Cowhig v. Chief of ( 1992 )

USCA1 Opinion

          December 7, 1992      [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



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          No. 92-1440

            


                                  EDWARD D. COWHIG,

                                 Plaintiff Appellant,

                                          v.

                        CHIEF OF CHAPLAINS, U.S. ARMY, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                 ___________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
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                                 ___________________

               Edward D. Cowhig on brief pro se.
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               A.  John Pappalardo,  United  States  Attorney, and  Annette
               ___________________                                  _______
          Forde, Assistant U.S. Attorney, on brief for appellees.
          _____



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                 Per Curiam.  Plaintiff-appellant Edward  Cowhig filed an
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            action   in  the   District   Court  for   the  District   of

            Massachusetts   on   May   16,   1990,   claiming   that  the

            circumstances  surrounding his discharge in January 1962 from

            his  position as  a chaplain  in the  U.S. Army  violated the

            Racketeer Influenced and  Corrupt Organizations Act ("RICO"),

            18  U.S.C.    1961-68.   Before bringing  that  action Cowhig

            already had unsuccessfully challenged his  discharge from the

            Army and  sought reinstatement  on numerous occasions.   See,
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            e.g.,  Cowhig v. Secretary of the Army, slip op., No. 88-1012
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            (1st  Cir. 10/11/88); Cowhig v. Marsh, 693 F.2d 234 (1st Cir.
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            1982),  cert. denied,  460 U.S.  1092 (1983).   The  district
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            court dismissed Cowhig's action on April 25, 1991, on grounds

            of  res judicata,  collateral  estoppel, and  the statute  of

            limitations.      The  district court  entered  judgment  for

            defendants on July  2, 1991.  This court affirmed.  Cowhig v.
                                                                ______

            Chief of Chaplains, slip op., No. 91-2027 (1st Cir. 3/27/92).
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                 While the  appeal in  Cowhig's case was  pending, Cowhig

            filed a Fed. R.  Civ. P. 60(b) motion  in the district  court

            requesting that the district court reconsider its judgment on

            the grounds of newly discovered evidence.  The district court

            summarily  denied  Cowhig's  motion.   Cowhig  appeals.    We

            affirm.

                 The rule based on which Cowhig sought reconsideration of

            the judgment, Rule 60(b), provides as follows:



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                      "On  motion  and upon  such terms  as are
                      just, the court may  relieve a party or a
                      party's legal representative from a final
                      judgment,  order,  or proceeding  for the
                      following   reasons:    ...   (2)   newly
                      discovered   evidence    which   by   due
                      diligence could not have  been discovered
                      in  time to  move for  a new  trial under
                      Rule 59(b)."

            This court will disturb  a district court's denial of  a Rule

            60(b)  motion only  upon a  finding that  the  district court

            abused  its discretion  in  denying the  motion.   Rodriguez-
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            Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.
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            1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir.
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            1988).

                 The  putative  "newly  discovered" evidence  offered  by

            Cowhig in support  of his Rule  60(b)(2) motion consisted  of

            the following four  items:   (1) August 1991  letters of  Lt.

            Col. Thomas Kelly  discussing typhoon weather conditions  and

            paratroop operations on  Okinawa in 1961;  (2)  October  1991

            and  March  1985  letters  of  Dr.  George  Roark  diagnosing

            Cowhig's  medical condition  on Okinawa  in 1961-62,  in part

            reviewing  Dr. Roark's  1983  testimony on  the same  subject

            before the Army Board for the Correction of Military Records;

            (3)   an  October 1991  letter from  Dr. John  Day diagnosing

            Cowhig's  medical condition in the  early 1960's; and  (4)  a

            January 1986  letter from Dr.  William Rohde doing  the same.

            None of  these  items  of  evidence meet  the  Rule  60(b)(2)

            requirement that the evidence  could not have been discovered



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            in time  for a  Rule  59 motion,  i.e., by  July  1991.   Dr.

            Rohde's January 1986 letter and Dr. Roark's March 1985 letter

            were  in existence  before  that time  and  obviously do  not

            constitute newly  discovered  evidence.    Lt.  Col.  Kelly's

            letter concerning  conditions in  Okinawa in 1961  sets forth

            information that should have been available to Cowhig  at any

            time  between  his  January  1962 discharge  and  July  1991.

            Finally, the October 1991 medical diagnoses of  Dr. Roark and

            Dr.  Day could  have been  obtained, in  the exercise  of due

            diligence, by July 1991.   Thus, Cowhig in fact  presented no

            newly discovered evidence at all.

                 Even were it otherwise, "it  is the invariable rule, and

            thus,  the  rule  in this  circuit,  that  a  litigant, as  a

            precondition to relief under Rule  60(b), must give the trial

            court  reason to believe that vacating  the judgment will not

            be  an empty exercise."   Teamsters, Chauffeurs, Warehousemen
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            and Helpers  Union, Local No. 59  v. Superline Transportation
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            Co.,  953 F.2d 17,  20 (1st Cir.  1992).  The  litigant must,
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            instead, "at least establish  that it possesses a potentially

            meritorious  claim or  defense which,  if proven,  will bring

            success in its wake."  Id. at 21.  Here, by contrast, even if
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            the trial court  were to  accept as true  all the  assertions

            concerning Cowhig's  medical  condition in  1961-62 that  are

            contained in  Cowhig's proffered evidence,  that would  avail

            Cowhig  nothing.    All  of Cowhig's  proffered  evidence  is



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            irrelevant  to  the res  judicata,  collateral  estoppel, and

            statute of limitations grounds  upon which the district court

            based its judgment against Cowhig.

                 The district court's denial of Cowhig's Fed. R. Civ.  P.

            60(b) motion is affirmed.
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