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No. 13-502C

(Filed: March 13,2015) FILED

(NOT TO BE PUBLISHED) MAR 13 2015

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FEDERALCNJM

THOMAS A. CRAWFORD,

Plaintiff,

UNITED STATES,

Defendant.

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Thomas A. Crawf,ord, pro se, Franklin, Massachusetts.

Michael D. Snyder, Trial Attomey, Commercial Litigation Branch, Civil Division,

United States Department of Justice, Washinglon, D.C., for defendant. With him on the brief

were Joyce R. Branda, Acting Assistant Attomey General, Civil Division, Robert E. Kirschman,

Jr., Director, and steven J. Gillingham, Assistant Director, commercial Litigation Branch, civil

Division, United States Departrnent of Justice, Washington, D.C.

OPINION AND ORDER

LETTOW, Judge.

A judgment was entered in this case on December 11, 2013, dismissing plaintiff s

military-pay complaint for failure to prosecute. The case was initially filed in the United States

Districi Court for the District of Massachusetts, but was transferred to this court and docketed on

July 23, 2013. Plaintiff was represented by counsel in the district court, but that counsel did not

appear in this court. Now, plaintiff has filed a motion styled "Motion to Remove Dismissal"

judgment

1;fl.'s Mot."), ECF No. 7. The court has treated that motion as one for relief from

pursuant to Rule 60(b) of the Rules of the Court of Federal Claims ('RCFC'). That motion was

filed on Decemb er 30;,2014. The court requested that defendant respond to plaintiff s motion for

relief from judgment on or before March 3, 2015, and it has done so. See Def.'s Resp. to Pl.'s

Mot. for Relief from Judgment ("Def.'s Opp'n"), ECF No. 10.

BACKGROUND

In his complaint filed in district court, Mr. Crawford states that he served as a Marine for

over 20 years, first as an enlisted man, then as a warrant officer, and then as a limited duty

officer. bist. Ct. Compl. fl 1. On June 23, 1997, Mr. Crat{ord (then Captain Crawford) was

tried by court-martial and found guilty of larceny. Dist. Ct. Compl.']l 8. He was sentenced to

confinement for ten years and completed that term. Id. During and after his incarceration, he

brought a number of claims before the Board for Conection ofNaval Records and the Secretary

of the Navy, seeking military retirement benefits. Dist. Ct. Compl. flfl 25-36.

on August 12,2012, he filed complaint in the united states District court for the

a

District of Maisachusetts, which ordered the case transferred to this court on May 13,2013.

After transfer, when Mr. crawford's counsel did not appear in this court to represent him, the

court issued an order on November 7, 2013, directing plaintiffto show cause why the case

should not be dismissed in accord with RcFc 41(b) for failure to prosecute. order ofNov. 7,

2013, ECF No. 4. When no response to that order was submitted, an order of dismissal was

entered on December 11, 2013, ECF No. 5, and judgment was entered the same day, ECF No. 6.

In Mr. Crawford's motion for relief from judgment, he indicates that he now wishes to

appear pro se to represent himself. Pl.'s Mot. at 1 The govemment opposes this request on the

ground that Mr. Cra*ford has not shown cause for relief from judgment under RCFC 60(b).

Def.'s Opp'n at 4-5.

STANDARD FOR DECISION

RCFC 60(b) provides for relief from final judgment in certain circumstances:

On motion and just terms, the cowt 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 justifres 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 gtounds must be made wilhin_ a

l'reasonable time.' RCFC 60(cX1); see Mendez v United States, Fed' Appx' 2015 wL

- -,

106585 (Fed. Cir. Jan.8,2015). 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 couri's discretion. See 12 Moore's Federal Practice, $60-22[1]; see also Mendez, Fed.

Appx. at _, 2015 WL 106585, at *2; Osage Tribe of Indians of oklahoma v. united -

States,97

nid. cr. l+s, 348 (201 1) (citing Yuba Natural Res., Inc. v. United States,904 F .2d 1577 1583

'

(Fed. Cir. 1990)).

ANALYSIS

RCFC 60(bX1) is not available to Mr. Crawlord because he filed his motion more than a

year after the entry ofjudgment, and Mr. Crawford in his motion did not specify any grounds

falling within RCFC 60(bX2)-(5). Thus, the motion may only be considered under RCFC

60(bx6), which authorizes courts to grant relief from final judgments for "other reason[s]."

RCFC 60(bX6) is typically refened to as a "catch-all" provision, allowing courts to

exercise their discretion to do justice in particular cases. see Infiniti Info. Solutions, LLC v.

United States,93 Fed. Cl. 699,704 (2010) (citing Compton v. Alton S.S. Co , 608 F 2d96' 106

(4th cir. 1979)). Nonetheless, courts are limited in their ability to grant motions under this

portion of the Rule. To qualify for relie{ "( 1) the grounds asserted for relief must not be the

same as those listed in Rule 60(bxl)-(5), and (2) there must be a valid reason that justifies

affording the relief, usually broadly described as 'extraordinary circumstances. "' Id, (citing

Fiskars, Inc. v. Hunt Mfg. Co.,279 F.3d 1378, 1382 (Fed. Cir. 2002)). Mr' Crawford's motion

survives the mutual exclusivity requirement of Rule 60(b)(6), so the question becomes whether

he has presented evidence of extraordinary circumstances to justif, reliel

To satisfu the ,,extraordinary circumstances" requirement, movants typically must show

that they were prevented from filing for reconsideration or taking an appeal through no fault of

their own. See Mendez, Fed. Appx. at WL 106585, at *2 ("[E]xtraordinary

-

circumstances exist ifa person can demonstrate-,2015that he was not at fault for his predicament.")

(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,507 U.S. 380,393 (1993) ("To

justifu reliefunder [Rule 60(bx6)], a party must show 'extraordinary circumstances' suggesting

that the party is faultless in the delay.")); 12 Moore's Federal Practice, $ 60.48[3][b]. The

Supreme Court has described such circumstances as "the difference between no choice and

choice; imprisonment and freedom of action; no trial and trial; no counsel and counsel; no

chance for negligence and inexcusable negligence." Ackerman v. united states,340 u.s. 193,

,:i95U. Relief is reserved for those who have been unable to proceed with appeals or

202

motions under RCFC 59 for reasons beyond iheir control. Infiniti Info. Solutions,93 Fed. Cl. at

706 (citingBank ofAm., FSB tt. (Jnited States,70 Fed' C1.246'253 n'8 (2006)). Generally

speaking, parties may not use Rule 60(bxb) as a "do-over" for failing or neglecting to raise

particular issues in their initial motions or on appeals. See id. at706; see also Matthews v.

United States,73 Fed. Cl. 524, 525 (2006) ("A motion for reconsideration is not intended . . . to

give an unhappy litigant an additional chance to sway the court.") (intemal citations and

quotations omitted).

Mr. Crawford has not shown that he was without fault in allowing his transfened

complaint to be dismissed for failure to prosecute. The court took care to issue an order to show

cause, alerting Mr. crawford that action had to be taken to avoid dismissal, yet nothing was

done. Now, in coming forward with the averment that he wishes to plosecute his casepro se,

Mr. Crawford is too l;te. That step should have been taken in November or December 2013 in

resDonse to the order to show cause'

CONCLUSION

Plainti{f s motion for relief from judgment, ECF No. 7, is DENIED.

It is so ORDERED.

Charles F. Lettow

Judge