The opinion of the court was delivered by: MOTLEY
I. Grounds for Motion Under Fed.R.Civ.P. 52(b), 59(e)
Respondents have filed a motion under Fed.R.Civ.P. 52(b), 59(e) to amend the Findings of Fact and Judgment in Wallace v. Brown, No. 79 Civ. 3545 (S.D.N.Y. August 28, 1979). Their grounds for this motion are that this court was in error in finding that petitioner, Wallace, had completed his military service obligation incurred by his attendance at the University of Paris under the Olmsted Scholar Program (hereinafter the "Paris obligation"). Respondents contend that petitioner did not complete his Paris obligation because AR 350-100-2(c) prohibits payback credit for civilian schooling. As a result, respondents argue, petitioner's American University tenure should not be considered as a partial fulfillment of the Paris obligation. Respondents also claim that the absence of a signed writing, mandated by 10 U.S.C. § 2603 and AR 621-7, does not affect the validity of the Paris obligation.
The motion is denied on the grounds that: 1) instead of seeking only to amend allegedly incorrect findings of this court, respondents go beyond the scope of Fed.R.Civ.P. 52(b), 59(e) by attempting to relitigate factual findings and present new legal theories based on evidence readily available, though not used, at trial; 2) there is no "manifest error;" respondents' present interpretation of AR 350-100-2(c) is not entitled to any controlling weight; and 3) respondents' failure to produce the required "signed agreement" invalidates the Paris obligation, furnishing an independent ground for this court's decision.
(A) Motions Under Fed.R.Civ.P. 52(b), 59(e)
Respondents contend that they seek to correct "manifest error" in this court's findings of fact, a proper ground for a motion under Fed.R.Civ.P. 52(b), 59(e).
Fed.R.Civ.P. 52(b) provides:
Amendment. Upon Motion of a party made not later than 10 days after entry of judgment, the court may amend its findings or make additional findings and may amend the judgment accordingly. . . .
Fed.R.Civ.P. 59(e) provides:
Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment shall be served not later than 10 days after entry of the judgment.
A court may grant a motion pursuant to Fed.R.Civ.P. 52(b), 59(e) to correct manifest errors of law or fact or to present newly discovered evidence. Evans, Inc. v. Tiffany & Co., 416 F. Supp. 224, 244 (N.D.Ill.1976). Addressing the scope of these rules, the Evans court stated:
Motions made under Fed.R.Civ.P. 52(b) and 59(a) are not intended merely to relitigate old matters nor are such motions intended to allow parties to present the case under new theories.
It should be noted that Tiffany was on notice as early as entry of the comprehensive pretrial order that Evans claimed both sums. At no time during trial or in its extensive posttrial written argument did Tiffany present its duplication (of the award) argument. Tiffany, ...