           JJn tbe Wniteb
                          ORIGINAL ~tates
                              qcourt of                     jfeberal qc1ain1s
                                       No. 17-0179 C

                                    (Filed July 21, 2017)
                                                                      FILED
                                                                     JUL 2 1 2017
                                         )
                                                                    U.S. COURT OF
     JULIE A. BEBERMAN,                  )                         FEDERAL CLAIMS
                                         )
                      Plaintiff,         )
                                         )      Motion for Reconsideration; RCFC
 v.                                      )      59(e); Mistake of Fact
                                         )
 THE UNITED STATES,                      )
                                         )
                      Defendant.         )
~~~~~~~~-)

Julie Beberman, Arlington, VA, pro se.

Margaret J. Jantzen, Washington, DC, with whom were Chad A. Readier, Principal
Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, Deborah A.
Bynum, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for defendant.

                                   OPINION AND ORDER

CAMPBELL-SMITH, Judge

       Before the court is plaintiffs motion for reconsideration of the court's order
dismissing her complaint. See ECF No. 6. The court ordered that the motion be fully
briefed, see ECF No. 7, and it is now ripe for decision. For the following reasons, the
plaintiffs motion is GRANTED.

I.       Background

        On April 4, 2017, the court dismissed plaintiffs complaint for lack of subject
matter jurisdiction. See ECF No. 4. In reaching this conclusion, the court reviewed the
allegations in two complaints-the complaint filed here, and the fourth amended
complaint that plaintiff requested leave to file with the United States District Court for
the Virgin Islands. See id. at 3-5. The court found that it lacked subject matter
jurisdiction pursuant to 28 U.S.C. § 1500 because the district court action was earlier-
filed and still pending, and involved the same set of operative facts as the complaint filed
with this court. See ECF No. 4 at 1.

II.    Legal Standards

        Plaintiff has moved the court for reconsideration of its previous opinion pursuant
to Rule 59(e) of the Rules of the United States Court of Federal Claims (RCFC). Rule
59(e) states: "A motion to alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment." RCFC 59(e). In order to prevail on a timely filed
motion, the moving party must "make an evidentiary showing of extraordinary
circumstances." Johnson v. United States, 127 Fed. Cl. 661, 663 (2016) (citing Crews v.
United States, 424 Fed. Appx. 937, 940 (Fed. Cir. 2011)). Extraordinary circumstances
for purposes of Rule 59(e) include: "(1) an intervening change in the controlling law; (2)
the availability of new evidence; or (3) the need to correct clear error or prevent manifest
injustice." Del. Valley Floral Grp., Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1383
(Fed. Cir. 2010). "To prevail on grounds oflegal error, 'the movant must point to a
manifest error of law or mistake of fact."' Boston Edison Co. v. United States, 106 Fed.
Cl. 330, 335 (2012) (quoting System Fuels, Inc. v. United States, 79 Fed. Cl. 182, 184
(2007), affd in part and rev'd in part on other grounds, 457 Fed. Appx. 930 (Fed.Cir.
2012)).

III.   Analysis

        Plaintiff argues that the court committed a clear error, due to a mistake of fact, in
dismissing her complaint. See ECF No. 6 at 2. Specifically, she claims that the court
compared the complaint filed in this court to the wrong district court complaint in finding
that the two cases were based on the same set of operative facts. See id. at 2-3.
According to plaintiff, the first amended complaint, not the fourth amended complaint,
was the operative complaint before the district court. See id. at 3. After additional
examination of the docket, and consultation with the district court, the court finds that
plaintiff is correct. In conducting its analysis pursuant to 28 U.S.C. § 1500, the court
should have compared the complaint in this case with the first amended complaint before
the district court.

        The court based its finding that the cases arose from the same operative facts on
the overlap of claims related to "the receipt of separation orders and the transfer from the
Embassy Malabo to Washington, D.C. following her tenure denial." See ECF No. 4 at 7.
Those allegations appear in the fourth count of the proposed fourth amended complaint,
titled "Count 4-Against Secretary of State John Kerry for Retaliation-Separation
Orders". See ECF No. 8-1 at 59. No such claim appears in plaintiffs first amended
complaint. In the first amended complaint, plaintiff alleges only two claims: (1) for
violations of the Age Discrimination in Employment Act, in which she claims that her
supervisor treated her differently from younger, male counterparts with regard to work

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      assignments; and (2) for a violation of the Privacy Act in which she claims defendant has
      not adequately protected sensitive personal information. See id. at 20-39.

             The court erred in looking to the proposed fourth amended complaint rather than
      the operative first amended complaint. And given the material differences between the
      allegations in each, that error was not harmless.

             In its response, however, defendant argues that the court reached the proper
      conclusion despite this mistake. Defendant contends that the error was harmless because
      "another, earlier-filed lawsuit divests this Court of jurisdiction under 28 U.S.C. § 1500."
      ECF No. 8 at 7. In making this argument, defendant does not defend the court's previous
      analysis. Rather, it examines the claims in a complaint filed by plaintiff in the United
      States District Court for the District of Columbia, and concludes that those claims divest
      the court of jurisdiction pursuant to section 1500. See id. at 7-9. Defendant may be
      correct, but its argument is not properly raised in response to plaintiffs motion for
      reconsideration. The court will not deny the present motion based on the symmetry of
      claims that were not known to the court at the time it dismissed plaintiffs complaint.

             Should defendant choose to pursue the argument that the court lacks jurisdiction,
      the court notes that the second amended complaint to which it refers in its response, was
      filed with the District Court for the District of Columbia on May 8, 2017, see ECF No. 8-
      1 at 163, while the complaint in the present case was filed with this court on February 6,
      2017, see ECF No. 1. Defendant is advised to make its argument more explicit if it
      believes there is a legal basis for concluding that the claims in the second amended
      complaint should relate back to the original complaint, which was filed with the District
      Court for the District of Columbia on December 2, 2016. See ECF No. 8-1 at 159.

      IV.     Conclusion

               For these reasons, plaintiffs motion for reconsideration is GRANTED.
      Accordingly, the clerk' s office is directed to VACATE the April 7, 2017 judgment, ECF
      No. 5, entered in this matter and re-open the case, pursuant to this order. Defendant shall
      file its answer or otherwise respond to plaintiffs complaint on or before August 18,
      2017.

              IT IS SO ORDERED.




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