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No. l3-8457 FILED
(Filed: February 3, 2014) FE8 - 3 2014
U.S. COrrd f OF
FEDERAL CLAIMS
DEBRA K. CLARK, Pro se Plaintiff; Motion for
Reconsideration, RCFC 59(a),
Plaintiff, RCFC 60; Transfer under 28
U.S.C. $ 1631;Meaning of
"court" under 28 U.S.C. $ 610;
Transfer to Tax Court Improper
THE LINITED STATES,
Defendant.
Debra K. Clark, Springfield, VA, pro se.
Mark A. Ryan, with whom were Kathryn Keneally, Assistant Attomey General, Tax
Division, David I. Pincus, Chief, Court of Federal Claims Section, and G. Robson
Stewart, Assistant Chief, Court of Federal Claims Section, United States Department of
Justice, Washington, DC, for defendant.
OPINION AND ORDER
CAMPBELL-SMITH, Judge.
Plaintiff filed a complaint in this court on October 29, 2013, contesting a Notice
of Deficiency she had received from the Internal Revenue Service. See Compl., Dkt.
No. I . The court requested that plaintiff state whether she had paid the tax at issue in
her suit to assist the court in determining whether it had jurisdiction over plaintiff s
claim. Order, Nov. 12, 2013, Dkt. No. 5 (citing Flora v. United States, 357 U.S. 63, 75
(1958)); see also Order, Dec. 5, 2013, Dkt. No. 6 (requesting plaintiffls response again
after plaintiff did not respond to the court's first request). Plaintiff filed a motion to
transfer her complaint to the Tax Court on December 30,2013. See Mot. to Transfer,
Dkt. No. 9. The court granted plaintifls motion on January 2,2014. Opinion and
Order, Dkt. No. 10.
Defendant filed a motion for reconsideration pursuant to Rules ofthe Unitec
States Court of Federal Claims (RCFC) 59(a), or in the altemative RCFC 60, on January
7,2014, contending that the court does not have the statutory authority to transfer
plaintiff s complaint to the United States Tax Court. See Mot. Recons., Dkt. No. 12.
The court requested plaintiffs response to the motion by January 23,2014. See Order,
Ian.8,2014, Dkt. No. 13. Plaintiff has not responded to the court's request for her
response to the motion. For the reasons explained below, the court grants defendant's
motion for reconsideration, rescinds the direction to transfer the case, denies plaintiff s
motion to transfer, and dismisses plaintiff s complaint without prejudice.
I. Applicable Legal Standards
RCFC 59(a) provides that "[t]he court may, on motion, grant . . . a motion for
reconsideration . . . upon the showing of satisfactory evidence, cumulative or otherwise,
that any fraud, wrong, or injustice has been done to the United States." RCFC
59(aXlXc). RCFC 60 describes forms ofrelieffrom a judgment or order: "The court
may correct a . . . mistake arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record. . . . On motion and just terms, the court may
relieve a party . . . from a final judgment, order, or proceeding for the following reasons:
... mistake, inadvertence, surprise, or excusable neglect; ... or... any other reason that
justifies relief." RCFC 60(aF0).
A motion for reconsideration must be supported "by a showing ofexceptional
circumstances justifying relief, based on a manifest error of law or mistake of fact."
Cohen v. United States, 98 Fed. Cl. 156, 160 (2011) (citations omitted). To prevail, the
movant must show an intervening change in controlling law; evidence not previously
available has become available; or the motion is necessary to prevent manifest injustice.
Prati v. United States, 82 Fed. C|.373,376 (2008).
The Transfer Statute states:
Whenever a civil action is filed in a court as defined in section 610 of this
title . . . and that court frnds that there is a want ofjurisdiction, the court
shall, if it is in the interest ofjustice, transfer such action or appeal to any
other such court in which the action or appeal could have been brought at
the time it was filed or noticed, and the action or appeal shall proceed as if
it had been filed in or noticed for the court to which it is transferred on the
date upon which it was actually filed in or noticed for the court from which
it is transferred.
28 U.S.C. $ 1631 (emphasis added). Section 610, referenced in g 1631, defines courts as
follows:
As used in this chapter the word "courts" includes the courts of appeals
and district courts of the United States, the United States District Court for
the District of the Canal Zone, the District Court of Guam, the District
Court of the Virgin Islands, the United States Court of Federal Claims, and
the Court of Intemational Trade.
28 U.S.C. $ 610. The United States Tax Court is absent from this enumerated list.
II. Discussion
The courts that may transfer a case under $ 1631 are those listed in $ 610. Only
the federal disftict courts ofthe United States and certain territories. the Court ofFederal
Claims, and the Court of Intemational Trade can transfer a case upon a finding that
jurisdiction is lacking according to the plain language of the statute.
The courts to which those courts may transfer-"any other such court in which
the action . . . could have been brought"-are not so clearly defined by the plain
language ofthe statute. "[A]ny other such court" is not expressly limited by the
enumerated list found in $ 610 as is the reference to the transferring courts.
The Court ofAppeals for the Federal Circuit has not spoken directly on the
question of whether the Tax Court is an acceptable transferee court under the Transfer
Statute. However, in an analogous circumstance, the appeals court has construed
narrowly the phrase "any other such court in which the action or appeal could have been
brought." This nanow construction strongly suggests that the transfer of cases to courts
not enumerated in $ 610 is not permissible.
In Schafer v. Deoartment of the Interior, the court determined that it lacked
jurisdiction and considered whether it should transfer the case to the Federal Labor
Relations Authority. 88 F.3d 981, 987 (Fed. Cir. 1996). The court ruled that it could not
transfer to the FLRA under $ 163 I because the language of the statute permitted transfer
only to "courts." Id. The court went on to explain that administrative bodies such as the
FLRA are not included within the definition of courts under $ 610. Id.
While the Tax Court is not an administrative body like the FLRA, it is
nevertheless absent from the enumerated list ofcourts found in $ 610. The appeals court
implied in its ruling that any entity, court or administrative tribunal, not found in g 610
would be an impermissible recipient of a transferred case. Language from an
unpublished appeals court opinion further supports such a conclusion. See Felder v.
Shinseki, 401 Fed. Appx. 551, 2010 WL 4745644 (Fed. Cir. 2010) ([W]e cannot transfer
this appeal to the Court of Appeals for Veterans Claims pursuant to 28 U.S.C. $ 1631
because it is not a court as defined by 28 U.S.C. $ 610 . . . .').
Moreover, otherjudges of this court have ruled specifically that the Tax Court is
not a permissible destination for a transferred case under the Transfer Statute. See. e.g.,
Dacosta v. United States, 82 Fed. Ct.549,557 (2008) ("The Court concludes that it
'cannot transfer plaintiff[s'] claim to the Tax Court because the Tax Court is not one of
the courts to which transfer is permitted by 28 U.S.C. $ 610."'(quoting Russell v.
United States, 78 Fed. Cl. 281 ,290 (2007))); see also Skillo v. United States, 68 Fed. Cl.
734,74347 (200s).
While a transfer of the instant claim may otherwise be "in the interest ofjustice,"
and plaintiff s challenge to the Notice of Deficiency she received "could have been
brought" in the Tax Court at the time it was filed here,28 U.S.C. $ 1631; see Notice of
Deficiency Letter, Aug. 6,2013, Dkt. No. l-7, the court concludes that it lacks statutory
authority to transfer plaintiff s complaint to the United States Tax Court. The Tax Court
is not an enumerated "court" under $ 610. See 28 U.S.C. $ 610. Reconsideration must
be granted to provide relief from the mistake of law on which the transfer order was
based. See RCFC 59,60.'
III. Conclusion
For the foregoing reasons, defendant's motion for reconsideration is GRANTED.
The court's direction to transfer the case, see Opinion and Order, Dkt. No. 10, is
RESCINDED; plaintiff s motion to transfer, Dkt. No. 9, is DENIED; and plaintifls
complaint is DISMISSED without prejudice. The Clerk will enter judgment for
defendant.
IT IS SO ORDERED.
2,,,,,11 i1r
ATRICIAE.
ChiefJudge
t
The error requiring the court's reconsideration is a "manifest error of law" as described
by the case law interpreting RCFC 59(a). See Cohen v. United States, 98 Fed. Cl. 156,
160 (201 1) (citations omitted). The court's reconsideration could also be described as
relief from an order because of mistake of law as described in RCFC 60. For these
reasons, the court declines to parse further the grounds for this dismissal action.