Hymas v. United States

• Court: United States Court of Federal Claims
• Decided: February 7, 2019
• Docket: 18-831
• Status: Published

Opinion

In the United States Court of Federal Claims

>l<*>l=>l=>l=>l<*>t=>l<>l<>l<>l<>l<>l=>l=>l<=l¢>l<=l<>l= >l< JAY HYNlAS, dlbla DOSNIEN FARMS, * Piaintiff, °“ * No. 18-831C v. * Filed: February 7, 2019 >l< UN|TED STATES, * Defendant. : >l<>l=>l=>l<>l<>l==l=>l<>l<>l<>l<>l<>l<>l<>l<>l<=l<>l<>l<* 0 R D E R

The court is in receipt of plaintiff’s January 10, 2019 “i\/lOTlON TO RECONS|DER AND VACATE JUDGl\/lENT,” Which the Clerk’s Office filed as a motion for reconsideration pursuant to Rule 59(a) (2018) of the Rules of the United States Court of Federa| Claims (RCFC). (capita|ization in origina|). |n plaintiff’s January 10, 2019 motion, plaintiff asserts:

Plaintiff mailed a Complaint in this matter in June of 2018 to this court. Plaintiff has not received any communication from the court Whatsoever Whetherwritten, verbal or othen/vise until Dec. 29, 2018[1] When he received this court’s Judgment. Never at any time has P|aintiff received any documentation or other communication from the Defendant or counsel for the Defendant. Plaintiff has not had any status conferences, any hearings Whatsoever, Plaintiff’s due process rights have been violated. P|aintiff is completely unaware of What if anything has happened regarding this case since he mailed his Complaint. P|aintiff has never received a copy of Defendant’s l\/lotion to Dismiss or any other document Whatsoever.

The court has contacted the Clerk’s Office of the United States Court of Federal Claims, Which mails out copies of communications from the court to the parties, regarding plaintiff’s allegation that plaintiff has not received any “communication from the court Whatsoever.” The Clerk’s Office indicated that plaintiff Was sent a copy of the notice of assignment to the undersigned and a copy of the notice of the above-captioned case, as a QQ §§ case, being designated as a non-electronic (ECF) case. l\/|oreover, in defendants notice of appearance, defendant provided a certificate of service stating that a copy of defendant’s notice of appearance Was mailed to plaintiff on Ju|y 16, 2018. As part of

1 As discussed be|oW, the court issued an Opinion dismissing plaintiffs complaint in the above-captioned case on December 17, 2018, and the Clerk’s Office of the United States Court of Federa| Claims indicated it mailed a copy of the court’s Gpinion to plaintiff at the address on file for plaintiff on December17, 2018. See vaas v, United States, 141 Fed. Cl. 144, 161 (2018).

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defendant’s motion to dismiss, defendant provided a certificate of service attesting that a copy of defendant’s motion to dismiss and appendix was mailed to plaintiff on August 10, 2018. Both of defendant’s certificates of service include the mailing address provided by plaintiff in plaintiffs complaint and listed on the docket in the above-captioned case, as well as the address listed in plaintiffs January 10, 2019 motion for reconsideration Copies of the filings in the above-captioned case, therefore, appear to have been sent to plaintiff at the address provided by plaintiff. l\/loreover, by virtue of filing the plaintiffs motion for reconsideration, it appears that plaintiff received a copy of the court’s December 17, 2018 Opinion dismissing the above-captioned case. Regardless, however, as discussed below, the court lacks jurisdiction over the claims raised in plaintiffs complaint in Case No. 18-831C.

ln the above-captioned case, plaintiff filed a brief, two-page, double-spaced complaint, as well as an Appiication to Proceed l_n Forma Pauperis. Plaintiffs complaint challenged how the United States Fish and Wildlife Service “has been and is” awarding cooperative agreements involving farming. ln plaintiffs complaint, however, plaintiff failed to specifically identify an award of a cooperative agricultural agreement which plaintiffs complaint was challenging Subsequently, defendant filed a motion to dismiss plaintiffs complaint pursuant to RCFC 12(b)(1) (2018). Plaintiff did not file a response to defendant’s motion to dismissl although defendant’s certificate of service attached to the version of defendant’s motion to dismiss indicates a copy of defendant’s motion to dismiss was sent to the same address in plaintiffs complaint and as is on file for the plaintiff with the court. l\/|oreover, RCFC 83.1(a)(3) (2018) states that the “terms counsel, attorney, and attorney of record include such individuals appearing @ s_e_.” RCFC 83.1(a)(3). The rule at RCFC 83.1(b)(5) states that an “attorney” must provide the Clerk of the Court with timely notice of a change of address. RCFC 83.1(b)(5).

On December 17, 2018, the court issued an Opinion granting defendant’s motion to dismiss in the above-captioned case. See vaas v. United States, 141 Fed. Cl. at 161. Regarding plaintiffs Application to Proceed |_n_ Forma Pauperis in the above-captioned case, in the court’s December 17, 2018 Opinion, the court stated:

Despite having a “professional contract” valued at approximately $120,000.00, the court notes that plaintiff asserted in his Application to Proceed |_n Forma Pauperis that plaintiff only had approximately $12,200.00 in assets approximately two months after plaintiffs “professional contract” ended without indicating whether any money from the contract for $120,000.00 was remaining. Plaintiff’s financial posture, therefore, is somewhat unclear. Plaintiff’s Application to Proceed |_n Forma Pauperis, however, is moot, because, as discussed below, plaintiffs complaint is dismissed

_l_d_. at 157. Regarding defendant’s motion to dismiss, the court stated:

ln the above-captioned case, plaintiffs complaint in this court and [plaintiff’s] opening brief in the [United States Court of Appeals for the] Ninth Circuit [in

vaas v. United States Department of lnterior, Case No. 18-35488 (9th Cir. June 1, 2018)] both arise out of the Fish and Wildlife Service’s award of cooperative agreements for farming; both contend that the Fish and Wildlife Service’s past and current process for awarding cooperative agreements involving farming violate federal contracting law; both assert that the Fish and Wildlife Service’s program for awarding cooperative agreements is a “black-operation” that the Fish and Wildlife Service operates outside of federal law; both question the validity of the forms used by the Fish and Wildlife Service when awarding cooperative agreements; and both argue that there is no government oversight of the Fish and Wildlife Service’s award of cooperative agreements The factual allegations in plaintiffs complaint in this court and plaintiffs opening brief in the Ninth Circuit center on the Fish and Wildlife Service’s award of cooperative agreements involving farming and the method by which the Fish and Wildlife Service awards cooperative agreements involving farming. The court finds that plaintiffs complaint in this court and appeal in the Ninth Circuit are based on substantially the same operative facts. See iowa Tribe of Kan. & Neb. v. United States, 101 Fed. Cl. 481, 484 (2011) (“Plaintiff is seeking redress for injuries arising from the same transaction or occurrence: the Government’s ongoing mismanagement of the Tribe’s trust assets. Therefore, the Court finds that this suit is based on substantially same operative facts as Plaintiffs District Court suit.”). Because plaintiffs appeal in the Ninth Circuit was pending when plaintiff filed the complaint in the above-captioned case and the two cases involve substantially the same operative facts, the statute at 28 U.S.C. § 1500 [(2012)] precludes this court from exercising jurisdiction over plaintiffs complaint in this court.

vaas v. United States, 141 Fed. Cl. at 160-61. The court granted defendant’s motion to dismiss and dismissed plaintiffs complaint based on 28 U.S.C. § 1500. |_d_, at 161. On December17, 2018, the Clerk’s Office issued judgment dismissing the case in the above- captioned case in favor of defendant

|n plaintiffs ten-page January 10, 2019 motion, longer than plaintiffs complaint, plaintiff argues that 28 U.S.C. § 1500 does not preclude this court from exercising jurisdiction over plaintiffs complaint because plaintiffs complaint in the above-captioned case “is clear that it is addressing farming contracts/cooperative agreements entered into ‘since 2015”’ and does not involve the cooperative agreements at issue in plaintiffs appeal before the United States Court of Appeals for the Ninth Circuit.

Reconsideration of a judgment is not intended to permit a party to retry the allegations included in plaintiffs complaint when it previously was afforded a full and fair opportunity to do so. The United States Court of Appea|s for the Federal Circuit has stated that it “reviews the trial court’s decision on reconsideration for an abuse of discretion.” Enterqv Nuclear FitzPatrick, LLC v. United States, 711 F.3d 1382, 1386 (Fed. Cir. 2013) (citing Yuba Nat. Res., lnc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir.) (noting that “[t]he decision whether to grant reconsideration lies largely within the discretion of the

[trial] court”), regg denied (Fed. Cir. 1990)); see also Carter v. United States, 207 Ct. Cl. 316, 318, 518 F.2d 1199, 1199 (1975), cert_. denied, 423 U.S. 1076, @_h_’g denied, 424 U.S. 950 (1976); CanPro lnvs. Ltd. v. United States, 131 Fed. Cl. 528, 531 (2017); Osage Tribe of indians of Okla. v. United States, 97 Fed. Cl. 345, 348 (2011) (discussing RCFC 59(a) and RCFC 60(b)); Oenqa v. United States, 97 Fed. Cl. 80, 83 (2011) (discussing RCFC 59(a)); VVebsterv. United States, 92 Fed. Cl. 321, 324, recons. denied, 93 Fed. Cl. 676 (2010) (discussing RCFC 60(b)); Alpha l, l_.P. ex rel. Sands v. United States, 86 Fed. Cl. 126, 129 (2009) (discussing RCFC 54(b) and 59(a)); Banks v. United States, 84 Fed. Cl. 288, 291-92 (2008) (discussing RCFC 54(b) and 59(a)); Corriqan v. United States, 70 Fed. Cl. 665, 667-68 (2006) (discussing RCFC 59(a)); Tritek Techs., |nc. v. United States, 63 Fed. Cl. 740, 752 (2005); Keeton Corr., |nc. v. United States, 60 Fed. Cl. 251, 253 (2004) (discussing RCFC 59(a)); Paalan v. United States, 58 Fed. Cl. 99, 105 (2003), aj’_d, 120 F. App’x 817 (Fed. Cir.), ge_r_t_. denied, 546 U.S. 844 (2005); Citizens Fed. Bankx FSB v. United Statesl 53 Fed. Cl. 793, 794 (2002) (discussing RCFC 59(a)).

“l\/lotions for reconsideration must be supported ‘by a showing of extraordinary circumstances which justify relief.’” Caldwe|l v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004) (quoting Fru-Con Constr. Corp. v. United States, 44 Fed. Cl, 298, 300 (1999)) (discussing RCFC 59(a)), re_h_’g en banc denied (Fed. Cir.), g_e_rL denied, 546 U.S. 826 (2005); see also Fiskars, |nc. v. Hunt l\/lfq. Co., 279 F.3d 1378, 1382 (Fed. Cir. 2002) (“Rule 60(b)(6) is available only in extraordinary circumstances and only when the basis for relief does not fall within any of the other subsections of Rule 60(b)." (citing l\/larguip, lnc. v. Fosber Am., |nc., 198 F.3d 1363, 1370 (Fed. Cir. 1999), _r_e_h_’g denied (Fed. Cir. 2000); Provident Sav. Bank v. Popovich, 71 F.3d 696, 700 (7th Cir. 1995))); Oenga v. United States, 97 Fed. Cl. at 83; Seldovia Native Ass’n lnc. v. United States, 36 Fed. Cl. 593, 594 (1996) (discussing RCFC 59(a)), _aj’§l_, 144 F.3d 769 (Fed. Cir. 1998). Generally, “[t]he cases seem to make [a] fault/no fault distinction the controlling factor in determining whether extraordinary circumstances will be found or not. ln a vast majority of cases finding that extraordinary circumstances do exist so as to justify relief, the movant is completely without fault . . . 12 Joseph T. l\/chaughlin and Thomas D. Rowe, Jr., l\/loore’s Federal Practice § 60.48[3][b] (3rd ed. 2008) (discussing RCFC 60(b)(6)); _s_ee also Amado v. l\/|icrosoft Corp., 517 F.3d 1353, 1363 (2008) (citing Pioneer lnv. Servs. Co. v. Brunswick Assoc. Ltd. l:”shipl 507 U.S. 380, 393 (1993)) (discussing RCFC

60(b)(6)).

Courts must address reconsideration motions with “exceptional care.” Carter v. United States, 207 Ct. Cl. at 318, 518 F.2d at 1199; see also Global Comput. Enters. v. United States, 88 Fed. Cl. 466, 468 (2009) (discussing RCFC 59(a)). “The three primary grounds that justify reconsideration are: ‘(1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.”’ Del. Vallev Floral Grp., lnc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010); see also Griffin v. United States, 96 Fed. Cl. 1, 7 (2010) (discussing RCFC 59(a)), mot. to_ amend denied, appeal dismissed, 454 F. App’x 899 (Fed. Cir. 2011); Totolo/Kinq JointVenture v. United States, 89 Fed. Cl. 442, 444 (2009) (quoting Stockton E. Water Dist. v. United States, 76 Fed. Cl. 497, 499 (2007), affd i_n part, vacated i_n part, rev’d i_r_i part Q_n other qrounds, 583 F.3d 1344 (Fed. Cir. 2009)) (discussing RCFC 59(a)),

appeal dismissed, 431 F. App’x 895 (Fed. Cir.), reh_’g denied (2011); Dai[yland Power Coop. v. United States, 90 Fed. Cl. 615, 652 (2009) (discussing RCFC 59(a)), recons. denied, No. 04-106C, 2010 WL 637793 (Fed. Cl. Feb. 22, 2010), a_ffd i_n pa_r_t, vacated i_r_i part 93 other qrounds, 645 F.3d 1363 (Fed. Cir. 2011); l\/latthews v. United States, 73 Fed. Cl. 524, 526 (2006) (citations omitted) (discussing RCFC 59); Prati v. United States, 82 Fed. Cl. 373, 376 (2008) (discussing RCFC 59(a)), §_ff’_c_l, 603 F.3d 1301 (Fed. Cir.), reh_’g _e_n _b_a_n_c denied (2010), c_ert_. denied, 562 U.S. 1139 (2011). “l\/lanifest,” as in “manifest injustice,” is “understood as clearly apparent or obvious.” Cyios Corp. v. United States, 124 Fed. Cl. 107, 113 (2015) (internal quotation marks omitted); §e_e §_l_s_Q Lee v. United States, 130 Fed. Cl. 243, 252 (2017), _aff_’d, 895 F.3d 1363 (Fed. Cir. 2018); Ammex, lnc. v. United States, 52 Fed. Cl. 555, 557 (2002) (discussing RCFC 59), af_fd, 384 F.3d 1368 (Fed. Cir. 2004), _ce_r_t_. denied, 544 U.S. 948 (2005). “Where a party seeks reconsideration on the ground of manifest injustice, it cannot prevail unless it demonstrates that any injustice is ‘apparent to the point of being almost indisputable.”’ Griffin v. United States, 96 Fed. Cl. at 7 (quoting Pac. Gas & Elec. Co, v. United States, 74 Fed. Cl. 779, 785 (2006), affd i_n_ part, rev’d i_n part 9_r_i other qrounds, 536 F.3d 1282 (Fed. Cir. 2008)). “A court, therefore, will np_t grant a motion for reconsideration if the movant ‘merely reasserts . . . arguments previously made . . . all of which were carefully considered by the court.”’ Ammex, lnc. v. United States, 52 Fed. Cl. at 557 (emphasis in original) (quoting Principal l\/lut. Life |ns. Co. v. United States, 29 Fed. Cl. 157, 164 (1993), aff;d, 50 F.3d 1021 (Fed. Cir.), Le_hfg deniedl _e_n_ banc suggestion declined (Fed. Cir. 1995)); see also CanPro lnvs. Ltd. v. United States, 131 Fed. Cl. at 531; Griffin v. United States, 96 Fed. Cl. at 7; Bowlinq v. United States, 93 Fed. Cl. 551, 562 (discussing RCFC 59(a) and 60(b)), recons. denied (2010); Webster v. United States, 92 Fed. Cl. at 324 (discussing RCFC 59(a) and 60(b)); Pincknev v. United States, 90 Fed. Cl. 550, 555 (2009); Tritek Techs., |nc. v. United States, 63 Fed. Cl. at 752. “A motion for reconsideration is not intended . . . to give an unhappy litigant an additional chance to sway the court.” Stueve Bros. Farms, LLC v. United States, 107 Fed. Cl. 469, 475 (2012) (internal quotations omitted; ellipse in original). “lt is not sufficient for plaintiffs to reassert the same arguments they made in earlier proceedings, nor can plaintiffs raise new arguments that could have been made earlier.” Lee v. United States, 130 Fed. Cl. at 252; see also Cvios Corp. v. United States, 124 Fed. Cl. at 113 (rejecting protestor’s argument raised for the first time in its motion for reconsideration); CANVS Corp. v. United States, 116 Fed. Cl. 294, 300 (2014) (“[A] party may not raise an issue for the first time on reconsideration when the issue was available to be litigated at the time the complaint was filed.” (internal quotation marks and citation omitted)).

ln sum, it is logical and well established that, “a motion for reconsideration ‘should not be based on evidence that was readily available at the time the motion was heard.’" Johnson v. United States, 127 Fed. Cl. 661, 664 (2016) (quoting Seldovia Native Ass’n lnc. v. United States, 36 Fed. Cl. at 594). “‘Post-opinion motions to reconsider are not favored . . . especially where a party has had a fair opportunity to litigate the point in issue.”’ Waqstaff v. United States, 118 Fed. Cl. 172, 175 (quoting Aerolease Lonq Beach v. United States, 31 Fed. Cl. 342, 376, ajf_’_d, 39 F.3d 1198 (Fed. Cir. 1994)), a__ffd, 595 F. App’x 975 (Fed. Cir. 2014).

in the above-captioned case, plaintiffs January 10, 2019 motion for reconsideration contains factual allegations not included in plaintiffs two-page, double- spaced complaint filed in Case No. 18-831C. The substance of plaintiffs January 10, 2019 motion significantly differs from the complaint filed in the above-captioned case, Case No. 18-831C. The complaint in Case No. 18-831C was properly dismissed by the court, and the court was unable to take jurisdiction over plaintiffs complaint based on the statute at 28 U.S.C. § 1500 given the allegations in the complaint which was filed. As discussed abovel plaintiff may not raise an argument for the first time in a motion for reconsideration when the argument being raised could have been made prior to when judgment was entered. i\/ioreover, plaintiffs January 10, 2019 motion does not present any valid ground for reconsideration of the court’s December 17, 2018 Opinion and of the December 17, 2018 judgment entered pursuant to the court’s Opinion. Based on the complaint plaintiff filed with the court in Case No. 18-831C and plaintiffs appeal pending before the United States Court of Appeals for the Ninth Circuit when plaintiff filed his complaint in this court, 28 U.S.C. § 1500 precluded the court “from exercising jurisdiction over plaintiffs complaint in this court.” See vaas v. United States, 141 Fed. Cl. at 161. Plaintiff’s January 10, 2019 motion fails to demonstrate an intervening change in the controlling iaw, the availability of new evidence, or the need to correct clear error or prevent manifest injustice based on the court’s review of plaintiffs complaint in this case and plaintiffs filings in his appeal before the United States Court of Appeals for the Ninth Circuit. The court, therefore, denies plaintiffs January 10, 2019 motion to reconsider.

i\/ioreover, the court notes that trial judges are given broad discretion to control and manage their dockets, including with respect to procedural matters. §§_e_, e_.g_., Amado v. i\/iicrosoft Corp., 517 F.3d 1353, 1358 (Fed. Cir. 2008) (citing Nolan v. de Baca, 603 F.2d 810, 812 (10th Cir. 1979), gert_. denied, 446 U.S. 956 (1980))§ Nutrinova Nutrition Speciaities and Food ingredients Gi\/iBH v. int’i Trade Comm’n, 224 F.3d 1356, 1360 (Fed. Cir. 2000); Remote Diagnostic Techs. LLC v. United States, 133 Fed. Cl. 198, 203 (2017). “[T]he parties’ right to be heard may be fulfilled by the court’s review of the briefs and supporting affidavits and materials submitted to the court.” Geear v. Bouider Cmtv. Hosp., 844 F.2d 764, 766 (10th Cir.), 9_e_rt_. denied, 488 U.S. 927 (1988); _s_e_e_ ai_s_QToguero v. i.N.S., 956 F.2d 193, 196 n.4 (9th Cir. 1992) (“it is well-settled that oral argument is not necessary to satisfy due process.”); Lake at i_as Vegas inv’rs Grp. v. Pac. i\/iaiibu Dev. Corp., 933 F.2d 724, 729 (9th Cir.) (affirming and discussing the court’s interpretation of a local District Court ruie, finding no prejudicial error based on the denial of oral argument in a summary judgment motion because the party “had the opportunity to apprise the district court of any arguments it believed supported its position”), _r_e_h_’g denied (9th Cir. 1991), §§ denied, 503 U.S. 920 (1992); Young v. United States, 94 Fed. Cl. 671, 675 (2010) (“'i'here is no blanket due process right to oral argument.” (citing FCC v. WJR The Goodwiii Station, 337 U.S. 265, 276 (1949)). Therefore, a trial court is not required to hold a hearing, but may do so if the court believes the hearing would assist the court to resolve the case. The decision of whether or not to hold oral argument is made in each case, based on the filings and issues raised in that particular case. in the first place, the court would not engage in any ex parte communication with plaintiff without defendant’s counsel invoived. in this case, no such contact occurred. i\/ioreover, given the statutory lack of jurisdiction over plaintiffs complaint in the above-captioned case, the court

exercised its discretion and elected not to hold oral argument in the above-captioned case.

iT |S SO ORDERED.

54 A/&M¢-

MAR|AN BLANK HORN Judge