JURICH v. USA

Filing 21

UNREPORTED ORDER denying 18 Motion for Relief from Judgment - Rule 60. Signed by Judge Elaine D. Kaplan. (vds) Service on parties made.U.S. Certified Mail Tracking# 7017 1450 0000 1346 1017 Modified on 7/27/2018 (vds).

ORIGINAL
Jfn tbe Wniteb ~tates ~ourt of jfeberal ~Iaitns
No. 16-1711 C (Pro Se)
(Filed: July 27, 2018 I Not for Publication)

GEORGE JURICH,
Plaintiff,

v.

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)
)
)
)

Keywords : Pro Se Plaintiff; Motion
for Relief From Judgment; RCFC
60(b).

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THE UNITED STATES OF AMERICA,
Defendant.

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)
)
)

FILED
JUL 27 2018
U.S. COURT OF
FEDERAL CLAIMS

~~~~~~~~~- )
George Jurich, Muskegon Heights, MI, pro se.
Kara M Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S . Department of Justice, Washington, DC, with whom were Steven J Gillingham,
Assistant Director, Robert E. Kirschman, Jr. , Director, and Chad A. Readier, Acting
Assistant Attorney General, for Defendant. Adam Frey, Military Personnel Attorney, U.S .
Air Force General Litigation Division, Joint Base Andrews, MD, Of Counsel.
OPINION AND ORDER
KAPLAN, Judge.
On June 13, 2017, the Court granted the government's motion to dismiss this case
for lack of subject matter jurisdiction. Docket No. 14 (hereinafter, "Opinion Dismissing
Case"). Plaintiff George Jurich has now filed a motion for relief from the Cowt's earlier
judgment on the basis of Rule 60(b) of the Rules of the Court of Federal Claims (RCFC).
As the Court set forth in its previous opinion, Mr. Jurich is a former member of
the U.S. Air Force who was anested while still a member of the armed services and
ultimately sentenced to life in prison by a state com1 in Michigan. See Opinion
Dismissing Case at 2. In his complaint, he claimed, among other things, that he had
never, in fact, been discharged from military service, and thus that he was entitled to an
award of back pay. See id. The Court held that it lacked jurisdiction over Mr. Jurich' s
claims because they were time-baned by the applicable (and jurisdictional) statute of
limitations. See id. at 3-4. Fmther, the Court noted that even if it had jurisdiction over
Mr. Jurich's complaint, he had failed to state a claim upon which relief could be granted,
as service members are not entitled to pay while absent from duty due to incarceration.
See id. at 4 n.3.
RCFC 60(b) states that the Court "may relieve a party ... from a final judgment,
order, or proceeding" for any of six enumerated reasons:

7017 1450 DODD 1346 1017

I) Mistake, inadve1tence, 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).
"As a remedial provision, Rule 60(b) is to be 'liberally constrned for the purpose
of doing substantial justice."' Patton v. Sec'y of Dep't of Health & Human Servs., 25
F.3d 1021, 1030 (Fed. Cir. 1994) (citing 7 James W. Moore & Jo Desha Lucas, Moore's
Federal Practice~~ 60.18[8], 60.19 (2d ed. 1993)). At the same time, "[t]he United States
Supreme Court has 'cautioned that the Rule should only be applied in extraordinary
circumstances."' Perry v. United States, 558 F. App'x 1004, 1006 (Fed. Cir. 2014)
(quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988))
(alterations omitted). Therefore, in ruling on a motion under RCFC 60(b), a court must
strike "a proper balance between the conflicting principles that litigation must be brought
to an end and that justice should be done." Hutchins v. Zoll Med. Corp., 492 F.3d 1377,
1386 (Fed. Cir. 2007) (quoting 11 Charles A. Wright, Aithur R. Miller & Mary Kay
Kane, Federal Practice and Procedure § 2851 (2d ed. 1995)).
Having carefully considered Mr. Jurich's motion, the Court concludes that none
of Rule 60(b)'s grounds for relief are met here. In his motion, Mr. Jurich asse1ts that he
has come upon newly discovered evidence showing that he was not discharged from the
armed services until 2018. See Mot. for Relief From J. Under RCFC 60(b) With Mem. of
Law Incorporated Therein (Pl. 's Mot.) at 3, Docket No. 19. According to Mr. Jurich, this
evidence takes the form of an honorable discharge certificate, dated April I 0, 1984,
which Mr. Jurich claims was "generated in March, 2018 and backdated to April, 1984."
Id.; see also Pl. 's Mot. Ex. D. Thus, Mr. Jurich claims, "no discharge ever existed until
March, 2018." Pl.'s Mot. at 3.
Further, Mr. Jurich claims that this document is somehow fabricated or falsified;
that the government has committed fraud upon the Court because it represented that he
had been discharged while knowing that he remains on active duty; and that the Court's
judgment is void because the Comt returned to him untiled an attempted sur-reply to the
government's motion to dismiss that he wished to file. See id. at 3, 14, 17.
First, as the government points out, even assuming that the discharge certificate
constitutes new evidence (which the Court does not decide), and even ifthe Comt were to

2

accept Mr. Jurich's wholly implausible theory that the discharge was only effective as of
March 2018, Mr. Jurich's claim would not be materially affected because he would still
lack any statutory entitlement to pay while incarcerated. See Def.'s Opp'n to Pl.'s Mot.
for Relief From Dismissal at 5, Docket No. 19 (observing that 37 U.S.C. § 503(a) "flatly
prohibits Mr. Jurich from receiving any back pay during his pre- and post-conviction
civilian incarceration"); see also Opinion Dismissing Case at 4 n.3.
Second, a party seeking to show fraud upon the court must support such a claim
with "clear and convincing evidence." See Madison Servs., Inc. v. United States, 94 Fed.
CL 501, 507 (2010) (quoting Venture Indus. Corp v. Autoliv ASP, Inc., 457 F.3d 1322,
1333 (Fed. Cir. 2006)). But the honorable discharge certificate Mr. Jurich has produced
indicates that the government has accurately characterized the date of his discharge all
along. He thus has produced no evidence at all, let alone evidence of a "clear and
convincing" nature, that the govermnent committed fraud upon the Court. 1
Finally, the Court's decision to return Mr. Jurich's attempted sur-reply to him was
well within its considerable discretion to "manage [its] own affairs so as to achieve the
orderly and expeditious disposition of cases," and did not somehow deny him the
opportunity to be heard. See Link v. Wabash Ry. Co., 370 U.S. 626, 630-31 (1962)
(footnote omitted).
In sum, Mr. Jurich has failed to identify any grounds under RCFC 60(b) that
would justify relief from the Court's judgment dismissing his case. His motion for relief
from judgment is therefore DENIED. 2

CONCLUSION
For the reasons discussed above, Mr. Jurich's motion for relief from judgment is
DENIED.

IT IS SO ORDERED.

ELAINE D. KAPLAN
Judge

1

The Court does not credit Mr. Jurich's assertion that the discharge certificate is
"fabricated" because it was apparently generated recently. See Pl. 's Mot. at 3.
2

The Court also DENIES Mr. Jurich's renewed request to for the appointment of counsel
as beyond the Court's authority. See Pl.'s Mot. at 20-21.

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