Consuelo E. Kelly-Leppert v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CONSUELO E. KELLY-LEPPERT,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1301
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-00955-NBF, Senior Judge Nancy B. Fire-
stone.
______________________
Decided: May 9, 2022
______________________
CONSUELO E. K ELLY -L EPPERT , Overland Park, KS, pro
se.
EVAN W ISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, P ATRICIA M.
MCCARTHY .
______________________
Case: 22-1301 Document: 27 Page: 1 Filed: 05/09/2022

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KELLY - LEPPERT v. US 2
Before M OORE, Chief Judge, D YK and P ROST , Circuit
Judges.
P ER CURIAM .
Consuelo Kelly-Leppert appeals the Court of Federal
Claims’ dismissal of her complaint for lack of subject-mat-
ter jurisdiction and its denial of her motions for reconsid-
eration. We affirm.
BACKGROUND
Ms. Kelly-Leppert sued the United States seeking
monetary damages arising from the death of her husband
and business partner, Michael J. Kelly, a Vietnam War vet-
eran. Appx. 2. She alleged the United States failed to pro-
vide Mr. Kelly with a requested Agent Orange medical
examination. Ms. Kelly-Leppert also alleged the Depart-
ment of Veterans Affairs (VA) gave Mr. Kelly a defective
examination by failing to conduct a lung biopsy. Id. Ms.
Kelly-Leppert claimed $138 million in damages, including
loss of consortium, pain and suffering, and damages to
their shared business. Id.
The Claims Court liberally interpreted Ms. Kelly-Lep-
pert’s pleading to assert: (1) breach of contract; (2) breach
of fiduciary duty; (3) malpractice against the VA medical
facility; (4) a violation of Mr. Kelly’s civil and constitutional
rights under the Fourteenth Amendment; and (5) claims
for veterans benefits. Appx. 2–4. The Claims Court dis-
missed for lack of subject-matter jurisdiction. Appx. 7–9.
Ms. Kelly-Leppert moved for reconsideration.
Appx. 13–14. The Claims Court identified three new issues
in Ms. Kelly-Leppert’s motion: (1) a Fifth Amendment tak-
ings claim; (2) a claim that the Tucker Act is unconstitu-
tionally vague; and (3) additional statutes and regulations
related to breach of fiduciary duties and torts that Ms.
Kelly-Leppert alleged support her claims. Appx. 16–18.
The Claims Court denied the motion. Appx. 19.
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KELLY - LEPPERT v. US 3
Ms. Kelly-Leppert simultaneously filed a notice of ap-
peal and a second motion for reconsideration. We deac-
tivated the appeal pending the resolution of the motion for
reconsideration. The Claims Court denied the motion.
Appx. 23. We subsequently reactivated Ms. Kelly-Lep-
pert’s appeal. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
D ISCUSSION
We review de novo whether the Claims Court had sub-
ject-matter jurisdiction. Bianchi v. United States, 475 F.3d
1268, 1273 (Fed. Cir. 2007). We review the Claims Court’s
denial of a motion for reconsideration for abuse of discre-
tion. Renda Marine, Inc. v. United States, 509 F.3d 1372,
1379 (Fed. Cir. 2007). An abuse of discretion occurs when
a court misunderstands or misapplies the relevant law or
makes clearly erroneous findings of fact. Id.
Ms. Kelly-Leppert first argues that the Claims Court
erred in concluding it lacked jurisdiction over her Fifth
Amendment takings claim. Appellant’s Informal Br. 1.
Ms. Kelly-Leppert did not raise the potential takings claim
until her reply brief in support of her first motion for recon-
sideration. Appx. 17. The Claims Court determined Ms.
Kelly-Leppert could have raised this argument in her orig-
inal complaint, and thus it did not justify reconsideration.
Id. Because Ms. Kelly-Leppert did not raise this claim un-
til late in the case, the Claims Court did not abuse its dis-
cretion.
Ms. Kelly-Leppert next argues that the Claims Court
improperly evaluated her second motion for reconsidera-
tion under Rule 60(b) of the Rules of the Court of Federal
Claims (RCFC) because she filed it under RCFC 59(a). Ap-
pellant’s Informal Br. 2. The Claims Court did not abuse
its discretion. A motion for reconsideration under RCFC
59(a) must be filed no later than 28 days after the entry of
judgment. RCFC 59(b)(1). The Claims Court’s dismissal
issued on July 8, 2021, and Ms. Kelly-Leppert timely filed
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KELLY - LEPPERT v. US 4
her first motion for reconsideration under RCFC 59(a).
Appx. 13. The Claims Court denied the first motion on De-
cember 10, 2021. Ms. Kelly-Leppert then filed a second mo-
tion for reconsideration outside the 28-day window for
reconsideration under RCFC 59(a). RCFC 60(b), however,
allows for relief from a final judgment so long as the motion
is filed within a reasonable time and no more than one year
after the entry of the judgment. Thus, the Claims Court
did not err in evaluating Ms. Kelly-Leppert’s second motion
under RCFC 60(b) rather than RCFC 59(a).
Ms. Kelly-Leppert also argues that the Claims Court
has jurisdiction over her Vaccine Act claim, which she
raised for the first time on appeal. Appellant’s Informal
Br. 2. Because Ms. Kelly-Leppert did not raise this claim
before the Claims Court, we will not consider it on appeal.
Finally, to the extent Ms. Kelly-Leppert challenges the
Claims Court’s original dismissal of her claims, her brief-
ing fails to identify any reversible error. For the reasons
the Claims Court stated, none of Ms. Kelly-Leppert’s five
original claims falls within the scope of the Claims Court’s
limited jurisdiction. Appx. 7–9.
CONCLUSION
Because we discern no error in the Claims Court’s dis-
missal of Ms. Kelly-Leppert’s complaint for lack of subject-
matter jurisdiction and no abuse of discretion in its denial
of her motions for reconsideration, we affirm.
AFFIRMED
COSTS
No costs.
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