Gary Lee Mccolpin, Plaintiff-appellant, v. the United States, Defendant-appellee, 902 F.2d 43 (Fed. Cir. 1989)

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U.S. Court of Appeals for the Federal Circuit - 902 F.2d 43 (Fed. Cir. 1989) Dec. 4, 1989

Before ARCHER, MAYER and MICHEL, Circuit Judges.

MICHEL, Circuit Judges.


The United States moves for summary affirmance of the Claims Court's September 29, 1989 order denying Gary Lee McColpin's request for relief pursuant to RUSCC 60(b). McColpin opposes the motion.

On January 10, 1989, this court affirmed a decision of the Claims Court that dismissed McColpin's complaint on the ground that it was barred by the doctrine of res judicata. Shortly after the Supreme Court denied McColpin's petition for writ of certiorari, he filed a "Motion on Newly Discovered Evidence" in the Claims Court. McColpin's motion contained no "new evidence," but rather repeated arguments presented in earlier suits. On September 29, 1989, the Claims Court denied McColpin's motion and he filed the instant appeal.

Summary affirmance is appropriate where the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case. Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.), cert. denied, 394 U.S. 1012 (1969). Here, there is no question that the Claims Court properly dismissed McColpin's complaint on ground of res judicata.



The United States' motion for summary affirmance is granted.