NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AUDREY S. WAGSTAFF,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2014-5136
______________________
Appeal from the United States Court of Federal
Claims in No. 1:11-cv-00466-SGB, Judge Susan G.
Braden.
______________________
Decided: December 9, 2014
______________________
AUDREY S. WAGSTAFF, of San Antonio, Texas, pro se.
RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
him on the brief were JOYCE R. BRANDA, Acting Assistant
Attorney General, ROBERT E. KIRSCHMAN, JR., Director,
and FRANKLIN E. WHITE, JR., Assistant Director.
______________________
2 WAGSTAFF v. US
Before TARANTO, SCHALL, and CHEN, Circuit Judges.
PER CURIAM.
Audrey Wagstaff appeals from an order of the Court
of Federal Claims that denied relief from two prior judg-
ments. We affirm.
BACKGROUND
From January 1991 to February 1993, Ms. Wagstaff
signed six promissory notes to a lender in exchange for
receiving loans to attend a university, with the United
States ultimately guaranteeing repayment of those notes.
Complaint, Exs. 1–6, Wagstaff v. United States, No. 11-
466C (Fed. Cl. July 18, 2011) (Complaint). In the years
that followed her graduation, she failed to make pay-
ments on her loans. The Department of Education was
then assigned the right to seek repayment, and it did so
through administrative proceedings, which resulted in
offsets to Ms. Wagstaff’s federal income tax refunds and a
garnishment of her wages. Ms. Wagstaff has since sued
the Department multiple times, in both state and federal
court, to enjoin the offsets and the garnishment and to
recover damages.
Ms. Wagstaff filed her present complaint on July 18,
2011. She claimed that the Department’s actions consti-
tuted an unlawful debt-collection practice, a physical
taking, a regulatory taking, and a violation of her Fifth
Amendment right to due process. Complaint ¶¶ 146–64.
She later recast her takings claims to assert that the
garnishment constituted an illegal exaction. The gov-
ernment promptly moved to dismiss, and the Court of
Federal Claims dismissed all claims but the claim that
the garnishment was an illegal exaction. Wagstaff v.
United States, 105 Fed. Cl. 99, 113 (2012). It warned Ms.
Wagstaff that her claim would not survive summary
judgment unless she submitted evidence that the six
WAGSTAFF v. US 3
promissory notes were legally invalid or not properly
assigned to the United States. Id.
When Ms. Wagstaff failed to submit any such evi-
dence, the Court of Federal Claims granted summary
judgment rejecting the illegal-exaction claim. Wagstaff v.
United States, 111 Fed. Cl. 754, 765 (2013). It entered
judgment on August 1, 2013. Ms. Wagstaff failed to file a
notice of appeal within 60 days of the judgment (i.e., by
September 30, 2013), as required for a timely appeal. See
Fed. R. App. Pro. 4; 28 U.S.C. § 2107(b). She did, howev-
er, eventually submit to the Court of Federal Claims two
sets of post-judgment filings—the first in early October
2013, the second in February 2014.
The October 2013 filings relate to a notice of appeal of
the August 1, 2013 judgment that the garnishment was
not an illegal exaction. The filings consisted of a motion
to extend the time for filing a notice of appeal, accompa-
nied by a notice of appeal in the event that the requested
extension was denied. On October 9, 2013, the Court of
Federal Claims rejected both filings as untimely.
The February 2014 filings were two motions for relief.
The first was a motion for relief from the order rejecting
the October 2013 notice-of-appeal filings. First Motion for
Relief from Judgment, Wagstaff, No. 11-446C (Fed. Cl.
Feb. 24, 2014) (First Motion for Relief). The second was a
motion for relief from the August 1, 2013 judgment.
Second Motion for Relief from Judgment, Wagstaff, No.
11-446C (Fed. Cl. Feb. 24, 2014) (Second Motion for
Relief). The motions invoked Rule 60 of the Rules of the
Court of Federal Claims. Ultimately, the Court of Federal
Claims denied both motions, considering the first under
both Rules 59 and 60 and the second under Rule 60.
Wagstaff v. United States, 118 Fed. Cl. 172, 180 (2014).
Ms. Wagstaff has appealed the denial of her February
2014 motions. We have jurisdiction under 28 U.S.C. §
1295(a)(3).
4 WAGSTAFF v. US
DISCUSSION
We review the denial of motions under Rule 59 and 60
for abuse of discretion. Entergy Nuclear FitzPatrick, LLC
v. United States, 711 F.3d 1382, 1386 (Fed. Cir. 2013);
Brickwood Contractors, Inc. v. United States, 288 F.3d
1371, 1376 (Fed. Cir. 2002). “An abuse of discretion exists
when, inter alia, the lower court’s decision was based on
an erroneous conclusion of law or on a clearly erroneous
finding of fact.” Matos ex rel. Rivera v. Sec’y of the Dep’t of
Health & Human Servs., 35 F.3d 1549, 1552 (Fed. Cir.
1994) (internal quotation marks and citation omitted).
A
Ms. Wagstaff first appeals the refusal of the Court of
Federal Claims to disturb its October 9, 2013 order deny-
ing her notice-of-appeal motions. Because Ms. Wagstaff
failed to comply with the relevant timing requirements,
we hold that the Court of Federal Claims did not abuse its
discretion in denying reconsideration of or relief from its
October 9, 2013 order.
A motion under Rule 59 must typically be filed within
28 days of the entry of judgment. RCFC 59(b)(1). An
exception exists when there is satisfactory evidence of
fraud, wrong, or injustice, in which case the motion must
be filed within two years of the final disposition of the
suit. RCFC 59(b)(2). There being no evidence of fraud,
wrong, or injustice here, Ms. Wagstaff had at most until
November 6, 2013, to seek Rule 59 reconsideration of the
October 9, 2013 order. She failed to do so, instead waiting
until February 24, 2014. The Court of Federal Claims did
not abuse its discretion in refusing to ignore her 110-day
tardiness. See, e.g., Woods v. United States, 122 F. App’x
989, 991 (Fed. Cir. 2004) (holding that the Court of Fed-
eral Claims did not abuse its discretion in denying as
untimely a 10-day-late pro se motion for reconsideration).
WAGSTAFF v. US 5
As to Rule 60, Ms. Wagstaff failed to prove any
ground for relief authorized by that rule. The only appli-
cable provision is Rule 60(b)(1), which authorizes relief for
“mistake, inadvertence, surprise, or excusable neglect,”
id., including “judicial error.” Patton v. Sec’y of Dep’t of
Health & Human Servs., 25 F.3d 1021, 1030 (Fed. Cir.
1994). The Court of Federal Claims, however, made no
error in rejecting Ms. Wagstaff’s notice of appeal for
untimeliness. If one of the parties to a suit is the United
States or an agency of the United States, the notice of
appeal must be filed within 60 days of the entry of judg-
ment. Fed. R. App. P. 4(a)(1)(B); see also 28 U.S.C.
§ 2107(b). Here, judgment was entered on August 1,
2013, so Ms. Wagstaff’s appeal time ran out on September
30, 2013. But she waited until October 7, 2013, seven
days after the deadline, to file her notice. Because Ms.
Wagstaff made no showing of “excusable neglect or good
cause,” Fed. R. App. P. 4(a)(5)(A), that would have allowed
the late notice, see First Motion for Relief, the Court of
Federal Claims did not abuse its discretion in refusing to
grant relief. See Quintin v. United States, 746 F.2d 1452,
1453–54 (Fed. Cir. 1984).
B
Ms. Wagstaff also appeals the refusal of the Court of
Federal Claims, under Rule 60, to disturb its August 1,
2013 judgment that the garnishment was not an illegal
exaction. 1 Rule 60(b) enumerates the following relevant
grounds for relief:
1 Although Ms. Wagstaff does not appear to argue
on the basis of Rule 59, see Notice of Appeal at 1, Wag-
staff, No. 11-466C (Fed. Cl. Aug. 13, 2014), the Court of
Federal Claims did not abuse its discretion in not grant-
ing reconsideration of the August 1, 2013 judgment.
Given that Ms. Wagstaff’s February 24, 2014 motion
6 WAGSTAFF v. US
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasona-
ble diligence, could not have been discovered in
time to move for a new trial under RCFC 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by
an opposing party;
...
(6) any other reason that justifies relief.
Because Ms. Wagstaff did not adequately prove any of
these grounds, we hold that the Court of Federal Claims
did not abuse its discretion in denying relief from its
August 1, 2013 judgment.
As to the first ground, mistake, the Court of Federal
Claims did not abuse its discretion in finding no error in
its previous determination that Ms. Wagstaff identified no
evidence of either invalidity of the notes or impropriety in
their assignment. Wagstaff, 118 Fed. Cl. at 178–79. To
the contrary, as the Court of Federal Claims correctly
noted in originally granting summary judgment, the
evidence showed that the Department of Education had
followed applicable due-process and statutory require-
ments, as well as validly collected on correctly calculated
debts stemming from valid promissory notes signed by
Ms. Wagstaff. Wagstaff, 111 Fed. Cl. at 764–65.
As to the second ground, newly discovered evidence,
the Court of Federal Claims did not abuse its discretion in
finding that it had previously considered and rejected all
regarding the October 9, 2013 order was untimely under
Rule 59, her same-dated motion regarding the August 1,
2013 judgment would be even more untimely.
WAGSTAFF v. US 7
of Ms. Wagstaff’s factual contentions. Wagstaff, 118 Fed.
Cl. at 179. Ms. Wagstaff put forward no new evidence, let
alone newly discovered evidence, contradicting the August
1, 2013 judgment. See generally Second Motion for Relief;
Notice of Appeal, Wagstaff, No. 11-466C (Fed. Cl. Aug. 13,
2014).
As to the third ground, fraud, the Court of Federal
Claims did not abuse its discretion in finding that Ms.
Wagstaff’s allegations were insufficient to warrant relief.
As the court noted, most of Ms. Wagstaff’s allegations of
fraud, bias, and misconduct were non-specific, and all
were unsupported by evidence. E.g., Second Motion for
Relief at 1 (“The final decision was bias [sic] as it did not
address any evidence in support of Plaintiff’s case.”).
Indeed, the only specific allegation of fraud that Ms.
Wagstaff made—that the government never mailed
information produced in court-ordered discovery—is
refuted by the record, which contains a letter enclosing
such information and a notice confirming the production
of the information. Government’s Response to Ms. Wag-
staff’s Motions for Relief, Exs. A–B, Wagstaff, No. 11-466C
(Fed. Cl. Mar. 13, 2014).
Finally, as to the last ground, “any other reason that
justifies relief,” the Court of Federal Claims did not abuse
its discretion in declining to find a reason to grant Ms.
Wagstaff relief. A motion under Rule 60 is not available
simply to relitigate a case—it is an avenue to secure
“extraordinary relief . . . which may be granted only in
exceptional circumstances.” Sioux Tribe of Indians v.
United States, 14 Cl. Ct. 94, 101 (1987) (citing United
States v. Atkinson, 748 F.2d 659, 660 (Fed. Cir. 1984);
Wash. Med. Ctr., Inc. v. United States, 211 Ct. Cl. 379,
380 (1977)), aff’d, 862 F.2d 275 (Fed. Cir. 1988); see also
CTS Corp. v. Piher Int’l Corp., 727 F.2d 1550, 1555 (Fed.
Cir. 1984) (“Unless exceptional or extraordinary circum-
stances are shown, a Rule 60(b)(6) motion is generally not
granted.”). The Court of Federal Claims warned Ms.
8 WAGSTAFF v. US
Wagstaff that her claim would survive only if she submit-
ted evidence of invalidity or improper assignment. She
failed to submit such evidence, and she has not presented
any arguments or facts that would entitle her to relief
from the consequence of her failure. Under such circum-
stances, Rule 60 is unavailing.
CONCLUSION
For the foregoing reasons, the judgment of the Court
of Federal Claims is affirmed.
AFFIRMED