UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) RORY WALSH, ) ) Plaintiff, ) ) v. ) Civil Action No. 11-2215(RWR) ) MICHAEL HAGEE, et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION AND ORDER

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,

(D.D.C. 2012), aff’d, No.

12-5367,

(D.C. Cir. Apr. 10, 2013). -2-

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

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

1 Raymond Marotta was also named as a defendant, but he was dismissed from the case via a stipulation. -3-

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,

. This decision was affirmed per

curiam by the D.C. Circuit on April 10, 2013. See Walsh,

.

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. -4-

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,

(D.D.C. 2011) (alteration in original) (quoting United Mine

Workers of Am. 1974 Pension v. Pittston Co.,

(D.C. Cir. 1993)). Motions for reconsideration are “disfavored”

and “granting . . . such a motion is . . . an unusual

measure[.]” Cornish v. Dudas,

(D.D.C.

2011) (internal quotation marks omitted) (citing Kittner v.

Gates,

(D.D.C. 2011); see also Wright

v. FBI,

(D.D.C. 2009)). “[T]he moving

party bears the burden of establishing ‘extraordinary

circumstances’ warranting relief from a final judgment.”

Schoenman v. FBI,

(D.D.C. 2012) (quoting

Niedermeier v. Office of Baucus,

(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 -5-

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,

(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,

(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.” -6-

Fund For Animals v. Williams,

(D.D.C. 2004)

(citing Kattan ex rel Thomas v. District of Columbia,

(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,

(denying a Rule 60

motion despite the plaintiffs’ argument that a new report

demonstrates that the attorney engaged in prosecutorial

misconduct because the plaintiffs failed to “identif[y] any

specific evidence in the report that pertains to Plaintiffs’

case”).

Further, the new evidence of Hagee and Clapper’s

“determined criminal actions” does not warrant relief from the

judgment because Rule 60(b)(2) requires “newly discovered

evidence . . . of facts that existed at the time of trial or

other dispositive proceeding.” Duckworth,

. Here, the alleged break-ins occurred after the memorandum

opinion was issued and are not “facts that existed at the time”

of the proceeding. Nor does Walsh explain how this new evidence

would change the order dismissing the case for lack of subject

matter jurisdiction, lack of personal jurisdiction, failure to

state a claim upon which relief can be granted, and failure to

exhaust administrative remedies. See Walsh, 900 F. Supp. 2d at -7-

61-62. Accordingly, Walsh has not shown that relief is

justified under Rule 60(b)(2).

Walsh also argues that relief is justified under Rule

60(b)(3), claiming that a fraud has been committed upon the

court. The thrust of Walsh’s numerous arguments about fraud is

that the government’s denials of what Walsh characterizes as

facts is a “fraud upon the court.” See, e.g., Pl.’s Mot. at 5

(arguing that the government’s confirmation that the FBI has not

issued any warrants to put Walsh under surveillance constitutes

a “fraud upon the court” because “Hagee and Clapper have been

conducting illegal surveillance on Walsh for years”); id. at 9

(arguing that Hagee “intercepted the complaint from defendant

Clapper and delivered it to the Navy” and that “there is no

counter evidence” so the government’s denial is a “fraud upon

the court”); id. at 10-12. Walsh also argues that the

defendants “falsified a medical evaluation to withhold Walsh’s

VA compensation” and is “withholding” the medical evaluation.

Id. at 11-12.

Under Rule 60(b)(3), the movant must show “by clear and

convincing evidence . . . that the other party engaged in fraud,

misrepresentation, or misconduct.” Almerfedi v. Obama,

(D.D.C. 2012) (internal quotation marks omitted).

Additionally, a Rule 60(b)(3) motion will not be granted unless

the plaintiff can “show actual prejudice” which means “he must -8-

demonstrate that defendant’s conduct prevented him from

presenting his case fully and fairly.” Ramirez v. Dep’t of

Justice,

(D.D.C. 2010); see

also Summers v. Howard Univ.,

(D.C. Cir.

2004) (explaining that prejudice requires “the movant [to] show

that the misconduct foreclosed full and fair preparation or

presentation of its case” (internal quotation marks omitted)).

Walsh’s arguments fail to demonstrate how the defendants’

conduct prevented him from presenting his case. Rather, Walsh

relies on conjecture and unsupported assertions to reiterate the

same allegations that he presented in his original and amended

complaints. See, e.g., Green v. Am. Fed’n of Labor & Congress

of Indus. Orgs.,

(D.D.C. 2011) (denying

the plaintiff’s motion for reconsideration because “the

plaintiff does not indicate how such fraud would have prevented

him from fully and fairly presenting his case before the

court”); Bennett v. United States,

(D.D.C. 2008) (denying Rule 60(b)(3) motion where the plaintiff

merely “alleg[ed] that Defendant’s legal arguments perpetrated a

‘fraud’ upon the court or simply repeat[ed] general legal

arguments already made by Plaintiff and rejected by the Court”).

Without such evidence of prejudice, Walsh is entitled to no

relief under Rule 60(b)(3). -9-

Walsh seeks relief under Rule 60(b)(4) claiming that the

judgment is void because of “inherent due process violations”

and because of the fraud upon the court. “Relief under Rule

60(b)(4) is not available merely because a disposition is

erroneous. Rather, before a judgment may be deemed void within

the meaning of the rule, it must be determined that the

rendering court was powerless to enter it.” Combs v. Nick Garin

Trucking,

(D.C. Cir. 1987) (footnote and

internal quotation marks omitted); see also Karsner v. Lothian,

(D.C. Cir. 2008). “A judgment may be void if

the court lacked personal or subject matter jurisdiction in the

case, acted in a manner inconsistent with due process or

proceeded beyond the powers granted to it by law.” Green,

; accord Eberhardt v. Integrated Design &

Constr., Inc.,

, 871 (4th Cir. 1999). No such

circumstances are apparent in this case, and Walsh cannot

prevail on this ground.

Finally, Walsh argues that defendant Axe’s failure to

respond justifies relief under Rule 60(b)(6). He also appears

to argue that he is entitled to relief from the judgment because

State Trooper Nicholas C. Berger should replace his deceased

father, Keith Berger, as a defendant.2 See Pl.’s Mot. at 16-19

2 Walsh also contends that the “falsified medical records” justifies relief under Rule 60(b)(6) as well as under Rule -10-

(arguing that “[t]he death of defendant Berger did not

extinguish the claim against him”).

Axe had been dismissed from the case because of a lack of

personal jurisdiction and could not have been required to

participate in this litigation at all. Moreover, Walsh already

moved in June of 2012 to appoint Nicholas Berger as executor for

the estate of Keith Berger and to substitute Nicholas Berger for

Keith Berger, and his motion was denied. Even if Walsh’s

arguments about Axe and Berger had merit, that is nevertheless

insufficient to merit relief under Rule 60(b)(6). Relief under

Rule 60(b)(6) ‘“should be only sparingly used’” and only in

“‘extraordinary circumstances.’” Salazar ex rel. Salazar v.

Dist. of Columbia,

(D.C. Cir. 2011)

(quoting Ackermann v. United States,

(1950)

and Good Luck Nursing Home, Inc. v. Harris,

(D.C. Cir. 1980)). Reconsideration can be properly granted

“only ‘when a party timely presents a previously undisclosed

fact so central to the litigation that it shows the initial

judgment to have been manifestly unjust.’” Taitz v. Obama,

(D.D.C. 2010) (quoting Good Luck Nursing

Home, Inc.,

). Because Walsh has failed to

60(b)(3). Pl.’s Mot. at 11-12, 19-20. However, “the catch-all provision, Rule 60(b)(6), is mutually exclusive with the grounds for relief in the other provisions of Rule 60(b).” Kramer v. Gates,

(D.C. Cir. 2007). -11-

demonstrate extraordinary circumstances or a manifest injustice,

or even that there was “a previously undisclosed fact . . .

central to the litigation,” his claim for relief under Rule

60(b)(6) must also fail.

CONCLUSION AND ORDER

Walsh has not demonstrated that he is entitled to relief

under Rule 60(b)(2)-(4), or that there are extraordinary

circumstances warranting relief under Rule 60(b)(6), from the

October 26, 2012 memorandum opinion and order. Accordingly, it

is hereby

ORDERED that the plaintiff’s motion [89] for

reconsideration be, and hereby is, DENIED.

SIGNED this 4th day of December, 2013.

________/s/__________________ RICHARD W. ROBERTS Chief Judge