Bowles v. United States ( 2015 )

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3Jn tbe Wniteb
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Qeourt of jfeberal Qelaims
No. 14-1241C
(Filed October 22, 2015)
NOT FOR PUBLICATION
FILED
* * * * * * * * * * * * * * * * * * OCT 2 2 2015
* U.S. COURT OF
* FEDERAL CLAIMS
THOMAS E. BOWLES III, *
·k
Plaintiff, *
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
* * * * * * * * * * * * * * * * * *
ORDER
On August 10, 2015, plaintiff filed a motion for reconsideration of this Court's
July 31, 2015 Memorandum Opinion dismissing his case . See Pl.'s Mot. for Recons.,
ECF No. 18. One week later, on August 17, 2015, plaintiff filed a second motion for
reconsideration. See Pl.'s Am. Mot. for Recons., ECF No. 19. Since both papers
were timely filed within 28 days of entry of judgment, see Rule 59(b)(l), (e), Rules of
the United States Court of Federal Claims (RCFC), the Court has treated the
second one as amending the initial motion for reconsideration. The relevant rule
states that a motion for reconsideration may be granted:
(A) for any reason for which a new trial has heretofore been granted in an
action at law in federal court; [or]
(B) for any reason for which a rehearing has heretofore been granted in a suit
in equity in federal court ....
RCFC 59(a)(l). To prevail under this rule, the movant must "show that: (a) an
intervening change in controlling law has occurred; (b) evidence not previously
available has become available; or (c) that the motion is necessary to prevent
manifest injustice." Prati v. United States, 82 Fed. CL 373, 376 (2008) (citing
Bishop v. United States, 26 Cl. Ct. 281, 286 (1992)).
Plaintiff has pointed to no such changes, new evidence, or potential for
manifest injustice. In the first reconsideration paper, Mr. Bowles merely repeats
his claim that he has been deprived of property without due process of law in
violation of the Fifth Amendment to the Constitution. PL's Mot. for Recons. at 1-2.
As was discussed in the prior opinion, those claims are outside our jurisdiction for
at least two reasons. First, plaintiff claims that he was deprived of his
constitutional rights by the acts, or omissions, of New York state and New York
state judges. Id. at 1. Those claims are necessarily outside of our jurisdiction as the
only proper defendant in this court is the United States. Bowles v. United States,
2015 WL 4710258, at *3 (Fed. Cl. July 31, 2015). Second, in so far as plaintiff is
seeking to collaterally attack judgments of other federal courts, such claims are also
outside our jurisdiction. Pl.'s Mot. for Recons. at 1; Bowles, 2015 WL 4710258, at
*3. In any event, it is not sufficient for the party seeking reconsideration to "merely
reassert[] ... arguments previously made [and] carefully considered by the court."
Principal Mut. Life Ins. Co. v. United States, 29 Fed. CL 157, 164 (1993) (internal
question marks and citation omitted).
In his second reconsideration paper, Mr. Bowles raises the new theory that
the federal judges who heard his district court cases breached an implied contract to
protect his constitutional rights. Pl.'s Am. Mot. for Recons. at 1-2. The nature of
this purported implied contract is somewhat difficult to discern, but plaintiff seems
to believe it stems from the judicial oath of office. Id. at 1. How plaintiff came to be
a party to contracts formed when individual judges took their oaths of office is not
explained. But "[t]o maintain a cause of action pursuant to the Tucker Act that is
based on a contract, the contract must be between the plaintiff and the
government." Cienega Gardens v. United States, 194 F.3d 1231, 1239 (Fed. Cir.
1998) (quoting Ransom v. United States, 900 F.2d 242, 244 (Fed. Cir. 1990)).
An implied-in-fact contract is "founded upon a meeting of minds, which,
although not embodied in an express contract, is inferred, as a fact, from conduct of
the parties showing, in the light of the surrounding circumstances, their tacit
understanding.'' Baltimore & O.R.R. v. United States, 261 U.S. 592, 597 (1923); see
also Atlas Corp. v. United States, 895 F.2d 745, 754 (Fed. Cir. 1990). A claim based
on an implied-in-fact contract must allege conduct and circumstances from which
the four elements of a contract with the government may be inferred: mutuality of
intent to contract, consideration, lack of ambiguity in offer and acceptance, and the
actual authority to enter a binding contract on behalf of the United States. City of
El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). The complaint
contained no such allegations and did not even mention an action for breach of
contract. See Compl. at 1-6. Rather than resting on an intervening change in law
or newly-available evidence relating to the claims raised in the complaint, this
ground for reconsideration asserts jurisdiction based on a claim that was not even
pled. A motion for reconsideration is not the proper vehicle for raising new causes
of action, much less novel ones stated in a conclusory fashion without the necessary
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elements having been alleged. See Matthews v. United States, 73 Fed. Cl. 524, 526
(2006) (citing Lamle v. Mattel, Inc., 394 F.3d 1355, 1359 n.1 (Fed. Cir. 2005)).
For the reasons stated above, plaintiffs motion for reconsideration and his
amended motion for reconsideration are DENIED.
IT IS SO ORDERED.
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