Norman Parsons, on behalf of LINMAR PROPERTY MANAGEMENT TRUST v. United States

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-5168
NORMAN PARSONS, on behalf of
LINMAR PROPERTY MANAGEMENT TRUST,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: March 10, 2006
___________________________
Before, RADER, SCHALL, and LINN, Circuit Judge.
RADER, Circuit Judge.
The United States Court of Federal Claims entered a judgment dismissing this
case for lack of jurisdiction. Although Norman Parsons did not timely file a notice of
appeal on the judgment, this court considers his notice a timely filed notice of appeal on
the denial of his motion for reconsideration. Because Mr. Parsons did not show any
grounds for reconsidering the Court of Federal Claims’ judgment, this court affirms.
On December 22, 2004, Mr. Parsons filed a complaint in the Court of Federal
Claims on behalf of Linmar Property Management Trust (Linmar) because the Internal
Revenue Service (IRS) sought income taxes and penalties for the tax year ended
December 31, 2000. Mr. Parsons alleged that the IRS violated 26 U.S.C. § 6501, by

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issuing a notice of deficiency to Linmar without making an assessment within three
years. Therefore, Mr. Parsons contended that the notice of deficiency “was entered” by
the IRS in violation of 26 U.S.C. §§ 6201(a)(1), 6203, and 6211, and 26 C.F.R.
§ 301.6203-1. Linmar has neither paid the tax at issue, nor filed a timely claim for
refund with the IRS.
In his suit Mr. Parsons demands the IRS “cease and desist” its “illegal activity”
and follow “law and procedure” in “any attempt to collect any alleged tax liability from
Linmar.” Mr. Parsons also seeks $250,000 in damages. After a hearing on the
Government’s motion to dismiss on jurisdictional grounds, the Court of Federal Claims
entered a judgment dismissing the suit for lack of subject matter jurisdiction on May 24,
2005. Parsons ex rel. Linmar Property Mgmt. Trust v. United States, 65 Fed. Cl. 638
(2005). The Court of Federal Claims held that it had no jurisdiction under the Tucker
Act, 28 U.S.C. § 1491, and that it had no jurisdiction for a claim grounded upon a tort.
Parsons , 65 Fed. Cl. at 639-41. It also pointed out that the only tax-related dispute
over which the court has limited jurisdiction was for a tax refund, but that Mr. Parsons
did not make a claim for a tax refund. Id.
On July 13, 2005, after the ten-day deadline expired, Mr. Parsons filed a United
States Court of Federal Claims Rule 59 motion for reconsideration. On July 26, 2005,
the court denied the motion for reconsideration, because Mr. Parsons did not present
any permissible ground on which the court should reconsider its judgment. On
September 22, 2005, Mr. Parsons filed a notice of appeal to this court. Because a
motion to reconsider does not toll the deadline to file a notice of appeal on the
judgment, he did not timely file a notice of appeal. The sixty-day deadline to appeal the
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judgment expired on September 12, 2005. F.R.A.P. 4(a)(4). However, because Mr.
Parsons filed a notice of appeal within sixty-days of the denial of his motion for
reconsideration, this court has jurisdiction to consider his appeal of the Court of Federal
Claims’ denial of his motion to reconsider.
This court reviews the Court of Federal Claims' denial of Mr. Parson’s motion for
an abuse of discretion. Mass. Bay Transp. Auth. v. United States, 254 F.3d 1367, 1368
(Fed. Cir. 2001) (citing Ajinomoto Co. v. Archer-Daniels-Midland Co., 228 F.3d 1338,
1350 (Fed. Cir. 2000). It is well recognized that “[a] motion for reconsideration is
addressed to the discretion of the trial court.” Triax Co. v. United States, 20 Cl. Ct. 507,
509 (1990) (citing Eyre v. McDonough Power Equip., 755 F.2d 416, 420 (5th Cir. 1985)
(construing FRCP 59)); see Yuba Natural Resources, Inc. v. United States, 904 F.2d
1577, 1583 (Fed. Cir. 1990).
Rule 59 of the United States Court of Federal Claims permits reconsideration for
one of three reasons: (1) that an intervening change in the controlling law has occurred;
(2) that previously unavailable evidence is now available; or (3) that the motion is
necessary to prevent manifest injustice. Henderson County Drainage Dist. No. 3. v.
United States, 55 Fed. Cl. 334 (2003); see also Weyerhaeuser Corp. v. Koppers Co.,
771 F.Supp. 1406, 1419 (D.Md. 1991). Post-opinion motions to reconsider are not
favored, especially “where a party has had a fair opportunity to . . . litigate the point in
issue.” Prestex, Inc. v. United States, 4 Cl. Ct. 317, 318 (1984), aff'd, 746 F.2d 1489
(Fed. Cir. 1984) (citing Gen. Elec. Co. v. United States, 416 F.2d 1320, 1321 (Ct. Cl.
1969)). Generally, a motion under Rule 59 must be based upon manifest error of law,
or mistake of fact, and is not intended to give an unhappy litigant an additional chance
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to sway the court.” Weaver-Bailey Contractors, Inc. v. United States, 20 Cl. Ct. 158
(1990).
Mr. Parsons has not shown that an intervening change in the controlling law has
occurred; that previously unavailable evidence is now available; or that the motion is
necessary to prevent manifest injustice. Mr. Parsons presented a regulation that was
available when the Government filed its motion to dismiss. Newly discovered evidence
is only such evidence as could not have been discovered by exercise of due diligence
prior to rendition of decision. Girault v. United States, 135 F.Supp. 521, 524 (Ct. Cl.
1955). Mr. Parsons also argued that the Court of Federal Claims did not correctly and
completely address points and issues he raised. “Litigants should not, on a motion for
reconsideration, be permitted to attempt an extensive retrial based on evidence which
was manifestly available at [the] time of the hearing.” Gelco Builders & Burjay Constr.
Corp. v. United States, 369 F.2d 992, 1000 n. 7 (1966). This court finds no manifest
error of law or mistake of fact, or that any manifest injustice required the Court of
Federal Claims to reconsider its decision to dismiss this case for lack of jurisdiction.
This court, therefore, affirms.
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