NAL

In the United States Court of Federal Claims

 

No. 14-1236 C
FlLED
(Filed May l2, 2016) MAY 1 2 2015
>i<>c<>i=>l=>i=>i<>i<>c=>i=>\=>l<>i<>i<>i=>i=>i<>i<>l=*>i=>i< U.S.COUF\TCF
FEDERAL CLA\MS
ANTONIO JOHNSON, *
>l<
Pro Se Plaintiff, * RCFC 59(b)(l); Untimely Motion for
* Reconsideration; Re-Arguing
v. * Position Previously Rejected by the
* Court.
THE UNITED STATES, *
>I<
Defendant. *
>l<>|<>|<>l<>|<>|<>|<>l<>l=>l<>l<>|<>|<>l<>l<>|<>|<>|<>l<>l<>|<
ORDER

Now pending before the court is pro se plaintiff Antonio Johnson’s motion
for reconsideration, filed May 5, 2016, which cites Rule 59 of the Rules of the
United States Court of F ederal Claims (RCFC).l Plaintiff requests reconsideration
of the court’s "March l0, 2016 ruling in favor of defendant the United States and
dismissing [Mr. Johnson’s] complaint with prejudice." Pl.’s Rule 59 Mot. at l.
Also before the court are plaintiffs "Motion for Leave to File Motion under
[RCFC] 60(b)(l),"2 filed May 5, 2016, and plaintiffs Notice of Appeal, filed May
6, 2016. For the reasons stated below, Mr. Johnson’s Rule 59 motion is denied
but his motion for leave to file a Rule 60 motion is granted.

‘/ Although plaintiff s motion is titled "Motion for Leave to File a Motion for
Reconsideration under U.S. Ct. Cl. Rule 59(b)(2)," Pl.’s Rule 59 Mot. at l, the motion presents
plaintiffs arguments that dismissal of his complaint should be reconsidered. For this reason, the
court deems plaintiffs motion filed May 5, 2016 to actually request reconsideration, rather than
to merely request leave to file a motion to request reconsideration.

2/ Unlike plaintiffs Rule 59 motion, plaintiff s motion for leave to file a Rule 60 motion
contains no argument on the merits of a Rule 60 motion and appears to be purely procedural in
nature. See supra note l.

BACKGROUND

In a complaint filed December 24, 20l4, Mr. Johnson focused his claims on
his discharge from the United States Army on December 13, 1988. As a result of
the government’s jurisdictional challenge to that complaint, some of plaintiff’s
claims were dismissed by this court on August 2(), 20l5. Johnson v. United
States, 123 Fed. Cl. 174 (2015) (Johnson l). Mr. Johnson’s remaining claim for
military disability retirement survived the government’s motion to dismiss,
however. Ia’. When the parties later cross-moved for judgment on the
administrative record, the govemment’s motion was granted and plaintiffs claim
for military disability retirement was dismissed with prejudice. Johnson v. United
States, l25 Fed. Cl. 575 (2016) (Johnson II). Judgment for the government was
entered on March 10, 2016 and this case was closed.

DISCUSSION
I. Standard of Review

A motion for reconsideration is permitted under RCFC 59, which provides
that such a motion may be granted for any reason for which a new trial has been
granted in an action at law, or for which a rehearing has been granted in a suit in
equity, in the courts of the United States. See RCFC 59(a)(l). The decision
whether to grant reconsideration pursuant to RCFC 59 lies largely within the
discretion of the court. Yuba Natural Res., Inc. v. United States, 904 F.2d 1577,
1583 (Fed. Cir. 1990). However, a motion for reconsideration will be granted only
upon a demonstration of a "‘rnanifest error of law, or mistake of fact, and 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) (quoting Cz`rcle K Corp. v.
United States, 23 Cl. Ct. 659, 664-65 (1991)). The movant must show that: (a) an
intervening change in the controlling law has occurred since the original decision;
(b) evidence not previously available has become available; or (c) the motion is
necessary to prevent manifest injustice. Ia’.

II. Analysis of Plaintiff’s Motion for Reconsideration

A. The Motion for Reconsideration Is Untimely

Mr. Johnson appears to erroneously assume that in this court a plaintiffs
motion for reconsideration may be filed within two years of an adverse judgment.
See Pl.’s Rule 59 Mot. at 1 (referencing "the full allotted time of two years to file
the motion for reconsideration"). Plaintiff mistakenly relies on RCFC 59(b)(2) for
his motion, a provision which only applies when the government moves for
reconsideration because "fraud, wrong, or injustice has been done to the Um`ted
States." RCFC 59(a)(l)(C) (emphasis added); see also RCFC 59(b)(2) (limiting
the two-year window for filing a motion for reconsideration to circumstances
outlined in RCFC 59(a)(l)(C)). A plaintiff in this court has twenty-eight days
within which to file a motion for reconsideration. RCFC 59(b)(l).

Because judgment was entered in this case on March l0, 2016, under RCFC
59 Mr. Johnson was required to file any motion for reconsideration no later than
April 7, 2016. Plaintiff filed his Rule 59 motion almost one month after that
deadline, on May 5, 2016. RCFC 6(b) states that the court "must not extend the
time to act under RCFC . . . 59(b)." RCFC 6(b)(2). Accordingly, the motion now
before the court is untimely and cannot be considered by the court. Id.

B. The Motion for Reconsideration ls Without Merit

Even if Mr. Johnson’s Rule 59 motion had been filed within the required
time frame, the court would have denied that motion because it lacks merit.3 As
noted above, plaintiff must demonstrate that: (a) an intervening change in the
controlling law has occurred since the original decision; (b) evidence not
previously available has become available; or (c) the motion is necessary to
prevent manifest injustice. See Bishop, 26 Cl. Ct. at 286. Moreover, it is well
settled that a motion for reconsideration may not be used simply as "an
opportunity for a party to take a second bite at the apple by rearguing positions
that have been rejected." Shell Petroleum, Inc. v. United States, 47 Fed. Cl. 812,
819 (200()) (citing Stelco Holdz`ng v. Unitea' States, 45 Fed. Cl. 541, 542 (2000)).

 

3/ Pursuant to RCFC 62. l (a)(2), this court may deny a timely motion for reconsideration

or a motion for relief from a judgment even after a notice of appeal has been filed. See, e. g.,
Harris v. Um`ted States, 2013 WL 4123619, No. l3-l9C (Fed. Cl. Aug. l2, 2013), ajj”’d, Harris
v. United States, No. 2013-5119, slip op. (Fed. Cir. April 16, 2014).

3

Plaintiff has not identified any change in the controlling law since the court
dismissed his claims. Similarly, plaintiff has not presented any new evidence that
was not available when the parties briefed their cross-motions for judgment on the
administrative record. Further, Mr. Johnson has not demonstrated that the denial
of his motion would result in a manifest injustice, as discussed below. Instead,
plaintiff s motion simply restates the allegation he made previously that the
Army’s records of his military service were inaccurate or incomplete.

In Johnson II, the court addressed plaintiff’ s argument that the Army’s
record of his military service was not complete or accurate:

The court turns first to Mr. Johnson’s argument that the
Army, in bad faith, altered his military records to defeat
his claim. Plaintiff suggests that the Arrny’s record of
his service is suspect because certain of his credentials
are missing and because the Arrny has "fabricated"
documents. Defendant counters that the administrative
record filed in this case contains no evidence of
document falsification by the government. The
government’s arguments on this point are persuasive.
Plaintiff’ s contention that the Army tried to "erase"
evidence of disability in Mr. Johnson’s service record
fails to overcome the presumption of regularity accorded
the records provided to this court by the Army. E.g.,
[Richey v. Um'ted Stczz‘es, 322 F.3d l3l7, 1326 (Fed. Cir.
2003)]. The court cannot agree with plaintiff that the
records before the [Army Board for Correction of
Military Records (ABCMR)] and before this court
contain an inaccurate service file.

125 Fed. Cl. at 580 (citations to filings omitted).

Mr. Johnson again argues in his Rule 59 motion that his military record has
been falsified:

[T]he facts prove[] the Government has made plaintiff
medical record military a . . . manifest injustice by

4

fabricating the record. The Government mailed plaintiff

the fabricated medical records . . . . This court and
ABCMR ha[ve] acknowledge[d] there exist conflicting
materials.

Pl.’s Rule 59 Mot. at 2. This argument yet again fails to persuade the court. The
only "conflicting" materials contained in the administrative record were
considered by the court. These materials were actually two documents submitted
by plaintiff to the ABCMR which appear to have been altered to support Mr.
Johnson’s claim that he suffered from a disabling condition or conditions in 1988.

Johnson II, 125 Fed. Cl. at 579-80 & n.5.

The court finds no manifest injustice in the state of Mr. Johnson’s military
service file as represented in the administrative record filed in this case, or in the
consideration of that record by the ABCMR or this court. Thus, even if Mr.
Johnson’s Rule 59 motion had been timely filed, it would have been denied on the
merits. Plaintiff’ s Rule 59 motion must therefore be denied both because it was
untimely and because it does not have merit.

III. Plaintiff’s Motion for Leave to File a Rule 60(b) Motion

Under RCFC 60(b), the court may relieve a party from a final judgment
when one or more specified requirements have been met. The rules further
provide that a motion for relief from a judgment under Rule 60(b) "must be made
within a reasonable time - and for [RCFC 60(b)(l)-(3)] no more than a year after
the entry of the judgment." RCFC 60(0)(1). If plaintiff files his Rule 60(b)
motion within a "reasonable time" after March 10, 2016, it will be considered by
the court. The court therefore grants plaintiff’s motion for leave to file a motion
under Rule 60(b) as long as it is filed within a reasonable time. Because plaintiff
has an appeal pending before the United States Court of Appeals for the Federal
Circuit, plaintiff should promptly file his Rule 60(b) motion.

CONCLUSION
Accordingly, it is hereby ORDERED that

(l) Plaintiff’ s "Motion for Leave to File A Motion for Reconsideration

5

under U.S. Ct. Cl. Rule 59(b)(2)," filed May 5, 2016 and deemed to
be Plaintiff’s Rule 59 M0ti0n, is DENIED; and

(2) Plaintiff’ s "Motion for Leave to Fi1e M0ti0n under U.S. Ct. Cl. Rule

60(b)(1)," filed May 5, 2016, is GRANTED for the reasons stated in
this order.

 

Senier Judge

