Alexander

192 Ct. Cl. 951, 1970 U.S. Ct. Cl. LEXIS 161, 1970 WL 3606

• Court: United States Court of Claims
• Decided: May 1, 1970
• Docket: No. 392-69
• Status: Published

Opinion

Civilian fay; dismissal; res judicata. — On January 20, 1960, 148 Ct. Cl. 24 (Case No. 295-58), the court dismissed plaintiff’s petition to recover back pay lost through an allegedly wrongful dismissal from his position in the Foreign Service. The present case comes before the court on defendant’s motion for summary judgment. Upon consideration thereof, together with plaintiff’s reply in opposition thereto, without oral argument, the court concluded that plaintiff is seeking to reopen the case decided earlier, that his allegations of newly discovered evidence and fraud are without merit, and that defendant is correct in its position that plaintiff’s claim is both untimely and barred by res judicata. An application under Rule 152(b) for relief from judgment or order is untimely under that rule’s own terms, except insofar as fraud on the court is adequately alleged, and plaintiff has not even raised a triable issue of fraud on the court. Treated as a new cause of action, the claim is clearly barred by limitations. On the merits, the current claim is, in any event, barred by res judicata since plaintiff raises the same issues and points which he raised in the earlier case and presents no newly discovered evidence in the sense of Ride 152. On May 1, 1970 the court granted defendant’s motion and dismissed the petition. Plaintiff’s motion to rehear was denied July 15,1970.