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Walsh v. Hagee

United States District Court, District Circuit

December 4, 2013

RORY WALSH, Plaintiff,
v.
MICHAEL HAGEE, et al., Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD W. ROBERTS, Chief District Judge.

Pro se plaintiff Rory M. Walsh moves under Federal Rule of Civil Procedure 60(b) for reconsideration of the October 26, 2012 memorandum opinion and order granting the defendants' motions to dismiss and denying all other motions as moot. Walsh reasserts legal arguments previously raised and rejected in the memorandum opinion and order, argues that he has new claims and evidence, alleges fraud by the defendants, and asserts that the final judgment is void. Because Walsh has not established that he is entitled to relief from the final judgment under Rule 60(b), his motion will be denied.

BACKGROUND

The relevant facts are described in an earlier opinion. See Walsh v. Hagee , 900 F.Supp.2d 51 (D.D.C. 2012), aff'd, No. 12-5367, 2013 WL 1729762 (D.C. Cir. Apr. 10, 2013).

Briefly, Walsh brought claims under the Constitution and several federal statutes such as the Racketeer Influenced and Corrupt Organization ("RICO") Act, the Federal Tort Claims Act ("FTCA"), and the Privacy Act alleging that the defendants participated in a government conspiracy to harass and assault him and his family. Walsh named as defendants former Marine Corps Commandant Michael Hagee, Director of National Intelligence James Clapper, United States District Judge Christopher Connor, Secretary of Veterans Affairs Erik Shineseki, other federal employees, and the United States ("federal defendants"), as well as Keith Berger and James Axe.[1] The defendants moved to dismiss Walsh's amended complaint on a variety of bases, including lack of personal jurisdiction, lack of subject matter jurisdiction, improper venue, failure to state a claim upon which relief can be granted, and failure to exhaust administrative remedies.

An October 26, 2012 memorandum opinion granting the defendants' motions to dismiss concluded:

Walsh's frivolous FTCA and Fourth, Fifth, and Sixth Amendment claims based on a bizarre government conspiracy theory and Walsh's unexhausted claim under 18 U.S.C. 2712 must be dismissed for lack of subject matter jurisdiction. Walsh's claim as to Axe will be dismissed for lack of personal jurisdiction. Walsh's cause of action for judicial review in connection with his request to correct his military record similarly will be dismissed for lack of subject matter jurisdiction, or alternatively for failure to state a claim because he did not allege any final decision by the Secretary that can be reviewed. Walsh's claims under the Privacy Act, RICO, the [Crime Victims' Rights Act], the Victim and Witness Protection Act, and the Fourteenth Amendment of the U.S. Constitution must also be dismissed because Walsh failed to state a claim upon which relief can be granted. Thus, the remaining defendants' motions to dismiss the complaint will be granted.

Walsh , 900 F.Supp.2d at 61-62. This decision was affirmed per curiam by the D.C. Circuit on April 10, 2013. See Walsh, 2013 WL 1729762.

On August 9, 2013, Walsh moved for reconsideration of the final judgment dismissing his amended complaint arguing that he is entitled to relief from the October 26, 2012 memorandum opinion under Federal Rule of Civil Procedure Rule 60(b). FRCP 60 Mot. For Relief from Final Order and to Re-Open This Action ("Pl.'s Mot.") at 1. In particular, Walsh claims that there is newly discovered evidence (Rule 60(b)(2)); there has been a fraud upon the court (Rule 60(b)(3)); the judgment is void (Rule 60(b)(4)); and other grounds justify relief, such as the fact that Axe has been unresponsive and because Nicholas Berger should be substituted as a defendant for his deceased father, Keith Berger (Rule 60(b)(6)). Individual defendants Berger and Axe and the federal defendants all opposed in separate oppositions.

DISCUSSION

A court has discretion to grant relief from a final judgment for five enumerated reasons under Rule 60(b)(1)-(5), and for "any other reason that justifies relief" under Rule 60(b)(6). Fed.R.Civ.P. 60(b). "[T]he decision to grant or deny a rule 60(b) motion is committed to the discretion of the District Court.'" Kareem v. FDIC , 811 F.Supp.2d 279, 282 (D.D.C. 2011) (alteration in original) (quoting United Mine Workers of Am. 1974 Pension v. Pittston Co. , 984 F.2d 469, 476 (D.C. Cir. 1993)). Motions for reconsideration are "disfavored" and "granting... such a motion is... an unusual measure[.]" Cornish v. Dudas , 813 F.Supp.2d 147, 148 (D.D.C. 2011) (internal quotation marks omitted) (citing Kittner v. Gates , 783 F.Supp.2d 170, 172 (D.D.C. 2011); see also Wright v. FBI , 598 F.Supp.2d 76, 77 (D.D.C. 2009)). "[T]he moving party bears the burden of establishing extraordinary circumstances' warranting relief from a final judgment." Schoenman v. FBI , 857 F.Supp.2d 76, 80 (D.D.C. 2012) (quoting Niedermeier v. Office of Baucus , 153 F.Supp.2d 23, 28 (D.D.C. 2001)).

Walsh alleges that there is newly discovered evidence that shows that a fraud has been committed upon the court. For example, Walsh argues that there is new evidence because his "allegation is now confirmed by the exposure of defendant Clapper's criminal actions by Edward Snowden, who let the world know Clapper (and Hagee) have the ability to look into judges computers...." Pl.'s Mot. at 5. Additionally, Walsh argues that there is "new evidence of the determined criminal actions of Hagee and Clapper" because, after the October 26, 2012 memorandum order and opinion, the defendants broke into Walsh's residence and car and "look[ed] into this Court's computer." Id. at 5-6.

To prevail under Rule 60(b)(2), "the movant must demonstrate that: (1) the newly discovered evidence is of facts that existed at the time of trial or other dispositive proceeding; (2) the party seeking relief was justifiably ignorant of the evidence despite due diligence; (3) the evidence is admissible and is of such importance that it probably would have changed the outcome; and (4) the evidence is not merely cumulative or impeaching." Duckworth v. U.S. ex rel. Locke , 808 F.Supp.2d 210, 216 (D.D.C. 2011).

Here, Walsh argues that his allegations have been confirmed by Edward Snowden. However, information that merely confirms Walsh's assertions is not new information for the purposes of Rule 60(b)(2). See Duckworth , 808 F.Supp.2d at 216 (holding that "new evidence" must be evidence that "is not merely cumulative"). Rule 60(b) is not "a vehicle for presenting theories or arguments that could have been raised previously." Fund For Animals v. Williams , 311 F.Supp.2d 1, 5 (D.D.C. 2004) (citing Kattan ex rel Thomas v. District of Columbia , 995 F.2d 274, 276 (D.C. Cir. 1993)). Even if the Snowden information were "new evidence" under Rule 60(b)(2), Walsh fails to demonstrate how it would have changed the outcome of his case. Cf. Duckworth , 808 F.Supp.2d at 216-17 (denying a Rule 60 motion despite the plaintiffs' ...


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