In Re Crews

NOTE: This order is nonprecedential. United States Court of AppeaIs for the FederaI Circuit IN RE RANDOLPH CREWS, Petiti0ner. - Miscel1aneous Docket N0. 114 On Petition for Writ of Mandamus to the United States C0urt of Federa1 C1aims in case no. 08-C1V-068, Judge B0hdan A. Futey. ON PETITION PER CURIAM. 0 R D E R Rando1ph CreWs petitions for a writ of mandamus in- structing the United States C0urt of Federal C1aims that its December 20, 2008 decision dismissing Mr. CreWs’s complaint under a laches theory is “nu11 and v0id." I. On January 29, 2008, Mr. Crews filed a complaint in the Court of Federal CIaims, seeking more than $400,000, IN RE CREWS 2 alleging that he was wrongfully denied disability retire- ment pay in violation of 10 U.S.C. § 1201 because the Air Force Board for Correction of Military Records ("Board") refused to correct his service records to reflect a medical disability discharge. On December 10, 2008, the Court of Federal Claims determined that it had jurisdiction over Mr. Crews's complaint, but granted the government's request to dismiss his complaint under a laches theory. The court reasoned that Mr. Crews had “been aware of his condition for over forty-eight years at the time he submit- ted his Application to the Board” and had “clearly slum- bered on his rights.” Crews v. United States, No. 08-68C, slip op. at 5 (Dec. 10, 2008). lt further determined that the government was prejudiced by the delay because the government's defense would require access to witness testimony and historic records. Witnesses would likely be unavailable and_even if they were available_unable to recall the necessary details after the lengthy__passage of time. Similarly, the court found that written records might have been lost or destroyed. Mr. Crews did not appeal the court's dismissal of his complaint. On l\/lay 17, 2010, Mr. Crews filed a motion for a new trial in the trial court. The Court of Federal Claims denied this motion, noting that the evidence Mr. Crews submitted was insufficient to grant the relief requested and that RCFC 6(b)(2) “unequiv0cally bars the Court from extending the time limits for motions for new trial or reconsideration under RCFC 59(b) or for relief from judgment under RCFC 60(b)." Mr. Crews appealed On April 6, 2()11, this court affirmed the Court of Federal Claims, concluding that the trial court did not abuse its discretion in denying reconsideration a new trial, or relief from judgment. 3 IN RE CREWS On Janua1'y 24, 2012, Mr. Crews filed a writ of man- damus asking this court to vacate the Court of Federal Claims’s December 20, 2008 decision. ll A writ of mandamus is a drastic remedy that is used sparingly This court can issue a writ only when the following conditions are metz 1) the petitioner must have no other adequate means to attain the relief he desires; 2) the petitioner must demonstrate a clear and indisput- able right to the issuance of the Writ; and 3) the court must be convinced that the circumstances warrant issu- ance of the writ. C'heney u. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004). _ Mr. Crews now seeks a writ of mandamus to again challenge the Court of Federal Claims’s disposition of his case. His case is over in that court and he has exhausted any appellate rights. J ust as a writ of mandamus is not a substitute for the appeals process, id., it also cannot be used in these circumstances when the case is over and appeals have been resolved. Accordingly, IT ls ORnERED THAT: The petition for a writ of mandamus is denied. FoR THE CoURT FEB 06 2012 /s/ J an Horbaly Date J an Horbaly Clerk FlLED U.S. COURT 0F APFEALS FOFl me 1=EnErzALcmcun FEB 0 5 2012 JAN HORBAl¥ CLERK iN as CREWs CC' S Randolph Crews Jeanne E. Davidson, Esq. Clerk, United States Court of Federal Claims