Walsh v. Hagee ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
RORY WALSH, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-2215(RWR)
)
MICHAEL HAGEE, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Rory M. Walsh moves under Federal Rule of
Civil Procedure 60(b) for reconsideration of the October 26,
2012 memorandum opinion and order granting the defendants’
motions to dismiss and denying all other motions as moot. Walsh
reasserts legal arguments previously raised and rejected in the
memorandum opinion and order, argues that he has new claims and
evidence, alleges fraud by the defendants, and asserts that the
final judgment is void. Because Walsh has not established that
he is entitled to relief from the final judgment under Rule
60(b), his motion will be denied.
BACKGROUND
The relevant facts are described in an earlier opinion.
See Walsh v. Hagee, 900 F. Supp. 2d 51 (D.D.C. 2012), aff’d, No.
12-5367, 2013 WL 1729762 (D.C. Cir. Apr. 10, 2013).
-2-
Briefly, Walsh brought claims under the Constitution and
several federal statutes such as the Racketeer Influenced and
Corrupt Organization (“RICO”) Act, the Federal Tort Claims Act
(“FTCA”), and the Privacy Act alleging that the defendants
participated in a government conspiracy to harass and assault
him and his family. Walsh named as defendants former Marine
Corps Commandant Michael Hagee, Director of National
Intelligence James Clapper, United States District Judge
Christopher Connor, Secretary of Veterans Affairs Erik
Shineseki, other federal employees, and the United States
(“federal defendants”), as well as Keith Berger and James Axe.1
The defendants moved to dismiss Walsh’s amended complaint on a
variety of bases, including lack of personal jurisdiction, lack
of subject matter jurisdiction, improper venue, failure to state
a claim upon which relief can be granted, and failure to exhaust
administrative remedies.
An October 26, 2012 memorandum opinion granting the
defendants’ motions to dismiss concluded:
Walsh’s frivolous FTCA and Fourth, Fifth, and Sixth
Amendment claims based on a bizarre government
conspiracy theory and Walsh’s unexhausted claim under
18 U.S.C. § 2712 must be dismissed for lack of subject
matter jurisdiction. Walsh’s claim as to Axe will be
dismissed for lack of personal jurisdiction. Walsh’s
cause of action for judicial review in connection with
his request to correct his military record similarly
1
Raymond Marotta was also named as a defendant, but he was
dismissed from the case via a stipulation.
-3-
will be dismissed for lack of subject matter
jurisdiction, or alternatively for failure to state a
claim because he did not allege any final decision by
the Secretary that can be reviewed. Walsh’s claims
under the Privacy Act, RICO, the [Crime Victims’
Rights Act], the Victim and Witness Protection Act,
and the Fourteenth Amendment of the U.S. Constitution
must also be dismissed because Walsh failed to state a
claim upon which relief can be granted. Thus, the
remaining defendants’ motions to dismiss the complaint
will be granted.
Walsh, 900 F. Supp. 2d at 61-62. This decision was affirmed per
curiam by the D.C. Circuit on April 10, 2013. See Walsh, 2013
WL 1729762.
On August 9, 2013, Walsh moved for reconsideration of the
final judgment dismissing his amended complaint arguing that he
is entitled to relief from the October 26, 2012 memorandum
opinion under Federal Rule of Civil Procedure Rule 60(b).
FRCP 60 Mot. For Relief from Final Order and to Re-Open This
Action (“Pl.’s Mot.”) at 1. In particular, Walsh claims that
there is newly discovered evidence (Rule 60(b)(2)); there has
been a fraud upon the court (Rule 60(b)(3)); the judgment is
void (Rule 60(b)(4)); and other grounds justify relief, such as
the fact that Axe has been unresponsive and because Nicholas
Berger should be substituted as a defendant for his deceased
father, Keith Berger (Rule 60(b)(6)). Individual defendants
Berger and Axe and the federal defendants all opposed in
separate oppositions.
-4-
DISCUSSION
A court has discretion to grant relief from a final
judgment for five enumerated reasons under Rule 60(b)(1)-(5),
and for “any other reason that justifies relief” under Rule
60(b)(6). Fed. R. Civ. P. 60(b). “‘[T]he decision to grant or
deny a rule 60(b) motion is committed to the discretion of the
District Court.’” Kareem v. FDIC, 811 F. Supp. 2d 279, 282
(D.D.C. 2011) (alteration in original) (quoting United Mine
Workers of Am. 1974 Pension v. Pittston Co., 984 F.2d 469, 476
(D.C. Cir. 1993)). Motions for reconsideration are “disfavored”
and “granting . . . such a motion is . . . an unusual
measure[.]” Cornish v. Dudas, 813 F. Supp. 2d 147, 148 (D.D.C.
2011) (internal quotation marks omitted) (citing Kittner v.
Gates, 783 F. Supp. 2d 170, 172 (D.D.C. 2011); see also Wright
v. FBI, 598 F. Supp. 2d 76, 77 (D.D.C. 2009)). “[T]he moving
party bears the burden of establishing ‘extraordinary
circumstances’ warranting relief from a final judgment.”
Schoenman v. FBI, 857 F. Supp. 2d 76, 80 (D.D.C. 2012) (quoting
Niedermeier v. Office of Baucus, 153 F. Supp. 2d 23, 28 (D.D.C.
2001)).
Walsh alleges that there is newly discovered evidence that
shows that a fraud has been committed upon the court. For
example, Walsh argues that there is new evidence because his
“allegation is now confirmed by the exposure of defendant
-5-
Clapper’s criminal actions by Edward Snowden, who let the world
know Clapper (and Hagee) have the ability to look into judges
computers . . . .” Pl.’s Mot. at 5. Additionally, Walsh argues
that there is “new evidence of the determined criminal actions
of Hagee and Clapper” because, after the October 26, 2012
memorandum order and opinion, the defendants broke into Walsh’s
residence and car and “look[ed] into this Court’s computer.”
Id. at 5-6.
To prevail under Rule 60(b)(2), “the movant must
demonstrate that: (1) the newly discovered evidence is of facts
that existed at the time of trial or other dispositive
proceeding; (2) the party seeking relief was justifiably
ignorant of the evidence despite due diligence; (3) the evidence
is admissible and is of such importance that it probably would
have changed the outcome; and (4) the evidence is not merely
cumulative or impeaching.” Duckworth v. U.S. ex rel. Locke, 808
F. Supp. 2d 210, 216 (D.D.C. 2011).
Here, Walsh argues that his allegations have been confirmed
by Edward Snowden. However, information that merely confirms
Walsh’s assertions is not new information for the purposes of
Rule 60(b)(2). See Duckworth, 808 F. Supp. 2d at 216 (holding
that “new evidence” must be evidence that “is not merely
cumulative”). Rule 60(b) is not “a vehicle for presenting
theories or arguments that could have been raised previously.”
-6-
Fund For Animals v. Williams, 311 F. Supp. 2d 1, 5 (D.D.C. 2004)
(citing Kattan ex rel Thomas v. District of Columbia, 995 F.2d
274, 276 (D.C. Cir. 1993)). Even if the Snowden information
were “new evidence” under Rule 60(b)(2), Walsh fails to
demonstrate how it would have changed the outcome of his case.
Cf. Duckworth, 808 F. Supp. 2d at 216-17 (denying a Rule 60
motion despite the plaintiffs’ argument that a new report
demonstrates that the attorney engaged in prosecutorial
misconduct because the plaintiffs failed to “identif[y] any
specific evidence in the report that pertains to Plaintiffs’
case”).
Further, the new evidence of Hagee and Clapper’s
“determined criminal actions” does not warrant relief from the
judgment because Rule 60(b)(2) requires “newly discovered
evidence . . . of facts that existed at the time of trial or
other dispositive proceeding.” Duckworth, 808 F. Supp. 2d at
216. Here, the alleged break-ins occurred after the memorandum
opinion was issued and are not “facts that existed at the time”
of the proceeding. Nor does Walsh explain how this new evidence
would change the order dismissing the case for lack of subject
matter jurisdiction, lack of personal jurisdiction, failure to
state a claim upon which relief can be granted, and failure to
exhaust administrative remedies. See Walsh, 900 F. Supp. 2d at
-7-
61-62. Accordingly, Walsh has not shown that relief is
justified under Rule 60(b)(2).
Walsh also argues that relief is justified under Rule
60(b)(3), claiming that a fraud has been committed upon the
court. The thrust of Walsh’s numerous arguments about fraud is
that the government’s denials of what Walsh characterizes as
facts is a “fraud upon the court.” See, e.g., Pl.’s Mot. at 5
(arguing that the government’s confirmation that the FBI has not
issued any warrants to put Walsh under surveillance constitutes
a “fraud upon the court” because “Hagee and Clapper have been
conducting illegal surveillance on Walsh for years”); id. at 9
(arguing that Hagee “intercepted the complaint from defendant
Clapper and delivered it to the Navy” and that “there is no
counter evidence” so the government’s denial is a “fraud upon
the court”); id. at 10-12. Walsh also argues that the
defendants “falsified a medical evaluation to withhold Walsh’s
VA compensation” and is “withholding” the medical evaluation.
Id. at 11-12.
Under Rule 60(b)(3), the movant must show “by clear and
convincing evidence . . . that the other party engaged in fraud,
misrepresentation, or misconduct.” Almerfedi v. Obama, 904 F.
Supp. 2d 1, 5 (D.D.C. 2012) (internal quotation marks omitted).
Additionally, a Rule 60(b)(3) motion will not be granted unless
the plaintiff can “show actual prejudice” which means “he must
-8-
demonstrate that defendant’s conduct prevented him from
presenting his case fully and fairly.” Ramirez v. Dep’t of
Justice, 680 F. Supp. 2d 208, 209 (D.D.C. 2010); see
also Summers v. Howard Univ., 374 F.3d 1188, 1193 (D.C. Cir.
2004) (explaining that prejudice requires “the movant [to] show
that the misconduct foreclosed full and fair preparation or
presentation of its case” (internal quotation marks omitted)).
Walsh’s arguments fail to demonstrate how the defendants’
conduct prevented him from presenting his case. Rather, Walsh
relies on conjecture and unsupported assertions to reiterate the
same allegations that he presented in his original and amended
complaints. See, e.g., Green v. Am. Fed’n of Labor & Congress
of Indus. Orgs., 811 F. Supp. 2d 250, 254 (D.D.C. 2011) (denying
the plaintiff’s motion for reconsideration because “the
plaintiff does not indicate how such fraud would have prevented
him from fully and fairly presenting his case before the
court”); Bennett v. United States, 530 F. Supp. 2d 340, 341
(D.D.C. 2008) (denying Rule 60(b)(3) motion where the plaintiff
merely “alleg[ed] that Defendant’s legal arguments perpetrated a
‘fraud’ upon the court or simply repeat[ed] general legal
arguments already made by Plaintiff and rejected by the Court”).
Without such evidence of prejudice, Walsh is entitled to no
relief under Rule 60(b)(3).
-9-
Walsh seeks relief under Rule 60(b)(4) claiming that the
judgment is void because of “inherent due process violations”
and because of the fraud upon the court. “Relief under Rule
60(b)(4) is not available merely because a disposition is
erroneous. Rather, before a judgment may be deemed void within
the meaning of the rule, it must be determined that the
rendering court was powerless to enter it.” Combs v. Nick Garin
Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987) (footnote and
internal quotation marks omitted); see also Karsner v. Lothian,
532 F.3d 876, 886 (D.C. Cir. 2008). “A judgment may be void if
the court lacked personal or subject matter jurisdiction in the
case, acted in a manner inconsistent with due process or
proceeded beyond the powers granted to it by law.” Green, 811
F. Supp. 2d at 253; accord Eberhardt v. Integrated Design &
Constr., Inc., 167 F.3d 861, 871 (4th Cir. 1999). No such
circumstances are apparent in this case, and Walsh cannot
prevail on this ground.
Finally, Walsh argues that defendant Axe’s failure to
respond justifies relief under Rule 60(b)(6). He also appears
to argue that he is entitled to relief from the judgment because
State Trooper Nicholas C. Berger should replace his deceased
father, Keith Berger, as a defendant.2 See Pl.’s Mot. at 16-19
2
Walsh also contends that the “falsified medical records”
justifies relief under Rule 60(b)(6) as well as under Rule
-10-
(arguing that “[t]he death of defendant Berger did not
extinguish the claim against him”).
Axe had been dismissed from the case because of a lack of
personal jurisdiction and could not have been required to
participate in this litigation at all. Moreover, Walsh already
moved in June of 2012 to appoint Nicholas Berger as executor for
the estate of Keith Berger and to substitute Nicholas Berger for
Keith Berger, and his motion was denied. Even if Walsh’s
arguments about Axe and Berger had merit, that is nevertheless
insufficient to merit relief under Rule 60(b)(6). Relief under
Rule 60(b)(6) ‘“should be only sparingly used’” and only in
“‘extraordinary circumstances.’” Salazar ex rel. Salazar v.
Dist. of Columbia, 633 F.3d 1110, 1119-20 (D.C. Cir. 2011)
(quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)
and Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577
(D.C. Cir. 1980)). Reconsideration can be properly granted
“only ‘when a party timely presents a previously undisclosed
fact so central to the litigation that it shows the initial
judgment to have been manifestly unjust.’” Taitz v. Obama, 754
F. Supp. 2d 57, 59 (D.D.C. 2010) (quoting Good Luck Nursing
Home, Inc., 636 F.2d at 577). Because Walsh has failed to
60(b)(3). Pl.’s Mot. at 11-12, 19-20. However, “the catch-all
provision, Rule 60(b)(6), is mutually exclusive with the grounds
for relief in the other provisions of Rule 60(b).” Kramer v.
Gates, 481 F.3d 788, 792 (D.C. Cir. 2007).
-11-
demonstrate extraordinary circumstances or a manifest injustice,
or even that there was “a previously undisclosed fact . . .
central to the litigation,” his claim for relief under Rule
60(b)(6) must also fail.
CONCLUSION AND ORDER
Walsh has not demonstrated that he is entitled to relief
under Rule 60(b)(2)-(4), or that there are extraordinary
circumstances warranting relief under Rule 60(b)(6), from the
October 26, 2012 memorandum opinion and order. Accordingly, it
is hereby
ORDERED that the plaintiff’s motion [89] for
reconsideration be, and hereby is, DENIED.
SIGNED this 4th day of December, 2013.
________/s/__________________
RICHARD W. ROBERTS
Chief Judge