ORIGNAL

In the United States Court of Federal Claims

No. ii-i60C
(Fii@<i; June 18,2014) F"_ED
(NoT To BE PIJBLISHED)
) u.s. couar 01=
LAWRENCE MENDEZ, JR., ) FEDEHAL
)
Plaintiff, )
)
v. )
)
UNITED STATES, )
)
Defendant. )
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oPiNloN AND oRi)ER

LETToW, Judge.

Pending before the court is plaintiff s motion for reconsideration of the judgment entered
in this case on December 2l, 2012. See Mendez v. United States, 108 Fed. Cl. 350 (2012), aff ’d,
540 Fed. Appx. 986 (Fed. Cir. 20l3), cert a’enied, 134 U.S. 1281 (2()14).1 Mr. Lawrence
Mendez, Jr. contends that the judgment on the administrative record entered by the court failed
to rectify an improperly prepared fitness report that resulted in his two failed attempts at
promotion and consequent involuntary discharge from the United States Marine Corps. Moving
under Rule 59(a) of the Rules of the Court of Federal Claims ("RCFC"), Mr. Mendez seeks

reinstatement, correction of his military records, and reconsideration for promotion. Pl.’s Mot. to
Request Recons. of Judgment on the Admin. R. ("Pl.’s Mot."), ECF No. 34. Because his motion
is untimely under Rule 5 9(a), the court will deem it as a motion for relief from judgment under

RCFC 60(b).2

]This case was previously considered and decided by an assigned judge who has retired
from service. When Mr. Mendez filed his motion for reconsideration, the case was randomly

reassigned.

ZRCFC 59(b)(l) provides that a motion for reconsideration must be filed within 28 days
after the entry of judgment. See also RCFC 59(e) ("A motion to alter or amend a judgment must
be filed no later than 28 days after the entry of the judgment."). Mr. Mendez’s motion falls well
outside that time limit. See infra, at 4-5, for a more complete discussion of the applicable rules.

BACKGROUND

Mr. Mendez formerly served as an officer of the United States Marine Corps. See
Mendez, 540 Fed. Appx. at 987. In September 2006, he became Adjutant of the lst Battalion,
12th Marine Regiment, 3rd Marine Division, and in March 2007, he was deployed to Iraq with
his unit as part of Operation lraqi Freedom. Ia’. ln July 2007, Mr. Mendez’s commanding
officer relieved him of his duties. Id. Following this removal, Mr. Mendez received a Marine
Corps Fitness Report evaluating his performance from February l, 2007 to July 28, 2007. Id.

The report described Mr. Mendez as deficient in several evaluation categories, including
Mission Accomplishment, Individual Character, Leadership, and Intellect and Wisdom. Mendez,
540 Fed. Appx. at 987. The reporting senior who prepared the report deemed Mr. Mendez’s
performance "unsatisfactory" and recommended he "not be considered for promotion with [his]
contemporaries." Id, (alteration in original). Mr. Mendez promptly submitted a rebuttal,
providing his own account of the events at issue and challenging the reporting senior’s findings.
Id. In compliance with Marine Corps Order Pl6l0.7F, two senior officers reviewed the report
and Mr. Mendez’s rebuttal. Id. at 987-88.

The first review was conducted by a reviewing officer who assessed Mr. Mendez’s
adverse fitness report and adjudicated factual differences between the reporting senior’s
evaluation and Mr. Mendez’s statement. Mena’ez, 540 Fed. Appx. at 988. The reviewing officer
identified a number of inconsistencies between the evaluation and the statement; however, he
resolved many in favor of the reporting senior, confirrning, for instance, that Mr. Mendez
micromanaged his Marines, replaced scheduled training exercises with entertainment, neglected
to coordinate with overseers, and failed properly to assist a Marine whose spouse was to undergo
surgery. Mendez v. United States, 103 Fed. Cl. 370, 373 (2012). Mr. Mendez responded to the
reviewing officer’s findings with a three-page rebuttal, which required further review. Ia’. at
373-74.

The second review was conducted by a Third Officer Sighter ("TOS"), a brigadier

general who examined the fitness report, the review, and Mr. Mendez’s responses. Mendez, 540
Fed. Appx. at 988. The TOS acknowledged areas of disagreement between the officers’
evaluations and Mr. Mendez’s statements, but he confirmed the first two officers’ findings,
ultimately concluding that Mr. Mendez did in fact fail "to perform his duties to the satisfaction of
both the [reporting senior] and the [reviewing officer]." Ia’. (alterations in original).

Subsequently, on December 8, 2008, Mr. Mendez appealed his adverse fitness report and
filed an Application for Correction of Military Record with the Board for Correction of Naval
Reeords ("Correction Board"), requesting removal of the report from his military record.
Mendez, 540 Fed. Appx. at 988. The Marine Corps Performance Evaluation Review Board
("Review Board") addressed his application and advised the Correction Board that the report was
administratively correct, procedurally complete, and fit to remain part of Mr. Mendez’s record.
Ia'. Mr. Mendez submitted a rebuttal, insisting that the fitness report was untrue and unjust, but
the Correction Board denied his removal request. Ia'. On August 2l, 2009, Mr. Mendez filed a
request for reconsideration, which was denied on April 9, 2010. Mendez, 103 Fed. Cl. at 374-75.

The Marine Corps discharged Mr. Mcndcz in Scptcmbcr 2010 after he was twice denied
promotion to the rank of captain. Mena'ez, 540 Fed. Appx. at 988.

On March 14, 2011, Mr. Mendez filed a complaint in this court, alleging that both the
preparation and review of his fitness report violated Marine Corps Order P16l0.7F. The
defective report, he contended, led to his non-selection for promotion and involuntary removal
from the Marine Corps. Mendez, 540 Fed. Appx. at 988. Mr. Mendez sought reinstatement and
back pay, as well as removal of the report from his military record. Id. Both Mr. Mendez and
the United States filed cross-motions for judgment on the administrative record. Id.

This court issued its decision on January 31, 2012, granting judgment on the merits in
favor of the United States on all but one issue. See Mendez, 103 Fed. Cl. at 382-85. The court
concluded that the report was properly prepared and reviewed, but it determined that the TOS
failed to resolve all factual inconsistencies between the reviewing officer’s report and Mr.
Mendez’s rebuttal, as required by the pertinent regulation. Ia’. at 382. The TOS had omitted to
resolve whether Mr. Mendez had actually failed to identify all available options that might have
assisted a young Marine in need of in-home care for his wife. Ia'. at 382. The reviewing
officer’s finding of failure had detracted from Mr. Mendez’s leadership evaluation. Ia'. Because
the TOS could easily have verified the reviewing officer’s finding, the court remanded the case
with an instruction for the Correction Board to review and resolve the discrepancy regarding
Mr. Mendez’s actions in responding to the medical situation of a Marine’s wife and reconsider

Mr. Mendez’s application. Ia’. at 384.3

On remand, the Correction Board removed the reference to the factual inconsistency
regarding in-home care options and modified and reconsidered Mr. Mendez’s modified report,
but again denied his application, "finding that the evidence did not establish a probable material
error or injustice." Mendez, 108 Fed. Cl. at 355. The Correction Board decided that the
modified report still rendered Mr. Mendez ineligible for promotion. Ia’. On further proceedings
before the court, both parties renewed their cross-motions for judgment on the administrative
record, and on December 20, 2012, the court upheld the Correction Board’s decision to modify,
but not to remove, Mr. Mendez’s report. Ia'. at 355, 357. Mr. Mendez filed a timely appeal with
the Court of Appeals for the Federal Circuit. Mendez, 540 Fed. Appx. at 990.

On September 17, 2013, the Federal Circuit affirmed the court’s decision, holding that

Mr. Mendez failed to show that the Correction Board acted arbitrarily, capriciously, contrary to
law, or without substantial evidence when it modified but retained his adverse report. Mendez,
540 Fed. Appx. at 992. The Federal Circuit reiterated that Mr. Mendez’s reviewers sufficiently
relayed a comprehensive picture of his performance. Ia'. at 990-91. Moreover, his allegations of
unresolved factual discrepancies had been appropriately dismissed or cured at the trial level. Id.

3At issue was a factual dispute whether in-home assistance for the Marine’s wife was
available through Tricare. The availability of this insurance option would have alleviated the
need for the Marine’s emergency leave, a solution disfavored by the Corps. See Mendez, 103
Fed. Cl. at 372.

at 991-92.4 Mr. Mendez submitted a petition for panel rehearing, which was denied on October
25, 2013. See Pl.’s Mot. at 4. He then filed a petition for writ of certiorari with the United States
Supreme Court, which was denied on February 24, 2014. Mendez v. United States, _ U.S. __,
134 S. Ct. 1281 (2014).

On March 26, 2014, Mr. Mendez filed the pending motion in this court, requesting
reconsideration of this court’s prior decision, limited to issues not addressed by the Federal
Circuit. See Pl.’s Mot.5 Mr. Mendez contends that the trial court’s decision was wrong under 10
U.S.C. § 1558(f)(3) because it did not account for the Correction Board’s failure to find and
correct the injustice against him. Id. at 4-5. Moreover, he avers that the court’s decision was
incomplete, arguing that the court never determined whether the defective report led to his non-
selection and never required the United States to submit a complete administrative record. Id. at
5-7. Finally, Mr. Mendez argues that the decision failed to sanction military officials who did
not follow proper procedures in preparation of the pertinent fitness report. Id. at 7-1 1. He
renews his request for reinstatement, correction of his military records, reconsideration for
promotion, and other ancillary elements of relief. Id. at l5.

ANALYSIS

RCFC 59(a) and 60(b) set forth the applicable standards for reconsideration of and relief
from final judgments or orders. Osage Tribe of Indians of Oklahoma v. United States, 97 Fed.
Cl. 345, 348 (2()11). In his motion, Mr. Mendez urges reconsideration under Rule 59(a) to
correct an injustice. See Pl.’s Mot. at 1.6 Motions under RCFC 59(a)(1)(A) and (B) must be

4The Federal Circuit rejected Mr. Mendez’s attempt to argue that Review Board’s
comments were inconsistent with Paragraph 1610.11D of the Marine Corps order, because he
had raised this issue for the first time on appeal, Mendez, 540 Fed. Appx. at 992, stating that
"[a]rguments not made in the trial court are normally considered waived in the absence of
exceptional circumstances," id. (citing Gant v. United States, 417 F.3d 1328, 1332 (Fed. Cir.

2005)).

5Mr. Mendez also contends that under RCFC 61, which relates to harmless error, the
court must take note of all defects in the court’s decision insofar as they affected his substantial
rights to fair consideration and correction of injustice. Pl.’s Mot. at 1, 14. Because this
argument relates to the merits of the court’s determination, it will not be discussed separately.

6RCFC 59(=1)(1) gram

The court may . . . grant a new trial or a motion for reconsideration
on all or some of the issues_and to any party_as follows: (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.

filed within 28 days of final judgment. See RCFC 5 9(b)(1). While a two-year window exists
under Rule 59(a)(l)(C), that Subparagraph is limited to injustices against the United States and
therefore cannot provide the basis for relief on the part of a private litigant. See RCFC
59(a)(l)(C), (b)(2). Judgment in this case was entered on December 21, 2012, rendering

Mr. Mendez’s motion for reconsideration submitted l\/larch 26, 2014 untimely under RCFC 59.

A late motion for reconsideration under RCFC 59(a) may be treated as a motion for relief
from judgment under RCFC 60(b). See 12 J ames Wm. Moore et al., Moore 's F ederal Practice
§ 59.l l [4][b] (3d ed. 2012); see also Branum v. Clark, 927 F.2d 698, 704 (2d Cir. 1991) (holding
that an untimely motion under Rule 59 to modify or set aside judgment, other than for clerical
error, may be properly reviewed as a motion under Rule 60(b)). While RCFC 60(b) is not a
substitute for timely appeals, it provides for relief from final judgments in certain circumstances:

On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or

(6) any other reason that justifies relief.

RCFC 60(b). Motions based on the first three grounds listed in Rule 60(b) are subject to a one-
year limitations period, while those based on the remaining grounds must be made within a
"reasonable time." RCFC 60(0)(1); see also Aa’ams v. Unz'ted States, No. 99-933C, 2011 WL
1583 871, at *l (Fed. Cl. Apr. 26, 2011). A decision to grant reconsideration under RCFC 60(b),
including a decision as to whether a motion was brought within a "reasonable time," lies within
the court’s discretion. 12 Moore ’s Fea’eral Practice, § 60.22[1]; see also Osage Trz`be, 97 Fed.
Cl. at 348 (citing Yuba Natural Res., Inc. v. Unitea' States, 904 F.2d 1577, 1583 (Fed. Cir.
1990)).

RCFC 60(b)(1) is not available to Mr. Mendez because he filed his motion more than a
year after the entry of judgment, and Mr. Mendez in his motion did not specify any grounds
falling within RCFC 60(b)(2)-(5). Thus, the motion may only be considered under RCFC
60(b)(6), which authorizes courts to grant relief from final judgments for "other reason[s]."

RCFC 60(b)(6) is typically referred to as a "catch-all" provision, allowing courts to
exercise their discretion to do justice in particular cases. See In/”zniti Info. Solutz`ons, LLC v.
United States, 93 Fed. Cl. 699, 704 (2010) (citing Compton v. Alton S.S. C0., 608 F.2d 96, 106
(4th Cir. 1979)). Nonetheless, courts are limited in their ability to grant motions under this
portion of the Rule. To qualify for relief, "(1) the grounds asserted for relief must not be the

same as those listed in Rule 60(b)(l)-(5), and (2) there must be a valid reason that justifies
according the relief, usually broadly described as ‘extraordinary circumstances."’ Ia'. (citing
Fiskars, Inc. v. Hunt Mfg. C0., 279 F.3d 1378, 1382 (Fed. Cir. 2002)). Here, l\/Ir. Mendez’s
motion survives Rule 60(b)(6)’s mutual exclusivity requirement,7 so the question becomes
whether he has presented evidence of extraordinary circumstances to justify relief.

To satisfy the "extraordinary circumstances" requirement, movants typically must show
that they were prevented from filing for reconsideration through no fault of their own. See 12
Moore ’s F ederal Practice § 60.48[3][b]. The Supreme Court has described such circumstances
as "the difference between choice and no choice; imprisonment and freedom of action; no trial
and trial; no counsel and counsel; no chance for negligence and inexcusable negligence."
Ackermcmn v. Um`tea' States, 340 U.S. 193, 202 (1950). Relief is reserved for those who have
been unable to proceed with appeals or motions under RCFC 59 for reasons beyond their contro1.
Infz`m`ti Info. Solutions, 93 Fed. Cl. at 706 (citing Bank ofAm., FSB v. Um`ted States, 70 Fed. Cl.
246, 253 n.8 (2006)). Generally speaking, parties may not use Rule 60(b)(6) as a "do-over" for
failing or neglecting to raise particular issues in their initial motions on appeals. See z`d. at 706
(citing ll Charles A. Wright, Arthur R. Miller & Mary Kay Kane, F ederal Practice &
Procedure § 2864 (2d. ed. 1995)); see also Matthews v. Um'ted States, 73 Fed. Cl. 524, 525 ("A
motion for reconsideration is not intended . . . to give an unhappy litigant an additional chance to
sway the court." (intemal citations and quotations omitted)).

Here, Mr. Mendez was free to file a motion for reconsideration promptly after the
judgment entered in December 2012; yet, he did not. His appeal to the Federal Circuit and his
petition for certiorari in the Supreme Court did not prevent or excuse him from seeking timely
relief from this courts Moreover, although Mr. Mendez has limited his motion for
reconsideration to issues not considered or decided at the appellate level, he has not alleged any
extenuating circumstances that prevented him from raising these issues earlier. He may not now
seek to rescue himself from the effects of an adverse outcome.

7Mr. Mendez mentions "fraud" at several places in his motion, but in a context where he
is objecting to the substance of decisions previously rendered. For example, he implies that the
Correction Board’s failure to remove his record after modification was a manifest abuse of
discretion amounting to bad faith or fraud. Pl.’s Mot. at l2. Moreover, he alleges that the
court’s earlier decision blatantly ignored precedent, rendering it a fraud. Id. at l4. Neither
argument, however, supports a claim for relief from judgment under RCFC 60(b)(3) on grounds
of fraud by an opposing party.

SSee 12 Moore ’s F ederal Practice § 60.65[2][d] (advising that virtually all courts agree
that pending appeals do not toll the running of the one-year-period for filing a motion under Rule
60(b)(l), (2), or (3)). The same circumstance applies to motions that must be made within a
reasonable time under Rule 60(b)(4), (5), or (6).

~€QNGIJUSIQN?

For the reasons stated, Mr. Mendez’s motion for relief from the judgment previously
entered on December 21, 2012 is DENIED.

lt is so ORDERED.

    

Char es F. LettoW
Judge

