Cowhig v. Chief of
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Bluebook
Cowhig v. Chief of, (1st Cir. 1992).
Opinion
USCA1 Opinion
December 7, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1440
EDWARD D. COWHIG,
Plaintiff Appellant,
v.
CHIEF OF CHAPLAINS, U.S. ARMY, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
___________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
___________________
Edward D. Cowhig on brief pro se.
________________
A. John Pappalardo, United States Attorney, and Annette
___________________ _______
Forde, Assistant U.S. Attorney, on brief for appellees.
_____
__________________
__________________
Per Curiam. Plaintiff-appellant Edward Cowhig filed an
__________
action in the District Court for the District of
Massachusetts on May 16, 1990, claiming that the
circumstances surrounding his discharge in January 1962 from
his position as a chaplain in the U.S. Army violated the
Racketeer Influenced and Corrupt Organizations Act ("RICO"),
18 U.S.C. 1961-68. Before bringing that action Cowhig
already had unsuccessfully challenged his discharge from the
Army and sought reinstatement on numerous occasions. See,
___
e.g., Cowhig v. Secretary of the Army, slip op., No. 88-1012
____ ______ _____________________
(1st Cir. 10/11/88); Cowhig v. Marsh, 693 F.2d 234 (1st Cir.
______ _____
1982), cert. denied, 460 U.S. 1092 (1983). The district
____________
court dismissed Cowhig's action on April 25, 1991, on grounds
of res judicata, collateral estoppel, and the statute of
limitations. The district court entered judgment for
defendants on July 2, 1991. This court affirmed. Cowhig v.
______
Chief of Chaplains, slip op., No. 91-2027 (1st Cir. 3/27/92).
__________________
While the appeal in Cowhig's case was pending, Cowhig
filed a Fed. R. Civ. P. 60(b) motion in the district court
requesting that the district court reconsider its judgment on
the grounds of newly discovered evidence. The district court
summarily denied Cowhig's motion. Cowhig appeals. We
affirm.
The rule based on which Cowhig sought reconsideration of
the judgment, Rule 60(b), provides as follows:
-2-
"On motion and upon such terms as are
just, the court may relieve a party or a
party's legal representative from a final
judgment, order, or proceeding for the
following reasons: ... (2) newly
discovered evidence which by due
diligence could not have been discovered
in time to move for a new trial under
Rule 59(b)."
This court will disturb a district court's denial of a Rule
60(b) motion only upon a finding that the district court
abused its discretion in denying the motion. Rodriguez-
__________
Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.
______ __________________________
1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir.
__________ _____________
1988).
The putative "newly discovered" evidence offered by
Cowhig in support of his Rule 60(b)(2) motion consisted of
the following four items: (1) August 1991 letters of Lt.
Col. Thomas Kelly discussing typhoon weather conditions and
paratroop operations on Okinawa in 1961; (2) October 1991
and March 1985 letters of Dr. George Roark diagnosing
Cowhig's medical condition on Okinawa in 1961-62, in part
reviewing Dr. Roark's 1983 testimony on the same subject
before the Army Board for the Correction of Military Records;
(3) an October 1991 letter from Dr. John Day diagnosing
Cowhig's medical condition in the early 1960's; and (4) a
January 1986 letter from Dr. William Rohde doing the same.
None of these items of evidence meet the Rule 60(b)(2)
requirement that the evidence could not have been discovered
-3-
in time for a Rule 59 motion, i.e., by July 1991. Dr.
Rohde's January 1986 letter and Dr. Roark's March 1985 letter
were in existence before that time and obviously do not
constitute newly discovered evidence. Lt. Col. Kelly's
letter concerning conditions in Okinawa in 1961 sets forth
information that should have been available to Cowhig at any
time between his January 1962 discharge and July 1991.
Finally, the October 1991 medical diagnoses of Dr. Roark and
Dr. Day could have been obtained, in the exercise of due
diligence, by July 1991. Thus, Cowhig in fact presented no
newly discovered evidence at all.
Even were it otherwise, "it is the invariable rule, and
thus, the rule in this circuit, that a litigant, as a
precondition to relief under Rule 60(b), must give the trial
court reason to believe that vacating the judgment will not
be an empty exercise." Teamsters, Chauffeurs, Warehousemen
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Related
Edward D. Cowhig v. John O. Marsh, Secretary of the Army
693 F.2d 234 (First Circuit, 1982)
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Migda Rodriguez-Antuna v. Chase Manhattan Bank Corporation
871 F.2d 1 (First Circuit, 1989)
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