In the United States Court of Federal Claims
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JAY HYNlAS, dlbla DOSNIEN FARMS, *
Piaintiff, °“
* No. 18-831C
v. * Filed: February 7, 2019
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UN|TED STATES, *
Defendant. :
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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
2
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)),
4
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
6
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