KALOS et al v. USA
Filing
23
MEMORANDUM OPINION and ORDER denying 19 Motion for Relief from Judgment - Rule 60. Sent to plaintiff via USPS certified mail # 70163010000043083594. Signed by Chief Judge Susan G. Braden. (dw) Copy to parties. Modified on 6/14/2017 to remove text directing the entry of judgment. (dls).
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Filed: June f2,2017
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?817
Rules ofthe United States Court ofFederal
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Plaintiffs, pro se,
2
U.S. COURT OF
FEDERAL CLAIMS
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PETER KALOS. VERON KALOS
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Claims ("RCFC") 60(bxl), (bX6)
(ReliefFrom
a Judgment
or Order).
THE UNITED STATES,
Defendant.
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Peter Kalos and Veron Kalos, Broad Run, Virginia, pra
Kara M. westercamp, United
.re.
States Department of Justice,
civil Division,
washington, D.c.,
Counsel for the Govemment.
MEMORANDUM OPINION AND ORDER CONCERNING PLAINTIFFS' MOTION
FOR RELIEF FROM DISMISSAL
BRADEN, ChiefJudge.
on April 3, 2017, Peter and veron Kalos ("plaintiffs") filed a Motion For Relief From
Dismissal ("P1. Mot."), pursuant to the Rules of the United states court of Federal claims
("Rcrc) 60(b)(1) and 60(b)(6). ECF No. 19. plaintiffs seek relief from the judgment entered
on March 18,2016. ECF No. 12. on April 20,201i, the Govemment filed a response (..Gov't
Resp."). ECF No. 21. On May 4,2017, Plaintiffs filed a reply (,.p1. Reply,,). ECF No. 22.
The United States Court of Federal Claims may provide relief from a judgment or order
under RCFC 60(b) for: "(l) mi_stake, inadvertence, surprise, or excusable negiect-. . . or (6) any
other reason that justifies relief." RCFC 60(bxl), (6). "A motion under nbrc ooiu; must be
made within a reasonable time-and for reasons (l), (2), and (3) no more than a year after
the
entry ofthejudgment or order or the date ofthe proceeding." RCFC 60(c)(l). The Flderal circuit
has held that the movant must show "extraordinary circumstances,' when filing a motion, pursuant
to RCFC 60(bx6), but not when filing a morion pursuant to RCFC 60(b)(lj. see
sys &
Networlrs Corp. v. united states, 994 F .2d i92, 7gs (Fed. cir. 1993) (;.While subsection (6)
requires a showing of'extraordinary circumstances,' subsections (1) and (6) of Rule 60(b) .are
mutually exclusive' and the required showing ofextraordinary circumstances under subsection (6)
does not apply to excusable neglect under subsection (l).") (citations omitted).
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But, "once the judgement has been affirmed on appeal, RCFC 60 provides no general
exception to the longstanding bar on the trial court's undoing the affirmance based on later
presentation of arguments that the challenger presented, or could have presented, in the earlier
appeal." Tolasila, Inc. v. United States,524 F. App'x 671, 673 (Fed. Cir. 2013). An RCFC 60
motion is "not available to simply relitigate a case." IMagstaffv. (lnitedStates,5g5 F. App'x 975,
978 (Fed. Cir.2014).
ln this case, Plaintiffs' motion under RCFC 60(bX1) is untimely, because an appeal does
not toll the one-year period during which a party may file a Rule 60(bX1) motion. See Mudge v.
united states,78 Fed. cl. 818, 820 (2007) ("The subsequent appeal did not toll the one-year
period[.]") (citation omitted). In addition, an affirmation on appeal does not "start a new period
for seeking relief from that judgement." Id. (citing Tool Box, Inc. v. Ogden City Corp,419 F.3d
1084, 1088-89 (lOth cir.2005). Plaintiffs signed the cerrificate of service on March 29,2017
and their motion was filed on April3,2017. Pl. Mot. at 1,9. The clerk ofthe United states court
of Federal claims entered judgment on March 18,2016. ECF No. 12. Because plaintiffs' motion
was filed more than one year after judgment was entered, Plaintiffs' Motion For Relief From
Dismissal is untimely. See RCFC 60(c)(l).
Plaintiffs also fail to show extraordinary circumstances under RCFC 60(b)(6). The United
ofAppeals for the Federal Circuit has held that "extraordinary circumstances exist if
a person can demonstrate that he was not at fault for his predicamenl." Mendez v. [Jnited States,
600 F. App'x 731,733 (Fed. cir. 2015), cert. denied, 136 s. ct. 62 (2015) (citing pioneer Inv.
servs. Co. v. Brunswick Assocs. Ltd. P'ship,507 u.s. 380, 393 (1993). plaintiffs argue that
"dismissal is a hardship and prejudicial" and that changes made to Plaintiffs' property interest
support a finding of extraordinary circumstances. Pl. Mot. at 6. In addition, Plaintiffs appear to
argue that the existence ofan unsettled claim by the Govemment is an extraordinary circumstance.
Pl. Reply at 6.
States Court
Plaintiffs, however, still fail to recognize that the court previously determined that it did
not have jurisdiction to adjudicate the claims alleged by their August 14, 201 5 Complaint, because
Plaintiffs' claims were baned by the relevant statute of limitation, 2g U.S.C. Q 250i. See Katos v.
United States, No. 15-880 C,2016WL t073275, at *4 (Fed. Cl. Mar. t7,2016), affd,670F.
App'x714 (Fed. cir. 2016); see a/scr 28 U.S.c. g 2501 ("Every claim of which rhe u;ited states
Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within
six years after such claim first accrues."). This statute of limitationi is an explicit condition ofthe
Government's waiver of sovereign immunity and, as a matter of law, jurisdictional. sec John R.
sand & Gravel Co. v. [Jnited states, 552 U.S. 130, I 39 (2008) (holding that the six-year sratute of
limitations set forth in 28 U.S.C. $ 2501 is a jurisdictional requirement for a suit in the United
States Court of Federal Claims). Therefore, the couft cannot grant Plaintilfs relief under
RCFC
60ft).
For these reasons, Plaintiffs' Motion For Relief From Dismissar is denied.
IT IS SO ORDERED.
Chief Judge
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