In the United States Court of Federal Claims

No. 15-413C

Filed May 16, 2016

NOT FOR PUBLICATION

EVIDEO OWNERS, et al.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

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RCFC 59(a), Motion for 

 Reconsideration; RCFC 60(b), 

 Motion for Relief from Judgment. 

 

Joseph J. Zito, Attorney of Record, and Patrick R. Delaney, Ditthavong & Steiner, P.C., 

Alexandria, VA, for plaintiffs.

David A. Foley, Jr., Trial Attorney, John Fargo, Director, Intellectual Property Staff, and 

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC; Heidi Bourgeois, 

Of Counsel, Joseph Matal, Of Counsel, and Nicolas Oettinger, Of Counsel, United States Patent 

and Trademark Office, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION AND BACKGROUND

On April 28, 2016, plaintiffs filed a motion, pursuant to Rules 59(a) and 60 of the Rules 

of the United States Court of Federal Claims (“RCFC”), seeking relief from judgment and 

reconsideration of the Court’s March 31, 2016 Memorandum Opinion and Order granting the 

government’s motion to dismiss this matter for lack of subject-matter jurisdiction (“March 31, 

2016 Decision”). In their motion, plaintiffs request that the Court reconsider the March 31, 

2016 Decision because the Court possesses jurisdiction to entertain their breach of contract 

claims against the United States.1 Pl. Mot. at 1. On May 16, 2016, the government filed a

 

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In the March 31, 2016 Decision, the Court held that plaintiffs allege that they have entered into impliedin-law contracts with the United States in the complaint. Because the Court does not possess subject-
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response and opposition to plaintiffs’ motion for relief from judgment, requesting that the Court 

deny plaintiffs’ motion because plaintiffs fail to identify any basis upon which to grant relief 

from judgment. For the reasons set forth below, the Court DENIES plaintiffs’ motion.

II. LEGAL STANDARDS

In general, Rule 59 addresses the grounds for reconsideration and for a new trial. 

Specifically, RCFC 59(a) provides, in pertinent part, that:

The court may, on motion, grant a new trial or a motion for reconsideration on all 

or some of the issues−and to any party−as follows . . . upon the showing of 

satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice 

has been done to the United States. 

RCFC 59(a)(1)(C). 

Rule 60 sets forth the grounds for obtaining relief from a judgment or order. In this 

regard, RCFC 60(b) provides that:

On motion and just terms, the court may relieve a party or its legal representative 

from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have 

been discovered in time to move for a new trial under RCFC 59(b); 

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,

or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an 

earlier judgment that has been reversed or vacated; or applying it prospectively is 

no longer equitable; or

(6) any other reason that justifies relief. 

RCFC 60(b). In addition, the United States Court of Appeals for the Federal Circuit has 

recognized subparagraph (b)(6) of Rule 60 to be a “grand reservoir of equitable power to do 

justice in a particular case,” although not a “bottomless” one. Lazare Kaplan Int'l, Inc. v. 

Photoscribe Techs., Inc., 714 F.3d 1289, 1295 (Fed. Cir. 2013). To that end, relief under RCFC 

 

matter jurisdiction to consider claims based upon implied-in-law contracts under the Tucker Act, the 

Court also dismissed the complaint.
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60(b)(6) may be granted “only for exceptional or extraordinary circumstances.” Louisville 

Bedding Co. v. Pillowtex Corp., 455 F.3d 1377, 1380 (Fed. Cir. 2006) (internal citations 

omitted); see also Perry v. United States, 558 F. App’x 1004, 1006 (Fed. Cir. 2014); Kennedy v. 

Sec’y of Health & Human Servs., 99 Fed. Cl. 535, 548, aff’d, 485 F. App’x 435 (Fed. Cir. 2012)

(a strict interpretation of the broad text of RCFC 60(b)(6) is necessary to preserve the “finality of 

judgments” and RCFC 60(b)(6) cannot serve as the grounds to relieve a party from a “free, 

calculated, and deliberate choice”). Such exceptional or extraordinary circumstances exist when, 

absent relief, a “grave miscarriage of justice” would result, and the “substantial rights” of the 

party would be harmed. Kennedy, 99 Fed. Cl. at 540, 548; see also Dynacs Eng’g Co. v. United 

States, 48 Fed. Cl. 240, 242 (2000). 

III. LEGAL ANALYSIS

Plaintiffs have not established that they are entitled to reconsideration of the Court’s 

March 31, 2016 Memorandum Opinion and Order under RCFC 59(a), or to relief from judgment 

under RCFC 60(b). And so, for the reasons discussed below, the Court denies plaintiffs’ motion.

A. Plaintiffs Are Not Entitled To Relief Under RCFC 59

As an initial matter, plaintiffs have not established that they are entitled to 

reconsideration of the March 31, 2016 Decision pursuant to RCFC 59(a). As discussed above, to 

obtain relief under RCFC 59(a), plaintiffs must show that fraud, wrong, or an injustice has been 

done to the United States as a result of the Court’s decision. Plaintiffs make no such showing 

here. 

In their motion, plaintiffs argue that relief under RCFC 59(a) is warranted, because they 

have entered into implied-in-fact contracts with the United States. See generally Pl. Mot. 

Plaintiffs further argue that these contracts establish the Court’s jurisdiction to entertain their 

breach of contact claims under the Tucker Act. Id. But, plaintiffs do not demonstrate, or even 

allege, in their motion for reconsideration that any fraud, wrong, or injustice has been done to the 

United States as a result of the Court’s decision to dismiss their claim. See RCFC 59(a)(1)(C).

Rather, plaintiffs restated the jurisdictional argument already raised in their opposition to the 

government’s motion to dismiss. In addition, this Court has recognized that “[r]econsideration 

of a judgment is not intended to permit a party to retry its case when it previously was afforded a 

full and fair opportunity to do so.” Ogunniyi v. United States, 124 Fed. Cl. 668, 670 (2016). 
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Given this, plaintiffs have simply failed to demonstrate that they are entitled to any relief under 

RCFC 59.

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 And so, the Court must deny plaintiffs’ motion for reconsideration. RCFC 59(a). 

B. Plaintiffs Are Not Entitled To Relief From Judgment

Plaintiffs have similarly failed to show that they are entitled to relief from judgment

pursuant to RCFC 60(b). Plaintiffs do not specify the grounds upon which they seek relief from 

judgment under RCFC 60. But, in general, the Court may grant such relief due to, a mistake; 

newly discovered evidence; fraud; or when a judgment is void, or has been satisfied, released or 

discharged. RCFC 60(b)(1)-(5). Relief under RCFC 60(b)(6) may also be granted upon other 

grounds under exceptional or extraordinary circumstances. RCFC 60(b)(6); Louisville Bedding 

Co., 455 F.3d at 1380. 

Plaintiffs have not established that they are entitled to relief from judgment under any of 

the grounds for relief set forth in RCFC 60(b)(1)-(5). First, a plain reading of plaintiffs’ motion 

makes clear that plaintiffs have not alleged a mistake or inadvertent judicial error that would 

entitle them to relief under RCFC 60(b)(1). See Pl. Mot. at 2-7. Rather, plaintiffs argue that the 

Court has erroneously concluded that it does not possess jurisdiction to consider plaintiffs’

breach of contract claims in this matter. Id. It is well established that plaintiffs’ argument that 

the Court has erroneously applied the law is not a ground for relief from judgment. See Brown v. 

United States, 80 F. App’x 676, 678 (Fed. Cir. 2003) (holding that RCFC 60(b)(1) does not 

provide grounds for relief from judgment when a plaintiff argues only that the Court erroneously 

applied the law). And so, plaintiffs have not shown that they are entitled to relief under RCFC 

60(b)(1).

Plaintiffs have also not demonstrated that they are entitled to relief from judgment due to

newly discovered evidence, pursuant to RCFC 60(b)(2). Pl. Mot. at 2-7. Nor have plaintiffs 

alleged that relief from judgment is appropriate here due to evidence of fraud, misrepresentation,

or misconduct by an opposing party under RCFC 60(b)(3). Id.

 

2 The other grounds for obtaining relief under RCFC 59(a) are not applicable here, because these 

provisions pertain to the grant of a new trial, rehearing, or further action after trial. RCFC 59(a)(1)(A)-

(B); RCFC 59(a)(2). 
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In addition, plaintiffs do not demonstrate that they are entitled to relief from judgment 

because the Court’s judgment in this matter is void. RCFC 60(b)(4); see also Smith v. United 

States, No. 10-218T, 2012 WL 346655, at *1 (Fed. Cl. Jan. 31, 2012) (“‘void’ means a judgment 

‘so affected by a fundamental infirmity that the infirmity may be raised even after the judgment 

becomes final.’” This occurs “‘only in the rare instance where a judgment is premised either on 

a certain type of jurisdictional error or on a violation of due process that deprives a party of 

notice or the opportunity to be heard.’”) (quoting United Student Aid Funds, Inc. v. Espinosa, 

559 U.S. 260, 271 (2010)). Relief from judgment pursuant to RCFC 60(b)(5) is similarly

inappropriate here. The Court’s judgment in this case has not been “satisfied, released, or 

discharged.” Nor have plaintiffs demonstrated that applying the Court’s judgment prospectively 

would not be equitable. RCFC 60(b)(5). And so, again, plaintiffs have not identified any

grounds upon which the Court may grant relief from judgment. 

Lastly, plaintiffs also fail to demonstrate any “extraordinary circumstances” that would 

warrant relief from judgment pursuant to RCFC 60(b)(6). As established above, plaintiffs restate 

in their motion the jurisdictional arguments previously considered by the Court in the March 31, 

2016 Decision. Pl. Mot. at 2-7. But, plaintiffs point to no extraordinary circumstances that 

would justify granting relief from the Court’s judgment in this case. See generally Pl. Mot.; 

Perry, 558 F. App’x at 1006; Kennedy, 99 Fed. Cl. at 548 (a strict interpretation of the text of 

RCFC 60(b)(6) is necessary to preserve the “finality of judgments,” and RCFC 60(b)(6) cannot 

serve as the grounds to relieve a party from a “free, calculated, and deliberate choice”). In fact,

plaintiffs have simply not shown that a “grave miscarriage of justice” would result if relief from 

the March 31, 2016 Decision is not granted here. And so, the Court must deny plaintiffs’ motion 

for relief from judgment. Kennedy, 99 Fed. Cl. at 540, 548.

IV. CONCLUSION

In sum, plaintiffs have not met their burden to show that they are entitled to either 

reconsideration of the Court’s March 31, 2016 Decision, or to relief from judgment. And so, for 
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the foregoing reasons, the Court DENIES plaintiffs’ motion.

IT IS SO ORDERED.

s/Lydia Kay Griggsby 

LYDIA KAY GRIGGSBY

Judge