Johnson v. United States ( 2016 )

oRtGt[\|At
llntlst @nitrD 9rtutts @ourt of /rltrul @lsrmg
No. 16-1497
FILED
(Filed: August 9,2016) AUG - I 2ot6
* * * tf *,1 * t * * * + ***** {. * * {.,* * * {. * * * *,t * {( 1( *** * U.S. COURT OF
ROGER C. JOIINSON, FEDERAL CI-AIMS
Plaintifi * Pro Se Plaintiff; Motion for
* Reconsideration; RCFC 59(e)
*
THE LAIITED STATES,
Defendant. *
+ * * * *,t * * * * * * * * * * * * i. * {.,f )t * * * * * * * * *,1 *,} * *
Roger C. Johnson, Westerville, OH, pro se.
Jason Selmont, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Judge
Before the courl is plaintiff s motion for reconsideration, filed pursuant to Rule 59 ofthe
Rules of the Court of Federal Claims ("RCFC"). For the reasons set forth below, the motion is
denied.
I. BACKGROUND
On February 1, 2016, plaintiff, appearing pro se, filed suit in this court seeking a refund
of monies he claimed were illegally levied from his pension fund. Johnson v. United States, No.
I 6- 149T, 2016 WL 4006454, at * I . According to plaintiff, the Internal Revenue Service's
("lRS") attempts to obtain those monies from him constituted violations ofvarious federal
statutes as well as the Fourth Amendment to the United States Constitution. Id. He further
alleged that the government committed tortious acts. Id. Lastly, plaintiff filed an application to
proceed in forma pauperis ("IFP"). On Jdy 26,2016, the court granted plaintiff s IFP
application and defendant's motion to dismiss plaintilf s complaint, and ordered the clerk to
enter final judgment. Id. The instant motion was filed on August 4, 2016.
usps rRAc(NG
C,USTOMER
r 911.[ 9014 9645 0594 5522 07
For Tr.dd€
& or inquiri.s go ro USpS.con
RECEIPT o.calll-80G222-1811.
II. LEGALSTANDARD
"[A]ny motion . . . which seeks a substantive change in the judgment will be considered
[an RCFC 59(e)] motion."' Maxus Energy Corp. & Subsidiaries v. United States, 3l F.3d 1135,
1139 (Fed. Cir. 1994). "The legal standard for determining whether a change is 'substantive' is a
practical one whether the motion seeks a revision which disturbs or revises legal rights and
obligations that were settled by the previous judgment." Id. (citations omitted), Thus, the
court's review of a motion for reconsideration is "guided by the general understanding 'that, at
some point, judicial proceedings must draw to a close and the matter deemed conclusively
resolved. ..."' N. States Power Co. v. United States,79 Fed. C|.748,749 (2007) (quoting
Withrow v. Williams, 507 U.S. 680, 698 (1993)). Ultimately, the "decision whether to grant
reconsideration lies largely within the discretion ofthe district court," Yuba Nat. Res.. Inc. v.
United States, 904 F .2d I 577, l5 83 (Fed. Cir. I 990), and courts must "consider motions for
rehearing with exceptional care," Carter v. United States, 518 F.2d 1199,1199 (197 5).
In order to prevail, the moving party must, in addition to filing his motion "no later than
28 days after the entry ofjudgment," RCFC 59(e), make an evidentiary showing of extraordinary
circumstances. Crews v. United States , 424 F . App'x 937 , 940 (Fed. Cir. 20 I 1) (citing Fru-Con
Constr. Corp. v. United States,44Fed,. Cl. 298, 300 (1999)). Such extraordinary circumstances
include "(1) an intervening change in the controlling law; (2) the availability ofnew evidence; or
(3) the need to correct clear error or prevent manifest injustice." Del. Valley Floral Grp.. Inc. v.
ShawRoseNets. LLC,597 F.3d 1374,1383 (Fed. Cir.2010).
A court "will not grant a motion for reconsideration ifthe movant'merely reasserts . . .
arguments previously made[,] . . . all of which were carefully considered by the Court."'
Ammex. Inc. v. United States,52 Fed. Cl. 555, 557 (2002) (quoting Principal Mut. Life Ins. Co.
v. United States, 29 Fed. Cl. 157 , 164 (1993)). Furthermore, a party "may not prevail on a
motion for reconsideration 'by raising an issue for the first time on reconsideration when the
issue was available to be litigated at the time the complaint was filed."' Six v. United States, 80
Fed. Cl. 694, 697 (2008) (quoting Matthews v. United States, 73 Fed. Cl. 524, 525 (2006)).
Similarly, a motion for reconsideration "should not be based on evidence that was readily
available at the time the motion was heard." Seldovia Native Ass'n v. United States, 36 Fed. Cl.
593,594 (1996). Finally, 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." Pac. Gas & Elec. Co. v. United States,74Fed. Cl.779,785 (2006).
III. DISCUSSION
Plaintiff s motion for reconsideration was filed nine days following this court's entry of
final judgment. It is, therefore, timely. It is not, however, meritorious.
I While the original quotation cites the Federal Rules of Civil Procedure ("FRCP"),
"[t]he language ofRCFC 59 has been amended to conform to the general restyling of the FRCP."
RCFC 59 rules committee's note to 2008 amendment; accord Fla. Power & Lieht Co. v. United
States, 66 Fed. Cl. 93, 96 (2005) ("ln applying RCFC 59,judges of this Court regularly cite to
cases applying [FRCP] 59.").
As the court noted in its prior opinion, because the court lacked subject matter
jurisdiction over plaintiff s (l) tax refund claims, (2) wrongful levy claim, (3) statutory and
constitutional claims, and (4) claim for equitable relief, dismissal was appropriate. In his motion
for reconsideration, plaintiff neglects to make any showing of extraordinary circumstances. He
fails to identify any intervening change in the controlling law, fails to point to the availability of
new evidence, and fails to note any error that requires correction in order to prevent a manifest
injustice. Rather, he merely continues to press his tax refund and wrongful levy claims, albeit in
a slightly different fashion. See Pl.'s Mot. 1-3.
First, with regard to his tax refund claim, plaintiff argues that because "[t]he IRS admits
that it owes [him] $61,381.19," this is "proofthat not only did [he] pay his 'assessed tax
liability', but [that] he has overpaid said liability to the tune of$61,381.19." Id. at 1. In other
words, plaintiff claims that he has satisfied the full payment rule. Id. As the cou( stated
previously, however, the IRS notice to which plaintiff refers is addressed to him in his capacity
as trustee ofthe Roger C. Johnson Trust. Johnson, 2016 WL 4006454, at *4. Thus, plaintiff
does not, in his individual capacity, appear to have any right to claim that sum.
Lastly, with regard to his wrongful levy claim, plaintiff argues that as a trustee, he is a
third party and is therefore entitled to recover under the wrongful levy statute. Pl.'s Mot. 1 .
Plaintiff also argues that the IRS followed the incorrect procedures in asserting the levy. Id. at 1-
3. Again, however, as the court stated previously, plaintiff cannot claim that the IRS wrongfully
levied his property and simultaneously assert a wrongful levy claim. Johnson, 2016 WL
4006454, at *5. A claim for wrongful levy can only be made by a person other than the person
against whom the tax, out of which the levy arose, was assessed. See 26 U.S.C. $ 7a26(a)(1)
(2012). In this case, the tax and resulting levy were both assessed against plaintiff. He therefore
cannot assert a third-party wrongful levy claim.
IV, CONCLUSION
As set forth above, plaintiff has failed to make the requisite showing of extraordinary
circumstances that would warrant this court's disturbing its previous ruling and judgment.
Therefore, the court DENIES plaintiff s motion for reconsideration.
IT IS SO ORDERED.