Van Allen v. US Department of Veterans Affairs

• Court: District Court, District of Columbia
• Decided: April 3, 2013
• Docket: Civil Action No. 2012-1538
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) HAROLD W. VAN ALLEN, ) ) Plaintiff, ) ) v. ) Civil Action No. 12-1538 (ESH) ) UNITED STATES DEPARTMENT ) OF VETERANS AFFAIRS, et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION & ORDER

Plaintiff Harold Van Allen has filed what he terms a “Motion for Stay of Filing Notice of

Appeal Until Recovery from Major Jaw Advancement Surgery Reversing Navy Caused Jaw

Setback Surgery and a Motion to Reconsider Pending Reten[t]ion of Competent Legal Counsel.”

[ECF No. 13].

Addressing the two parts of plaintiff’s filing in logical order, the Court begins with the

second part, which it will treat as a motion to reconsider, pursuant to Federal Rule of Civil

Procedure 59(e), the Court’s February 28, 2013 Memorandum Order granting defendants’

motion to dismiss. “While the court has considerable discretion in ruling on a Rule 59(e)

motion, the reconsideration and amendment of a previous order is an extraordinary measure.”

Fresh Kist Produce, LLC v. Choi Corp., 251 F.Supp.2d 138, 140 (D.D.C. 2003) (citing Firestone

v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam)). A Rule 59(e) motion to

reconsider “need not be granted unless the district court finds that there is an ‘intervening change

of controlling law, the availability of new evidence, or the need to correct a clear error or prevent

manifest injustice.’” Id. (quoting Firestone, 76 F.3d at 1208.)

1 Plaintiff states that he will have surgery in April 2013 from which he will not fully

recover until August 2013, and suggests that he either needs to be “medically unimpaired” or

needs to retain counsel to respond to the motion to dismiss that the Court has already granted.

Plaintiff has not presented grounds for granting a Rule 59(e) motion. Prior to granting

defendants’ motion to dismiss, this Court issued two orders notifying plaintiff, who is proceeding

pro se, of the consequences of failing to respond to a dispositive motion, thereby going beyond

the requirements of Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988). (See 1/15/13 Order [ECF

No. 4]; 2/5/13 Order [ECF No. 7].) Yet, plaintiff failed to oppose defendants’ motion to dismiss,

which the Court nevertheless decided on the merits, rather than granting as conceded. Plaintiff

now seeks a third bite at the apple, but asks that he be allowed to take that bite in five months,

citing no new law and no new evidence. Given this Court’s repeated attempts to solicit a

meaningful response from plaintiff before ruling, as well as the Court’s assessment that it lacks

subject matter jurisdiction over plaintiff’s claims (see 2/28/13 Mem. Op. [ECF No. 11]), this is

not a case that requires reconsideration based on “clear error” or to “prevent manifest injustice.”

Therefore, the Court will deny plaintiff’s motion for reconsideration.

The Court will treat the first part of plaintiff’s filing as a motion for extension of time to

file a notice of appeal of the Court’s February 28, 2013 Order. Pursuant to Federal Rules of

Appellate Procedure 4(a)(1)(B) and 4(a)(4)(A)(iv), plaintiff will have 60 days from the date of

entry of the Order accompanying this Memorandum Opinion to file his notice of appeal. At

most, the Court may, pursuant to Federal Rule of Appellate Procedure 4(a)(5), extend the time to

file a notice of appeal for 30 days. Thus, the Court lacks the authority to extend the time until

August 2013, as plaintiff appears to request. The Court will, however, in recognition of

plaintiff’s pro se status, grant his motion in part, by extending the time for 30 days. Thus,

2 plaintiff will have a total of 90 days from this date to file his notice of appeal.

For the reasons stated above, it is hereby

ORDERED that Plaintiff’s Motion to Reconsider [ECF No. 13] is DENIED; and it is

further

ORDERED that Plaintiff’s Motion for Stay of Filing Notice of Appeal [ECF No. 13] is

DENIED IN PART AND GRANTED IN PART; and it is further

ORDERED that Plaintiff shall have an additional 30 days, for a total of 90 days from this

date, to file his Notice of Appeal of the Court’s February 28, 2013 Order.

This is a Final Appealable Order.

/s/ ELLEN SEGAL HUVELLE United States District Judge

DATE: April 3, 2013