Brock v. United States

3Jn tbe 'Cnlniteb

N

ourt o eberal ~laitns

No. 11-176 C

(Filed June 23, 2016) FILED

UNPUBLISHED JUN 2 3 2016

*********************

F~D~R~~UCRTLAtMs

OF

PERRY L. BROCK D/B/A *

MACHINE TECHNOLOGIES, *

*

Plaintiff, * Motion for Reconsideration,

* RCFC 59; Motion for Relief from

v. * a Judgment or Order, RCFC 60.

*

THE UNITED STATES, *

*

Defendant. *

*********************

Perry L. Brock dlb/a Machine Technologies, Lynchburg, TN, prose

plaintiff.

Jimmy S. McBirney, United States Department of Justice, with whom were

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert E.

Kirschman, Jr., Director, and Allison Kidd-Miller, Assistant Director, Washington,

DC, for defendant.

OPINION

Bush, Senior Judge.

Now pending before the court is plaintiff Perry L. Brock's January 28, 2016

Motion for Reconsideration/Motion for Relief from Judgment of the court's June

7, 2012 decision granting the government's motion for partial dismissal and for

summary judgment. See Brock v. United States, No. 11-176, 2012 WL 2057036

(Fed. Cl. June 7, 2012) (Brock III). The filing of an opposition brief from the

government was required by the court; a reply brief submitted by plaintiff was

filed by leave of the court. For the reasons stated below, the court denies Mr.

Brock's motion. The court notes that a previous motion for reconsideration of the

court's dismissal of this suit was rejected on August 3, 2012. See Brock v. United

States, No. 11-176, slip op. (Fed. Cl. Aug. 3, 2012) (Brock IV).

BACKGROUND

This is the latest round in Mr. Brock's persistent legal challenges to the

government's administration of his contract with the Defense Contract

Management Agency (DCMA). Plaintiff supplied "flight control rigging sets" to

the United States Army. Brock III, 2012 WL 2057036, at* 1. His first suit before

this court related to plaintiff's government contract was dismissed for lack of

jurisdiction, in part, because Mr. Brock had not satisfied the jurisdictional

requirement of first submitting a claim to the agency's contracting officer. See

Brock v. United States, No. 09-384, slip op. at 16 (Fed. Cl. Apr. 6, 2010) (Brock I).

Mr. Brock timely filed a motion for reconsideration of that dismissal, which was

denied. See Brockv. United States, No. 09-384, 2010 WL 3199837 (Fed. Cl. July

20, 2010) (Brock II).

Mr. Brock's contract was terminated for default on March 17, 2011. Brock

III, 2012 WL 2057036, at *5. His second suit in this court was dismissed, in part,

because the government established "clear justification" for the default

termination. Id. at* 15. Mr. Brock's timely motion for reconsideration of the

dismissal of his second suit was denied in Brock IV.

About one month later, on September 17, 2012, Mr. Brock filed a related

suit in the United States District Court for the Eastern District of Tennessee. That

suit was dismissed for failure to serve eleven federal officer defendants. See

Brockv. Eleven Officers of US. Dep'tofDefense, No. 1:12-cv-308-CLC-WBC

(Nov. 25, 2013) (Brock V). About eight months later, Mr. Brock filed another

related suit in the United States District Court for the Eastern District of

Tennessee. That suit was dismissed, with prejudice, for failure to state a claim

upon which relief may be granted. See Brockv. Obama, No. 4:14-cv-50-HSM-

SKL (Nov. 23, 2015) (Brock VI) (order dismissing case). Mr. Brock's attempts to

2

obtain reconsideration or relief from judgment were denied by the district court.

Brockv. Obama, No. 4:14-cv-50-HSM-SKL (Jan. 15, 2016) (Brock VII) (order

denying reconsideration).

Approximately two weeks after the district court judge, in Brock VII, denied

Mr. Brock's motion for reconsideration or relief from judgment, plaintiff filed the

motion that is now before this court. It appears that Mr. Brock may have found

inspiration in Brock VI, the dismissal of his second suit filed in the district court,

for the filing of his current Motion for Reconsideration/Motion for Relief from

Judgment. The current motion attempts to void the dismissal, three and a half

years ago, of his second suit in this court. In Brock VI, the district court judge's

dismissal order contained the following comments:

[I]t is not clear to the Court that Plaintiffs grievance is

actually against President Obama or Attorney General

Holder; rather, it appears to the Court that Plaintiff

primarily intends to use this lawsuit as a means by which

to challenge various adverse rulings issued by other

federal courts and judges. If Plaintiff wishes to

challenge those rulings, he may request permission from

those courts and/or judges to either reopen his cases or to

file belated appeals. Plaintiff may also request recusal of

the judge or judges that he believes has committed fraud.

However, in no event does this Court have the authority

to overrule or otherwise review the decisions of other

district court judges or the Court of Federal Claims or to

grant the relief that Plaintiff has requested.

Brock VI, at 11. Indeed, Mr. Brock's pending motion attempts to re-open this

case, to belatedly "appeal" the court's judgment entered June 7, 2012, and to

disqualify (i.e., obtain recusal) of the undersigned judge. These attempts are

misguided.

Turning to the June 7, 2012 decision of this court that is the focus of

plaintiffs motion, the court reproduces here the summary it provided Mr. Brock in

2012:

3

In this case, Mr. Brock sought both monetary

damages and injunctive relief pursuant to a number of

constitutional provisions, statutes, and regulations. He

also raised several contract claims under the Contract

Disputes Act of 1978, 41 U.S.C.A. §§ 7101-7109 (West

Supp. 2011) (CDA). The court ultimately granted the

government's motion for partial dismissal and for

summary judgment. First, the court held that it did not

possess subject matter jurisdiction over most of the

constitutional, statutory and regulatory claims raised in

the complaint, as well as certain of Mr. Brock's contract

claims, and therefore dismissed those claims under Rule

12(b)( 1) of the Rules of the United States Court of

Federal Claims (RCFC). Next, the court dismissed Mr.

Brock's takings claim under RCFC 12(b)(6) for failure to

state a claim upon which relief could be granted.

Finally, the court granted summary judgment to the

government with respect to the remaining contract claims

set forth in the complaint.

Brock IV, at 2. The court also provided Mr. Brock with the standard for

reconsideration of a final judgment of this court, which was not met in 2012 and

which has not been met now, four years later. Id. at 2-3. The court noted, in

addition, that plaintiff could file an appeal of the court's judgment, id. at 4-5, but

plaintiff declined to do so.

In his pending motion, Mr. Brock states that he did not trust the "mention"

by the undersigned in Brock IV of his appeal rights, and that he could not afford an

appeal which he mistakenly characterizes as a "collateral attack" on this court's

judgment. Pl.' s Mot. at 9-10. Because plaintiff did not file a direct appeal of this

court's judgment, the relief available from this court is limited to that provided

under RCFC 59 or 60, both of which are invoked in the caption of plaintiffs

motion. Plaintiff titled his motion

Plaintiffs Rule 60( d)( 1) and 60(b )( 4),

60(b)(6) Motion for Fraud and/or Fraud on

the Court and/or Void Judgment

4

Plaintiffs Rule 59 Motion for a New Trial

Notice of a Manifest Injustice

Id. at 1 (formatted for improved clarity).

Plaintiffs Rule 59/Rule 60 motion is not organized in a manner which

assigns its numerous allegations specifically to Rule 59, Rule 60(b )(4), Rule

60(b)(6), Rule 60(b)(3) or Rule 60(d)(3). 1 It falls upon the court, therefore, to

bring some coherence to Mr. Brock's rambling critique of the dismissal of his

case. The court has attempted to discern the broad themes of plaintiffs motion,

and has analyzed these themes under the standards described below.

DISCUSSION

I. Standard of Review for RCFC 59

Pursuant to the rules of this court, a plaintiff may be granted reconsideration

of the court's disposition of a case "for any reason for which a new trial has

heretofore been granted in an action at law in federal court [or] for any reason for

which a rehearing has heretofore been granted in a suit in equity in federal court."

RCFC 59(a)(l)(A)-(B). "The decision whether to grant reconsideration lies

largely within the discretion of the [trial] court." Yuba Natural Res., Inc. v. United

States, 904 F.2d 1577, 1583 (Fed. Cir. 1990) (citations omitted). "For a movant to

prevail, he must point to a manifest error of law or mistake of fact." Pikeville Coal

Co. v. United States, 37 Fed. Cl. 304, 313 (1997) (citation omitted). The court

must be persuaded: "'(1) that an intervening change in the controlling law has

occurred; (2) that previously unavailable evidence is now available; or (3) that the

motion is necessary to prevent manifest injustice."' Griswold v. United States, 61

Fed. Cl. 458, 461 (2004) (quoting First Fed. Lincoln Bank v. United States, 60

Fed. Cl. 501, 502 (2004)). A plaintiff in this court has twenty-eight days within

which to file a motion for reconsideration. RCFC 59(b )( 1).

It is important to note that a motion for reconsideration of a final judgment

1

I Although plaintiff cites Rule 60( d)( 1), his frequent references to fraud and to fraud on

the court point to RCFC 60(b)(3) or RCFC 60(d)(3), not RCFC 60(d)(l).

5

functions not as another round of briefing in an open case, but as a request for

extraordinary relief in a matter that is now closed. See Caldwell v. United States,

391F.3d1226, 1235 (Fed. Cir. 2004) ("Motions for reconsideration must be

supported 'by a showing of extraordinary circumstances which justify relief."'

(quoting Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999),

aff'd, 250 F.3d 762 (Fed. Cir. 2000) (table))). "The purpose served is not to afford

a party dissatisfied with the result an opportunity to reargue its case." A.A.B. Joint

Venture v. United States, 77 Fed. Cl. 702, 704 (2007) (citations omitted). Thus,

RCFC 59 does not provide an occasion for a party "to raise arguments that it could

have raised previously, but did not." Browning Ferris Indus., Inc. & Subsidiaries

v. United States, No. 05-738, 2007 WL 1412087, at *1 (Fed. Cl. May 10, 2007)

(Browning Ferris) (citations omitted). "Similarly, motions for reconsideration are

not intended to allow a party to reassert arguments that the Court already has

considered." Id. (citations omitted). Absent extraordinary circumstances, a

motion for reconsideration will not be granted. See Caldwell, 391 F.3d at 1235.

II. Standard of Review for RCFC 60(b) Motions

The two specific grounds for relief identified by plaintiff under RCFC 60(b)

were 60(b )( 4) and 60(b )( 6). Pl.' s Mot. at 1. RCFC 60(b )(4) permits relief from a

judgment of this court if "the judgment is void." RCFC 60(b)(6) permits relief

from a judgment for "any other reason that justifies relief." A grant of relief under

either provision of RCFC 60(b) is within the discretion of the trial court. Sioux

Tribe of Indians v. United States, 862 F.2d 275, 279 (Fed. Cir. 1988) (citing

United States v. Atkinson, 748 F.2d 659, 660 (Fed. Cir. 1984)). It is important to

note that a motion under Rule 60(b) is not a permissible substitute for an appeal to

the United States Court of Appeals for the Federal Circuit, this court's appellate

forum. See Patton v. Sec '.Y ofDep 't ofHealth & Human Servs., 25 F .3d 1021,

1028 (Fed. Cir. 1994) (acknowledging "the settled principle that [RCFC 60(b)] is

not to be used as a substitute for an appeal" (citing Ackermann v. United States,

340 U.S. 193, 198-99 (1950))).

A. RCFC 60(b)( 4)

A judgment is not void under RCFC 60(b )(4) merely "because it may be

technically defective or erroneous in some respect." Kennedy v. Sec '.Y ofHealth &

Human Servs., 99 Fed. Cl. 535, 541 (2011) (citations omitted), aff'd, 485 F. App'x

6

435 (Fed. Cir. 2012). '"Instead, Rule 60(b)(4) applies only in the rare instance

where a judgment is premised either on a certain type of jurisdictional error or on a

violation of due process that deprives a party of notice or the opportunity to be

heard."' Id. (quoting United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260,

2 71 (2010) ). Absent jurisdictional infirmity or a violation of due process, relief

under RCFC 60(b)(4) is unavailable. Id.

B. RCFC 60(b)(6)

As for Rule 60(b)(6), the United States Supreme Court has explained that

under this rule, relief from judgment may be granted to further the interests of

justice, but only in extraordinary circumstances. Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 864 (1988) (citations omitted). As this court has

often held, "[r]elief from a final judgment pursuant to RCFC 60(b )( 6) requires a

showing of exceptional or extraordinary circumstances." Greenbrier v. United

States, 75 Fed. Cl. 637, 641 (2007) (citations omitted). To succeed under RCFC

60(b )( 6), a movant must therefore point to "rare, unusual, or extraordinary

circumstances" that justify relief from a judgment. Dean v. United States, 17 Cl.

Ct. 852, 854 (1989).

III. Standard of Review for RCFC 60(b)(3) or RCFC 60( d)(3) Motions

To obtain relief from a judgment under either RCFC 60(b)(3) ("fraud ... ,

misrepresentation, or misconduct by an opposing party") or RCFC 60( d)(3)

("fraud on the court"), the movant must first show by clear and convincing

evidence that fraud, misrepresentation or misconduct occurred. See, e.g., Madison

Servs., Inc. v. United States, 94 Fed. Cl. 501, 507 (2010) (Madison Services).

Mere "unsubstantiated innuendo and uncorroborated inferences" do not satisfy

this evidentiary standard. Id. The movant must also show that fraud or other

misconduct foreclosed a full and fair opportunity to obtain justice from the

tribunal. Dobyns v. United States, No. 08-700, 2016 WL 3211222, at *5 (Fed. Cl.

Mar. 2, 2016). Fraud on the court under RCFC 60(d)(3) requires, in addition,

proof of egregious behavior which had a direct effect on the integrity of the

court's function. Id. A motion for relief under RCFC 60(b)(3) must be brought

within one year of the entry of judgment. See RCFC 60( c)(1 ).

IV. Analysis of Plaintiff's Motion for Reconsideration

7

A. The Motion for Reconsideration Is Untimely

In Mr. Brock's motion, he urges reconsideration of the court's opinion

issued June 7, 2012. Judgment was entered that same day. Because judgment was

entered in this case on June 7, 2012, under RCFC 59(b)(1) Mr. Brock was required

to file any motion for reconsideration no later than July 5, 2012. Plaintiff filed his

pending Rule 59 motion three and a half years after that deadline, on January 28,

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 for reconsideration

now before the court is untimely and cannot be considered. Id.

B. The Motion for Reconsideration Is Without Merit

Even if Mr. Brock's Rule 59 motion had been filed within the required time

frame, the court would have denied that motion because it lacks merit. 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 Griswold, 61 Fed. Cl. at 461. 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 (2000) (citing Stelco Holding v. United States, 45 Fed. Cl. 541, 542 (2000)).

Mr. Brock does not claim that there has been an intervening change in the

law, nor does he contend that there is any new evidence that was not available at

the time of the court's prior decision. Mr. Brock must therefore demonstrate that

denial of his motion for reconsideration would result in manifest injustice. The

court is not persuaded that he has done so here.

Mr. Brock's motion contains three main themes which might address the

issue of manifest injustice. 2 First, he asserts that evidence filed in his initial case

was "ignored" by the undersigned judge when dismissing his second case before

2

I The court reserves its analysis of plaintiffs allegations of ethical violations for sections

of this opinion which address the topics of fraud and judicial disqualification.

8

this court:

The subject matter is supported by prima facie evidence

filed with the original complaint (USCFC case 09-3 84C).

It was incorporated into the instant suit by common

subject matter to the amended complaint. Judge Bush

ignored that evidence in violation of summary judgment

law and precedent.

Pl. 's Mot. at 2 (reformatted for improved clarity). This allegation of "ignored

evidence" does not excuse plaintiffs failure to supply evidence to support his

claims in this case.

The court notes at the outset that plaintiff was permitted to amend the

complaint filed in this case twice, on April 7, 2011 and August 11, 2011. He

therefore had three opportunities - on March 21, 2011 when he first filed this

action, and on April 7, 2011 and on August 11, 2011, when he amended his

complaint - to provide the court with any evidence to support his claims. The

court did not ignore evidence provided by plaintiff in this litigation - plaintiff

failed to provide the evidence. Mr. Brock now implies that crucial evidence was

contained in the closed file of a dismissed case. Plaintiff, however, made no

attempt to proffer evidence from the closed case when he opposed the

government's motion to dismiss/motion for summary judgment. Because plaintiff

could have made such a proffer of allegedly important evidence, but did not,

reconsideration is not available under an "ignored evidence" theory. 3 See

Browning Ferris, 2007 WL 1412087, at* 1 (noting that RCFC 59 does not provide

an occasion for a party "to raise arguments that it could have raised previously, but

did not").

The next theme that emerges from plaintiffs motion is that the undersigned

judge should have accorded all of plaintiffs pleadings and briefs the status of

affidavits: "Rule 11 and common sense define all prose litigant filings in federal

courts to be affidavits regardless of form." Pl. 's Mot. at 4. Plaintiff cites no

3

/ The same argument for reconsideration was rejected in Brock IV.

9

authority for this proposition. 4 Again, this argument could have been made at the

time plaintiff was resisting summary judgment and the dismissal of his suit.

Therefore, Mr. Brock's suggestion that the court should have considered his

filings to carry the weight of affidavits provides no justification for

reconsideration of the court's June 7, 2012judgment. 5

Third, plaintiff recounts the difficulties he has encountered both in the

prosecution of this case and as a result of his terminated government contract.

Pl. 's Mot. at 6-8. Difficult economic circumstances are not enough, however, to

obtain reconsideration of the outcome of a lawsuit filed in this court. "For a

movant to prevail, he must point to a manifest error of law or mistake of fact."

Pikeville Coal, 37 Fed. Cl. at 313. Nothing in plaintiffs motion persuades this

court that its June 7, 2012 opinion was incorrect as a matter of fact or law.

Because plaintiff has not shown that the judgment entered in this case constituted

a manifest injustice, his motion for reconsideration, even if it had been timely

filed, i.e., before July 5, 2012, would have been denied.

V. Analysis of Plaintiff's Motion for Relief from Judgment

A. RCFC 60(b )(4)

Mr. Brock's Rule 60(b) motion appears to allege that the undersigned judge

committed legal error when dismissing his case. See Pl.'s Mot. at 2 ("Judge Bush

ignored that evidence [filed with the complaint in Case No. 09-384] in violation of

summary judgment law and precedent."), 9 (stating that the "USCFC judge

willfully defie[ d] standing law and their own pertinent precedents"). Plaintiffs

motion, it seems, posits that the judgment entered June 7, 2012 is void under

RCFC 60(b )( 4) because it was incorrect. As noted above, however, judicial error

is not sufficient to render a judgment void or to obtain relief under

4

/ The court has found no indication that this is a correct statement of the law.

5

I As this court held in Brock III and Brock IV, plaintiffs assertions in his second

amended complaint and brief opposing summary judgment were insufficient to resist summary

judgment in favor of the government. The court correctly determined that plaintiff had failed to

create any genuine issue of material fact in support of his contract claims.

10

RCFC 60(b)(4). 6 Kennedy, 99 Fed. Cl. at 541.

Mr. Brock does not contend that this court lacked jurisdiction to enter

judgment for the government in this case. The only possible avenue for relief

under RCFC 60(b )( 4), therefore, is that plaintiff was deprived of due process in

this case. Mr. Brock makes that allegation, Pl. 's Mot. at 5, but the court cannot

agree.

Both Brock Ill and Brock IV demonstrate that the court made every effort to

examine plaintiffs legal arguments and factual allegations and to provide him

every opportunity to defend against the government's dispositive motion.

Plaintiffs due process argument rests on an assumption that the court was required

to find and rely upon evidence that was never filed in this case. See Pl.' s Mot. at 5

("[I]ntentionally ignored prima facie evidence and the judge's knowledge of

denied FOIA requests ... proves that there was no due process .... "). The court

is unaware of any due process requirement that obligates a judge to search through

closed case files in order to decide a dispositive motion filed in a subsequent,

related case. Because the court finds no jurisdictional infirmity or due process

violation in the judgment entered June 7, 2012, no relief under RCFC 60(b )( 4) is

available to plaintiff.

B. RCFC 60(b)(6)

The court has sifted through Mr. Brock's contentions in his motion

searching for extraordinary or rare circumstances that would justify relief from

judgment. Plaintiff complains that he has been shuttled from federal court to

federal court without obtaining satisfaction. Pl.' s Mot. at 5-7. Plaintiff also notes

that he has been diligent in prosecuting his claims, despite the disadvantage of

proceedingpro se. Id. at 6-7. In his reply brief, Mr. Brock further alleges, without

any substantiation, that the government has lost or hidden evidence and has failed

to investigate the factual circumstances of his claims. Plaintiff provides no

evidence that rare or unusual circumstances impaired Mr. Brock's ability to obtain

justice from this court.

6

/ The court sees no judicial error in the judgment entered June 7, 2012, in any case.

11

The court concludes that plaintiff's claims were not rejected because of rare

or extraordinary circumstances. As this court held in Brock Ill and Brock IV, the

government was entitled to summary judgment because it had established a clear

justification for the termination of Mr. Brock's contract for default, and all of Mr.

Brock's other claims were necessarily dismissed for lack of jurisdiction or failure

to state a claim upon which relief could be granted. On this record, no relief is

available under RCFC 60(b )( 6) for plaintiff.

C. RCFC 60(b )(3) and RCFC 60(d)(3)

Plaintiff's motion and reply brief rely upon numerous unsubstantiated

allegations of fraud, and other ethical violations, perpetrated by government

attorneys or agency officials. These allegations include: the filing of fraudulent

affidavits; fraudulent promises of success if plaintiff filed suit in a different court;

unethical "[j]urisdictional ping pong"; agency deceit and corruption; "fraudulent

contentions" in government briefs; misrepresentation of fact; lies; and,

wrongdoing. Pl.'s Mot. at 2-3, 5-7, 9; Pl.'s Reply at 1-4. However, as the court

noted above, unsubstantiated accusations of fraud or other misconduct committed

by counsel and agency officials are not enough to obtain relief from judgment

under RCFC 60(b )(3 ). Mr. Brock has not shown any fraud or misconduct by the

government which entitles him to relief from judgment. The court notes, too, that

relief from judgment pursuant to RCFC 60(b)(3) is unavailable to plaintiff because

his pending motion was not filed within one year of June 7, 2012. See RCFC

60(c)(l).

As for RCFC 60( d)(3), Mr. Brock levels a series of attacks against the

integrity of this court. In his motion, plaintiff suggests that the undersigned judge

ignored evidence because that evidence conflicted with "a predetermined

[Department of Justice]-initiated outcome of partial summary judgment against the

plaintiff." Pl.'s Mot. at 2. Plaintiff also accuses the undersigned of participating

in unethical jurisdictional "ping pong" with the district court judges. Id. at 7.

Further, according to Mr. Brock, the undersigned did not act impartially in this

case and willfully caused him harm. Id. at 10.

These attacks on the integrity of this court are unsubstantiated and are

patently false. The undersigned judge's rulings in this case were impartial and not

at all "predetermined." The limits on this court's jurisdiction and the district

12

court's jurisdiction are imposed by Congress, not by the whim or bad faith of

individual judges. Because there has been no fraud or other unethical behavior by

this court, relief from judgment is not available to Mr. Brock under RCFC

60(d)(3).

VI. Disqualification of the Undersigned Judge

Finally, the court turns to Mr. Brock's request that the undersigned judge

recuse herself from this case. Plaintiff relies on 28 U.S.C. § 455 (2012), the

appropriate statute for the disqualification of judges of this court. 7 Pl.' s Mot. at

10. In essence, Mr. Brock appears to allege that the undersigned judge is biased

and prejudiced against him, or at the very least, lacks impartiality. Id.; see Pl.'s

Reply at 1 (characterizing the government's response brief as an "attempt to

pander favor from a federal judge and an attempt to exploit the obvious legal

tension between the plaintiff and the same presiding judge that has chosen not to

recuse herself under the present circumstances").

The controlling statute states, in pertinent part:

(a) Any justice, judge, or magistrate judge of the United

States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following

circumstances:

( 1) Where he has a personal bias or prejudice

concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding;

28 U.S.C. § 455(a)-(b). According to the binding precedent of the United States

7

Plaintiffs reliance, in the alternative, on 28 U.S.C. § 144 (2012) is misplaced, because

/

that statute applies to district court judges, not to judges of this court. See, e.g., Flowers v.

United States, No. 05-1163, 2008 WL 1990854, at *2 (Fed. Cl. Jan. 29, 2008) (citingAddams-

More v. United States, 79 Fed. Cl. 578, 579 n.l (2007)), aff'd, 321 F. App'x 928 (Fed. Cir.

2008).

13

Supreme Court, deep-seated favoritism or antagonism is required for a successful

bias or partiality motion under the federal judicial recusal statute:

First, judicial rulings alone almost never constitute a

valid basis for a bias or partiality motion. . . . Second,

opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the

current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion unless

they display a deep-seated favoritism or antagonism that

would make fair judgment impossible. Thus, judicial

remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties,

or their cases, ordinarily do not support a bias or

partiality challenge.

Liteky v. United States, 510 U.S. 540, 555-56 (1994) (emphasis added). The

Federal Circuit, in Charron v. United States, 200 F.3d 785 (Fed. Cir. 1999), also

adopted this statement of the law on judicial disqualification provided in Rosen v.

Sugarman, 357 F.2d 794, 798 (2d Cir. 1966):

A judge is not to be faulted as biased or prejudiced

because he has considered that the effective discharge of

his responsibility over proceedings before him ... has

demanded the consistent rejection of an attorney's

contentions or strong measures to prevent what he

regards as inexcusable waste of time.

Charron, 200 F.3d at 789 (alteration in original).

Thus, the fact that a judge has been obliged to repeatedly rule against a

party, or that a judge has required a clarification of a party's claims so that

litigation may proceed efficiently, is not an indication that the judge is biased,

prejudiced or partial. Here, this court's rulings and case management orders have

been fair and impartial. Nothing in the record of this case, or in the record of

plaintiff's previous case before this court, demonstrates bias or an appearance of

bias on the part of the undersigned. For this reason, disqualification pursuant to

14

28 U.S.C. § 455 is not appropriate.

CONCLUSION

For the foregoing reasons, the court holds that plaintiff's motion, filed three

and a half years after judgment was entered in this case, provides no basis for

reconsideration or relief from judgment. Accordingly, it is hereby ORDERED

that

( 1) Plaintiff's Motion for Reconsideration/Motion for Relief from

Judgment, filed January 28, 2016, is DENIED; and

(2) The Clerk's Office is directed to RETURN all further submissions

from plaintiff, other than a Notice of Appeal, to plaintiff UNFILED.

15