Jones v. Office of Workers' Compensation Programs

Filing 98

ORDER denying 93 Motion to Strike signed by Chief Judge Morrison C. England, Jr on 9/12/14. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL R. JONES,

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No. 2:11-cv-02799-MCE-CMK

Plaintiff,
v.

MEMORANDUM AND ORDER

OFFICE OF WORKERS'
COMPENSATION PROGRAMS,
Defendant.

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On October 24, 2011, Plaintiff Michael R. Jones (“Plaintiff”), proceeding pro se,

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brought this civil action pursuant to 5 U.S.C. § 522a(g)(1) to remedy alleged violations of

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the Privacy Act of 1974. Compl., ECF No. 1. Specifically, Plaintiff sought “to enjoin the

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Office of Workers’ Compensation Programs . . . from continuing to improperly withhold

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Federal Workers’ Compensation records” and other agency records. ECF No. 62 at 2.

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On February 26, 2013, the Court dismissed Plaintiff’s Complaint in its entirely but

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granted Plaintiff leave to amend on his “catch-all damages” claim only. Order, ECF

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No. 56. On May 13, 2013, the remaining catch-all damages claim was dismissed with

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prejudice. Order, ECF No. 59. Plaintiff then moved for reconsideration, and his motion

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was denied. ECF Nos. 62, 73. Thereafter, on August 15, 2013, Plaintiff filed Objections.

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See ECF No. 83.
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Plaintiff filed a Notice of Appeal on October 2, 2013. ECF No. 76. On July 1,

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2014, this Court concluded that Plaintiff’s Objections did not qualify as a “motion” for the

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purposes of calculating Plaintiff’s appellate deadlines under the Federal Rule of

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Appellate Procedure 4(a)(4). Id.; see also ECF No. 80. On July 7, 2014, Plaintiff filed an

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Amended Notice of Appeal as to this Court’s July 1, 2014, Order regarding his August

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15, 2013, Objections filing. ECF No. 85.

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On August 19, 2014, the Ninth Circuit Court of Appeals issued an Order in which

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it dismissed Plaintiff’s October 2, 2013, appeal for lack of jurisdiction. See Order, ECF

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No. 89 (Ninth Circuit Case No. 13-17088). Thereafter, at the direction of the Ninth

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Circuit, this Court processed Plaintiff’s July 7, 2014, Amended Notice of Appeal from this

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Court’s July 1, 2014, Order as a new notice of appeal. Id.; see ECF Nos. 85, 90.

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Accordingly, a new appellate case number, 14-16599, was opened.

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On July 28, 2014, Plaintiff filed a Motion to Strike and Objections to the District

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Court's New Notice of Appeal and the Ninth Circuit Court of Appeal's Notice. Mot., ECF

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No. 93. In his Motion, Plaintiff objects to this Court’s administrative re-filing of his

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Amended Notice of Appeal (ECF No. 90) because it was not filed by Plaintiff. Id.

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Plaintiff also filed a “Corrected” Second Amended Notice of Appeal. ECF No. 94.

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Plaintiff’s pending Motion to Strike and Objections ask this Court to reconsider the

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Ninth Circuit Court of Appeals’ August 19, 2014, Order in Case No. 13-17088, ECF

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No. 89. Specifically, Plaintiff asks that this Court strike its issuance of a new appellate

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case number, which this Court issued at the direction of the Ninth Circuit. See ECF

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Nos. 89, 93. The relief requested by Plaintiff is not available from this Court. The

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Federal Rules of Appellate Procedure as well as the relevant Circuit Rules govern

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motions for reconsideration of Ninth Circuit orders. Plaintiff must adhere to these rules if

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he seeks reconsideration of the Ninth Circuit’s August 18, 2014, Order in Case

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No. 13-17088.1 See, e.g., Circuit Rule 27-10 (explaining that “[a] party seeking further

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It appears that Plaintiff already filed the same motion with the Ninth Circuit. See Dkt. Entry
No. 14, Court of Appeals Case No. 13-17088.

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consideration of an order that disposes of the entire case on the merits, terminates a

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case, or otherwise concludes the proceedings . . . must comply with the time limits and

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other requirements of FRAP 40 and Circuit Rule 40-1”).2 Therefore, Plaintiff’s pending

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Motion, ECF No. 93, is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: September 12, 2014

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This Court notes that, at this time, Plaintiff’s second appeal, Ninth Circuit Case No. 14-16599, is
pending before that Court.

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