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                                        No. 15-794C                                  stP 2 6 2016
                                (Filed: Septemb er 26, 20 | 6)
                                                                                    U,S. COURT OF
                                                                                   FEDERAL CLAIMS

 ANDREW R. SPENGLER,                               Keywords: RCFC 59; RCFC 60;
                                                   Motion for Reconsideration; Subject
                        Plaintiff,                 Matter Jurisdiction; Fiduciary Duty;
                                                   Prison Mailbox Rule; Commissary and
                                                   Welfare Fund

 THE UNITED STATES OF
 AMERICA,

                        Defendant.


Andrew R. Spengler, Fort Worth, TX, Plaintiff, pro se.

Alexis J. Echols,Trial Attomey, with whom were Benjamin C. Mizer, Principal Deputy
Assistant Attomey General, Robert E. Kirschman, Jr., Director, and Deborah A. Bynum,
Assistant Director, Commercial Litigation Branch, United States Department of Justice,
Washington, DC, for Defendant.

                                 OPINION AND ORDER

KAPLAN, Judge.

         This case is currently before the Court on Plaintiff s motion for reconsideration
pursuart to Rules of the Court ofFederal Claims (RCFC) 59 and 60(b). The pro se
plaintiff, Andrew Spengler, seeks reconsideration ofthis Court's July 19,2016 Opinion
and Order granting the govemment's motion to dismiss for lack of subject matter
jurisdiction pursuant to RCFC 12(bX1). See Spengler v. United States, No. 15-794C,

(Fed. Cl. July 19,2016).

       Because Mr. Spengler has failed to timely file his motion for reconsideration
under RCFC 59 and has failed to establish the existence of grounds for reliefunder
RCFC 60(b), his motion is DENIED.

                                     BACKGROUND

        As set forth in detail in this Court's earlier decision, Mr. Spengler, who is
cunently serving a fifteen-year sentence in the Federal Correctional Institution in Fort
Worth, Texas, claims that he is a beneficiary of the Commissary and Welfare Fund for
federal prisoners (hereinafter "the Commissary Fund" or "the Fund"), which is
designated as a "trust" fund pursuant to 31 U.S.C. g 132I(a)(22). Compl. at l, Doc.




                                                                 ?01a 3qb0 0081, ??9r t1l0
No. I . In his complaint, Mr. Spengler alleges that the Bureau of Prisons (BOP) breached
its fiduciary duties to inmates by using monies from the Commissary Fund for what he
claims are improper purposes, including in particular to fund the creation and operation
of the Trust Fund Limited Inmate Computer System (TRULINCS) and the Trust Fund
Inmate Telephone System (TRUFONE). As relief, Mr. Spengler sought, among other
things, orders directing the United States to provide an accounting ofthe Fund and to
restore billions ofdollars to it. He also asked the Court to award damages to him
personally for, among other things, costs he has inctured to pay for clothing at the prison
commissary, his expenses ofcopying documents, artd the costs he incurred for the use of
the TRULINCS and TRUFONE systems.

        This Court granted the govemment's motion to dismiss for lack ofjurisdiction.
 

, at *7. It noted that while the Tucker Act, 28 U.S.C. g 1a91(a\l),
waiyes the sovereign immunity of the United States to allow a suit for money damages,
 Mitchell v United Srates,463 U.S. 206,212 (1983) (Mitchell ID, it does not confer any
 substantive rights on a plaintiff, United States v. Testan,424tJ.S.392,398 (1976).2016
 WL3947954, at *2. Therefore, a plaintiff seeking to invoke the court's Tucker Act
jurisdiction must identifr an independent source ofa substantive right to money damages
from the United States arising out ofa contract, statute, regulation or constitutional
provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1306
 (Fed. Cir.2008).

        The Court further observed that an independent source ofa substantive right to
money damages may be found where a statute "establishes specific fiduciary or other
duties" and may "'fairly be interpreted as mandating compensation for damages sustained
as a result of a breach of the duties [the governing law] impose[s].'" 

,
at *3 (quoting United States v. Navajo Nation (I.{avajo Nation I), 

, 506
(2003), and Mitchell II,463 U.S. at 219) (alterations in original). To establish that the
United States has accepted a particular fiduciary obligation, "[a plaintiff] must identifu
statutes or regulations that both impose a specific obligation on the United States and
'bear[] the hallmarks ofa conventional fiduciary relationship. "' Hopi Tribe v. United
States, 782 F.3d 662,667 (Fed. Cir. 2015) (quoting United States v. Navajo Nation
fNavajo Nation II), 

,301 (2009)) (alteration in original).

        In this case, the Court held that neither the language, history, nor purposes of 31
 U.S.C. $ 1321(a)(22) suggested that-in classifying the Commissary Fund as a,.trust
 fund"-{ongress intended to impose specific fiduciary obligations on the United States
that would subject it to a claim for monetary damages for their breach. 

, at *3-*5. Therefore, the Court held that it lacked iurisdiction over Mr.
 Spengler's claims for money damages. 

The Court also ruled that it lacked
jurisdiction over his claims for injunctive reliefbecause they were not incidental to a
claim for monetary reliefproperly before the Court. 

v. Caldera, 

, 580 (Fed. Cir. 1998)).

       Further, the Court declined to transfer Mr. Spengler's claims to a district cou(
pursuant to 28 U.S.C. $ 1631. 

, at *5_*7 .It concluded that such a
transfer would be inappropriate because Mr. Spengler had failed to meet his burden of
demonstrating exhaustion of administrative remedies with respect to the claims made in
this case as required by 42 U.S.C. g 1997e(a). 

now moves that the Court reconsider both its dismissal of his
complaint and its denial of his request that his claims be transferred. He argues that
reconsideration is warranted because the Court erred in its interpretation ofthe Sixth
Circuit's decision in Washington v. Reno, 

(6th Cir. 1994). pl.'s Req. to
Alter J. at 2. In addition, he argues that he did exhaust his administrative remedies with
respect to at least two of the claims he is asserting in this case, as evidenced by additional
documents submitted in connection with his motion for reconsideration. 

                                       DISCUSSION

I.     Timeliness of Mr. Spengler's Motion Under RCFC 59

         The first avenue through which Mr. Spengler seeks reconsideration is RCFC 59.
Pl.'s Req. to Alter J. at 1. That rule provides that, except for a motion for new trial or
reconsideration on the grounds that any fraud, wrong, or injustice has been done to the
United States (grounds not alleged here), a motion for new trial or reconsideration "must
be filed no later than 28 days after the entry ofjudgment." RCFC 59(bXl); see also
RCFC 59(e) (stating that "[a] motion to alter or amend a judgment must be filed no later
than 28 days after the entry ofthe judgment"). Additionally, "[t]he court must not extend
the time to act under RCFC . . . 59(b), (d), and (e)." RCFC 6(b)(2); see also Johnson v.
United States, 

, 560 (2016) (holding that because ofRCFC 6(b) the court
could not consider plaintiffs untimely motion for reconsideration); Klamath Irrigation
Dist. v. United States, 

, 120 (2005) ("plike the parallel Federal rules, this
court's rules do not countenance a motion to extend the time for filing a reconsideration
motion subject to the timing provision of RCFC 59(b).').

       Here, Mr. Spengler states that he received the Court's order dismissing his case
on July 26, 2016. Pl.'s Req. to Alter J. at 1. Citing Houston v. Lack, 

(19SS),
Mr. Spengler then alleges that he filed his motion for reconsideration "in accordance witlt
the 'Prison Mail Box Rule' on 8/22/2016;'Pl.'s Req. to Alter J., Proof of Filing &
Service. In Houston, the Court held that when a pro se prisoner frles a criminal or habeas
corpus appeal, his notice of appeal is deemed filed at the time he delivers it to prison
authorities for forwarding to the court clerk. See Houston,487 U.S. at 269J6.1




 ' Since the Supreme Court's decision in Houston, federal courts have moved in the
direction ofextending this "prison mailbox rule" to all pro se prisoner district court
filings. See Sharpe v. United States, 111 Fed. C|.334,336-37 (2013), and cases cited
therein. Indeed, the Court ofAppeals for the Federal Circuit, in an unpublished table
decision, has applied the "prison mailbox rule" to an incarcerated pro se plaintiff s
motion for reconsideration. See Bernaugh v. United States, 

(table), No.
98-5059, 

, at *2 (Fed. Cir. 1998) (per curiam). And in Sharpe, rhe
"prison mailbox rule" was applied to an incarcerated pro se plaintiffs complaint filed in
the Court ofFederal Claims. 1l I Fed. Cl. at 337-38; cf. Brown v. United States,74Fed.
        But even assuming that the "prison mailbox rule" applies to Mr. Spengler's
motion for reconsideration, it would still be out of time under RCFC 59 because that rule
requires that the motion be filed within twenty-eight days of the entry ofjudgment.2 Here,
judgment was entered July 20,2016. Judgment, Doc. No. 31. Accordingly, a motion
pursuant to RCFC 59 was due to be filed no later than August 18, 2016. RCFC 59(b), (e).
Mr. Spengler states, however, that he filed his motion under the "prison mailbox rule,,' on
August 22, 2016 (by which the Court assumes that he is asserting that he placed the
motion in the prison mail system on that date). See Pl.'s Req. to Alter J., Proof of Filing
& Service. The motion is thus out of time.

II.    Mr. Spengler's Motion Pursuant to RCFC 60(b)
        Mr. Spengler altematively requests relieffrom the Court's earlierjudgment on the
basis ofRCFC 60(b). That rule states that the Court "may relieve a party . . . from a final
judgment, order, or proceeding" for six enumerated reasons:

                l)        Mistake, inadvertence, surprise,    or   excusable
                neglect;
                2)     Newly discovered evidence that, with reasonable
               diligence, could not have been discovered in time to move
               for a new trial under RCFC 59(b);
                3)     Fraud (whether previously called intrinsic or
               extrinsic), misrepresentation, or misconduct by an opposing
               party;
                4)     The judgment is void;
                5)     The judgment has been satisfied, released, or
               discharged; it is based on an earlier judgment that has been
               reversed or vacated; or applying it prospectively is no longer
               equitable; or
                6)     Any other reason that justifies relief.

RCFC 6o(b).

       "As   a remedial provision, Rule 60(b) is to be ,liberatly construed for the purpose
of doing substantial justice."' Patton v. Sec'y of Dep't of Health & Human Servs., i5
F.3d 1021, 1030 (Fed. Cir. 1994) (citing 7 James W. Moore & Jo Desha Lucas, Moore's


Cl. 546, 550-51 (2006) (reviewing the application ofthe,,prison mailbox rule,'in
determining whether action filed in court of Federal claims should be transferred to
district court).
2
  To the extent that Mr. Spengler may be suggesting that the date he received a copy of
the Court's opinion (July 26,2016) is the date from which his time to file a motion to
reconsider runs, he is incorrect. The operative event under RCFC 59 is the "entry ofthe
judgment," RCFC 59(bXl), (e), which occurs when the clerk enters the judgment in the
civil docket and it is set out in a separate document. RCFC 58(c).
Federal Practice flfl 60.18[8],60.19 (2d ed. 1993)). At the same time, "[t]he United States
Supreme Court has'cautioned that the Rule should only be applied in extraordinary
circumstances."' Perry v. United States, 

, 1006 (Fed. Cir. 2014)
(quoting Liljebers v. Health Servs. Acquisition Com.,486 U.S. 847, 864 (1988))
(alterations omitted). Therefore, in ruling on a motion under RCFC 60(b), a court must
strike "a proper balance between the conllicting principles that litigation must be brought
to an end and that justice should be done." Hutchins v. Zoll Med. Corp. , 492 F .3d 1377 ,
1386 (Fed. Cir.2007) (quoting I 1 Charles A. Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure $ 2851 (2d ed. 1995)).

       Here, Mr. Spengler does not identify a specific subsection ofRCFC 60(b)
pursuant to which he requests that the Court grant him relief from its earlier judgment.
However, his motion asserts two arguments: 1) that the Court relied upon ,,inconect
facts" in interpreting the holding of Washington v. Reno; and 2) that additional evidence
reveals he has in fact exhausted his administrative remedies. See generally Pl.'s Req. to
Alter J. These arguments would, at best, implicate the grounds for reliefset forth in
RCFC 60(bX1) and (b)(2), or the carchall provision, (b)(6).

        With respect to Mr. Spengler's arguments, RCFC 60(b)(l) fails ro provide any
basis for relief from judgment on the grounds of "mistake" or ,,inconect facts" as alleged
in his motion. When this case was before the Court on the govemment's motion to
dismiss, Mr. Spengler cited Washington v. Reno in support of his argument that the
United States has taken on fiduciary duties toward the inmates with respect to its
administration of the Commissary Fund. The Court held, however, that Reno was
inapposite because the reliefdiscussed therein was purely injunctive in nature. 2016wL
3947954, at *4-*5. Therefore, the court observed, the sixth circuit "had no occasion to
address the issue before this court, which concerns whether congress-in characterizing
the Commissary Fund as a 'trust' for purposes of 3l U.S.C. $ 1321-intended to impose
specific fiduciary obligations on the united states that would subiect the united staies to
a claim for monetary damages for its breach.,'ld. at *5.

        In his motion for reconsideration, Mr. Spengler argues that the Court,s
interpretation was based on "incorrect facts." Pl.,s Req. to Alter J. at 2. He draws the
court's attention to the settlement agreement that the parties ultimately executed in Reno,
in which the united states agreed to credit $4,000,000 to the commissary Fund as part of
the resolution ofthe plaintiffs' claims in that case.!!   But even assuming that this
observation alleges a "mistake," it is not the type of mistake upon which RCFC 60(bX1)
relief may be premised. Rule 60(b) is not a substitute for appeal; legal error alone does
not warrant its relief. United States v. Fiorelli, 337 F.3d zg2,2gg (3d cir. 2003); see also
Cashner v. Freedom Stores. Inc., 98 F.3d 572,5j6 (lOth Cir. 1996). Rule 60(b)(l) does
not provide grounds for relief where a party is merely rearguing the legal issue already
considered by the court. 

.


 _.     In any event, the govemment's agreement to credit the Commissary         Fund with
additional moneys to settle thepending    litigation in Reno is not relevant to the court,s
interpretation of the sixth circuit's decision in Reno. The bottom line is that the sixth
circuit did not address the issue ofrucker Act jurisdiction that is before this court. In
fact, to the extent that the plaintiffs in Reno requested reimbursement ofmoneys to the
Commissary Fund in addition to the broad injunctive reliefthey sought in that case,
jurisdiction over their claims would most likely have been based on the Administrative
Procedure Act, 5 U.S.C. $g 702 and 704, and not the Tucker Act. See Kanemoto v. Reno,
4l F.3d 641, 645 (Fed. Cir. 1994) (discussing Bowen v. Massachusetts, 

(1988)). Therefore, the decision contains no reasoning that undermines any aspect of this
Court's analysis, which was based on the language, history, and purposes of 3 1 U.S.C.
 $ 1321(a)(22), as well as the reasoning ofthe Federal Circuit and the Supreme Court in
several Indian trust cases that were decided a number ofyears after the Sixth Circuit
issued its decision in Reno. Mr. Spengler's motion thus has failed to show sufficient
grounds for reliefunder RCFC 60(bXl).

        Nor does RCFC 60(bX2) provide any basis for the Court to grant Mr. Spengler
relieffrom  the judgment based upon the additional documents he has appended to his
motion. That provision authorizes relief from judgment where the movant supplies
"newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under RCFC 59(b)." RCFC 60(bX2). ,,ln order
to prevail on a Rule 60(bX2) motion, a movant must demonstrate . . . that the evidence is
material and controlling and clearly would have produced a different result if presented
before the original judgment." Venture Indus. Com. v. Autoliv ASP. Inc.,457 F.3d 1322,
1328 (Fed. Cir. 2006) (quoting Good v. Ohio Edison Co., 148 F.3d 413,423 (6th Cir.
1998)) (omission in original).

        First, Exhibits B and C to Mr. Spengler's motion, which consist of the record of
two grievances that he filed, contain documents that were available to Mr. Spengler
before the time to move for a new trial under RCFC 59(b) had expired. Exhibit B
involves a grievance Mr. Spengler filed in October of20l5, in which he complains ofa
shortage of towels at the prison laundry and also notes that the cost ofthe laundry is
improperly being subsidized by the "Trust Fund." Pl.'s Req. to Alter J. App. 5th (pl.'s
App.) Ex. B at 34-35. After receiving unfavorable responses from the prison Warden and
the regional office, Mr. Spengler appears to have submitted an appeal to the Central
Office (the final authority) on March 30,2016.Id,. at44.It further appears that a response
was due to Mr. Spengler from the Central Office on May 21,2016. 

Mr.
Spengler states that because no response was received, he has now exhausted his
remedies with respect to that claim. Pl.'s Req. to Alter J. at 6.

        But Mr. Spengler knew of the existence ofthe documents he would now have this
Court consider, as well as their relevance, by May 21,2016. As noted above, any motion
for reconsideration under RCFC 59 was due by August 18,2016. Thus Exhibit B is not
"newly discovered evidence that, with reasonable diligence, could not have been
discovered in time" to file a motion under RCFC 59 as required by RCFC 60(bX2).



'There is what seems to be a typographical error in the Central Office,s notice to Mr.
Spengler, which is dated April 14,2016. Pl.'s App. Ex. B at 45. It erroneously lists the
due date for the Central Office's response as May 21, 2014, rather than 2016, 

C contains a record ofthe disposition of a grievance that Mr.
Spengler filed in November of 201 5, complaining about the fact that the prison law
library did not contain a full complement ofstate law resources. Pl.'s App. Ex. C at 47.
Apparently, on April 20,2016, when Mr. Spengler appealed the denial ofhis grievance to
the regional office, he added a claim noting that the Electronic Law Library is paid for by
the "Inmate Trusf' and that failing to provide the state law volumes was a breach ofthe
govemment's fiduciary obligations. 

The final decision of the Central Office on
this grievance was due on July 31, 2016. 

Mr. Spengler states in his motion that
he did not receive a timely response from the Central Office and thus that he has now
also exhausted his administrative remedies as to those claims. Pl.'s Req. to Alter J. at 6.
But again, the documents do not meet the criteria of Rule 60(bX2) because the receipts
for Mr. Spengler's administrative appeal to the Central Office were sent to Mr. Spengler
on July 20,2016, Pl.'s App. Ex. C at 58-59, well before any RCFC 59 motion was due.
Thus Exhibit C does not meet the "newly discovered evidence" requirement ofRCFC
60(bx2).

        In any event, none ofthe documents Mr. Spengler asks the Court to consider are
"material and controlling and clearly would have produced a different result ifpresented
before tl-re original judgment." Venture Indus. Com. ,457 F.3d at 1328 (quoting 

).In fact, the documents would not have affected in any way the Court's
decision not to transfer Mr. Spengler's complaint to the district court. Even assuming that
Mr. spengler has established exhaustion of remedies with respect to the claims presented
in Exhibits B and C (an issue upon which the Court expresses no opinion), the central
claims in his complaint before this Court were related to the use of Commissary Fund
moneys to implement TRULINCS and TRUFONE. The grievances that are represented
in Exhibits B and C do not involve those claims at all.

          Finally, there is no basis for granting Mr. Spengler relief from judgment under
 RCFC 60(bX6), the catchall provision. First, as the Supreme Court has held, Fed. R. Civ.
 P. 60(bX6) (which is substantively identical to RCFC 60(bX6) is mutually exclusive of
 the other subsections in the Rule. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
 P'ship, 

, 393 (1993) (noting that Fed. R. Civ. P. 60(bxl) and 60(b)(6) are
 mutually exclusive and a party that fails to take timely action due to excusable neglect
 may not seek reliefby resorting to subsection (b)(6)). Therefore, Mr. Spengler cannot
rely upon subsection (b)(6) to the extent that his reasons for requesting relief from
judgment are encompassed within either subsection (b)(1) or subsection (b)(2). See paul
Revere Variable Annuity Ins. Co. v. Zans,248 F.3d 1, 5 (1st Cir. 2001) (stating that the
"residual catchall" provision ofFed. R. Civ. P. 60(bX6) may be invoked only for reasons
"not encompassed by the other provisions"). Second, and in any event, ,,[t]o justifr relief
under subsection KbX6)], a party must show 'extraordinary circumstances' suggesting
that the party is faultless in the delay." 

(citing Liljeberg, 4g6
U.S. at 863; Ackerman v. United States,340 U.S. 193,197-200 (1950); and Klapnrott v.
United States, 

, 613-14 ( 1949)). The arguments presented in Mr. Spengler,s
motion-which he could have presented during the consideration of the govemment's
motion to dismiss or within the time to file a motion under RCFC 59--do not meet these
criteria.
                                  CONCLUSION

     On the basis ofthe foregoing, Plaintiff s Request to Alter Judgement Under
RCFC 59 and/or RCFC 60(b) is DENIED.

      IT IS SO ORDERED.




                                                     fr-/(
                                                 ELAINE D. KAPLAN
                                                 Judge