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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2006 Decided December 19, 2006
No. 05-5052
EUGENE C. SMALLS
APPELLANT
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv02620)
Eugene R. Fidell, appointed by the court, argued the cause
and filed the briefs as amicus curiae in support of appellant.
Eugene C. Smalls, pro se, filed briefs.
Oliver W. McDaniel, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and
Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
2
Before: HENDERSON, ROGERS and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This is an appeal from the denial
of two motions for reconsideration of a judgment dismissing, on
res judicata grounds, an amended complaint for the correction
of military records. Because the district court did not abuse its
discretion in denying these motions, which are properly
considered as filed pursuant to FED. R. CIV. P. 60(b), we affirm.
I.
Eugene C. Smalls served in the United States Marine Corps
from 1978 to 1980. He received a general discharge under
honorable conditions for a physical disability existing prior to
his service. He later succeeded in having his general discharge
changed to an honorable discharge. Between 1986 and 1992,
Smalls repeatedly sought to have the Board for Correction of
Naval Records (“BCNR”) amend his record to reflect a
retirement for medical disability. In 1997, the Secretary of the
Navy affirmed the BCNR’s denial of Smalls’s requests.
Thereafter, Smalls filed two complaints under the
Administrative Procedure Act (“APA”).
In an amended complaint filed in the federal district court
of Hawaii, Smalls sought correction of his military record and
damages in an amount less than $10,000 for negligent infliction
of emotional distress and defamation. The district court ruled
that his APA claim was timely, but dismissed his emotional
distress and defamation claims. Smalls v. United States, 87 F.
Supp. 2d 1055, 1060 (D. Haw. 2000). On Smalls’s motion for
judgment on the administrative record, the district court
determined that the BCNR’s 1997 denial of Smalls’s requests
3
was not arbitrary or capricious because it had followed the
correct procedures and had made specific findings that were
sufficient to support its decision. On appeal, the Ninth Circuit
initially affirmed, Smalls v. England, 41 F. App’x 989, 989 (9th
Cir. 2002), but subsequently remanded the case for the district
court to explain the basis on which it had exercised jurisdiction,
Smalls v. England, 50 F. App’x 379, 379 (9th Cir. 2002).
Following the remand, where the district court claimed
jurisdiction based in part on the Little Tucker Act, 28 U.S.C.
§ 1346(a)(2), the Ninth Circuit transferred the appeal to the
United States Court of Appeals for the Federal Circuit on the
ground that court had exclusive jurisdiction. Smalls v. United
States, No. 01-15827 (9th Cir. Apr. 14, 2003). The Federal
Circuit held that Smalls’s claim was untimely because his
complaint was filed more than six years after his discharge.
Smalls v. United States, 87 F. App’x 167, 167-68 (Fed. Cir.
2004), cert. denied, 543 U.S. 942 (2004). It vacated the district
court’s opinion, and, upon remand, the Hawaii district court
dismissed the amended complaint for lack of jurisdiction.
Subsequently, in an amended complaint filed in the federal
district court of the District of Columbia, Smalls challenged the
Secretary’s denials of April 11, 1997 and January 6, 2003 of his
requests for disability retirement status. The government moved
to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6) on the grounds that the complaint was barred by
the statute of limitations, by res judicata, and by the Tucker Act
because Smalls sought monetary relief in excess of $10,000. On
December 8, 2004, the district court granted the motion to
dismiss, ruling that res judicata, or claim preclusion, barred the
amended complaint. The court found that Smalls had merely
“repackaged . . . in virtually identical form” his earlier Hawaii
complaint challenging the same underlying decisions: Smalls’s
discharge from the Marines without disability pay and the
BCNR’s decisions concerning his retirement status.
4
On December 27, 2004, Smalls filed a motion for
reconsideration, which the district court denied on February 8,
2005, relying on the same reasons it gave for dismissing his
amended complaint. On February 9, 2005, Smalls filed a notice
of appeal from the December 8, 2004 order dismissing his
amended complaint. On March 4, 2005, Smalls filed a second
motion for reconsideration, which the district court denied on
March 11, 2005, again relying on the reasons in its decision
dismissing the amended complaint. On March 25, 2005, Smalls
filed an amended notice of appeal, including the order denying
reconsideration.
This court dismissed as untimely Smalls’s appeal from the
December 8 order dismissing his amended complaint, see FED.
R. APP. P. 4(a)(1)(B), but held that the March 25 amended notice
of appeal from the orders denying reconsideration was timely
and that the denials would be reviewed under an abuse of
discretion standard because the motions were filed more than ten
days after entry of the orders and properly viewed as filed
pursuant to Rule 60(b), Smalls v. United States, No. 05-5052
(D.C. Cir. July 6, 2005).
II.
In seeking affirmance of the district court on alternative
grounds, the government contends that the district court lacked
jurisdiction under the Little Tucker Act, 28 U.S.C. § 1346,
because Smalls is seeking retirement benefits back to 1980 and
has not waived damages in excess of $10,000. We therefore
address this threshold issue first.
The Tucker Act vests exclusive jurisdiction in the United
States Court of Federal Claims over claims against the United
States for “liquidated or unliquidated damages in cases not
sounding in tort.” Id. § 1491. The Little Tucker Act provides
5
an exception, vesting concurrent jurisdiction in district courts for
civil actions or claims against the United States for $10,000 or
less. Id. § 1346(a)(2). In contrast to the monetary limitations of
the Little Tucker Act, which are jurisdictional, see United States
v. Hohri, 482 U.S. 64, 67 n.1 (1987), the defense of res judicata,
or claim preclusion, while having a “somewhat jurisdictional
character,” SBC Commc’ns Inc. v. FCC, 407 F.3d 1223, 1229-30
(D.C. Cir. 2005), does not affect the subject matter jurisdiction
of the district court. See Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 293 (2005) (citing FED. R. CIV. P.
8(c)); N.Y. Shipping Ass’n, Inc. v. Fed. Mar. Comm’n, 854 F.2d,
1338, 1352 (D.C. Cir. 1988).
This court has adopted a bright line approach under which
it “consider[s] cases to be based on the Tucker Act’s waiver of
sovereign immunity only if the plaintiff seeks money or the
district court grants it.” Kidwell v. Dep’t of the Army, Bd. for
Corr. of Military Records, 56 F.3d 279, 285 (D.C. Cir. 1995);
see also Vietnam Veterans of Am. v. Sec’y of the Navy, 843 F.2d
528, 534 (D.C. Cir. 1988) (citing Sharp v. Weinberger, 798 F.2d
at 1521, 1524 (D.C. Cir. 1986); Van Drasek v. Lehman, 762
F.2d 1065, 1068 (D.C. Cir. 1985)). “[A] claim is subject to the
Tucker Act and its jurisdictional consequences if, in whole or in
part, it explicitly or ‘in essence’ seeks more than $10,000 in
monetary relief from the federal government.” Kidwell, 56 F.3d
at 284. A complaint is not in essence one for monetary damages
if the only remedy requested is “non-monetary relief that has
considerable value independent of any future potential for
monetary relief.” Tootle v. Sec’y of the Navy, 446 F.3d 167, 176
(D.C. Cir. 2006) (quoting Kidwell, 56 F.3d at 284) (internal
quotation marks omitted). In determining whether a complaint
seeks monetary relief, “the court must generally limit [its
inquiry] to the four corners of the complaint.” Id. at 174. An
“inquir[y] into the consequences of [the] plaintiff[’s]
victor[y]—even ‘automatic’ consequences—would ‘take [the
6
court] outside the record sought to be reviewed and thereby
complicate the jurisdictional issue.’” Kidwell, 56 F.3d at 285
(quoting Vietnam Veterans, 843 F.2d at 534). The fact that in
seeking the correction of a military record the plaintiff may, if
successful, obtain monetary relief from the United States in
subsequent administrative proceedings is insufficient to deprive
the district court of jurisdiction. See Tootle, 446 F.3d at 176;
Kidwell, 56 F.3d at 284-85.
Consistent with the factors discussed in Kidwell and Tootle,
we conclude that the district court had subject matter jurisdiction
because Smalls is not seeking money and, were Smalls to
prevail, the district court would not award such relief. A review
of Smalls’s pro se amended complaint reveals that, in essence,
he seeks, as in Tootle, 446 F.3d at 176, and Kidwell, 56 F.3d at
286, “declaratory or injunctive relief that is not negligible in
comparison with the potential monetary recovery.” See Tootle,
446 F.3d at 176 (quoting Kidwell, 56 F.3d at 284) (citations
omitted). Smalls states in his amended complaint that he is
seeking equitable relief in light of an alleged “injustice” due to
the failures of the Secretary and the BCNR to correct “factual
errors and/or omissions” related to his “service-connected
disability.” Am. Compl. at 23, Smalls v. United States, No. 03-
2620 (D.D.C. Dec. 22, 2003) (“Am. Compl.”). Alternatively,
Smalls seeks a remand to the BCNR for proper application of its
rules and regulations. Id. at 24. The amended complaint states
that he is filing suit “primarily to correct his military records”
and to receive “disability retirement status.” Id. at 6.
Specifically, he seeks a disability “rating of thirty percent or
more for service-related conditions.” Id. at 21.
Although the amended complaint refers at several points to
Smalls’s desire to obtain “retirement benefits,” id. at 23-24, read
in context his cause of action, by its own terms, seeks “to correct
[his] military naval record to show entitlement to retirement[]
7
benefits for a service-connected disability,” id. at 23. The
prayer for relief reflects this claim, tying his right to retirement
benefits to the correction of his military record. Id. at 24.
Moreover, as amicus explains, the phrase “retirement benefits”
connotes a host of benefits to which no monetary value can be
attached, such as medical treatment, priority access to Walter
Reed Army Medical Center, access to base facilities, space
available travel on military aircraft, the right to wear the uniform
on appropriate public occasions, military funeral arrangements,
and preferential burial privileges in national cemeteries. Amicus
acknowledges that retirement benefits can include disability pay,
receipt of which is Smalls’s goal once his naval record is
corrected, but it is clear that this would come as a result of
administrative proceedings based on Smalls being designated as
a disability retiree and not as a result of the adjudication of the
claims in his amended complaint. See Tootle, 446 F.3d at 175.
Although Smalls does allege “willful and/or negligent acts,”
Am. Compl. at 22-23, his prayer for relief, unlike the prayer in
his Hawaii complaint, does not seek money damages for these
injuries.
III.
Smalls’s motions for reconsideration were filed more than
ten days after the dismissal of his amended complaint and are
properly viewed as filed pursuant to FED. R. CIV. P. 60(b). See
Computer Prof’ls for Soc. Responsibility v. U.S. Secret Serv., 72
F.2d 897, 903 (D.C. Cir. 1996). Our review is limited to
determining whether the district court abused its discretion.
Smalls v. United States, No. 05-5052 (D.C. Cir. July 6, 2005)
(citing Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 268 n.7
(1978)). The Supreme Court has instructed that “[a] district
court by definition abuses its discretion when it makes an error
of law.” Koon v. United States, 518 U.S. 81, 100 (1996) (citing
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)).
8
As this court has explained, review for abuse of discretion
generally is confined to determining whether the district court
did not apply the correct legal standard or misapprehended the
underlying substantive law, and whether the district court’s
ruling was within the scope of permissible alternatives in light
of the relevant factors and the reasons given to support it. See
Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995)
(citations omitted); see also RJE Corp. v. Northville Indus.
Corp., 329 F.3d 310, 316 (2d Cir. 2003); United States v.
Washington, 98 F.3d 1159, 1163 (9th Cir. 1996).
Where this court reviews the denial of a Rule 60(b) motion
for abuse of discretion, however, the nature of our review must
take into account that “Rule 60(b) was intended to preserve ‘the
delicate balance between the sanctity of final judgments . . . and
the incessant command of the court’s conscience that justice be
done in light of all the facts.’ . . . [It] cannot . . . be employed
simply to rescue a litigant from strategic choices that later turn
out to be improvident.” Good Luck Nursing Home, Inc. v.
Harris, 636 F.2d 572, 577 (D.C. Cir. 1980) (first omission in
original) (emphasis omitted) (quoting Bankers Mortgage Co. v
United States, 423 F.2d 73, 77 (5th Cir. 1970)). As this court
declared in Twelve John Does v. District of Columbia, 841 F.2d
1133, 1138 (D.C. Cir. 1988), “the district court’s grant or denial
of relief under Rule 60(b), unless rooted in an error of law, may
be reversed only for abuse of discretion.” (emphasis added). Cf.
D.C. Fed’n of Civic Ass’ns v. Volpe, 520 F.2d 451, 453 (D.C.
Cir. 1975) (citing 7 JAMES WM. MOORE ET AL., MOORE’S
FEDERAL PRACTICE ¶ 60.22(3) (1974)). In this context, the
appellate court’s function is not to determine the substantive
correctness of the judgment but rather is limited to deciding
whether the district court abused its discretion in ruling that
sufficient grounds for disturbing the finality of the judgment
were not shown. See Brennan v. Midwestern United Life Ins.
Co., 450 F.2d 999, 1003 (7th Cir. 1971), cited in Browder, 434
9
U.S. at 263. Consequently, the legal error warranting reversal
of a denial of reconsideration under Rule 60(b) review must be
clear. Cf. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.
1996). Although the circuit courts of appeal do not always use
the same word to describe the nature of this review for legal
error, see, e.g., United States v. Fiorelli, 337 F.3d 282, 288 (3d
Cir. 2003); Adams v. Reliance Standard Life Ins. Co., 225 F.3d
1179, 1186 n.5 (10th Cir. 2000); Caisse Nationale de Credit
Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996);
see also Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 471
nn.7-8 (5th Cir. 1998); Hill v. McDermott, Inc., 827 F.2d 1040,
1043 (5th Cir. 1987), the courts appear to be in agreement that
such review is limited by the finality considerations underlying
Rule 60(b). In any event, the district court does not abuse its
discretion in denying reconsideration where the movant fails to
demonstrate “a potentially meritorious claim or defense” to the
motion to dismiss the complaint. See Murray v. District of
Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995) (internal quotation
marks omitted). Of course, “judgments which are void or are
vehicles of injustice [can]not be left standing.” Brennan, 450
F.2d at 1003; cf. Firestone, 76 F.3d at 1208.
Neither of Smalls’s contentions that the district court
abused its discretion demonstrates clear error by the district
court. Smalls first contends that res judicata cannot apply
because the Federal Circuit vacated the initial decision of the
Hawaii district court. Under the doctrine of res judicata, or
claim preclusion, a subsequent lawsuit will be barred if there has
been prior litigation (1) involving the same claims or cause of
action, (2) between the same parties or their privies, and (3)
there has been a final, valid judgment on the merits, (4) by a
court of competent jurisdiction. See Blonder-Tongue Labs., Inc.
v. Univ. of Ill. Found., 402 U.S. 313, 323-24 (1971); Comm’r of
Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948); see also
Nathan v. Rowan, 651 F.2d 1223, 1226 (6th Cir. 1981) (citing
10
Hansberry v. Lee, 311 U.S. 32 (1940)). The Federal Circuit
directed the Hawaii district court to dismiss Smalls’s claims
based on the bar of the statute of limitations. The Hawaii
district court is, like the D.C. district court, an Article III court,
and, for purposes of res judicata, “[t]he rules of finality . . . treat
a dismissal on statute-of-limitations grounds . . . as a judgment
on the merits.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
228 (1995); see Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Regional Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003);
Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir. 1996); Nathan,
651 F.2d at 1226 (6th Cir.); Myers v. Bull, 599 F.2d 863, 865
(8th Cir. 1979) (per curiam); Mathis v. Laird, 457 F.2d 926, 927
(5th Cir. 1972) (per curiam) (citing Williamson v. Columbia Gas
& Elec. Corp., 186 F.2d 464 (3d Cir. 1950)); 18 JAMES WM.
MOORE ET AL., MOORE’S FEDERAL PRACTICE § 131.30 (3d ed.
2006); 18A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE
AND PROCEDURE § 4441 (2d ed. 2002).
Similarly, contrary to Smalls’s second contention, the
district court did not abuse its discretion by declining to consider
his argument that the Federal Circuit lacked jurisdiction: A
federal district court lacks jurisdiction to review decisions of
other federal courts. See 28 U.S.C. § 1330 ff.
Amicus’s contentions also fail to show an abuse of
discretion by the district court. Amicus points out that Smalls’s
D.C. amended complaint omitted a Tucker Act claim, which his
Hawaii complaint included, and challenged different
administrative decisions than his Hawaii complaint. Under the
transactional approach to determining whether two suits involve
the same cause of action, see Stanton v. D.C. Court of Appeals,
127 F.3d 72, 78 (D.C. Cir. 1997), the cause of action consists of
“all rights of the plaintiff to remedies against the defendant with
respect to all or any part of the transaction, or series of
connected transactions, out of which the action arose.” Id.
11
(quoting Smith v. Jenkins, 562 A.2d 610, 613 (D.C. 1989)
(quoting Restatement (Second) of Judgments § 24(1) (1982))).
Although Smalls omitted any reference to the Tucker Act and
any request for damages in his D.C. complaint, the factors
relevant to the transactional analysis point against Smalls in
light of his single goal of having his military record corrected so
that he will be eligible to receive medical disability retirement
benefits. See Page v. United States, 729 F.2d 818, 820 (D.C.
Cir. 1984).
Amicus’s emphasis on the continuing or recurring nature of
BCNR proceedings demonstrates neither inconsistency with the
district court’s res judicata ruling nor unfairness due to
premature judicial intervention into the resolution of Smalls’s
claims. In accordance with the doctrine of res judicata, the
record shows that both the D.C. and Hawaii lawsuits arise from
the same underlying transaction and in both Smalls alleged he
was improperly discharged without medical disability benefits,
challenged agency decisions relating to his discharge and
subsequent administrative challenges, and sought correction of
his military record so as to qualify him for medical disability
retirement benefits. Additionally, no unfairness is demonstrated
by reason of premature judicial intervention because it is the
Secretary’s final decision in 1997 that underlay Smalls’s
untimely appeal from the order dismissing his amended
complaint.
Accordingly, we affirm the orders denying the Rule 60(b)
motions for reconsideration.