RICHARD W. ROBERTS, District Judge.
Pro se plaintiff Cornell D.M. Judge Cornish moves for reconsideration of the August 15, 2012 memorandum opinion and order granting the defendants' motion to dismiss. Cornish reargues legal arguments raised and rejected in the memorandum opinion and order, argues that he has new claims and evidence, and asserts that the court clearly erred on the facts and the law. Because Cornish has not established that there are extraordinary circumstances warranting relief from final judgment, his motion will be denied.
The relevant facts are described in earlier opinions. See Cornish v. United States (Cornish III), 885 F.Supp.2d 198, 202-04 (D.D.C.2012); Cornish v. Dudas (Cornish II), 813 F.Supp.2d 147, 147-48 (D.D.C. 2011), aff'd sub nom. Cornish v. Kappos, 474 Fed.Appx. 779 (Fed.Cir.2012); Cornish v. Dudas (Cornish I), 715 F.Supp.2d 56, 59-60 (D.D.C.2010). In 1958, Cornish passed the patent examination and was registered to practice before the U.S. Patent and Trademark Office ("USPTO"). Cornish III, 885 F.Supp.2d at 202. In
Nine years later, Cornish requested reinstatement to the register. Id.
Cornish III, 885 F.Supp.2d at 202-03 (internal quotation marks and citations omitted). In 2008, Cornish petitioned the OED Director to "reconsider the reasonable accommodations provided to him during the July 2008 patent examination, and requested reinstatement to the patent register by either waiver of the requirement that he pass the examination or permission to retake the identical examination an unlimited number of times." Id. at 203. The OED Director and the Acting USPTO Director's designate denied Cornish's request for reconsideration. Id. Cornish challenged the denial as unconstitutional and also brought other constitutional and common law claims against the defendants. Id. at 203-04. The defendants, in turn, moved to dismiss Cornish's amended complaint.
On August 15, 2012, the defendants' motion to dismiss was granted "[b]ecause Cornish failed to effect proper service upon the individually-named defendants, his claim regarding USPTO rules [was] moot, sovereign immunity [barred] his common law claims and constitutional claims against the government and the employees in their official capacities, and res judicata [barred] his reinstatement claim[.]" Id. at 202. On August 24, 2012, Cornish moved for reconsideration of these rulings arguing that he has alleged new claims, there has been a recent change in law, and there is "new evidence unavailable to the Plaintiff and Court heretofore[.]" Pl.'s Mot. for Reconsideration ("Pl.'s Mot.") at 2-3. He also argues that he is an active member of the patent bar, id. at 9-13, 19, and that he never received a letter from the USPTO stating that it construed Cornish's letter as a request to remove Cornish from the patent register, id. at 11.
Cornish does not specify in his motion whether he is moving for reconsideration under Federal Rule of Civil Procedure 59(e) or 60(b). However, "[a] motion to reconsider a final order is generally treated as a Rule 59(e) motion if it is filed within [28 days after the entry of judgment] and as a Rule 60(b) motion if it is filed thereafter." Roane v. Gonzales, 832 F.Supp.2d 61, 64 (D.D.C.2011) (citing Lightfoot v. District of Columbia, 355 F.Supp.2d 414,
"Rule 59(e) motions `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.'" Anyanwutaku v. Moore, 151 F.3d 1053, 1057-58 (D.C.Cir.1998) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam)). Such motions "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." Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (internal quotation marks omitted).
Motions for reconsideration are "disfavored" and "[t]he granting of such a motion is an unusual measure[.]" Cornish II, 813 F.Supp.2d at 148 (internal quotation marks omitted) (citing Kittner v. Gates, 783 F.Supp.2d 170, 172 (D.D.C. 2011); Wright v. FBI, 598 F.Supp.2d 76, 77 (D.D.C.2009)). "[T]he moving party bears the burden of establishing `extraordinary circumstances' warranting relief from a final judgment." Schoenman v. FBI, 857 F.Supp.2d 76, 80 (D.D.C.2012) (quoting Niedermeier v. Office of Baucus, 153 F.Supp.2d 23, 28 (D.D.C.2001)).
Cornish alleges that there is newly discovered evidence that shows that material facts relied upon in the August 15, 2012 memorandum opinion and order were incorrect. First, Cornish claims that it is now undisputed that he is an "active" "USPTO registered patent practitioner" because the defendants admitted this "fact" in their appellate brief. See Pl.'s Mot., Mem. in Supp. of Mot. for Reconsideration ("Pl.'s Mem.") at 34. The alleged admission is in the defendants-appellees' brief submitted to the United States Court of Appeals for the Federal Circuit in Cornish v. Kappos, et al., Appeal No. 2012-1157. The first sentence of the the defendants' brief stated: "Cornish, a USPTO registered patent practitioner on voluntary inactive status for nine years, petitioned the USPTO for reinstatement to active status." Defs.' Opp'n to Pl.'s Mot. for Reconsideration ("Defs.' Opp'n"), Ex. A at 2.
The "errors" that Cornish cites are all findings supported by the record. See Cornish I, 715 F.Supp.2d at 59-60 (citing exhibits in the record). Moreover, the purported errors do not affect whether Cornish properly served the individually-named defendants or whether sovereign immunity and res judicata bar his claims against the other defendants.
Cornish also implies that the Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011) (codified in scattered sections of 35 U.S.C.), is an intervening change in law. See Pl.'s Mot. at 3; Pl.'s Mem. at 40. However, Cornish does not demonstrate how the changed law affects the determinations in the August 15, 2012 memorandum opinion and order.
Finally, Cornish alleges that he has new claims that warrant consideration. See, e.g., Pl.'s Mem. at 39 (listing several claims including a common law false light claim and a number of constitutional claims). However, most of Cornish's "new" claims were previously decided and he has not shown that his new false light claim could not have been raised previously. Because a motion for reconsideration is not an opportunity to relitigate claims previously decided and is not "a vehicle for presenting theories or arguments that could have been raised previously," Fund For Animals v. Williams, 311 F.Supp.2d 1, 5 (D.D.C.2004) (citing Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.Cir. 1993)), Cornish's "new" claims do not support his motion for reconsideration.
Cornish has not demonstrated that there are extraordinary circumstances warranting relief from the August 15, 2012 memorandum opinion and order. Accordingly, it is hereby
ORDERED that the plaintiff's motion [49] for reconsideration be, and hereby is, DENIED. It is further
ORDERED that the plaintiff's motion [51] to certify evidence be, and hereby is, DENIED as moot.