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Fourte v. Spencer

United States District Court, District of Columbia

March 29, 2019

MICHAEL FOURTE, Petitioner,
v.
RICHARD V. SPENCER, in his official capacity as Secretary of the Navy and his successors in office, Respondent.

          MEMORANDUM OPINION AND ORDER

          BERYL A. HOWELL CHIEF JUDGE

         The pro se petitioner, Michael Fourte, is a Reserve Naval Officer who seeks reconsideration of the denial of his petition for a writ of habeas corpus, reviving his request that this Court order the respondent, Richard V. Spencer, the Secretary of the Navy, to demobilize him from his active duty assignment in Africa and to reassign him within the Navy. See Pet'r's Mot. Reconsideration, ECF No. 14; Fourte v. Spencer, No. 18-cv-2023 (BAH), 2019 WL 340713, at *1-7 (D.D.C. Jan. 28, 2019) (“Mem. Op.”) (denying Fourte's Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (“Pet.”), ECF No. 1). In the alternative, Fourte asks for a certificate of appealability (“COA”). See Pet'r's Reply in Support of His Mot. Reconsideration (“Pet'r's Reconsideration Reply”) at 6, ECF No. 16. For the reasons explained below, Fourte's Motion for Reconsideration and request for a COA are denied.

         I. BACKGROUND

         The Court's previous Memorandum Opinion laid out this matter's background in detail, see Mem. Op. at *1-4, so only a brief overview of the relevant facts is necessary. Fourte is a “Reserve Naval Officer with 20 years of service in the United States Navy, including over 16 years of active duty service.” Id. at *1. While stationed on “active duty” in Washington, D.C., Fourte was “ordered to active duty” for a different assignment as “Officer in Charge” of a military base in Africa, id., “[r]esponsible for the overall safety, security, and well-being of the [base] and all troops therein, ” id. at *2 (alterations in original). Upon receiving the Africa assignment, Fourte believed that the Navy needed “a waiver and justification” to mobilize him because he would accumulate over 16 years of active duty service by the time the Africa assignment began. Id. at *1. Fourte pointed to the Navy's waiver process for Navy reservists with 16 years of active duty service, provided in Chief of Naval Operations Instruction 1001.27. Id. at *2 n.1. This particular instruction is designed to protect “the Navy from inadvertent, unnecessary spending” on higher retirement pay owed to officers who ultimately achieve twenty years of active duty service while on active duty. See Id. The Navy obtained the waiver, and in compliance with “the Africa orders, ” Fourte was “mobilized to active duty involuntarily.” Id. at *2.

         Fourte challenges his assignment to active duty in Africa in this case, but the instant petition is not Fourte's first bite at the apple. Before arriving in Africa, Fourte filed a habeas petition in this Court because he believed the waiver paperwork for the Africa assignment did not comply with the Navy's waiver procedures. Id. at *3. Fourte's action was transferred to the United States District Court for the District of South Carolina (“D.S.C.”) since at that time, Fourte was stationed at Fort Jackson in South Carolina. See Fourte v. Spencer, No. 18-cv-1847, Mem. & Order at 1-6 (D.D.C. Aug. 10, 2018) (citing Rooney v. Sec'y of the Army, 405 F.3d 1029, 1032 (D.C. Cir. 2005)). D.S.C. then dismissed the action because Fourte's petition was not justiciable, and he had not exhausted his intraservice remedies, including presentation of his objections to a Special Cases Board (“SCB”). See Fourte v. Spencer, No. 18-cv-2212, 2018 WL 3845136, at *1 (D.S.C. Aug. 12, 2018) (D.S.C. Magistrate Judge's report recommending dismissal of Fourte's first habeas petition); Fourte v. Spencer, No. 18-cv-2212, 2018 WL 3829232, at *1-3 (D.S.C. Aug. 13, 2018) (D.S.C. Order and Opinion dismissing Fourte's first habeas petition (“D.S.C. 2018 Dismissal Order”)); Fourte v. Spencer, No. 18-cv-2212, 2018 WL 3980209, at *1-3 (D.S.C. Aug. 21, 2018) (denying Fourte's motion for reconsideration).

         In a bold move, after arriving in Africa, Fourte filed this action in this Court, challenging his mobilization to Africa again, based on “nearly identical allegations to those in the first habeas petition, ” Mem. Op. at *3, without exhausting intraservice remedies as required by the D.S.C. 2018 Dismissal Order. Rather than making a “modest request” to correct the Navy's alleged waiver processing errors, Fourte instead sought an extraordinary remedy, asking this Court to interfere with the Navy's personnel decisions, order his demobilization, and restore him to his former active duty assignment in Washington, D.C. Id. at *6. As a result, the Court denied Fourte's petition because the relief he sought-reassignment within the Navy by judicial decree-was not justiciable, and Fourte still had not presented his objections to the SCB. See generally id.

         Undeterred, Fourte filed the instant motion, seeking reconsideration of the denial of his petition, and in the alternative, a COA. See Pet'r's Mot. Reconsideration at 1; Pet'r's Reconsideration Reply at 6. Each of Fourte's requests is discussed in turn, and for the reasons explained below, both requests are denied.

         II. MOTION FOR RECONSIDERATION

         While Fourte fails to specify the Federal Rule of Civil Procedure under which he seeks reconsideration, Fourte filed the instant motion within twenty-eight days after the Court's January 28, 2019 Order, and thus, the motion is considered under Rule 59(e).[1] See Pet'r's Mot. Reconsideration; see also Owen-Williams v. BB & T Inv. Servs., Inc., 797 F.Supp.2d 118, 121- 22 (D.D.C. 2011) (“As a general matter, courts treat a motion for reconsideration as originating under Rule 59(e) if it is filed within 28 days of the entry of the order at issue and as originating under Rule 60(b) if filed thereafter.” (footnote omitted)); accord Bowser v. Smith, No. 16-cv-01455 (TNM), 2019 WL 450670, at *1 (D.D.C. Feb. 4, 2019).

         Rule 59(e) allows a party to file “[a] motion to alter or amend a judgment.” Fed.R.Civ.P. 59(e). A Rule 59(e) motion is “discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). As the D.C. Circuit recently stressed, “the reconsideration or amendment of a judgment is nonetheless an extraordinary measure.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217 (D.C. Cir. 2018). A Rule 59(e) motion “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment, ” id. (quoting Exxon Shipping v. Baker, 554 U.S. 471, 486 n.5 (2008)), and “is ‘not a vehicle to present a new legal theory that was available prior to judgment, '” id. (quoting Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012)). Thus, “Rule 59(e) is not available to a party who ‘could have easily avoided the outcome, but instead elected not to act until after a final order had been entered.'” Id. at 220 (quoting Ciralsky v. CIA, 355 F.3d 661, 665 (D.C. Cir. 2004)).

         Here, Fourte identifies no “intervening change of controlling law, ” newly available evidence, or “manifest injustice.” Messina, 439 F.3d at 758. He only claims that the Court was wrong, primarily by repeating points already rejected. See Pet'r's Mot. Reconsideration. Specifically, Fourte resurrects his arguments that (1) he is not lawfully in the Navy because he only volunteered for an assignment in Washington, D.C., not in Africa, id. at 2; (2) he disagrees with the choice to deploy him to Africa because he believes “[n]o sane General Officer” would mobilize him, id. at 4-6; and (3) he is exempt from the exhaustion requirement because he has shown irreparable injury, id. at 6-7.[2] The prior Memorandum Opinion rejected these points already. See Mem. Op. at *4-7 (reasoning that Fourte is lawfully in the Navy because he concedes he is a reservist who may be recalled to active duty, that Fourte's petition improperly asks the Court to second-guess military personnel decisions, and that Fourte's petition alleges paperwork errors rather than irreparable harm). Those reasons continue to pertain and need not be rehashed in detail here. See Leidos, Inc., 881 F.3d at 217 (recognizing that a Rule 59(e) motion “may not be used to relitigate old matters”).

         Fourte also raises two new arguments, neither of which justifies alteration or amendment of the denial of his petition. First, Fourte contends that he never sought reassignment to his previous active duty assignment in Washington, D.C. Pet'r's Mot. Reconsideration at 3. Fourte's prior submissions contradict this assertion. Fourte originally asked the Court to “declare [his] orders unlawful, ” demobilize him, and “restore [him] to [his] previous duty, ” explaining that just before his mobilization to Africa, he was on active duty in Washington, D.C. See Pet. ¶¶ 13-15, 23; Civil Case Form for Habeas Petitions Under 28 U.S.C. § 2241 (“§ 2241 Habeas Form”) at 8 (Request for Relief), ECF No. 1. Fourte doubled down on his request for reassignment back to Washington, D.C. in his reply brief in support of his petition, again asking the Court to “demobilize [him] and restore him to his premobilization status.” Pet'r's Habeas Reply at 26. In fact, Fourte concedes that he contemplated reassignment to Washington, D.C. when he drafted his requested relief, explaining that he “was willing to finish out . . . the DC orders.” Pet'r's Mot. Reconsideration at 3.

         Having failed to obtain the relief he initially requested, Fourte now belatedly claims that he meant to seek an order placing him “back into the reserves” because his prior Washington, D.C. active duty assignment has expired. See Id. Fourte adds that the Court should review his original petition as a request to be restored to the Reserves because, notwithstanding that he has a J.D., he is entitled to the “benefit of the doubt given to other Pro Se litigants, ” and his requested relief was sufficiently vague to give the Court “flexibility.” Id. at 3-4.

         Fourte overlooks that a pro se pleading, “like any other, must present a claim upon which relief can be granted by the court.” Henthorn v. Dep't of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994) (quoting Crisafi v. Holland,655 F.2d 1305, 1308 (D.C. Cir. 1981)). Fourte's petition did not specify that he sought to be placed back into the Reserves, see generally Pet., and the Court “‘need not accept inferences drawn by [the petitioner] if such inferences are unsupported by the facts ...


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