In the United States Court of Federal Claims

No. 19-1610C

(E-Filed: January 22, 2021)1

BHB LTD. PARTNERSHIP

&

INDIANA ASSOCIATES LTD.

PARTNERSHIP OF WASHINGTON,

D.C.,

Plaintiffs,

 v.

THE UNITED STATES,

Defendant,

and 

RPT 1425 NEW YORK AVENUE, 

LLC

Intervenor-defendant.

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Motion for Reconsideration; RCFC 

54(b); Interlocutory Order; Case 

Management Order.

Abram G. Pafford, Washington, DC, for plaintiffs. 

Geoffrey M. Long, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney 

General, Robert E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director, 

Commercial Litigation Branch, Civil Division, United States Department of Justice, 

Washington, DC, for defendant. 

Seamus Curley, Washington, DC, for intervenor-defendant.

1 This order was originally issued on March 13, 2020. See ECF No. 66. It is being 

reissued without change, except for correction of minor typographical errors, for publication.
2

ORDER

On March 2, 2020, plaintiffs filed a motion for reconsideration of the court’s 

March 2, 2020, order denying plaintiffs’ motion to reconsider the court’s February 13, 

2020 opinion and order. See ECF No. 61. Plaintiffs so move pursuant to Rule 54(b) of 

the Rules of the United States Court of Federal Claims (RCFC) “and the Court’s inherent 

authority to revise non-final and interlocutory orders.” Id. at 1. For the following 

reasons, plaintiffs’ motion for reconsideration, ECF No. 61, is DENIED.

Plaintiffs argue in their motion that the court’s order denying their motion for 

reconsideration “errs by treating the title of RCFC 54(b) as defining its entire scope.” Id.

at 2. Plaintiffs go on to state that this court “routinely invokes the ‘Otherwise’ clause of 

RCFC 54(b) to address the merits of reconsideration motions relating to non-final 

procedural orders.” Id. In support of its position, plaintiffs recite several cases in which 

the court has invoked RCFC 54(b) to rule on the merits of a motion to reconsider. Id. at 

2-3. Plaintiffs add that “[a]s far as Plaintiffs are aware, no judge of this Court, prior to 

this morning, has ever interpreted or applied RCFC 54(b) in this manner. Such an 

interpretation is inconsistent with the plain language of the rule, and contradicted by a 

considerable body of case law.” Id. at 3-4. 

As the court noted in its March 2, 2020 order, RCFC 54(b) pertains to matters in 

cases in which partial judgments either have been, or could be, entered. See ECF No. 59 

(order). Plaintiffs are correct that there are decisions of this court in which the court has 

applied RCFC 54(b), along with RCFC 59(a), to a motion to reconsider a non-final 

procedural order. But, as the United States Court of Appeals for the Federal Circuit has 

made clear, this court is not bound by prior decisions of the court even though such 

decisions may be persuasive authority. See, e.g., W. Coast Gen. Corp. v. Dalton, 39 F.3d 

312, 315 (Fed. Cir. 1994) (“Court of Federal Claims decisions, while persuasive, do not 

set binding precedent for separate and distinct cases in that court.”) (citations omitted). 

The court’s expressed view turns on the development of the application of Rule 54(b), on 

which plaintiffs rely here. The court will address this development now.

The court appears to have first conducted a review of a non-final order pursuant to 

RCFC 54(b) in the case of Florida Power & Light Co. v. United States, 66 Fed. Cl. 93,

95-97 (2005). In that case, the plaintiff moved pursuant to RCFC 59 for reconsideration 

of the court’s ruling dismissing and transferring the asserted contract claims for lack of 

subject matter jurisdiction, while retaining the asserted takings claims.

2

 Id. at 94. In 

evaluating the appropriate standard by which to review the motion, the court initially

noted that, were the dismissal reviewed under the RCFC 59 standard, it would be

2 The court’s dismissal and transfer of the claims could have been made a final order, as

Rule 54(b) allows, but such order did not issue; instead, the court chose to let the order remain an

interlocutory one. See Florida Power, 66 Fed. Cl. at 97 (“[The Judge] could have converted [her 

ruling] to a final, appealable order. But she took another approach, leaving her ruling as 

interlocutory.”).
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“vulnerable” because it “quite clearly re-argued the Plaintiff’s earlier legal position.” Id.

at 95. The court reasoned, however, that the standards for amending final judgments “are 

not coextensive with the standards for the review of non-final orders, which may involve 

matters as mundane as evidentiary rulings, indeed, even extensions of time.” Id. at 95-96

(emphasis added). The court further reasoned that because the order dismissing the 

claims did not resolve the entirety of the proceeding, the “strict rules governing motions 

to amend and alter final judgments under Rule 59 do not apply.” Id. at 95. The court 

held that the more appropriate rule to apply was RCFC 54(b), which distinguishes 

between a final, appealable judgment, and an interlocutory order dismissing one of 

several counts. See id. at 97. Interlocutory orders “such as dismissals of counts,” the 

court determined, are reviewable pursuant to RCFC 54(b) under the “more flexible 

standards of the ‘law of the case.’” Id. 

It is clear that the court found authority under RCFC 54(b) to reconsider a nonfinal interlocutory order that adjudicated less than all of the parties’ claims and thus,

could have led to a partial final judgment—even if no such judgment were entered. See

id. at 96 (observing that RCFC 54 “governs judgments,” which are defined by the rule as 

“a decree and any order from which an appeal lies”) (quoting RCFC 54(b)) (emphasis 

added). This understanding is confirmed by later case law in which the court relied upon

RCFC 54(b) to review other interlocutory orders disposing of less than all of the parties’

claims. In Wolfchild v. United States, 68 Fed. Cl. 779, 781 (2005), the defendant 

requested that the court reconsider parts of its order granting partial summary judgment 

to the plaintiffs. The court reasoned that the case “remain[ed] in an interlocutory 

posture,” and therefore, the motion fell under RCFC 54(b) and 59(a), “rather than under 

the more rigorous standards of RCFC 59(e).” Id. at 784. Likewise, in Alpha I, L.P., ex 

rel. Sands v. United States, 86 Fed. Cl. 568, 570 (2009), defendant requested that the 

court reconsider its opinion granting the plaintiffs’ motion for partial summary judgment. 

The court set forth RCFC 54(b) as the means for reconsidering “‘any order or other 

decision, however designated, that adjudicates fewer than all the claims or the rights and 

liabilities of fewer than all the parties.’” Id. at 571 (quoting RCFC 54(b)). 

The first case in which the court looked to RCFC 54(b), as well as the 

reconsideration standard set forth in RCFC 59(a), to review an order that did not dispose 

of any claim is Pinckney v. United States, 85 Fed. Cl. 392 (2009). Plaintiffs cited the 

case in their motion. See ECF No. 61 at 3. In that case, the court, without citation, 

invoked RCFC 54(b) as “applicable for reconsideration of non-final decisions,” and 

applied the standard of review to an order ruling on evidence that it would consider at 

trial. Pinckney, 85 Fed. Cl. at 393-94. The court offered no explanation for its 

application of RCFC 54(b) and did not review the suitability of applying a rule governing

entry of partial judgments to an evidentiary order. See id.

Plaintiffs also cite the case, L-3 Commc’n Integrated Sys., L.P. v. United States, 

98 Fed. Cl. 45 (2011), in support of its position that RCFC 54(b) is the appropriate rule 

by which to bring a motion to reconsider the court’s non-final order denying plaintiffs’
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motion to supplement the record in a bid protest case. See ECF No. 61 at 2. In that case, 

the defendant requested that the court reconsider its ruling on plaintiff’s motion to 

supplement the record. See L-3 Commc’n, 98 Fed. Cl. at 47-48. The court stated that 

“[b]ecause Defendant and Intervenor seek reconsideration and/or clarification of an 

interlocutory decision and the merits of this protest have not yet been addressed, Rule 

54(b) . . . governs instead of Rule 59(e) or 60, which address reconsideration of final 

judgments.” Id. at 48. The court cited Alpha I, Pinckney, and Wolfchild in support of its 

position and, without further discussion, applied the rule governing partial judgments to a 

case management order. Id.

The language of RCFC 54(b) and the case law applying that rule to guide

reconsideration of non-final orders that adjudicate less than all of the parties’ claims 

indicate—to this court—that RCFC 54(b) is intended to govern matters in cases in which 

the entry of a partial judgment is, or would be, appropriate. See RCFC 54(b); Wolfchild, 

68 Fed. Cl. at 784; Florida Power, 66 Fed. Cl. at 97. Because Rule 54(b) contains no 

independent standard of review for matters to be reconsidered, the court does not find 

persuasive those decisions invoking RCFC 54(b), with neither citation nor explanation, as 

the governing rule for the reconsideration of evidentiary and case management orders. 

The court declines to exercise its inherent authority here, as plaintiffs urge, to apply 

RCFC 54(b) to reconsider matters when other of the court’s rules clearly outline the 

standards for doing so in these circumstances.

To be clear, the court does not decide that a motion for reconsideration is an 

improper request. Rather, the court finds only that plaintiffs’ motion as presently 

advanced under RCFC 54(b) is improper. Accordingly, plaintiffs’ instant motion for 

reconsideration, ECF No. 61, is DENIED. 

IT IS SO ORDERED.

s/Patricia E. Campbell-Smith 

PATRICIA E. CAMPBELL-SMITH

Judge