Wilfong v. United States

This case comes before the court on plaintiffs motion, filed March 1, 1981, for reconsideration pursuant to Rule 152(b), with reference to the decision entered herein on July 13, 1973, dismissing the petition. Wilfong v. United States, 202 Ct.Cl. 616, 480 F.2d 1326 (1973). Plaintiff complained that the Government had expropriated (i.e., inversely condemned) an avigation easement in the airspace superad-jacent to his chicken farm. Id. at 619. We held that the alleged invasions of plaintiffs airspace, extending over a period of approximately eight months, lacked the requisite permanence or indefiniteness to constitute a taking. Id. at 622-623. At most, plaintiff had stated an action for trespass, over which this court lacks jurisdiction. Id. at 620, 624. Plaintiff subsequently filed in federal district court, but without success.

Plaintiffs present motion is principally based upon what appears to be "newly discovered evidence” concerning the period of time during which the Government allegedly conducted overflights of his property — fifteen months additional to the eight months indicated in our original opinion. Under Rule 152(b)(2), motions of this type must be made "not more than 1 year after the judgment. . .was entered.” By this standard, plaintiffs motion is now almost seven years too late. Rule 152(b)(6) provides that judgments may be vacated for "any other reason justifying relief.” Such motions must be filed within a "reasonable time.” See Pueblo of Santo Domingo v. United States, ante at 265, 647 F.2d 1087 (1981), cert. denied, 456 U.S. - (1982). The motion herein was not filed within a reasonable time, nor has "any reason justifying relief’ been presented. Plaintiffs "evidence” merely goes to the period of time of the alleged trespasses; the evidence in no way disturbs this *711court’s finding that the trespasses were insufficiently permanent to constitute a taking.

Accordingly, after consideration of the submissions of the parties, without oral argument of counsel, plaintiffs motion for reconsideration is denied.