CAFC goes through FRCP 60 in Piccone case

The CAFC decision in PICCONE v. Matal (and others) is per curiam and not precedential. There apparently were some disciplinary issues with registered patent attorney Piccone, but in this sequence, Piccone sued the PTO (and others) in ED Va for items including alleged
constitutional violations by the Individual Defendants,
challenges to the PTO’s FOIA decisions, and a request for
declaratory relief from the PTO’s disciplinary proceedings.

His complaint was dismissed on October 27, 2015. The district court
issued a separate order later that day informing Mr. Piccone he had
thirty days to file a notice of appeal.

On December 9, 2015, Mr. Piccone filed a motion to
reconsider the October 27 order.

The district court denied the
motion for reconsideration on December 30, 2015.

On February 29, 2016, Mr. Piccone filed a notice of
appeal to the Court of Appeals for the Fourth Circuit,
which transferred the case to our court. His notice stated
that he was appealing “the final judgment dismissing the
above-identified case, entered December 29, 2015.” We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

The CAFC began its discussion with


Although the majority of Mr. Piccone’s brief to our
court addresses the district court’s October 27, 2015 order
granting summary judgment, our appellate jurisdiction is
limited to reviewing the district court’s December 30,
2015 order denying Mr. Piccone’s motion for reconsideration.1
The timely filing of a notice of appeal in a civil case
is a jurisdictional requirement. Bowles v. Russell, 551
U.S. 205, 214 (2007). Under the Federal Rules of Appellate
Procedure, Mr. Piccone had sixty days from the date
of the October 27, 2015 order to file his notice of appeal.
See Fed. R. App. P. 4(a)(1)(B)(ii); Gist v. United States,
504 F. App’x 918, 918 (Fed. Cir. 2013). Mr. Piccone did
not file his notice of appeal until February 29, 2016, more
than four months after the summary judgment order.
And his notice of appeal only identified the district court’s
December 30, 2015 order denying reconsideration. We
therefore lack jurisdiction to review the October 27, 2015
order.




Of some interest is the discussion of the "motion for reconsideration":


The district court interpreted Mr. Piccone’s December
9, 2015 motion for reconsideration as a motion under Rule
60 rather than Rule 59 of the Federal Rules of Civil
Procedure. We see no error in this conclusion. Under
Rule 59, a party must file a motion to amend a judgment
within twenty-eight days of the entry of the judgment.
Fed. R. Civ. P. 59(e). Mr. Piccone filed his motion fortythree
days after the October 27, 2015 order. The district
court properly treated his motion as a Rule 60 motion,
which may be filed within a year of entry of judgment.
See Fed. R. Civ. P. 60(c)(1).



For a court to reconsider an initial ruling, there is not much time
for the losing party to file. In D NJ, Local Rule 7.1(i) states:
Unless otherwise provided by statute or rule (such as Fed. R. Civ. P. 50, 52 and 59), a motion for reconsideration shall be served and filed within 14 days after the entry of the order or judgment on the original motion by the Judge or Magistrate Judge. A brief setting forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked shall be filed with the Notice of Motion.

On FRCP 59, from PETERSON v. Brooks, 2008 U.S. Dist. LEXIS 66904 :


Federal Rule of Civil Procedure 59(e) provides that a party may file a motion within ten days of the entry of a judgment requesting that the court alter or amend the judgment. Fed. R. Civ. P. 59(e). Such a motion is considered a motion for reconsideration.

"A proper Rule 59(e) motion must be based on either an intervening change in controlling law, the availability of new or previously unavailable evidence, or the need to correct clear error or prevent manifest injustice." Choi v. Kim, 258 Fed. App'x 413, 416 (3d Cir. 2007) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).



The current version of FRCP 59(e) does recite 28 days: A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.


**One notes a curious error in the CAFC decision:


The Fourth Circuit reviews
the denial of a Rule 60(b) motion for abuse of discretion.
Aikens v. Ingram, 652 F.3d 496, 501 (Fed. Cir. 2011).



The Aikens case, of course, is from the Fourth Circuit, not from the Fed. Cir. [ Plaintiff Frederick Aikens, a former colonel in the North Carolina Army National Guard, filed a complaint against defendant National Guard officers alleging that they violated his Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in Kuwait. Aikens lost his appeal. ]



[In passing, FRCP 54 is used to seek clarification of a non-final order: : “Federal Rule of Civil Procedure 54(b) provides that any non-final decision or order "may be revised at any time before the entry of judgment adjudicating all the claims." Fed.R.Civ.P. 54(b). Pursuant to this rule, Hines seeks clarification of this court's May 9, 2011 order, arguing that the order was unclear… “ ]