United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
A. HOWELL CHIEF JUDGE
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.
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.
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
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.
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.
MOTION FOR RECONSIDERATION
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). 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,
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.
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. 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”).
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.
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.
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