BEBERMAN v. USA

Filing 18

UNREPORTED ORDER denying 16 Motion for Reconsideration - Rule 59(a). Signed by Judge Charles F. Lettow. (vds) Copy to parties.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
No. 16-1006C
(Filed: February 1, 2017)
(NOT TO BE PUBLISHED)

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WLIE BEBERMAN,

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Plaintiff,

v.
UNITED STATES,

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FILED
FEB - 1 2017
U.S. COURT OF
FEDERAL CLAIMS

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Defendant.

Julie Beberman, pro se, Arlington, Virginia.
· Agatha Koprowski, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant.
ORDER
Pending before the court is plaintiffs motion for reconsideration of the court's decision
and judgment entered December 8, 2016, dismissing plaintiff's complaint for lack of jurisdiction
under 28 U .S.C. § 1500. See Beberman v. United States, 129 Fed. Cl. 539 (2016). In her
motion, plaintiff argues that the claims raised in her case pending in the United States District
Court for the District of the Virgin Islands rest on separate and independent operative facts from
those alleged in her claim in this court, and under the res judicata test for evaluating claims, the
alleged grounds asserted in the cases are distinct from each other. See PI.' s Mot. for Recons.
("Pl. 's Mot."), ECF No. 16.
Plaintiff acknowledges that there is overlap between her claims in the instant case and
those raised in her motion for preliminary injunction in the district court, which was denied but
taken on appeal to the United States Court of Appeals for the Third Circuit. PL 's Mot. at 4-6.
She emphasizes, however, that the overlapping facts "were not operative facts to be proven to
prevail on the merits. Rather they were harms from which [plaintiff] sought preliminary
injunctive relief [and pursued on appeal] while awaiting trial on the merits." Id at 5-6. Plaintiff
also emphasizes that the court should focus only on the allegations in her First Amended
Complaint in the district court and not the allegations she sought to raise in later amended
complaints. Id at 6.

The distinctions plaintiff would draw between the district court action and that filed in
this court are too tenuous. As this court pointed out, plaintiffs motion for preliminary injunction
and consequent appeal were premised on the basic factual grounds of her action filed in this
court. See Beberman, 129 Fed. Cl. at 543-44, 546-47. 1 That the facts alleged in her motion for
preliminary injunction and argued to the Third Circuit extended beyond those in her First
Amended Complaint in district court did not make a dispositive difference for purposes of
Section 1500. The allegations in her motion and the ensuing appeal nonetheless were made in
the district court case and were pending at the time her action was commenced in this comt. 2
For these reasons, plaintiffs motion for reconsideration is DENIED. 3
It is so ORDERED.

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Charles F. Lettow
Judge

1

This court did concur with plaintiff that her "First Amended Complaint in the district
court and appeal in the Third Circuit constitute[d] [the] earlier-filed pending suits," not her
Fourth Amended Complaint in the district court, which that court had not granted leave to be
filed. See Beberman, 129 Fed. Cl. at 545.
2

As plaintiff has informed the court, see Pl. 's Notice of Third Circuit's Decision on
Appeal, ECF No. 17, the Third Circuit subsequently affirmed the district court's denial of a
preliminary injunction. See Beberman v. United States Dep 't of State,_ Fed. Appx. _,No 161788, 2017 WL 117527 (3d Cir. Jan. 12, 2017).
3

Notably, this court's dismissal on jurisdictional grounds based on Section 1500 was
without prejudice. See Beberman, 129 Fed. Cl. at 548.
2