Perry v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN L. PERRY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2014-5021
______________________
Appeal from the United States Court of Federal
Claims in No. 1:12-cv-00425-MBH, Judge Marian Blank
Horn.
______________________
Decided: March 11, 2014
______________________
KEVIN L. PERRY, of El Centro, California, pro se.
JENNIFER E. LAGRANGE, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and DONALD E. KINNER, Assistant Director.
______________________
2 PERRY v. US
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
PER CURIAM.
Mr. Perry appeals the United States Court of Federal
Claims’ order denying his Motion for relief under Rule
60(b)(6) of the Rules of the United States Court of Federal
Claims. Because Mr. Perry identifies no legal or factual
error in the Court of Federal Claims’ decision, this court
affirms.
BACKGROUND
On June 28, 2012, Mr. Perry filed suit in the Court of
Federal Claims challenging the United States Depart-
ment of Veterans Affairs’ (“VA”) determination of his VA
benefits. The Complaint was dismissed for lack of juris-
diction because (1) 38 U.S.C. § 511 (2006) prohibits review
of VA decisions except in the United States Court of
Appeals for Veterans Claims (“Veterans Court”) (and in
certain other circumstances not applicable here); (2) Mr.
Perry did not allege a cognizable property interest for
purposes of the Takings Clause of the Fifth Amendment;
and (3) jurisdiction was not proper over his apparent due
process claim because the Due Process Clause is not
money-mandating. Appellee’s App. (“App.”) 18.
Mr. Perry appealed and on May 8, 2013, this court af-
firmed the Court of Federal Claims’ decision, agreeing
that, pursuant to § 511, the Veterans Court “and not the
Court of Federal Claims, has exclusive jurisdiction to
review VA determinations regarding disability benefits.”
Perry v. United States, 524 F. App’x 680, 681 (Fed. Cir.
2013) (unpublished), reh’g denied (June 5, 2013). While
this court observed that “[i]t appears Mr. Perry has previ-
ously appealed a decision by the Board [of Veterans
Affairs] to the Court of Appeals for Veterans Claims with
regard to his VA benefits determination,” it stated “that
decision is not the basis for this appeal.” Id. at 682 (citing
PERRY v. US 3
Perry v. Nicholson, 23 Vet. App. 502 (2007)). This court
further noted that even if § 511 did not divest the Court of
Federal Claims of jurisdiction over Mr. Perry’s claims, he
failed to allege a cognizable property interest sufficient to
state a claim under the Takings Clause of the Fifth
Amendment. Id. at 681 n.1. Mr. Perry filed a petition for
panel rehearing, which was denied on June 5, 2013.
On July 19, 2013, Mr. Perry returned to the Court of
Federal Claims and, by leave of the judge then assigned to
the case, filed a motion for relief from judgment titled
“[Rule] 60(b)(6) Motion for Relief from Court Order Dis-
missing Complaint 12-425C [and] Motion to Transfer Due
Procfess [sic] Claim Pertaining to VA Disability Compen-
sation to the United States Court of Appeals for the
Federal Circuit” (the “Motion”). App. 3, 4.
The Court of Federal Claims denied the Motion on
November 14, 2013. While noting that “[i]n rare and
extraordinary circumstances, even after the appellate
court affirms the trial court’s decision, the trial court
judge may consider whether circumstances not previously
known to either court compel reopening of the case,” the
Court of Federal Claims found that Mr. Perry had
“fail[ed] to describe any new issue” that might warrant a
transfer or relief under Rule 60(b)(6). App. 6. Instead,
Mr. Perry had simply (1) reiterated his assertion that the
Court of Federal Claims possesses jurisdiction to review
his challenge to the determination of his VA benefits, and
(2) tried to re-characterize his claim as one arising under
the National Childhood Vaccine Injury Act of 1986, 42
U.S.C. § 300aa-1 (2006), or the Military Pay Act, 37
U.S.C. § 204 (2006). App. 6.
In addition, the Court of Federal Claims stated that,
although the previously-assigned judge had allowed the
filing of Mr. Perry’s Motion:
[Mr.] Perry already has been deemed “a vexatious
litigant” by the United States District Court for
4 PERRY v. US
the Southern District of California, based on “nu-
merous and meritless state and federal court ac-
tions.” Mr. Perry was enjoined by that court’s
September 30, 2011 Order from filing any new civ-
il actions “in this or any federal court of the Unit-
ed States without first obtaining leave of that
court.” Specifically, Mr. Perry was instructed “to
attach a copy of [the Southern District of Califor-
nia’s] Order to any new actions that he may file in
any federal court.” He also was directed to “lodge
with the Clerk of Court . . . [a] sworn affidavit or
declaration certifying that:
I. the complaint r[a]ises a new issue which
has never been raised previously by him
in either a state or federal court
II. that his claim is well-grounded in fact
and in law and is not frivolous
Ill. that in prosecuting the action, he will
comply with all federal and local rules of
civil procedure.”
App. 5 (quoting Perry v. Veolia Transp., No. 11-CV-176-
LAB-RBB, 2011 WL 4566449, at *14–16 (S.D. Cal. Sept.
30, 2011)).
While Mr. Perry did not attach the required affidavit
or declaration, 1 he did alert the previously-assigned judge
1 On August 20, 2012, Mr. Perry filed a different
Complaint in the Court of Federal Claims alleging viola-
tions of his rights under the Veterans’ Reemployment
Rights Act, 38 U.S.C. §§ 2021–2027 (1988). Perry v.
United States, No. 12-525C, 2013 WL 2425118 (Fed. Cl.
June 4, 2013). The Court of Federal Claims dismissed
that Complaint for failure to comply with the terms of the
Southern District of California’s pre-filing injunction. Id.PERRY v. US 5
to the Southern District of California case and stated that
his “motion raises a new issue which has never been
raised previously by me in any other state or federal court
or this court.” App. 6. The Court of Federal Claims
disagreed, concluding “[n]o new matters, which have
‘come to light after the appellate court has issued a deci-
sion,’ have been raised by plaintiff. Nor have matters
alleging events not known to either this court or the
Federal Circuit when issuing their decisions been identi-
fied.” App. 6 (quoting Bernheim v. Jacobs, 144 F. App’x
218, 222 (3d Cir. 2005); Standard Oil Co. of Cal. v. United
States, 429 U.S. 17, 18 (1976)).
On November 22, 2013, Mr. Perry appealed. Because
the Court of Federal Claims’ ruling on a Rule 60(b) motion
“is final and appealable pursuant to 28 U.S.C. § 1292,”
Venture Indus. Corp. v. Autoliv ASP, Inc., 457 F.3d 1322,
1327 (Fed. Cir. 2006), this court has jurisdiction under 28
U.S.C. § 1295(a)(3) (2012).
at *2 (“The district court, in noting that Mr. Perry has
brought at least eight other unsuccessful suits since
1997, . . . concluded that his suits are ‘frivolous’ and ‘form
a pattern of harassment.’ The court deemed Mr. Perry a
vexatious litigant and issued an order . . . enjoin[ing Mr.
Perry] from filing any new civil actions in this or any
other federal court of the United States without first
obtaining leave of that court.”) (quoting Perry v. Veolia,
2011 WL 4566449, at *10). The Court of Federal Claims
concluded “Mr. Perry did not include all the attachments
required by the injunction . . . . Accordingly, Mr. Perry
violated the terms of the injunction issued by the district
court and dismissal is appropriate on those grounds.” Id.
at *2. This court affirmed on December 6, 2013. Perry v.
United States, No. 2013-5125, 2013 WL 6333459 (Fed.
Cir. Dec. 6, 2013) (unpublished).
6 PERRY v. US
DISCUSSION
Under Rule 60(b)(6), the Court of Federal Claims
“may relieve a party . . . from a final judgment, order, or
proceeding for . . . any . . . reason that justifies relief.”
The United States Supreme Court, however, has “cau-
tion[ed] that [the Rule] should only be applied in ‘extraor-
dinary circumstances.’” Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 864 (1988) (quoting
Ackermann v. United States, 340 U.S. 193, 200 (1950)); see
also Info. Sys. & Networks Corp. v. United States, 994
F.2d 792, 795 (Fed. Cir. 1993) (“[S]ubsection (6) [of Rule
60(b)] requires a showing of ‘extraordinary circumstanc-
es.’”).
“This court . . . reviews a trial court’s ruling on a Rule
60(b) motion for abuse of discretion.” Brickwood Contrac-
tors, Inc. v. United States, 288 F.3d 1371, 1376 (Fed. Cir.
2002) (citing Info. Sys. & Networks, 994 F.2d at 794). “An
abuse of discretion exists ‘when the trial court’s decision
is clearly unreasonable, arbitrary or fanciful, or is based
on clearly erroneous findings of fact or erroneous conclu-
sions of law.’” Lazare Kaplan Int’l, Inc. v. Photoscribe
Techs., Inc., 714 F.3d 1289, 1293 (Fed. Cir. 2013) (quoting
Fiskars, Inc. v. Hunt Mfg. Co., 279 F.3d 1378, 1382 (Fed.
Cir. 2002)).
Mr. Perry argues the Court of Federal Claims failed to
take into account certain facts. However, once again Mr.
Perry simply reiterates his contention that the determi-
nation of his VA benefits violated the Takings Clause of
the Fifth Amendment, Appellant’s Br. 1 (“I had a property
interest in my professional military career with the Unit-
ed States Army.”), and that the Court of Federal Claims
has jurisdiction to award him relief, Appellant’s Br 5–6
(“The United States Court of Federal claims has jurisdic-
tion (28 U.S.C. § 1491(a)(2)) to order the Board of Veter-
an’s Appeal to amend my [VA benefits] . . . and award me
PERRY v. US 7
VA disability compensation in accordance with 38
U.S.C.A. §§ 1110 and 1114(s).”).
This court has already held that the Court of Federal
Claims lacks subject matter jurisdiction to address these
claims. Perry, 524 F. App’x at 681. The mandate has
issued in the case rendering this court’s jurisdictional
holding final and binding under the mandate rule. See,
e.g., Banks v. United States, No. 2012-5067, 2014 WL
292403, at *5 (Fed. Cir. Jan. 28, 2014) (“Once a question
has been considered and decided by an appellate court,
the issue may not be reconsidered at any subsequent
stage of the litigation, save on appeal.”). Mr. Perry’s Rule
60(b)(6) Motion cannot reopen this court’s prior jurisdic-
tional decision for review. See Browder v. Dir., Dep’t of
Corrs. of Ill., 434 U.S. 257, 263 n.7 (1978) (“The Court of
Appeals may review the [Rule 60(b)] ruling only for abuse
of discretion . . . and an appeal from denial of Rule 60(b)
relief does not bring up the underlying judgment for
review.”).
In addition, Mr. Perry has identified no facts the
Court of Federal Claim has incorrectly decided or failed to
take into account. Simply put, no attempt has been made
to demonstrate “extraordinary circumstances” that would
warrant post-judgment review under Rule 60(b)(6).
Liljeberg, 486 U.S. at 864. The Court of Federal Claims
did not abuse its discretion in concluding as much.
Mr. Perry also argues the Court of Federal Claims
applied the wrong law, citing Chambers v. United States,
417 F.3d 1218 (Fed. Cir. 2005), a case in which the De-
partment of the Army Board for Correction of Military
Records (“ABCMR”) denied a plaintiff’s request to reopen
his honorable discharge to determine whether he should
have received military disability pay under 10 U.S.C.
§ 1201. In Chambers, this court held the Court of Federal
Claims possessed subject matter jurisdiction over a claim
because it was a disability retirement pay case under 10
8 PERRY v. US
U.S.C. § 1201, which is a money-mandating statute for
purposes of the Tucker Act, 28 U.S.C. § 1491. Chambers,
417 F.3d at 1223.
Mr. Perry now attempts to characterize his original
Complaint as a claim for disability retirement pay under
10 U.S.C. § 1201, attaching a July 16, 2010 letter from the
ABCMR denying his request for reconsideration of a case
considered in September 2002. 2 Appellant’s Br. 4 (“I want
the court to change my honorable discharge to a 100%
medical discharge and award me military disability
retirement and pay in accordance with 10 U.S.C
§§ 1201(a) and 1552(a)(l). I am suffering from disabilities
I incurred from human experimentation with prescription
drugs caused by the United States Government, U.S.
Army, and Department of Veterans’ Affairs.”).
Mr. Perry has not brought a claim for disability re-
tirement pay under 10 U.S.C. § 1201. Instead, he is once
again challenging the VA’s determination of his VA
benefits, but relying on a different document for jurisdic-
tion. As stated, however, a Rule 60(b)(6) motion cannot be
used to reopen Mr. Perry’s case. There is no basis to
conclude that the Court of Federal Claims abused its
discretion in denying the Rule 60(b)(6) Motion.
Finally, it would be remiss of this court to ignore the
Southern District of California’s pre-filing injunction. See
Perry v. Veolia Transp., 2011 WL 4566449, at *11 (taking
notice of the twenty-two state court orders, dockets re-
ports, and complaints filed in support of a motion to
2 As Appellee notes, “[t]o the extent Mr. Perry seeks
to assert new claims based on the dispute underlying the
July 16, 2010 letter, any such claims appear to be time-
barred as the ABCMR denied reconsideration in Septem-
ber 2003.” Appellee’s Br. 8 n.4 (citing Chambers, 417 F.3d
at 1227).
PERRY v. US 9
declare Perry a vexatious litigant, and concluding that
“[t]he present complaint, as well as the previous state
court actions, illustrate not only that Perry’s suits are
frivolous, but that they form a pattern of harassment.”).
That injunction specified that “Kevin L. Perry is enjoined
from filing any new civil actions in this or any other
federal court of the United States without first obtaining
leave of that court. Kevin L. Perry must attach a copy of
this Order to any new actions that he may file in any
federal court.” Id. This court agrees with the Court of
Federal Claims that Mr. Perry’s present motions “are yet
additional instances by plaintiff of his filing frivolous
claims.” App. 7.
CONCLUSION
Accordingly, the United States Court of Federal
Claims’ order denying Mr. Perry’s Motion for relief under
Rule 60(b)(6) is affirmed. In addition, the United States
Court of Federal Claims is directed to bar any further
filings by this plaintiff that do not comply with the direc-
tions and requirements of the United States District
Court for the Southern District of California’s pre-filing
injunction. Perry v. Veolia Transp., 2011 WL 4566449, at
*11.
AFFIRMED
COSTS
Costs imposed on Appellant.