N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ CONSUELO E. KELLY

- LEPPERT, Plaintiff

- Appellant

v. UNITED STATES, Defendant

- Appellee

______________________ 2022

- 1301

______________________ Appeal from the United States Court of Federal Claims in No. 1:21

- cv - 00955

- NBF, Senior Judge Nancy B. Firestone.

______________________ Decided: May 9, 2022

______________________ C ONSUELO E. K ELLY -L EPPERT , Overland Park, KS, pro
se. E VAN W ISSER , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant

- appellee. Also represented by B RIAN M. B OYNTON , E LIZABETH M ARIE H OSFORD , P ATRICIA M. M C C ARTHY

.

______________________ Case: 22-1301 Document: 27 Page: 1 Filed: 05/09/2022KELLY

- LEPPERT v. US 2

Before M OORE , Chief Judge , D YK and P ROST , Circuit Judges

. P ER C URIAM

. Consuelo Kelly

- Leppert appeals the Court of Federal Claims ’ dismiss al of her complaint for lack of subject

- matter jurisdiction and its denial of her motions for reconsideration . We affirm

. B ACKGROUND Ms. Kelly

- Leppert sued the United States seeking monetary damages arising from the death of her husband and business partner , Michae l J. Kelly, a Vietnam War veteran. Appx. 2. She alleged the United States failed to provide Mr. Kelly with a requested Agent Orange medical
exam ination . Ms. Kelly

- Leppert also alleged the Department of Veterans Affairs ( VA ) gave Mr. Kelly a defect ive examination by failing to conduct a lung biopsy

. Id. Ms. Kelly

- Leppert claimed $138 million in damages, including loss of consortium, pain and suffering, and damages to their shared business. Id. The C laims C ourt liberally interpreted Ms. Kelly

- Leppert’s pleading to assert: (1) breach of contract; (2) breach of fiduciary duty; (3) malpractice against the VA medical facility; (4) a violation of Mr. Kelly’s civil and constitutional rights under the Fourteenth Amendment; and (5) claims for veterans benef its. Appx. 2

– 4. The C laims C ourt dismissed for lack of subject

- matter jurisdiction. Appx. 7

– 9. Ms. Kelly

- Leppert moved for reconsideration. Appx. 13

– 14. The C laims C ourt identified three new issues in Ms. Kelly

- Leppert’s motion: (1) a Fifth Amendment takings claim; (2) a claim that the Tucker Act is unconstitutionally vague; and (3) additional statutes and regulations related to breach of fiduciary duties and torts that Ms. Kelly

- Leppert alleged support her claims. Appx. 16

– 18. The C laims C ourt denie d the motion. Appx. 19

. Case: 22-1301 Document: 27 Page: 2 Filed: 05/09/2022KELLY

- LEPPERT v. US 3

Ms. Kelly

- Leppert simultaneously filed a notice of appeal and a second motion for reconsideration. We deactivated the appeal pending the resolution of the motion for reconsideration. The C laims C ourt denied the motion. Appx. 23. We subsequently reactivated Ms. Kelly

- Leppert’s appeal

. We have jurisdiction under 28 U.S.C. § 1295(a)(3). D ISCUSSIONWe review de novo whether the Claims Court had subject

- matter jurisdiction. Bianchi v. United States , 475 F.3d 1268, 1273 (Fed. Cir. 2007). We review the C laims C ourt’sdenial of a motion for reconsideration for abuse of discretion. Renda Marine, Inc. v. United States , 509 F.3d 1372, 1379 (Fed. Cir. 2007). An abuse of discretion occurs when a court misunderstands or misapplies the relevant law or makes clearly erroneous findings of fact. Id. Ms. Kelly

- Leppert first argues that the C laims C ourt erred in concluding it lacked jurisdiction over her Fifth A mendment takings claim. Appellant’s Informal Br. 1. Ms. Kelly

- Leppert did not raise the potential takings claim until her reply brief in support of her first motion for reconsideration. Appx. 17. The C laims C ourt determined Ms. Kelly

- Leppert could have raised this argument in her original complaint , and thus it did not justify reconsideration. Id. Because Ms. Kelly

- Leppert did not raise this claim until late in the case , the C laims C ourt did not abuse its discretion. Ms. Kelly

- Leppert next argues that the Claims Courtimproperly evaluated her second motion for reconsideration under Rule 60 (b ) of the Rules of the Court of Federal Claims (RCFC) because she filed it under RCFC 59 (a ). Appellant’s Inform al Br. 2. The C laims C ourt did not abuse its discretion

. A motion for reconsideration under RCFC 59(a) must be filed no later than 28 days after the entry of judgment. RCFC 59(b)(1). The Claims Court’s dismissal issued on July 8, 2021 , and Ms. Kelly

- Leppert timely filed Case: 22-1301 Document: 27 Page: 3 Filed: 05/09/2022KELLY

- LEPPERT v. US 4

her first motion for reconsideration und er RCFC 59(a).Appx. 13. The Claims Court denied the first motion on December 10, 2021. Ms. Kelly

- Leppert then filed a second motion for reconsideration outside the 28

- day window for reconsideration under RCFC 59(a). RCFC 60(b) , however, allows for rel ief from a final judgment so long as the motion is filed within a reasonable time and no more than one year after the entry of the judgment. Thus, the Claims Court did not err in evaluating Ms. Kelly

- Leppert’s second motion under RCFC 60(b) rather than RC FC 59(a). Ms. Kelly

- Leppert also argues that the C laims C ourt has jurisdiction over her Vaccine Act claim , which she raised for the first time on appeal. Appellant’s Informal Br. 2. Because Ms. Kelly

- Leppert did not raise this claim before the C laims C ourt, we will not consider it on appeal. Finally, to the extent Ms. Kelly

- Leppert challenge s the C laims C ourt’s original dismissal of her claims, her briefing fails to identify any reversible error

. For the reasons the Claims Court stated, n one of Ms. K elly

- Leppert’s five original claims fall s with in the scope of the C laims C ourt’s limited jurisdiction. Appx. 7–9. C ONCLUSION Because we discern no error in the C laims C ourt’s dismiss al of Ms. Kelly

- Leppert’s complaint for lack of subject

matter jurisdiction and no abuse of discretion in its den ial of her motions for reconsideration, we affirm

. AFFIRMED C OSTS No costs. Case: 22-1301 Document: 27 Page: 4 Filed: 05/09/2022