HUTCHINSON v. USA

Filing 116

REPORTED OPINION denying 111 Motion for Reconsideration. Signed by Judge Zachary N. Somers. (mss) Service on parties made.

In the United States Court of Federal Claims
No. 20-895 C
(Filed: June 5, 2024)

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GEORGE BALDWIN HUTCHINSON, *
JR.
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER DENYING MOTION FOR RECONSIDERATION
After more than three years of litigation, the involvement of two judges, several reviews
by the Army Board for the Correction of Military Records (“ABCMR” or the “Board”), a
telephonic argument that lasted nearly three hours, and separate rounds of briefing on motions
for judgment on the administrative record, this Court granted the government’s motion for
judgment on the administrative record regarding pro se Plaintiff George Hutchinson’s claims.
After initially appealing that decision, Plaintiff moved for reconsideration in this Court. As the
Court finds Plaintiff has failed to make any new arguments, it denies his motion for
reconsideration.
BACKGROUND
According to the administrative record, Plaintiff joined the Army in 1994 as a Signal
Support Systems Specialist. AR 416, 586. After applying in October 2003, Plaintiff became a
Second Lieutenant in the reserve component of the Signal Corps in March 2004 and completed
the Signal Officer Basic Course in October 2004. AR 40, 471, 474, 483–98, 501. The Army
deployed Plaintiff several times from 2004 through 2013. AR at 204–05, 326, 441, 446.
Plaintiff retired with the rank of Captain on July 15, 2015. AR 41, 293.
This case originated as a dispute about Plaintiff’s retirement rank. As explained in detail
in this Court’s decision dismissing his case, Plaintiff petitioned to have his military records
corrected to establish his retirement rank as either Major or Brigadier General. Hutchinson v.
United States, 168 Fed. Cl. 504, 508–11 (2023); see also AR 33–34, 43, 220; Oral Argument at
1:03:20–1:24:00. The Army denied Plaintiff’s petition for a greater rank and the retirement
benefits associated with it. AR 206. Plaintiff pursued further review of this decision at the

Army Human Resources Command and the ABCMR but was unsuccessful at each appeal. Id.;
ECF No. 1 at 2.
Plaintiff filed the present action in this Court on July 22, 2020. See ECF No. 1 at 3. A
remand to the ABCMR corrected his military records to the payment rank of Major effective
September 25, 2015, with all the associated retroactive retirement pay. ECF No. 40-1 at 12.
Plaintiff was unsatisfied, however, and sought another remand to the ABCMR to determine
whether he was entitled to the retirement rank of Lieutenant Colonel, whether he deserved a
greater percentage of back pay at the rank of Major for several years prior to the time the
ABCMR corrected his record to that rank, and whether he was entitled to several other forms of
payment under various statutes. See ECF No. 45 at 1–2. The ABCMR denied each of these
contentions upon a remand. ECF No. 61-1 at 7.
Still unsatisfied, Plaintiff filed an Amended Complaint that crystallized these claims.
ECF No. 70. Plaintiff and the government each filed cross-motions for judgment on the
administrative record, ECF Nos. 72, 77, and the Court held oral argument, ECF No. 98. The
nearly three-hour telephonic hearing clarified Plaintiff’s contentions. First, Plaintiff claimed that
the Army improperly used a 50% disability rating from the Veterans Administration (“VA”)
instead of the 70% rating from the Army in determining his Combat Related Special
Compensation (CRSC) payment. Oral Argument at 20:00–25:00. Second, Plaintiff contended
that he received disability retirement pay at the rank of Captain when he should have received
disability retirement pay at the grade and rank of Major since July 2015. Id. at 25:00–33:00.
Third, Plaintiff contended that he was eligible for concurrent receipt of both his retired pay from
the Army and disability pay from the VA. Id. at 33:00–46:00. Fourth, Plaintiff suggested that he
temporarily served as a Lieutenant Colonel, and that, pursuant to 10 U.S.C. § 1372(2), his
retirement grade should be Lieutenant Colonel. Id. at 47:00–1:02:00. Finally, Plaintiff took the
previous argument further and suggested that, pursuant to 10 U.S.C. § 1372(4), his retirement
grade should be Brigadier General with associated backpay. Id. at 1:03:20–1:24:00.
After reviewing all these motions, claims, arguments, and accountings, the Court found
for the government on each of the Plaintiff’s five counts on November 30, 2023. Hutchinson,
168 Fed. Cl. at 520. The next day, December 1, 2023, Plaintiff appealed this decision. ECF No.
110. On December 27, 2023, however, Plaintiff moved for reconsideration under Rules 52, 59,
and 60 of the Rules of the United States Court of Federal Claims (“RCFC”). ECF No. 111.
Recognizing the outstanding motion, the United States Court of Appeals for the Federal Circuit
terminated Plaintiff’s appeal until this Court ruled on the motion for reconsideration. ECF No.
112. Plaintiff subsequently filed notice of his motion for reconsideration with accompanying
exhibits. ECF No. 114.
DISCUSSION
A.

Legal Standard

Because prevailing on a motion for reconsideration requires the moving party to make a
“showing of extraordinary circumstances,” this Court does not often grant such motions. FruCon Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999). Even if the moving party
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makes such a showing, however, “[t]he decision whether to grant reconsideration lies largely
within the discretion” of the Court. Yuba Nat. Res., Inc. v. United States, 904 F.2d 1577, 1583
(Fed. Cir. 1990). The Court must exercise its discretion based upon the principle that
“[r]econsideration of a judgment is not intended to permit a party to retry the allegations
included in plaintiff’s complaint when it previously was afforded a full and fair opportunity to do
so.” Hymas v. United States, 141 Fed. Cl. 735, 738 (2019) (citing cases). For this reason, the
Court “will not grant a motion for reconsideration if the movant ‘merely reasserts . . . arguments
previously made[,] . . . all of which were carefully considered by the court.’” Ammex, Inc. v.
United States, 52 Fed. Cl. 555, 557 (2002) (emphasis omitted) (quoting Principal Mut. Life Ins.
Co. v. United States, 29 Fed. Cl. 157, 164 (1993), aff’d, 50 F.3d 1021 (Fed. Cir. 1995)).
RCFC 52, 59 and 60 describe the circumstances under which the Court may permit
reconsideration of a judgment after a case is closed. RCFC 59 states that the Court may do so
“for any reason for which a new trial has heretofore been granted in an action at law in federal
court[,] for any reason for which a rehearing has heretofore been granted in a suit in equity in
federal court[,] [or] 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)(A–C), while
RCFC 52 permits the Court to “amend its findings—or make additional findings—and may
amend the judgment accordingly” upon a motion from a party, RCFC 52(b). Similarly, the Court
may relieve a party from a final judgment under RCFC 60(b) because of
mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence
that, with reasonable diligence, could not have been discovered in time to move for
a new trial under RCFC 59(b); fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party; [if] the judgment
is void; 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 any other reason that justifies relief.
RCFC 60(b)(1–6).
These rules reflect the broad discretion afforded the trial judge in choosing to grant a
motion for reconsideration. Summarizing these provisions and the case law interpreting them,
the Federal Circuit has observed that the “three primary grounds that justify reconsideration are:
(1) an intervening change in the controlling law; (2) the availability of new evidence; and (3) the
need to correct clear error or prevent manifest injustice.” Delaware Valley Floral Grp., Inc. v.
Shaw Rose Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010) (internal quotations omitted); see
also Parsons ex rel. Linmar Prop. Mgmt. Tr. v. United States, 174 F. App’x 561, 563 (Fed. Cir.
2006) (listing the same grounds for reconsideration under RCFC 59); Pac. Gas & Elec. Co. v.
United States, 74 Fed. Cl. 779, 781 (2006) (stating that Rule 52 gives a trial court “discretion
when deciding whether to grant a motion for reconsideration.”). While these examples do not
exhaust the situations in which the Court may reconsider a judgment, movant parties must cite
extraordinary reasons that justify such a departure from past practice.

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B.

Analysis

Plaintiff’s motion for reconsideration states that he does so “[p]ursuant to [RCFC]
59(b,1) and 52(a,1)(5)6(b,c) 60(a,b,1).” ECF No. 111 at 1. Recognizing the latitude with
formalities that this Court affords pro se plaintiffs, the Court considers his motion under all the
applicable rules rather than only those mentioned by Plaintiff.
After careful review of Plaintiff’s motion, the Court finds no argument or evidence that
warrants reconsideration of his case. Plaintiff spends much of his motion rearguing the same
points that the Court considered in its November 2023 opinion. He restates, for example, his
argument that he should be given the retired rank of Brigadier General. Compare ECF No. 111
at 12 (requesting a “a separate ruling here as well for Projection the Government must provide a
projection for Disabled Servicemember” with respect to possible promotion to Brigadier
General) with Hutchinson, 168 Fed. Cl. at 518–19 (addressing this exact argument). Indeed,
Plaintiff states that his purpose in moving for reconsideration is to “detail the errors and
misrepresentations, over looked [sic] rule of law and case law below for correction and
reconsideration to be independently ruled upon as required by [FCRC] 52 with no jury by this
court for the Appeals at the Federal Circuit to review all that is not corrected nor process in this
action for Clarification and modifications.” ECF No. 111 at 2. His complaint, therefore, is that
the Court did “not issu[e] any credit towards [his] prevailing arguments” rather than that he has,
for example, any new evidence or that a change in the law has occurred. Id. Disagreement with
the result the Court reached may be a subject worthy of appeal, but it is not a basis for
reconsideration.
The closest Plaintiff comes to an argument within the scope of the standard for
reconsideration is that the Court miscalculated his term of service relevant to his ability to get
Concurrent Retirement and Disability Pay (CRDP). As explained in the Court’s November 2023
opinion, a service member is eligible for CRDP only if he or she has more than twenty years of
service at the time of retirement. Hutchinson, 168 Fed. Cl. at 519. According to the Army,
Plaintiff retired with only 19 years, 3 months, and 13 days of service. Id. Plaintiff contended
that the Army should have credited him with an additional 204 days of service for Post
Deployment Mobilization Respite Absence (PDMRA). Id. As the Court pointed out in the
opinion, applying even this number puts him several days short of the required twenty years. Id.
at 520. The Court could, therefore, detect no error in the ABCMR’s failure to find Plaintiff
eligible for CRDP.
Plaintiff makes the same argument in his motion for reconsideration, but he increases the
amount of PDMRA he claims the Army owes him and thus the amount of service time he
possesses. He now states that he earned 252 days of PDMRA rather than the 204 to which he
once claimed he was entitled. ECF No. 111 at 3. He claims that the Court calculated his service
time with the wrong number of PDMRA days because the Court “Used an Old Calculation from
Document 44 prior to the [Plaintiff] gaining information from the Government.” Id. He also
states that “Unopposed Calculations by both parties . . . [were] 19y 4mos 22days[,] not previous
calculations.” Id. According to Plaintiff, these new calculations would give him the required 20
years of service to qualify for CRDP. Id. at 4.

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The scope of this Court’s review of the ABCMR’s decisions compels it to reject this
belated argument. As was explained in the November 2023 opinion, “[w]hen substantial
evidence supports a board’s action, and when that action is reasonable in light of all the evidence
presented, the court will not disturb the result.” Pope v. United States, 16 Cl. Ct. 637, 641
(1989) (citing Holman v. United States, 181 Ct. Cl. 1, 8 (1967)). After the second remand to the
ABCMR, Plaintiff requested “Temporary Early Retirement Authority (TERA) for no offset
waiver in pay from the Army or Veterans Affairs known as Concurrent receipt with PostDeployment Mobilization Respite Absence (PDMRA) for 6 months totaling base pay at a rate of
19 years, 10 months, and 5 days and disability retirement at a rate of 18 years, 9 months, and 20
days, with Title 10, USC, section 1405 at a rate of 19 years, 4 months, and 11 days.” ECF No.
61-1 at 1. Even assuming that Plaintiff is correct that the PDMRA days could be credited to his
overall years of service, he did not argue that they should be so credited sufficient to meet the
twenty-year statutory requirement until after the two remands to the ABCMR. Compare ECF
No. 61-1 at 1 (stating Plaintiff’s above quoted arguments) with ECF No. 72 at 22 (arguing in his
motion for judgment on the administrative record that “there is [sic] 204 days not accounted for
Which is an additional 204 days missing” rather than the 252 days he claims now). The Court
cannot set aside the ABCMR’s decision as irrational based on evidence that Plaintiff himself did
not present during any of his appearances before the Board. Both parties’ motions for judgment
on the administrative record were based on the ABCMR’s record, which did not include
Plaintiff’s belated argument that either the 204 or 252 PDMRA days should qualify toward his
service time. The ABCMR did not err in calculating Plaintiff’s service time based on the record
and Plaintiff’s arguments before it.
The Court additionally notes that Plaintiff represented that he possessed 204, rather than
252, PDMRA days in his motion for judgment on the administrative record and made no
representations to the contrary during oral argument. ECF No. 72 at 22. Plaintiff’s first
representation that he had 252 PDMRA days seems to have appeared only in a nearincomprehensible filing made after oral argument titled “Status Update Notice of Objection and
Informal Status Conference Request.” ECF No. 102 at 3 (“Kuwait orders DX 293 0001 19 OCT
2012 to 18 Oct 2012 350 days 48 days mission 204 days plus 48 days equals 252 that needs to be
added.”). This extremely belated representation affects neither the Court’s review of the Board’s
decision nor of Plaintiff’s motion for judgment on the administrative record. The Court cannot
be expected to dig through Plaintiff’s often obscure filings searching for such minor changes in
representations of service time, especially when they contradict all prior representations of
Plaintiff’s PDMRA time. Allowing Plaintiff to change—especially opaquely—the essential facts
of his claim so late in litigation, after full briefing and oral argument, would exceed even the
considerable latitude allotted to pro se plaintiffs.
However, even if the Court ignored these obvious flaws in Plaintiff’s presentation of the
number of PDMRA days to which he claims he is entitled, Plaintiff is still not eligible for CRDP.
As the Department of Defense explained in memorandum on Leave and Liberty Policy and
Procedures, “[Reserve Component] Service members must be serving pursuant to sections
12301(a), 12301(d), 12302, or 12304 of Reference (d) in order to utilize the administrative
absence days accrued under the PDMRA Program.” DEPARTMENT OF DEFENSE Instruction
1327.06 at 40. Because Plaintiff was a member of the reserve component of the Army, ECF No.
61-1 at 2, he could only use his PDMRA days if he served on active duty in the circumstances
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the Department of Defense described: (1) on a call to active duty in a time of national emergency
or war either as a regular service member (10 U.S.C. § 12301 (a) and (d)); (2) as a member of the
Ready Reserve (10 U.S.C. § 12302); or (3) as a member of the Selected Reserve (10 U.S.C. §
12304). Plaintiff, though, was called to active duty under a statutory provision (10 U.S.C. §
12301(h)) that was not included in the memorandum and, therefore, could not utilize his alleged
252 days of PDMRA. ECF No. 61-1 at 2 (“On 23 July 2014 . . . [Plaintiff] was retained on
active duty under the provisions of Title 10, USC, section 12301(H) to participate in the Reserve
Component Medical Hold Transfer for completion of medical care and treatment.”).
Moreover, unused PDMRA days are not bankable if unused. The Department of Defense
explained this concept very clearly in its Financial Management Regulations: “Banked PDMRA
days will be lost if the member is separated from the military prior to using the PDMRA days.
Banked PDMRA days cannot be subsequently sold.” DOD Financial Management Regulation
7000.14-R, 7.5.2.4.2, (implementing Pub. L. No. 112-120). Plaintiff claims nowhere in his many
briefs that he actually used his PDMRA time before the military retired him. Accordingly, even
if Plaintiff could have used the PDMRA days and thus had them counted as part of his total
service time, once he was retired without using the PDMRA days, they were lost. Because
PDMRA days operate under a “use them or lose them” regime, Plaintiff’s unused-at-the-time-ofhis-retirement PDMRA days cannot count toward constructive service days sufficient to give
Plaintiff the service time necessary to qualify for CRDP.
The remainder of Plaintiff’s motion for reconsideration consists not of legal arguments,
but rather criticisms of this Court’s characterization of the contours of his positions in its
November 2023 opinion. Plaintiff claims, for example, that
[t]here is no Claim by the [Plaintiff] for CRDP[,] this was manufacture[d] [and]
looks to be on the Confusions of the Government/DOJ counsel[.] [T]he Subpoenas
. . . and the Motion to strike . . . would have clarified this cross pollinating[.] [T]he
court moved on an argument that does not exist in fact in the notes and March 1st
hearing that [I] the [Plaintiff] clearly state not entitled to CRDP and never
contended on an argument that does not exist to substantiate a manufacture legal
basis.
ECF No. 111 at 7. This is an odd clarification because Plaintiff spends so much of his motion
claiming that his PDMRA days give him over twenty years of service time, the threshold for
obtaining CRDP. See 10 U.S.C. § 1414(b)(2). Plaintiff also represented that he sought CRDP at
oral argument, Oral Argument at 33:00–46:00, and the title of his PDMRA argument in his
“Status Update Notice of Objection and Informal Status Conference Request” is “Concurrent
Receipt Claim.” ECF No. 102 at 3. As motions for reconsideration do not permit plaintiffs to
relitigate their cases when they were given a full and fair opportunity to do so, the Court will not
permit reconsideration based on such allegations.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for reconsideration is DENIED. Nothing in
Plaintiff’s motion suggests a manifest injustice in the Court’s November 2023 opinion. Plaintiff
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has also not produced previously unavailable evidence that merits a reconsidered decision, nor
demonstrated that new law preempts the Court’s previous ruling. Plaintiff had ample
opportunity to clarify and advocate for his positions in briefing, at oral argument, and before the
ABCMR. If he feels that the Court’s decision is legally or factually flawed, appeal, not
reconsideration, is his remedy.
IT IS SO ORDERED.
s/ Zachary N. Somers
ZACHARY N. SOMERS
Judge

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