Docket No. PSBCA No. 6862

OPINION OF THE BOARD

Philip Emiabata, doing business as Philema Brothers, moved for reconsideration of the Board’s decision granting the Postal Service’s motion for summary judgment on his claim for late-slip payments, Philip Emiabata, d/b/a Philema Brothers v. United States Postal Service, PSBCA No. 6862, 2024 WL 4231084 (Sept. 11, 2024) (Emiabata I). Mr. Emiabata also moved for leave to amend (1) his opposition to the Postal Service’s motion and (2) a motion for discovery that he filed with his opposition.

BACKGROUND

As discussed in our previous decisions, Mr. Emiabata and the Postal Service were parties to Contract No. 450D3, which required him to transport and deliver mail between Cincinnati and Milford, Ohio. The contract was fixed price but allowed for certain additional payments. For example, if the Postal Service caused any of Mr. Emiabata’s drivers to wait “over and above that which was called for in the contract,” Mr. Emiabata could submit a PS Form 5466, Late Slip, within 90 days of occurrence. That form had to be accompanied by a properly completed invoice, which was subject to verification or audit by the Postal Service. If his submission was approved, Mr. Emiabata would be entitled to additional payment at an hourly rate of $30.53. Emiabata I, 2024 WL 4231084; Philip Emiabata, d/b/a Philema Brothers v. United States Postal Service, PSBCA No. 6862, 2024 WL 4231081 (Jan. 31, 2024) (Emiabata II).

Shortly after contract performance began in early 2016, the Postal Service terminated Mr. Emiabata’s contract for default. Id.

Years of litigation ensued as Mr. Emiabata challenged the propriety of the termination and sought monetary damages. He unsuccessfully appealed his termination for default twice at both the Court of Federal Claims and the Federal Circuit.¹ Emiabata v. United States, No. 2021- 1703, 2022 WL 1055435, at *4 (Fed. Cir. 2022); Emiabata v. United States, 792 Fed. App'x 931, 937–39 (Fed. Cir. 2019) (Emiabata III); Emiabata v. United States, 151 Fed. Cl. 610, 615–16 (2020); Emiabata v. United States, 139 Fed. Cl. 418 (2018). The Court of Federal Claims dismissed his claims for monetary damages for lack of jurisdiction because they had not first been presented to a contracting officer. Emiabata v. United States, 135 Fed. Cl. 213, 217–18 (2017). The Federal Circuit upheld the dismissal. Emiabata III, 792 Fed. App'x. at 936.

Even before the dismissal, Mr. Emiabata submitted a monetary claim to the contracting officer. Upon receipt of a contracting officer’s final decision denying his claim, Mr. Emiabata timely filed a notice of appeal with the Board. The Postal Service moved for partial summary judgment and partial dismissal (Resp’t’s Mot. for Partial Summ. J. and Partial Mot. to Dismiss (Oct. 29, 2021)). Mr. Emiabata filed an opposition, along with a declaration, dated May 2, 2022, that addressed delivery of his filing (Pl.-Appellant Opp’n (May 2, 2022); Philip Emiabata Decl. (May 2, 2022)).

We asked the parties to provide more briefing twice about the issue of a sum certain. In response to our requests, Mr. Emiabata submitted a declaration from Sylvia Emiabata dated October 18, 2022. Among other things, she declared: “The said late-slip (PS Form 5466) was Originated by the respondent USPS[,]” “Appellant left their copies inside the vehicle that was involved in the contract,” and “This said vehicle was tolled and Appellant loses this vehicle as appellant’s because appellant unable to paid for the tolled vehicle fees[.]”² (Sylvia Emiabata Decl. ¶¶ 68, Oct. 18, 2022.) In a decision dated January 31, 2024, we dismissed or denied all Mr. Emiabata’s monetary claims, except for late-slip payments. Emiabata II, 2024 WL 4231081.

The Postal Service then moved for summary judgment on the late-slip claim (Resp’t’s Mot. for Summ. J. (Feb. 16, 2024). Mr. Emiabata opposed the motion and moved for discovery on the already-resolved monetary claims, not the late-slip claim. He included no declarations with these filings. (Appellant Br. to Resp’t Summ. J. (Apr. 16, 2024); Pl.-Appellant Mot. for Rule 26 Mot. (Apr. 16, 2024)).

On September 11, 2024, we issued a decision denying Mr. Emiabata’s motion for discovery and granting the Postal Service’s motion for summary judgment. We included in our findings of fact that the late slips were a Postal Service form (PS Form 5466). We also included the following: “Thereafter, Mr. Emiabata lost access to the vehicle he used for the contract. According to Sylvia Emiabata, who was one of the business owners, the late slips at issue were left in that vehicle.” Emiabata I, 2024 WL 4231084.

Mr. Emiabata timely filed a motion for reconsideration of the late-slip decision. He included with that motion two declarations dated September 21, 2024, one from himself and one from Ms. Emiabata. Both declarations repeated most of the language from Ms. Emiabata’s 2022 declaration except for three differences we note here. The new declarations (1) changed the hourly rate for late slips to the contract rate, (2) declared for the first time that the late slip (to which they refer in the singular) and a properly completed invoice were submitted within the 90- day deadline, and (3) specifically stated that the documents in the vehicle were contractor photocopies. (Philip Emiabata Decl., Sept. 21, 2024; Sylvia Emiabata Decl., Sept. 21, 2024).

Mr. Emiabata also filed a motion for leave to amend his opposition to the Postal Service’s motion and his discovery motion, along with a combined amended filing. As support, he cited to the Federal Rules of Civil Procedure 15, 18, 19, and 20. Rule 15 addresses amended and supplemental pleadings, and the remaining rules address joinder. (Appellant’s Mot. for Leave to Amend at 1 (Sept. 21, 2024)).

The Postal Service opposed the motion for reconsideration and moved to strike Mr. Emiabata’s motion for leave to amend and the amended filings (Resp’t’s Mot. to Strike and Opp’n (Oct. 31, 2024)).

DECISION

Motion for Reconsideration

A party must support its motion for reconsideration with “a showing of extraordinary circumstances which justify relief.” Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004) (citations omitted). The three primary grounds that justify relief are (1) an intervening change in the controlling law, (2) the availability of new evidence, and (3) the need to correct clear error or prevent injustice. Del. Valley Floral Group, Inc. v. Shaw Rose Nets, LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010). If a party tries to introduce evidence that it did not submit before, it must show that the evidence was previously unavailable. Id. A motion for reconsideration is not an opportunity to offer evidence that a party had available but failed to present, J. Leonard Spodek Nationwide Postal Management, PSBCA No. 5285, 2005 WL 3872669 (Dec. 27, 2005), or to relitigate a case, Jody Builders Corp., PSBCA No. 5047, 09-1 BCA ¶ 34,101.

Mr. Emiabata appears to include three grounds for relief. First, he claims that “new evidence” warranted his motion. Second, he claims that the Board made two factual errors: one about affidavits and declarations and another about the vehicle he used for the contract and its contents. Only the latter though were factual findings. Finally, he claims that the Board erred by not giving him an opportunity to correct his discovery motion. (Appellant’s Mot. for Recons. at 23, 6 (Sept. 22, 2024)).

Mr. Emiabata does not allege an intervening change in the controlling law. Accordingly, we do not need to consider that ground.

We start by examining whether new evidence is available. Although Mr. Emiabata twice uses the term “new evidence” in his motion, he points to no such evidence. Instead, what follows are his claims about the factual errors and his discovery motion. Id. Neither involves new evidence.

In their 2024 declarations, which were filed with the motion for reconsideration, Mr. and Ms. Emiabata state for the first time that a late slip and a properly completed invoice were both submitted within the 90-day deadline. (Philip Emiabata Decl. ¶¶ 78, Sept. 21, 2024; Sylvia Emiabata Decl. ¶¶ 78, Sept. 21, 2024). Mr. Emiabata has not, however, explained, let alone argued, that this evidence was not available during the initial Board appeal. Given that, there is no basis to consider these allegations now.

We next consider Mr. Emiabata’s allegations of factual errors. First, he argues that we erred in finding that he did not provide an affidavit or declaration (Appellant’s Mot. for Recons. at 23). Mr. Emiabata is mistaken about what he provided and when. He filed declarations during the litigation, but they were filed with other motions. He did not provide any affidavit or declaration to support his opposition to the Postal Service’s motion for summary judgment on the late-slip claim or his accompanying discovery motion. In addition, we held that even if we were to treat his discovery motion as an affidavit or declaration, we still would deny the motion because it contained no reasons explaining why he could not present facts essential to his opposition to the late-slip claim.

Second, Mr. Emiabata makes a vague accusation that all our findings of fact about his vehicle are wrong. He states that Ms. Emiabata’s 2022 declaration contains the correct facts. (Id.) Our findings of fact relied on that declaration, and our summary of it was accurate. Mr. Emiabata does not specifically point out any inconsistencies. This accusation lacks merit.

The findings of fact did not refer to the late slips left in the vehicle as copies. As noted above, in their 2024 declarations, Mr. and Ms. Emiabata state that they submitted a late slip to the Postal Service within the 90-day deadline. They also emphasize that their vehicle contained “Contractor Photocopies.” (Philip Emiabata Decl. ¶¶ 78, Sept. 21, 2024; Sylvia Emiabata Decl. ¶¶ 78, Sept. 21, 2024). While this claim is new, we considered the possibility that the Postal Service might also be a source. Indeed, elsewhere in our findings of fact, we noted that the late slips were a Postal Service form (PS Form 5466). But, as stated above, when Mr. Emiabata moved for discovery, he failed to provide any reason why he could not present facts essential to his opposition to the late-slip claim. He did not mention requesting the late slips from the Postal Service. He did not even mention the late-slip claim. Our findings of fact do not warrant a change in our decision.

Finally, Mr. Emiabata argues that we erred in not giving him an opportunity to correct the mistakes he made in his discovery motion (Id. at 2, 6). Mr. Emiabata claims that his failure to address the late-slip claim was a “technicality,” and it should not prevent a decision on the merits (Id. at 2). Throughout this litigation, we have been mindful that Mr. Emiabata is self-represented. We have not insisted on strict adherence to procedural rules and have carefully reviewed all his filings, searching for meaning. But we are also mindful that we cannot step out of our role as fact finders to construct arguments for either party. Quailes v. United States, 109 Fed. Cl. 651, 656 (2013); 1-A Construction & Fire, LLP v. Department of Agriculture, CBCA No. 2693, 15-1 BCA ¶ 35,913. Further, Mr. Emiabata’s actions did not prevent a decision on the merits. The Board’s summary judgment decision on the late-slip claim was on the merits. Ace Prop. & Casualty Insur. Co., et al., CBCA No. 117-FCIC, 09-1 BCA ¶ 34,088.

In sum, Mr. Emiabata has not shown grounds justifying reconsideration. Accordingly, we deny his motion for reconsideration.

Other Motions

In view of our decision set forth above, we need not address Mr. Emiabata’s motion for leave to amend (1) his opposition to the Postal Service’s motion and (2) his discovery motion. We also need not address the Postal Service’s motion to strike.

ORDER

For the above reasons, Mr. Emiabata’s motion for reconsideration is denied.