Mendez v. United States , 686 F. App'x 908 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAWRENCE MENDEZ, JR.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1236
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00441-CFL, Judge Charles F.
Lettow.
______________________
Decided: May 8, 2017
______________________
LAWRENCE MENDEZ, JR., Oceanside, CA, pro se.
LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., DEBORAH
A. BYNUM.
______________________
Before DYK, BRYSON, and CHEN, Circuit Judges.
2 MENDEZ v. UNITED STATES
PER CURIAM.
Plaintiff Lawrence Mendez, Jr., proceeding pro se, ap-
peals from the judgment of the United States Court of
Federal Claims (“CFC”) dismissing his lawsuit. Mr.
Mendez brought this suit in order to seek the removal of
an adverse personnel decision from his military record
and reinstatement to the military. Because Mr. Mendez
previously brought a substantially similar suit, which
resulted in judgment before the CFC, affirmance by this
Court, and denial of certiorari by the Supreme Court, the
CFC dismissed this suit on the grounds of res judicata.
Although we have liberally construed Mr. Mendez’s
appeal of the CFC’s decision, we conclude that this suit is
precluded by res judicata, and we, therefore, affirm.
BACKGROUND
A. Mr. Mendez’s Military Service
Mr. Mendez is a former officer of the United States
Marine Corps who served in Operation Iraqi Freedom.
On July 28, 2007, Mr. Mendez was relieved of his duties
as Battalion Adjutant and issued an adverse performance
evaluation (the “Adverse Evaluation”) for the period of
February 1, 2007, through July 28, 2007. Mr. Mendez
alleges plausibly that the Adverse Evaluation had a
variety of negative effects on his military career, including
the issuance and cancellation of various Permanent
Change of Station orders, denial on two occasions of
promotions to the rank of Captain, and, finally, involun-
tary separation from the Marine Corps in 2010.
Realizing the potentially harmful effect the Adverse
Evaluation would have on his career, Mr. Mendez at-
tempted on repeated occasions to have it excised from his
permanent military record, both before the Board for
Correction of Naval Records (“Correction Board”) and the
Marine Corps Performance Evaluation Review Board
(“Review Board”). However, his efforts were unsuccessful.
MENDEZ v. UNITED STATES 3
B. Prior Litigation
After his dismissal from the Marine Corps, Mr. Men-
dez filed suit in the CFC seeking reinstatement, back pay,
and removal of the Adverse Evaluation from his record.
See Mendez v. United States (Mendez I), 103 Fed. Cl. 370,
374 (2012). The CFC affirmed the decisions of the Correc-
tion Board and Review Board in all respects save one: it
found that the Third Officer Sighter (“TOS”) in the case—
a military ombudsman responsible for reconciling differ-
ing factual accounts—had failed to reconcile a certain
factual inconsistency. Id. at 383–84. The CFC remanded
to the Correction Board to reconsider Mr. Mendez’s appli-
cation following a review of the inconsistency. Id. at 384.
On remand, the Correction Board referred the Ad-
verse Evaluation to the Review Board for consideration of
the inconsistency. The Review Board concluded that the
narrative related to the inconsistency should be struck
from the Adverse Evaluation, but that the entire Adverse
Evaluation should not be expunged because the incon-
sistency was “not central to [the] adverse report.” Mendez
v. United States (Mendez II), 108 Fed. Cl. 350, 355 (2012).
The Correction Board agreed with the Review Board’s
conclusion and determined that the Adverse Evaluation
should be amended as the Review Board had advised.
The Correction Board nevertheless concluded that the
Adverse Evaluation was still sufficiently negative that a
promotion of Mr. Mendez to Captain “would have been
definitely unlikely.” Id. Thus, the Correction Board
determined that Mr. Mendez was not entitled to the
promotion or the other relief he sought.
Mr. Mendez appealed that determination to the CFC,
which affirmed because the Correction Board’s decision to
“exclude any mention of the [inconsistent] issue rather
than to remove the fitness report in its entirety was not
arbitrary or capricious, contrary to law, or unsupported by
substantial evidence.” Id. at 356–57. Mr. Mendez ap-
4 MENDEZ v. UNITED STATES
pealed to this Court, which affirmed, 540 F. App’x 986
(Fed. Cir. 2013) (Mendez III), and then petitioned the
Supreme Court for a writ of certiorari, which was denied,
134 S. Ct. 1281 (2014).
Having exhausted his appeals, Mr. Mendez moved
under Rule 59(a) of the CFC for reconsideration of the
2012 decision upholding the decision of the Correction
Board. Because his motion was untimely under Rule
59(a), the CFC deemed it a motion for relief from judg-
ment under Rule 60(b) of the CFC. Mendez v. United
States (Mendez IV), No. 11-160C, 2014 WL 2772590, at *1
(Fed. Cl. June 18, 2014). The CFC court determined that
Rule 60(b)(6), which refers to “any other reason that
justifies relief,” was the only provision that could possibly
apply. Id. at *4; see also U.S. Ct. Fed. Claims R. 60(b).
Under the precedent of the CFC and this Court, relief is
available under Rule 60(b)(6) only in “extraordinary
circumstances.” Infiniti Info. Sols., LLC v. United States,
93 Fed. Cl. 699, 704 (2010); Fiskars, Inc. v. Hunt Mfg. Co.,
279 F.3d 1378, 1382 (Fed. Cir. 2002). Because Mr. Men-
dez previously had the opportunity to file a timely motion
for reconsideration by the CFC, but instead appealed to
this Court, the CFC found that he had not “alleged any
extenuating circumstances that prevented him from
raising these issues earlier” and thus denied his motion
for relief. Mendez IV, 2014 WL 27772590, at *5. Mr.
Mendez then appealed that decision of the CFC to this
Court, which affirmed, 600 F. App’x 731 (2015) (Mendez
V). The Supreme Court denied his petition for a writ of
certiorari. 136 S. Ct. 62 (2015).
C. The Instant Case
On April 7, 2016, Mr. Mendez filed a complaint in the
CFC, once again seeking to remove the Adverse Evalua-
tion from his military record and to be reinstated to active
duty as an officer. The complaint alleged that (1) the
military officials who prepared the Adverse Evaluation
MENDEZ v. UNITED STATES 5
acted in an arbitrary and capricious manner in preparing
the Adverse Evaluation; (2) the Correction Board acted in
an arbitrary and capricious manner by failing to remove
the Adverse Evaluation from Mr. Mendez’s record and
failing to consider Mr. Mendez for promotion; and (3) the
CFC and this Court erred in previously ruling against
him, which amounted to a “manifest injustice.” The CFC
dismissed the complaint on the grounds of (1) res judicata;
and (2) lack of right to file a second motion for relief from
judgment. See Mendez v. United States (Mendez VI), No.
16-441C, 2016 WL 5107085, at *3 (Fed. Cl. Sept. 20,
2016).
Mr. Mendez now appeals the dismissal, and we have
jurisdiction over the appeal under 28 U.S.C. § 1295(3).
STANDARD OF REVIEW
We review the CFC’s dismissal of a complaint for fail-
ure to state a claim upon which relief can be granted de
novo. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.
Cir. 2002). “In deciding a motion to dismiss, the court
must accept well-pleaded factual allegations as true and
must draw all reasonable inferences in favor of the claim-
ant.” Kellogg Brown & Root Servs., Inc. v. United States,
728 F.3d 1348, 1365 (Fed. Cir. 2013).
DISCUSSION
A. The Complaint
Counts I–VI of Mr. Mendez’s complaint allege arbi-
trary and capricious behavior by either the military
officials involved in the preparation of the Adverse Evalu-
ation or the Correction Board. Counts VII and VIII allege
that the CFC and this Court committed a “manifest
injustice” by affirming the decisions of the Correction
Board. The CFC, in an exercise of lenity toward a pro se
litigant, interpreted Counts VII and VIII as a motion for
relief from the judgments of the CFC and this Court.
Mendez VI, 2016 WL 5107085, at *3. We instead view
6 MENDEZ v. UNITED STATES
these counts as attempting to establish that Mr. Mendez’s
renewed complaint is exempt from res judicata under
equitable doctrines of “manifest injustice.” See Intergraph
Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir. 2001); see
also Pepper v. United States, 562 U.S. 476, 506–07 (2011);
Arizona v. California, 460 U.S. 605, 643–44 (1983). In
Intergraph, we explained the high standard that must be
met to overcome res judicata:
Reasons that may warrant departure from the law
of the case, thus providing an exception to the
more rigorous requirements of res judicata, in-
clude the discovery of new and different material
evidence that was not presented in the prior ac-
tion, or an intervening change of controlling legal
authority, or when the prior decision is clearly in-
correct and its preservation would work a manifest
injustice.
Intergraph, 253 F.3d at 698 (emphasis added). Thus, we
will view the complaint as alleging that one of these
exceptions from res judicata may apply, and, for purposes
of this appeal, assume as correct the contentions in Mr.
Mendez’s complaint which may support this allegation.
To the extent that Counts VII and VIII seek to appeal
from the previous judgments of the CFC and this Court,
we note that all paths of appeal have previously been
exhausted and the time for filing motions for rehearing or
reconsideration has long since passed.
B. Res Judicata
Res judicata includes the two related concepts of
claim preclusion and issue preclusion, the latter of which
is also known as collateral estoppel. Sharp Kabushiki
Kaisha v. ThinkSharp, Inc., 448 F.3d 1368, 1370 (Fed.
Cir. 2006). As we have explained,
Issue preclusion refers to the effect of a judgment
in foreclosing relitigation of a matter that has
MENDEZ v. UNITED STATES 7
been litigated and decided. . . . Claim preclusion
refers to the effect of a judgment in foreclosing lit-
igation of a matter that never has been litigated,
because of a determination that it should have
been advanced in an earlier suit.
Id. (quoting Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75, 77 n.1 (1984)). The CFC decided that Mr.
Mendez’s claim was barred by claim preclusion. See
Mendez VI, 2016 WL 5107085, at *3.
The CFC’s analysis of claim preclusion is entirely ac-
curate: (1) the parties are identical between this case and
the previous cases; (2) two final judgments have issued
from the CFC regarding the relief sought in this case; and
(3) this case and the previous cases are based on the same
set of transactional facts: the creation of the Adverse
Evaluation and the subsequent determinations of the
Correction Board. See Mendez VI, 2016 WL 510785, at *3.
Thus, Mr. Mendez’s claim is barred by claim preclusion.
See Sharp, 448 F.3d at 1370 (describing the three re-
quirements for claim preclusion).
Mr. Mendez’s claim is also barred by issue preclusion.
This matter has already been “litigated and decided.” The
operative allegations in the instant complaint seek to
overturn decisions of military officials and of the Correc-
tion Board under an arbitrary and capricious standard.
But this is exactly what was sought in Mendez II:
Plaintiff challenges the decision rendered by a
correction board. The court reviews such decisions
under a deferential standard so as not to “disturb
the decision of the [correction board] unless it is
arbitrary, capricious, contrary to law, or unsup-
ported by substantial evidence.”
108 Fed. Cl. at 356 (quoting Barnick v. United States, 591
F.3d 1372, 1377 (Fed. Cir. 2010)) (alteration in original).
Thus, issue preclusion bars the “relitigation” of this
8 MENDEZ v. UNITED STATES
“matter that has been litigated and decided.” Sharp, 448
F.3d at 1370.
C. Equitable Exceptions to Res Judicata
We now turn to whether Mr. Mendez has shown in his
briefing that an equitable exception to res judicata ap-
plies. Mr. Mendez alleges certain facts that, in his view,
warrant another opportunity for him to seek the relief he
sought in his prior litigation. For example, Mr. Mendez
contends that the TOS involved in the creation of the
Adverse Evaluation was relieved of his Afghanistan
command and dismissed from military service in 2013.
But the dismissal of the TOS six years after the issuance
of the Adverse Evaluation on a ground unrelated to the
facts of this case bears no relevance to how the TOS
conducted himself as to Mr. Mendez’s Adverse Evaluation.
This allegation is therefore immaterial to the merits of
Mr. Mendez’s complaint.
Mr. Mendez also alleges that his superior officer
threatened him with physical harm. This allegation,
however, is not “new and material evidence” because, at a
minimum, it is not newly discovered. Thus it could have
been offered to show arbitrary and capricious behavior by
defendants in the prior litigation.
Finally, Mr. Mendez alleges he was mentally and
emotionally impaired due to “abusive circumstances”
suffered circa 2007, which the Department of Veteran
Affairs recognized in September 2016. As with the al-
leged physical threats made against Mr. Mendez, Mr.
Mendez’s mental impairment, along with any abuse
directed toward him, was an already existing circum-
stance at the time of the previous litigation and could
MENDEZ v. UNITED STATES 9
have been offered to show arbitrary and capricious behav-
ior by the defendants. 1
Having found that the additional facts presented by
Mr. Mendez are not grounds for an exception to res judi-
cata, we also note that we are aware of no other facts
which would support an exception to res judicata in this
case. We are aware of no “new and different material
evidence that was not presented in the prior action.”
Intergraph, 253 F.3d are 698. We are likewise not aware
of any “intervening change of controlling legal authority.”
Id. And on the record before us, we hold that the prior
decisions (i.e., Mendez I–VI) are not clearly incorrect, and
that their preservation will not work a manifest injustice.
Id. Thus, Mr. Mendez’s claims in this suit are subject to
res judicata.
CONCLUSION
For the foregoing reasons, the Court of Federal
Claim’s entry of judgment is affirmed.
COSTS
No Costs.
1 We offer no opinion as to whether Mr. Mendez
may have any other claim against any entity or person
based on the abuse he allegedly suffered. We note only
that these circumstances could have been offered as
evidence in his previous suit seeking to set aside the
Adverse Evaluation.