NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LAWRENCE MENDEZ, JR.,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2017-1236

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:16-cv-00441-CFL, Judge Charles F. 

Lettow. 

______________________ 

Decided: May 8, 2017

______________________ 

LAWRENCE MENDEZ, JR., Oceanside, CA, pro se. 

LAUREN MOORE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DEBORAH 

A. BYNUM. 

______________________ 

Before DYK, BRYSON, and CHEN, Circuit Judges.
2 MENDEZ v. UNITED STATES

PER CURIAM. 

Plaintiff Lawrence Mendez, Jr., proceeding pro se, appeals from the judgment of the United States Court of 

Federal Claims (“CFC”) dismissing his lawsuit. Mr. 

Mendez brought this suit in order to seek the removal of 

an adverse personnel decision from his military record 

and reinstatement to the military. Because Mr. Mendez 

previously brought a substantially similar suit, which

resulted in judgment before the CFC, affirmance by this 

Court, and denial of certiorari by the Supreme Court, the 

CFC dismissed this suit on the grounds of res judicata. 

Although we have liberally construed Mr. Mendez’s 

appeal of the CFC’s decision, we conclude that this suit is 

precluded by res judicata, and we, therefore, affirm. 

BACKGROUND

A. Mr. Mendez’s Military Service

Mr. Mendez is a former officer of the United States 

Marine Corps who served in Operation Iraqi Freedom. 

On July 28, 2007, Mr. Mendez was relieved of his duties 

as Battalion Adjutant and issued an adverse performance 

evaluation (the “Adverse Evaluation”) for the period of 

February 1, 2007, through July 28, 2007. Mr. Mendez 

alleges plausibly that the Adverse Evaluation had a 

variety of negative effects on his military career, including 

the issuance and cancellation of various Permanent 

Change of Station orders, denial on two occasions of 

promotions to the rank of Captain, and, finally, involuntary separation from the Marine Corps in 2010. 

Realizing the potentially harmful effect the Adverse 

Evaluation would have on his career, Mr. Mendez attempted on repeated occasions to have it excised from his 

permanent military record, both before the Board for 

Correction of Naval Records (“Correction Board”) and the 

Marine Corps Performance Evaluation Review Board

(“Review Board”). However, his efforts were unsuccessful.
MENDEZ v. UNITED STATES 3

B. Prior Litigation

After his dismissal from the Marine Corps, Mr. Mendez filed suit in the CFC seeking reinstatement, back pay, 

and removal of the Adverse Evaluation from his record. 

See Mendez v. United States (Mendez I), 103 Fed. Cl. 370, 

374 (2012). The CFC affirmed the decisions of the Correction Board and Review Board in all respects save one: it 

found that the Third Officer Sighter (“TOS”) in the case—

a military ombudsman responsible for reconciling differing factual accounts—had failed to reconcile a certain 

factual inconsistency. Id. at 383–84. The CFC remanded 

to the Correction Board to reconsider Mr. Mendez’s application following a review of the inconsistency. Id. at 384.

On remand, the Correction Board referred the Adverse Evaluation to the Review Board for consideration of 

the inconsistency. The Review Board concluded that the 

narrative related to the inconsistency should be struck 

from the Adverse Evaluation, but that the entire Adverse 

Evaluation should not be expunged because the inconsistency was “not central to [the] adverse report.” Mendez 

v. United States (Mendez II), 108 Fed. Cl. 350, 355 (2012). 

The Correction Board agreed with the Review Board’s 

conclusion and determined that the Adverse Evaluation 

should be amended as the Review Board had advised. 

The Correction Board nevertheless concluded that the 

Adverse Evaluation was still sufficiently negative that a 

promotion of Mr. Mendez to Captain “would have been 

definitely unlikely.” Id. Thus, the Correction Board 

determined that Mr. Mendez was not entitled to the 

promotion or the other relief he sought.

Mr. Mendez appealed that determination to the CFC, 

which affirmed because the Correction Board’s decision to 

“exclude any mention of the [inconsistent] issue rather 

than to remove the fitness report in its entirety was not 

arbitrary or capricious, contrary to law, or unsupported by 

substantial evidence.” Id. at 356–57. Mr. Mendez ap-
4 MENDEZ v. UNITED STATES

pealed to this Court, which affirmed, 540 F. App’x 986 

(Fed. Cir. 2013) (Mendez III), and then petitioned the 

Supreme Court for a writ of certiorari, which was denied, 

134 S. Ct. 1281 (2014).

Having exhausted his appeals, Mr. Mendez moved 

under Rule 59(a) of the CFC for reconsideration of the 

2012 decision upholding the decision of the Correction 

Board. Because his motion was untimely under Rule 

59(a), the CFC deemed it a motion for relief from judgment under Rule 60(b) of the CFC. Mendez v. United 

States (Mendez IV), No. 11-160C, 2014 WL 2772590, at *1 

(Fed. Cl. June 18, 2014). The CFC court determined that 

Rule 60(b)(6), which refers to “any other reason that 

justifies relief,” was the only provision that could possibly 

apply. Id. at *4; see also U.S. Ct. Fed. Claims R. 60(b). 

Under the precedent of the CFC and this Court, relief is 

available under Rule 60(b)(6) only in “extraordinary 

circumstances.” Infiniti Info. Sols., LLC v. United States, 

93 Fed. Cl. 699, 704 (2010); Fiskars, Inc. v. Hunt Mfg. Co., 

279 F.3d 1378, 1382 (Fed. Cir. 2002). Because Mr. Mendez previously had the opportunity to file a timely motion 

for reconsideration by the CFC, but instead appealed to 

this Court, the CFC found that he had not “alleged any 

extenuating circumstances that prevented him from 

raising these issues earlier” and thus denied his motion 

for relief. Mendez IV, 2014 WL 27772590, at *5. Mr. 

Mendez then appealed that decision of the CFC to this 

Court, which affirmed, 600 F. App’x 731 (2015) (Mendez 

V). The Supreme Court denied his petition for a writ of 

certiorari. 136 S. Ct. 62 (2015).

C. The Instant Case

On April 7, 2016, Mr. Mendez filed a complaint in the 

CFC, once again seeking to remove the Adverse Evaluation from his military record and to be reinstated to active 

duty as an officer. The complaint alleged that (1) the 

military officials who prepared the Adverse Evaluation 
MENDEZ v. UNITED STATES 5

acted in an arbitrary and capricious manner in preparing 

the Adverse Evaluation; (2) the Correction Board acted in 

an arbitrary and capricious manner by failing to remove 

the Adverse Evaluation from Mr. Mendez’s record and 

failing to consider Mr. Mendez for promotion; and (3) the 

CFC and this Court erred in previously ruling against 

him, which amounted to a “manifest injustice.” The CFC 

dismissed the complaint on the grounds of (1) res judicata; 

and (2) lack of right to file a second motion for relief from 

judgment. See Mendez v. United States (Mendez VI), No. 

16-441C, 2016 WL 5107085, at *3 (Fed. Cl. Sept. 20, 

2016).

Mr. Mendez now appeals the dismissal, and we have 

jurisdiction over the appeal under 28 U.S.C. § 1295(3).

STANDARD OF REVIEW 

We review the CFC’s dismissal of a complaint for failure to state a claim upon which relief can be granted de 

novo. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. 

Cir. 2002). “In deciding a motion to dismiss, the court 

must accept well-pleaded factual allegations as true and 

must draw all reasonable inferences in favor of the claimant.” Kellogg Brown & Root Servs., Inc. v. United States, 

728 F.3d 1348, 1365 (Fed. Cir. 2013). 

DISCUSSION

A. The Complaint

Counts I–VI of Mr. Mendez’s complaint allege arbitrary and capricious behavior by either the military 

officials involved in the preparation of the Adverse Evaluation or the Correction Board. Counts VII and VIII allege 

that the CFC and this Court committed a “manifest 

injustice” by affirming the decisions of the Correction 

Board. The CFC, in an exercise of lenity toward a pro se 

litigant, interpreted Counts VII and VIII as a motion for 

relief from the judgments of the CFC and this Court. 

Mendez VI, 2016 WL 5107085, at *3. We instead view 
6 MENDEZ v. UNITED STATES

these counts as attempting to establish that Mr. Mendez’s 

renewed complaint is exempt from res judicata under 

equitable doctrines of “manifest injustice.” See Intergraph 

Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir. 2001); see 

also Pepper v. United States, 562 U.S. 476, 506–07 (2011); 

Arizona v. California, 460 U.S. 605, 643–44 (1983). In 

Intergraph, we explained the high standard that must be 

met to overcome res judicata: 

Reasons that may warrant departure from the law 

of the case, thus providing an exception to the 

more rigorous requirements of res judicata, include the discovery of new and different material 

evidence that was not presented in the prior action, or an intervening change of controlling legal 

authority, or when the prior decision is clearly incorrect and its preservation would work a manifest 

injustice. 

Intergraph, 253 F.3d at 698 (emphasis added). Thus, we 

will view the complaint as alleging that one of these 

exceptions from res judicata may apply, and, for purposes 

of this appeal, assume as correct the contentions in Mr. 

Mendez’s complaint which may support this allegation. 

To the extent that Counts VII and VIII seek to appeal 

from the previous judgments of the CFC and this Court, 

we note that all paths of appeal have previously been 

exhausted and the time for filing motions for rehearing or 

reconsideration has long since passed.

B. Res Judicata

Res judicata includes the two related concepts of 

claim preclusion and issue preclusion, the latter of which 

is also known as collateral estoppel. Sharp Kabushiki 

Kaisha v. ThinkSharp, Inc., 448 F.3d 1368, 1370 (Fed. 

Cir. 2006). As we have explained,

Issue preclusion refers to the effect of a judgment 

in foreclosing relitigation of a matter that has 
MENDEZ v. UNITED STATES 7

been litigated and decided. . . . Claim preclusion 

refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, 

because of a determination that it should have 

been advanced in an earlier suit.

Id. (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 

465 U.S. 75, 77 n.1 (1984)). The CFC decided that Mr. 

Mendez’s claim was barred by claim preclusion. See 

Mendez VI, 2016 WL 5107085, at *3. 

The CFC’s analysis of claim preclusion is entirely accurate: (1) the parties are identical between this case and 

the previous cases; (2) two final judgments have issued 

from the CFC regarding the relief sought in this case; and 

(3) this case and the previous cases are based on the same 

set of transactional facts: the creation of the Adverse 

Evaluation and the subsequent determinations of the 

Correction Board. See Mendez VI, 2016 WL 510785, at *3. 

Thus, Mr. Mendez’s claim is barred by claim preclusion. 

See Sharp, 448 F.3d at 1370 (describing the three requirements for claim preclusion).

Mr. Mendez’s claim is also barred by issue preclusion. 

This matter has already been “litigated and decided.” The 

operative allegations in the instant complaint seek to 

overturn decisions of military officials and of the Correction Board under an arbitrary and capricious standard. 

But this is exactly what was sought in Mendez II: 

Plaintiff challenges the decision rendered by a 

correction board. The court reviews such decisions 

under a deferential standard so as not to “disturb 

the decision of the [correction board] unless it is 

arbitrary, capricious, contrary to law, or unsupported by substantial evidence.” 

108 Fed. Cl. at 356 (quoting Barnick v. United States, 591 

F.3d 1372, 1377 (Fed. Cir. 2010)) (alteration in original). 

Thus, issue preclusion bars the “relitigation” of this 
8 MENDEZ v. UNITED STATES

“matter that has been litigated and decided.” Sharp, 448 

F.3d at 1370.

C. Equitable Exceptions to Res Judicata

We now turn to whether Mr. Mendez has shown in his 

briefing that an equitable exception to res judicata applies. Mr. Mendez alleges certain facts that, in his view, 

warrant another opportunity for him to seek the relief he 

sought in his prior litigation. For example, Mr. Mendez 

contends that the TOS involved in the creation of the 

Adverse Evaluation was relieved of his Afghanistan 

command and dismissed from military service in 2013. 

But the dismissal of the TOS six years after the issuance 

of the Adverse Evaluation on a ground unrelated to the 

facts of this case bears no relevance to how the TOS

conducted himself as to Mr. Mendez’s Adverse Evaluation. 

This allegation is therefore immaterial to the merits of 

Mr. Mendez’s complaint.

Mr. Mendez also alleges that his superior officer 

threatened him with physical harm. This allegation, 

however, is not “new and material evidence” because, at a 

minimum, it is not newly discovered. Thus it could have 

been offered to show arbitrary and capricious behavior by 

defendants in the prior litigation.

Finally, Mr. Mendez alleges he was mentally and 

emotionally impaired due to “abusive circumstances”

suffered circa 2007, which the Department of Veteran 

Affairs recognized in September 2016. As with the alleged physical threats made against Mr. Mendez, Mr. 

Mendez’s mental impairment, along with any abuse 

directed toward him, was an already existing circumstance at the time of the previous litigation and could 
MENDEZ v. UNITED STATES 9

have been offered to show arbitrary and capricious behavior by the defendants.1

Having found that the additional facts presented by 

Mr. Mendez are not grounds for an exception to res judicata, we also note that we are aware of no other facts 

which would support an exception to res judicata in this 

case. We are aware of no “new and different material 

evidence that was not presented in the prior action.” 

Intergraph, 253 F.3d are 698. We are likewise not aware 

of any “intervening change of controlling legal authority.” 

Id. And on the record before us, we hold that the prior 

decisions (i.e., Mendez I–VI) are not clearly incorrect, and 

that their preservation will not work a manifest injustice. 

Id. Thus, Mr. Mendez’s claims in this suit are subject to 

res judicata. 

CONCLUSION

For the foregoing reasons, the Court of Federal 

Claim’s entry of judgment is affirmed. 

COSTS

No Costs.

 

1 We offer no opinion as to whether Mr. Mendez 

may have any other claim against any entity or person 

based on the abuse he allegedly suffered. We note only 

that these circumstances could have been offered as 

evidence in his previous suit seeking to set aside the 

Adverse Evaluation.