in Re Randolph Crews v. United States, No. 08-68C, slip op. at 5 Dec. 10, 2008 . It further determined that…

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

IN RE RANDOLPH CREWS,
Petitioner.

Miscellaneous Docket No. 114

On Petition for Writ of Mandamus to the United
States Court of Federal Claims in case no. 08-GV-068,
Judge Bohdan A. Futey.

ON PETITION

PER CURIAM.

ORDER

Randolph Crews petitions for a writ of mandamus in-
structing the United States Court of Federal Claims that
its December 20, 2008 decision dismissing Mr. Crews's
complaint under a laches theory is "null and void."

I.

On January 29, 2008, Mr. Crews filed a complaint in
the Court of Federal Claims, seeking more than $400,000,

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alleging that he was wrongfully denied disability retire-
ment pay in violation of 10 U.S.C. § 1201 because the Air
Force Board for Correction of Military Records ("Board")
refused to correct his service records to reflect a medical
disability discharge. On December 10, 2008, the Court of
Federal Claims determined that it had jurisdiction over
Mr. Crews's complaint, but granted the government's
request to dismiss his complaint under a laches theory.
The court reasoned that Mr. Crews had "been aware of his
condition for over forty-eight years at the time he submit-
ted his Application to the Board" and had "clearly slum-
bered on his rights." Crews v. United States, No. 08-68C,
slip op. at 5 (Dec. 10, 2008). It further determined that
the government was prejudiced by the delay because the
government's defense would require access to witness
testimony and historic records. Witnesses would likely be
unavailable and-even if they were available-unable to
recall the necessary details after the lengthy passage of
time. Similarly, the court found that written records
might have been lost or destroyed. Mr. Crews did not
appeal the court's dismissal of his complaint.

On May 17, 2010, Mr. Crews filed a motion for a new
trial in the trial court. The Court of Federal Claims
denied this motion, noting that the evidence Mr. Crews
submitted was insufficient to grant the relief requested
and that RCFC 6(b)(2) "unequivocally bars the Court from
extending the time limits for motions for new trial or
reconsideration under RCFC 59(b) or for relief from
judgment under RCFC 60(b)." Mr. Crews appealed. On
April 6, 2011, this court affirmed the Court of Federal
Claims, concluding that the trial court did not abuse its
discretion in denying reconsideration, a new trial, or relief
from judgment.

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On January 24, 2012, Mr. Crews filed a writ of man-
damus asking this court to vacate the Court of Federal
Claims's December 20, 2008 decision.

II

A writ of mandamus is a drastic remedy that is used
sparingly. This court can issue a writ only when the
following conditions are met: 1) the petitioner must have
no other adequate means to attain the relief he desires;
2) the petitioner must demonstrate a clear and indisput-
able right to the issuance of the writ; and 3) the court
must be convinced that the circumstances warrant issu-
ance of the writ. Cheney v. U.S. Dist. Court, 542 U.S. 367,
380-81 (2004).

Mr. Crews now seeks a writ of mandamus to again
challenge the Court of Federal Claims's disposition of his
case. His case is over in that court and he has exhausted
any appellate rights. Just as a writ of mandamus is not a
substitute for the appeals process, id., it also cannot be
used in these circumstances when the case is over and
appeals have been resolved.

Accordingly,

IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.

FOR THE COURT

FEB 06 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
FEB 06 2012

JAN HORBALY
CLERK

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IN RE CREWS

cc: Randolph Crews
Jeanne E. Davidson, Esq.
Clerk, United States Court of Federal Claims
$25