KALOS et al v. USA, No. 1:2015cv00880 - Document 23 (Fed. Cl. 2017)

Court Description: MEMORANDUM OPINION and ORDER denying 19 Motion for Relief from Judgment - Rule 60. Sent to plaintiff via USPS certified mail # 70163010000043083594. Signed by Chief Judge Susan G. Braden. (dw) Copy to parties. Modified on 6/14/2017 to remove text directing the entry of judgment. (dls).

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-.'i''"?:':''.- KALOS et al v. USA ;:,.;:.'1€r' r ."Sry r i" ]! Doc. 23 . lln l1il ,.i. tbe @nfteb Stutetr"@ourt of feDrgXI$tufme Filed: June f2,2017 ** ** **** **** * *** * t ****,t,t * *** t t +*,*,t *,* J',Jl! * * * ?817 Rules ofthe United States Court ofFederal * Plaintiffs, pro se, 2 U.S. COURT OF FEDERAL CLAIMS * PETER KALOS. VERON KALOS t * Claims ("RCFC") 60(bxl), (bX6) (ReliefFrom a Judgment or Order). THE UNITED STATES, Defendant. + * :r ********************* + *,* * * *,t :t ** :* * * Peter Kalos and Veron Kalos, Broad Run, Virginia, pra Kara M. westercamp, United .re. States Department of Justice, civil Division, washington, D.c., Counsel for the Govemment. MEMORANDUM OPINION AND ORDER CONCERNING PLAINTIFFS' MOTION FOR RELIEF FROM DISMISSAL BRADEN, ChiefJudge. on April 3, 2017, Peter and veron Kalos ("plaintiffs") filed a Motion For Relief From Dismissal ("P1. Mot."), pursuant to the Rules of the United states court of Federal claims ("Rcrc) 60(b)(1) and 60(b)(6). ECF No. 19. plaintiffs seek relief from the judgment entered on March 18,2016. ECF No. 12. on April 20,201i, the Govemment filed a response (..Gov't Resp."). ECF No. 21. On May 4,2017, Plaintiffs filed a reply (,.p1. Reply,,). ECF No. 22. The United States Court of Federal Claims may provide relief from a judgment or order under RCFC 60(b) for: "(l) mi_stake, inadvertence, surprise, or excusable negiect-. . . or (6) any other reason that justifies relief." RCFC 60(bxl), (6). "A motion under nbrc ooiu; must be made within a reasonable time-and for reasons (l), (2), and (3) no more than a year after the entry ofthejudgment or order or the date ofthe proceeding." RCFC 60(c)(l). The Flderal circuit has held that the movant must show "extraordinary circumstances,' when filing a motion, pursuant to RCFC 60(bx6), but not when filing a morion pursuant to RCFC 60(b)(lj. see sys & Networlrs Corp. v. united states, 994 F .2d i92, 7gs (Fed. cir. 1993) (;.While subsection (6) requires a showing of'extraordinary circumstances,' subsections (1) and (6) of Rule 60(b) .are mutually exclusive' and the required showing ofextraordinary circumstances under subsection (6) does not apply to excusable neglect under subsection (l).") (citations omitted). ldi. ?EIL t010 0000 1130sDockets.Justia.com l5!'.1 But, "once the judgement has been affirmed on appeal, RCFC 60 provides no general exception to the longstanding bar on the trial court's undoing the affirmance based on later presentation of arguments that the challenger presented, or could have presented, in the earlier appeal." Tolasila, Inc. v. United States,524 F. App'x 671, 673 (Fed. Cir. 2013). An RCFC 60 motion is "not available to simply relitigate a case." IMagstaffv. (lnitedStates,5g5 F. App'x 975, 978 (Fed. Cir.2014). ln this case, Plaintiffs' motion under RCFC 60(bX1) is untimely, because an appeal does not toll the one-year period during which a party may file a Rule 60(bX1) motion. See Mudge v. united states,78 Fed. cl. 818, 820 (2007) ("The subsequent appeal did not toll the one-year period[.]") (citation omitted). In addition, an affirmation on appeal does not "start a new period for seeking relief from that judgement." Id. (citing Tool Box, Inc. v. Ogden City Corp,419 F.3d 1084, 1088-89 (lOth cir.2005). Plaintiffs signed the cerrificate of service on March 29,2017 and their motion was filed on April3,2017. Pl. Mot. at 1,9. The clerk ofthe United states court of Federal claims entered judgment on March 18,2016. ECF No. 12. Because plaintiffs' motion was filed more than one year after judgment was entered, Plaintiffs' Motion For Relief From Dismissal is untimely. See RCFC 60(c)(l). Plaintiffs also fail to show extraordinary circumstances under RCFC 60(b)(6). The United ofAppeals for the Federal Circuit has held that "extraordinary circumstances exist if a person can demonstrate that he was not at fault for his predicamenl." Mendez v. [Jnited States, 600 F. App'x 731,733 (Fed. cir. 2015), cert. denied, 136 s. ct. 62 (2015) (citing pioneer Inv. servs. Co. v. Brunswick Assocs. Ltd. P'ship,507 u.s. 380, 393 (1993). plaintiffs argue that "dismissal is a hardship and prejudicial" and that changes made to Plaintiffs' property interest support a finding of extraordinary circumstances. Pl. Mot. at 6. In addition, Plaintiffs appear to argue that the existence ofan unsettled claim by the Govemment is an extraordinary circumstance. Pl. Reply at 6. States Court Plaintiffs, however, still fail to recognize that the court previously determined that it did not have jurisdiction to adjudicate the claims alleged by their August 14, 201 5 Complaint, because Plaintiffs' claims were baned by the relevant statute of limitation, 2g U.S.C. Q 250i. See Katos v. United States, No. 15-880 C,2016WL t073275, at *4 (Fed. Cl. Mar. t7,2016), affd,670F. App'x714 (Fed. cir. 2016); see a/scr 28 U.S.c. g 2501 ("Every claim of which rhe u;ited states Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues."). This statute of limitationi is an explicit condition ofthe Government's waiver of sovereign immunity and, as a matter of law, jurisdictional. sec John R. sand & Gravel Co. v. [Jnited states, 552 U.S. 130, I 39 (2008) (holding that the six-year sratute of limitations set forth in 28 U.S.C. $ 2501 is a jurisdictional requirement for a suit in the United States Court of Federal Claims). Therefore, the couft cannot grant Plaintilfs relief under RCFC 60ft). For these reasons, Plaintiffs' Motion For Relief From Dismissar is denied. IT IS SO ORDERED. Chief Judge

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