes that "Mr. Nie fails to so much as
acknowledge these criteria, and makes no attempt to show why reconsideration of the
Court's order is appropriate." The court agrees with defendant that Mr. Nie has not
demonstrated extraordinary circumstances which justify relief or provide any other
adequate basis to reconsider this court’s earlier decision dismissing plaintiff’s breach of
contract claims, constitutional claims, and tort claims for lack of subject matterjurisdiction.

Plaintiff also argues that "[t]he ruling or order is in violation of Ru|e 7.2(b)(1) of
RCFC, plaintiff, Harry Nie, has time to response of the defendant's motion to dismiss
within 28 days after service of the motion which was dated on November 23, 2015."2 in
response, defendant states, "[t]o the extent that Mr. Nie claims that the Court erred by
dismissing his complaint prior to his having had an opportunity to file a response to the
Government's motion to dismiss, that argument fails." Defendant notes that "[g]iven that
this Court could, sua sponte, determine that it does not have subject matter jurisdiction
over Mr. Nie's claims, it logically follows that his failure to respond prior to the Court's
ruling cannot constitute a manifest error of law." lndeed, as indicated in the court’s
November 30, 2015 decision:

lt is well established that "‘subject-matterjurisdiction, because it involves a
court’s power to hear a case, can never be forfeited or waived."’ Arbaugh v.
Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton,
535 U.S. 625, 630 (2002)). "[F]ederal courts have an independent obligation
to ensure that they do not exceed the scope of their jurisdiction, and
therefore they must raise and decide jurisdictional questions that the parties
either overlook or elect not to press." Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 434 (2011); §e_eall Gonzalez v. Thaler, 132 S. Ct.
641, 648 (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."); Hertz Corp. v. Friend, 559 U.S. 77, 94
(2010) ("Courts have an independent obligation to determine whether
subject-matter jurisdiction exists, even when no party challenges it." (citing
Arbaugh v. Y & H Corp., 546 U.S. at 514)); SQecial Devices, lnc. v. OEA,
li, 269 F.3d 1340, 1342 (Fed. Cir. 2001) ("[A] court has a duty to inquire
into its jurisdiction to hear and decide a case." (citing Johannsen v. Pay
Less Drug Stores N.W., lnc., 918 F.2d 160, 161 (Fed. Cir. 1990)); \@
Eng’g, lnc. v. Robotic Vision Sys., lnc., 115 F.3d 962, 963 (Fed. Cir. 1997)
("[C]ourts must always look to theirjurisdiction, whether the parties raise the
issue or not."). "Objections to a tribunal’s jurisdiction can be raised at any
time, even by a party that once conceded the tribunal’s subject-matter
jurisdiction over the controversy." Sebelius v. Auburn Reg’l Med. Ctr., 133
S. Ct. 817, 824 (2013); Wals_o Arbaugh v. Y & H Corp., 546 U.S. at 506
("The objection that a federal court lacks subject-matterjurisdiction . . . may
be raised by a party, or by a court on its own initiative, at any stage in the
litigation, even after trial and the entry ofjudgment."); Cent. Pines Land Co.

L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cir. 2012) ("An
objection to a court’s subject matter jurisdiction can be raised by any party
or the court at any stage of litigation, including after trial and the entry of
judgment." (citing Arbaugh v. Y & H Corp., 546 U.S. at 506-07))§ Rick’s
l\/lushroom Serv. lnc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir.
2008) ("[A]ny party may challenge, or the court may raise sua sponte,

 

 

1 Grammar, punctuation, and other errors are quoted in this Order as they appear in

plaintiff’s submissions.

subject matterjurisdiction at any time." (citing Arbaugh v. Y & H Corp., 546
U.S. at 506; Fo|den v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh’g
L reh’g g banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127

(2005); and Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed.
Cir. 1998))).

_Nie v. United States, 124 Fed. C|. at 339-40,

ln the same decision, this court stated "it is clear that this court lacks jurisdiction
over p|aintiff’s complaint." As the court did not and does not have jurisdiction over
p|aintiff’s claims, it was not and is not an error to dismiss p|aintiff’s complaint regardless
of whether or not plaintiff had an opportunity to respond to defendant’s motion to dismiss.
Plaintiff, simply stated, has failed to raise any claims regarding which this court has
jurisdiction and has failed to demonstrate manifest injustice. For the foregoing reasons,
p|aintiff’s motion is DENlED.

rT rs so oRoERED. _,~jj’r"-‘ 

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N BLANK ORN
Judge

    
     

