# RI 

# AL 3Jn tbe Wniteb**~tates** 

# (!Court ofjf 

# eberal (!Claims No. 16-441C (Filed: September 20, 2016) (NOT TO BE PUBLISHED) 

### ********************************** LAWRENCE MENDEZ, JR., Plaintiff,



### v. UNITED STATES, Defendant. 

### ********************************** ) ) ) ) ) ) ) ) ) ) )

Lawrence Mendez, Jr.,

### prose, Oceanside, California. 

# FI LED SEP 20 2016 U.S. COURT OF FEDERAL CLAIMS

Lauren S. Moore, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C., for defendant. Withher onthe briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, D.C. Ofcounsel was Lieutenant Peter T. Marx, United States Navy, Office ofthe Judge Advocate General, General Litigation Division, Washington, D.C. OPINION AND ORDER LETTOW, Judge. Plaintiff, Lawrence Mendez, Jr., seeks reinstatement, correction ofhis military records, consideration for promotion, and backpay under the Military Pay Act, 37 U.S.C. § 204. Mr. Mendez was a First Lieutenant inthe Marine Corps who was involuntarily separated from the Corps after being twice denied promotion to the rank ofcaptain. He alleges that his superiors improperly prepared a negative fitness reportthat was never corrected, whichultimately led to his termination. His claims regarding the fitness report were previously brought before the Board for Correction ofNaval Records ("Correction Board") and the Marine Corps Performance Evaluation Review Board ("Review Board"), and were adjudicated inthis court, but no relief was granted.

### Pending before the court are plaintiff's motion forjudgment on the administrative record and government's motion to dismiss for lack ofsubject matterjurisdiction and for failure to state a claim pursuantto Rules 12(b)(l) and 12(b)(6) ofthe Rules ofthe Court ofFederal Claims ("RCFC"). 

### BACKGROUND Mr. Mendez formerly served as an officer with the United States Marine Corps. Compl.**~** 

### 2. In September 2006, he became Adjutant ofthe 1st Battalion, 12thMarine Regiment, 3rd Marine Division, and his unit was deployed to Iraq in March 2007 as part ofOperation Iraqi Freedom. Compl.**~~** 

### 4-5. He was removed from duty in July 2007, and was subsequently issued a Marine Corps fitness report detailing his "unsatisfactory" performance from February 1, 2007 to July 28, 2007. Mendez v. UnitedStates, No. 11-160, 2014 WL 2772590, at* 1 (Fed. Cl. June 18, 2014). Inthe fitness report, Mr. Mendez's performance was deemed deficient in several respects. 

### Id. In accordance with Marine Corps protocol under Marine Corps Order P1610.7F, the report was then reviewed by a reviewing officer and by a third officer sighter. 

### Id. Mr. Mendez made a rebuttal statement before each review, and the reviewers acknowledged and resolved areas ofdisagreement between the reports and plaintiffs statements. 

### Id. at* 1-2. Both the reviewing officer and the third officer sighter concluded that Mr. Mendez failed to perform the duties ofhis position adequately. 

### Id. On December 8, 2008, Mr. Mendez appealed the adverse fitness report and filed an Application for Correction ofMilitary Record withthe Correction Board. Mendez, 2014 WL 2772590, at *2. The Review Board first addressed this application and advisedthe Correction Board that the report was "administratively correct, procedurally complete, and fit to remainpart ofMr. Mendez's record." 

### Id. Mr. Mendez submitted a rebuttal to the Correction Board, claiming that the report was "untrue and unjust" and should be removed from his military record. 

### Id. The Correction Board denied Mr. Mendez'sremoval request as well as his subsequent request for reconsideration. 

### Id. Mr. Mendez was discharged from the Marine Corps in September 2010 after he was twice denied promotionto captain. 

### Id. On March 14, 2011, Mr. Mendez filed a complaint in this court for reinstatement, modification ofhis military record, and backpay, alleging that the preparation and review ofthe fitness report were procedurally defective. Mendez 

### v. United States, 103 Fed. Cl. 370, 375 (2012). The court grantedjudgment on the administrative record for the United States on all but one issue. See 

### id. at 378-84. The court determined that the third officer sighter failed to resolve a factual dispute between the reviewing officer's evaluation and plaintiffs rebuttal statement, and it remanded the case to the Correction Board "toreconsider plaintiffs application following a review ofthe aforementioned factual discrepancy." 

### Id. at 384. On remand, the Correction Board removed the factual discrepancy from Mr. Mendez's fitness report, and found that Mr. Mendez was still ineligible for promotion based onthe modified rep01i. Mendez, 2014 WL 2772590, at *2. In its post-remand decision on renewed cross-motions forjudgment on the administrative record, the court upheld the Correction Board's decision to modify the reportrather than remove it from Mr. Mendez's file in its entirety. See Mendez v. UnitedStates, 108 Fed. Cl. 350, 355, 357 (2012). The Federal Circuit affirmed the

2court's decision. 

### See Mendez v. UnitedStates, 540 Fed. Appx. 986 (Fed. Cir. 2013). Mr. Mendez then petitioned for panel rehearing, which was denied on October 25, 2013, and filed a petition for writ ofcertiorari, which was denied on February 24, 2014. 

### Mendez v. UnitedStates, _U.S._, 134 S. Ct. 1281 (2014); 

### see also Mendez, 2014 WL 2772590, at *2. Thereafter, he filed a petition for reconsideration ofthis court's original decision, and that petition was dismissed on June 18, 2014, onthe grounds that it was untimely in certain respects and otherwise failed to present evidence ofextraordinary circumstances tojustifyreliefunder RCFC 60(b)(6). 

### Mendez, 2014 WL 2772590. The Federal Circuit affirmed that decision, 

### Mendez v. United States, 600 Fed. Appx. 731 (Fed. Cir. 2015), and the Supreme Court denied plaintiff's petition for writ ofcertiorari, 

### Mendez v. UnitedStates,_ U.S._, 136 S. Ct. 62 (2015). On April 7, 2016, Mr. Mendez filed his current complaint inthis court. He again seeks to have the negative fitness report removed from his military record, and also seeks reinstatement and reconsideration for promotionto the ranks ofcaptain and major. Compl. at 11, 

### ,-i,-i 1-4. The complaint contains eight counts. The first count alleges that the reporting officials acted in an arbitrary and capricious manner in preparing the fitness report. Compl. 

### ,-i 51. Counts Two through Six allege thatthe Correction Board acted in an arbitrary and capricious mannerby failing to remove the fitness report from plaintiff's military record and by failing to convene a Special Selection Board to consider plaintifffor promotion. Compl. 

### ,-i,-i 53-61. Finally, Counts Seven and Eight allege thatthe court and the Federal Circuit erred inpreviously ruling against him, which "established a manifest injustice." Compl. 

### ,-i,-i 62-65. 

### STANDARDS FOR DECISION In any action, the plaintiffhas the burden ofestablishingjurisdiction. 

### Reynolds v. Army & 

### Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). The Tucker Act grants this court 'jurisdictionto renderjudgmentupon any claim againstthe United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department, orupon any express or implied contract withthe United States, orfor liquidated orunliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(l). The Act waives sovereign immunity, thus permitting a claimantto sue the United States for monetary damages. 

### UnitedStates v. Mitchell, 463 U.S. 206, 212 (1983). The Tucker Act itselfdoes notprovide a substantive rightto monetaryreliefagainst the United States. 

### United States v. Testan, 424 U.S. 392, 398 (1976); 

### see also Martinez v. UnitedStates, 333 F.3d 1295, 1302-03 (Fed. Cir. 2003) (en bane). Rather, "[a] substantive right mustbe found in some other source oflaw." 

### Mitchell, 463 U.S. at 216. Under Rule 12(b)(6), the complaint must "contain sufficient factual matter, accepted as true, to 'state a claimto reliefthat is plausible on its face."' 

### Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quoting

### BellAt!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court "must accept as true the complaint's undisputed factual allegations and should construe them in a light most favorable to the plaintiff." 

### Cambridge v. UnitedStates, 558 F.3d 1331, 1335 (Fed. Cir. 2009) (citations omitted). A complaintmay also be dismissed under Rule 12(b)(6) when it "indicate[s] the existence ofan affirmative defense that will barthe award ofany remedy." 

### Corrigan v. UnitedStates, 82 Fed. Cl. 301, 304 (2008) (internal citations omitted). Resjudicata and collateral estoppel are among the affirmative defenses that canproperlybe raised on a motion filed under Rule 12(b)(6). Id.

3

### ANALYSIS Under the doctrine ofresjudicata (claim preclusion), "ajudgment on the merits in a prior suit bars a second suit involving the same parties or their privies based onthe same cause of action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.5 (1979). To determine whether a current claim is barred by resjudicata, the court applies a three-prongtest: "whether (1) there is identity ofparties (or their privies); (2) there has been an earlier finaljudgment on the merits ofa claim; and (3) the second claim is based on the same set oftransactional facts as the first." SikorskyAircraft Corp. v. UnitedStates, 122 Fed. Cl. 711, 720 (2015) (quotingNasalok Coating Corp. 

### v. Nylok Corp., 522 F

.3d 1320, 1324 (Fed. Cir. 2008)). Eachprong is met whenthis case is compared to Mr. Mendez's previous action before the court. First, the parties are identical in both actions. Inboththe original 2011 suit and this case, the parties are Mr. Mendez and the United States. Second, the court's decisions in 2012 before and after the remand to the Correction Board are finaljudgments onthe merits. In both of those decisions, the court assessed the merits ofMr. Mendez's claims

- specifically, whether he was entitled to the reliefrequested because oferrors in the preparation and evaluation ofthe fitness report by his superior officers, the Review Board, and the Correction Board

- and ruled against him. Finally, this suit and the previous suit both are based onthe issuance and review of the negative fitness report and Mr. Mendez's subsequent termination from the Marine Corps

. As all three factors are easily met, resjudicatabars plaintiff's claims inthis case. Mr. Mendez cannot have a second opportunity to relitigate his claims merely because he did notreceive the reliefhe sought in the previous proceedings. Additionally, in accord with the relaxed standard for interpreting complaints filed bypro se claimants, the court construes Counts Seven and Eight ofplaintif f's complaintto be seeking relieffrom the finaljudgments ofthis court and the Federal Circuit pursuant to RCFC 60(b)(6). 1 In 2014, the court denied plaintiff's initial motion for relieffromjudgmentunder Rule 60(b), finding that he did notpresent "evidence ofextraordinary circumstances tojustifyrelief." Mendez, 2014 WL 2772590, at *4. Plaintiffexercised his right to appeal the denial, without success, buthe has no further right to file a newmotionraising the same matters. See 12 James Wm

. Moore et al., Moore ' s Federal Practice§ 60.69 (3d ed. 2012) ("A party may not simply file a second Rule 60(b) motion on the same grounds in lieu ofan appeal."); see also Latham v. Wells Fargo Bank, 987 F.2d 1199, 1203-04 (5th Cir. 1993) ("[A]t least absent truly extraordinary circumstances

. . . the basis for the second [Rule 60(b)] motionmustbe something other than that offered in the first."). Because plaintiff's claims essentially seek to restate the points raised in his original motion under Rule 60(b) withoutpresenting any new evidence, they mustbe dismissed.

1RCFC 60(b)(6) provides in pertinentpart: "On motion andjustterms, the court may relieve a party or its legal representative from a finaljudgment, order, orproceeding for the following reasons: ... [including] (6) any other reason thatjustifies relief." 4

### CONCLUSION 

### For the reasons stated, the government's motionto dismiss pursuant to RCFC 12(b)(l) and 12(b)(6) is GRANTED, and plaintiffsmotion forjudgment on the administrative record is DENIED.2 

### The clerk shall enterjudgment in accord withthis disposition. No costs

. It

### is so ORDERED.



### Charles F. Lettow Judge

2

### The government also requests thatthe courtrequire plaintiffto seek leave ofcourt before filing any future complaints. Def.'s Mot. to Dismiss at 8. That request is DENIED. 

### 5