Johnson v. United States

NAL

In the United States Court of Federal Claims

No. 14-1236 C

FlLED

(Filed May l2, 2016) MAY 1 2 2015

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FEDERAL CLA\MS

ANTONIO JOHNSON, *

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Pro Se Plaintiff, * RCFC 59(b)(l); Untimely Motion for

* Reconsideration; Re-Arguing

v. * Position Previously Rejected by the

* Court.

THE UNITED STATES, *

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Defendant. *

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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