Kelly-Leppert v. United States

In the United States Court of Federal Claims No. 21-955C (Filed: January 5, 2022) NOT FOR PUBLICATION ) CONSUELO E. KELLY-LEPPERT, ) ) RCFC 60(b); Reconsideration Pro Se Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) ) ORDER DENYING SECOND MOTION FOR RECONSIDERATION In this case, pro se plaintiff Consuelo E. Kelly-Leppert alleged that the government failed to provide her deceased husband and business partner, a Vietnam veteran, with a comprehensive health exam regarding exposure to Agent Orange, an herbicide agent used in the Vietnam War. Kelly-Leppert v. United States, No. 21-955C, 2021 WL 2853171, at *1 (Fed. Cl. July 8, 2021). Ms. Kelly-Leppert asserted contract- based claims, malpractice tort claims, veterans benefit claims, constitutional claims based on the Fourteenth Amendment, and civil rights claims. Id. She sought $138 million in damages for breach of contract, the loss of her business partner, loss of consortium, pain and suffering, and damages to her business. Id. On July 8, 2021, the court granted the government’s motion dismiss these claims for lack of subject matter jurisdiction. Id. On August 5, 2021, Ms. Kelly-Leppert filed a motion for reconsideration under Rule 59 of the Rules of the United States Court of Federal Claims (RCFC). Kelly-Leppert v. United States, No. 21-955C, 2021 WL 5858600, at *1 (Fed. Cl. Dec. 10, 2021). In briefing on this motion for reconsideration, Ms. Kelly-Leppert asserted additional constitutional claims under the Fifth Amendment.

Id. at *2. On December 10, 2021, this court denied Ms. Kelly-Leppert’s motion for reconsideration and the request for transfer to district court contained in the motion. Id. at *5.

Now pending before the court is Ms. Kelly-Leppert’s second motion for reconsideration, which the court construes as a motion under RCFC 60(b) for relief from the court’s July 8, 2021 judgment and its December 10, 2021 order denying her first motion for reconsideration. See 2d Mot. at 2-3, ECF No. 26. As relevant here, the court may grant relief from a final judgment or order under RCFC 60(b) due to “mistake” or for “any other reason that justifies relief.” RCFC 60(b)(1), (6). “Mistake” under RCFC 60(b)(1) includes “judicial error.” Patton v. Sec’y of Health & Human Servs., 25 F.3d 1021, 1030 (Fed. Cir. 1994). An RCFC 60(b) motion “is not available simply to relitigate a case—it is an avenue to secure extraordinary relief . . . which may be granted only in exceptional circumstances.” Wagstaff v. United States, 595 F. App’x 975, 978 (Fed. Cir. 2014) (quotation omitted).

No such “exceptional circumstances” exist here. Id. In support of her second motion for reconsideration, Ms. Kelly-Leppert argues that the court “missed” or “ignored” her constitutional claims based on the Fourteenth and Fifth Amendments. 2d Mot. at 3. However, the court addressed Ms. Kelly-Leppert’s constitutional claims both in its July 8, 2021 dismissal order, Kelly-Leppert, 2021 WL 2853171, at *6 (addressing Fourteenth Amendment claims), and in its December 10, 2021 order denying her first motion for reconsideration, Kelly-Leppert, 2021 WL 5858600, at *3-4 (addressing Fourteenth Amendment and Fifth Amendment claims). As explained in those decisions, this court lacks jurisdiction over Ms. Kelly-Leppert’s constitutional claims or they otherwise do not provide grounds for reconsideration. Kelly-Leppert, 2021 WL 2853171, at *6; Kelly-Leppert, 2021 WL 5858600, at *3-4. Ms. Kelly-Leppert has therefore failed to show that she is entitled to “extraordinary relief” under RCFC 60(b), Wagstaff, 595 F. App’x at 978, and her second motion for reconsideration is DENIED.

IT IS SO ORDERED.

s/Nancy B. Firestone NANCY B. FIRESTONE Senior Judge