Jed Margolin, Pro Se
1981 Empire Rd.
VC
Telephone: 775-847-7845
Email: jm@jmargolin.com
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF
|
JED MARGOLIN,
Plaintiff,
vs.
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
Defendant. |
) ) ) ) ) ) ) ) ) ) ) ) |
Case No. 6:12-mc-00047-JA-DAB
MOTION TO STRIKE |
Comes now Plaintiff, Jed Margolin (“Margolin”), appearing pro se, and files his Motion to Strike DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTION TO PROPOSED FINDINGS AND RECOMMENDATIONS (#4). The RESPONSE (#6) by Defendant National Aeronautics and Space Administration (“NASA”) is an undisguised[1] and untimely[2] Opposition to Margolin’s Motion for Writ of Execution (#2). NASA’s RESPONSE (#6) also contains immaterial, impertinent, and scandalous allegations.
Background
A. This present case arises from a Freedom of Information Act action, Case Number 3:09-cv-00421-LRH-(VPC), heard in U.S. District Court For the District of Nevada. In an Order released November 4, 2011 the Nevada District Court ordered NASA to pay Margolin costs of $525.06 . (For the certified copy of the Order see #1 and #1-1).
B. In that Order (id.) the Nevada District Court ruled that Margolin had substantially prevailed.
C. The “Openness Promotes Effectiveness in the National Government Act of 2007,” also referred to as the OPEN Government Act of 2007 (Public Law 110-175 – December 31, 2007), amended several procedural aspects of the Freedom of Information Act. Section 4(b) requires that when a complainant has substantially prevailed the Agency must pay assessed costs from agency funds. The costs are not to be paid by the Claims and Judgment Fund of the United States Treasury. (See Public Law 110-175 Section 4(b) - RECOVERY OF ATTORNEY FEES AND LITIGATION COSTS.)
D. On January 6, 2012 Margolin sent an email to various NASA staff, including
General Counsel Michael C. Wholley and NASA Deputy
Administrator Lori Garver. See
#2-1, Exhibit 2 at 11. In part of that email Margolin
reminded NASA that they had not complied with the Court’s Order to pay him
$525.06. Margolin sent the email using the
“Request Read Receipt” feature of Windows Mail. Margolin
received a Read Receipt from several recipients but not from Mr. Wholley. (See #2-1, Exhibit 3 at 14-17). This shows that
NASA’s mail server received Margolin’s email but that
several recipients refused to acknowledge receiving it. Margolin
received no response to his email.
E. On February 6, 2012 Margolin filed two motions in U.S. District Court for the District of Nevada: Motion to Compel NASA to Disclose Assets in the State of Nevada (USDC-Nevada Document 74) and Motion Requesting NASA Be Held in Contempt (USDC-Nevada Document 75).
F. On February 22, 2012 NASA filed their Response to Motion to Compel NASA to Disclose Assets in the State of Nevada (USDC-Nevada Document 76) and Response to Motion Requesting NASA Be Held in Contempt (USDC-Nevada Document 77).
In NASA’s Response to Motion to Compel NASA to Disclose Assets in the State of Nevada (USDC-Nevada Document 76) they argued:
This Court awarded Plaintiff $525.06 in costs in an order dated November 3,
2011. (#73). NASA had 60 days to appeal from that
order. F.R.A.P. 4(a) (giving federal agency 60 days to file notice of appeal).
NASA did not complete its evaluation of whether to appeal from the judgment
awarding Plaintiff costs until early January 2012. (Vance
Dec. ¶ 4). Moreover, the government generally requires at least eight
weeks to process a judgment for payment. (Vance Dec. ¶ 5). Given the 60-day appeal time and the eight-week
period to process the judgment for payment, NASA anticipates that Plaintiff
will be paid in March 2012. (Vance Dec. ¶ 6). Because
NASA fully intends to pay Plaintiff, there is no need to require NASA to
disclose its
G. By the end of April 2012 NASA had not paid Margolin the Judgment ordered by the U.S. District Court for the District of Nevada so Margolin registered the Nevada Court’s Judgment here in the Middle District of Florida (#1, #1-1) and moved for a Writ of Execution (#2, #2-1, and #2-2).
H. On May 17, 2012 the Nevada Court ordered NASA to file a status report on the matter. (See USDC-Nevada Document 80, and current case #5-1 at 13).
I. NASA replied that the reason they had not paid Margolin was because:
1. Margolin had refused to give NASA his Social Security Number.
2. Courtney Graham (NASA) did not know until early January 2012 that the law requires that the funds come from NASA agency appropriations, and not from the Judgment Fund.
NASA further stated their intention to pay Margolin “within 10 working days.”
(See USDC-Nevada Document 81 and current case #5-1 at 15-16).
J. Margolin filed a Reply to NASA’s Status Report. In it he explained, among other things, that:
1. Margolin
had received a telephone message asking for his Social Security Number. The
telephone message purported to come from the office of the U.S. Attorney for
2. NASA’s Counsel failed to explain why she ignored Margolin’s March 2 email about the telephone message.
3. In Margolin’s Reply he informed the Court (and NASA) that he had registered the November 2011 Judgment in U.S. District Court for the Middle District of Florida and moved for a Writ of Execution, and that he had incurred additional costs in the amount of $107.99 in doing so. Margolin also asked the Nevada Court whether the Nevada Court or the Florida Court now had jurisdiction over the payment of the judgment.
(For Margolin’s Reply to NASA’s Status Report see USDC-Nevada Document 82 and current case #5-1 at 24. Margolin reported he had incurred additional costs of $107.99 in registering the Judgment in the present Court in USDC-Nevada Document 82 at 10, line 13 and current case #5-1 at 33, line 13. The additional costs are documented in USDC-Nevada Document 82 Exhibit 12 at 77, reproduced here as Exhibit 1 at 17.)
K. On June 25, 2012 the Nevada Court issued an Order to Margolin which required him to state if NASA had paid him. (See USDC-Nevada Document 84).
L. On June 26, 2012, since NASA hadn’t paid Margolin he told the Court that NASA hadn’t paid him. (See USDC-Nevada Document 85).
M. On June 27, 2012 NASA filed a Notice that they had mailed Margolin a check for $525.06 on June 26, the previous day. (See USDC-Nevada Document 86). By an amazing coincidence NASA mailed the check the same day Margolin reported he had not been paid. It was also the day after the Court made its inquiry, and when NASA was facing the possibility of being held in contempt.
N. On June 28, 2012 the Nevada Court ordered (USDC-Nevada Document 87):
Before the court are Plaintiff Jed Margolin’s
Motion to Compel NASA to Disclose Assets in the State of
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (#74) and Motion Requesting NASA Be Held in Contempt (#75) are hereby DENIED.
The Nevada Court failed to address the issue of whether the Middle District of Florida now had jurisdiction of the payment of the additional costs Margolin had incurred in registering the Judgment in the Middle District of Florida, so the Middle District of Florida it is.
O. On July 11, 2012 the present Court’s Magistrate recommended that Margolin’s Motion for a Writ of Execution be denied and that Margolin’s Motion to be allowed to register for and use the Court’s CM/ECF system also be denied (#4).
P. On July 18, 2012 Margolin filed his Objection to the Magistrate’s Recommendation (#5).
Q. On August 2, 2012 NASA (through their new Counsel) filed DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTION TO PROPOSED FINDINGS AND RECOMMENDATIONS (#4) {Court Document #6}.
Argument
A. NASA’s new Counsel, the
Assistant U.S. Attorney for the Middle District of Florida, asserts that NASA’s
Counsel, Assistant U.S. Attorney Holly A. Vance, was
not served with Margolin’s Objection
(#6 at 2, Footnote 1).
1. NASA’s new Counsel does not
dispute that Margolin properly served NASA’s Counsel
Assistant U.S. Attorney Holly A. Vance with a copy of his Motion for Writ
of Execution (#2).
2. NASA’s new Counsel does not dispute that NASA’s Counsel Assistant U.S. Attorney Holly A. Vance would also have known that Margolin had registered the Court Judgment in the present Court and moved for a writ of execution when Margolin disclosed this information in his REPLY TO NASA’S STATUS REPORT (#81) filed with USDC-Nevada on June 2, 2012. (See USDC-Nevada Document 82 at 9 and current case #5-1 at 32, line 20).
3. NASA’s new Counsel does not dispute that NASA’s Counsel Assistant U.S. Attorney Holly A. Vance failed to file an Opposition to Margolin’s Motion for Writ of Execution (#2).
4. NASA’s new Counsel does not assert that Assistant U.S. Attorney Holly A. Vance has even made an appearance in this case.
5. When this Court sent Margolin his copy of the Magistrate’s Report and Recommendations (#4) the document contained a cover sheet from the Court’s CM/ECF system showing that the document had been delivered to Margolin “by other means”, but that notice had not been electronically sent to anyone. See Exhibit 2 at 23. This indicates that no one had made an appearance for NASA by that time (July 11). Indeed, even now PACER indicates that only NASA’s new Counsel, Assistant U.S. Attorney Ralph E. Hopkins, has made an appearance for NASA in this present case, and that he did not make his appearance until August 2, 2012. See Exhibit 3 at 25.
6. Therefore, when Margolin filed his Objection (#5) there was no Counsel of Record representing NASA to send it to.
7. If Margolin had been allowed to register for and use the Court’s CM/ECF system, then the Court’s CM/ECF would not have sent a copy of Margolin’s Objection (#5) to NASA Counsel Assistant U.S. Attorney Holly A. Vance either.
8. The assertion made by NASA’s new Counsel that Margolin failed to serve Assistant U.S. Attorney Holly A. Vance with a copy of his Objection suggests that Margolin had a duty to do so, and by not doing so Margolin had failed to follow the Rules (Federal Rules of Civil Procedure and/or this Court’s Local Rules). This tactic by NASA’s new Counsel (who has only recently appeared in this case) is immaterial, impertinent, and scandalous.
9. Since NASA had no Counsel of Record for Margolin to serve, he sent a copy of his Objection to the NASA Administrator because, according to the National Aeronautics and Space Act of 1958, Public Law #85-568, 72 Stat., 426, Sec 202(a):
Under the supervision and direction of the President, the Administrator shall be responsible for the exercise of all powers and the discharge of all duties of the Administration, and shall have authority and control over all personnel and activities, thereof.
Sending
first class mail to the NASA Administrator is a problem. According to the NASA
Web site http://www.nasa.gov/centers/hq/about/mailing_tips.html
(reproduced as Exhibit 4 at 27):
NASA HQ Mailing and Address Tips
Getting to NASA Headquarters
WHAT IS OUR ADDRESS?
It depends... NASA Headquarters has two different addresses: an official mailing address and a delivery address. Using the correct address can be crucial. Items being express-mailed or hand carried need to include the street address.
Mailing Address
Items mailed through the U.S. Postal Service (including registered or certified) should be addressed as
Name/Title
Office (Division, Branch, Section, Unit)
Office ID
NASA Headquarters
Delivery Address
Items mailed by express mail, commercial delivery, or courier delivery should be addressed as:
Name/Title
Office (Division, Branch, Section, Unit)
Office ID
Attn: Receiving & Inspection
NASA Headquarters
300 E Street SW
Therefore, when sending standard first class mail to the NAA Administrator it should be addressed as:
Name/Title
Office (Division, Branch, Section, Unit)
Office ID
NASA Headquarters
However, NASA does not provide the public with the necessary information to address mail this way, i.e. “Office ID.” There is a Web page with what promises to be a link to the information at http://www.hq.nasa.gov/hq/directories.html. (See Exhibit 5 at 29). The following is from that Web page.
HQ Directory
The NASA Headquarters Directory contains a structured listing of HQ organizations, personnel, and services arranged by category. This directory is published, distributed, and posted online twice a year.
+ Read More
Unfortunately the link goes to a page at http://www.hq.nasa.gov/itcd/hq_directory.html which says the directory is not available online. (See Exhibit 6 at 31)
Without the addressing information that NASA requires (and refuses to give to the Public) Margolin addressed service to:
Charles F. Bolden, Administrator
National Aeronautics and Space Administration
300 E Street SW
This caused a problem for the U.S. Postal Service and, although Margolin mailed it on July 16 using USPS Priority Mail, it was not delivered until July 23. (See Exhibit 7 at 33). If NASA did not receive its copy of Margolin’s Objection (#5) in a timely manner, it was NASA’s own fault for requiring mailing information that it refuses to provide.
B. NASA’s new Counsel has selectively quoted Pub. L. 110-175, 121 Stat. 2425 (2007) to change its intent (#6 at 3, first full paragraph):
Moreover, costs assessments in FOIA cases are required to be paid “only from funds annually appropriated for any authorized purpose for the Federal agency against which a claim or judgment has been rendered.” Pub. L. 110-175, 121 Stat. 2425 (2007).
The full quote from Pub. L. 110-175, 121 Stat. 2425 (2007) is:
Notwithstanding section 1304 of title 31, United States Code, no amounts may be obligated or expended from the Claims and Judgment Fund of the United States Treasury to pay the costs resulting from fees assessed under section 552(a)(4)(E) of title 5, United States Code. Any such amounts shall be paid only from funds annually appropriated for any authorized purpose for the Federal agency against which a claim or judgment has been rendered.
The reason Congress put this in the law was to give agencies an incentive to comply with the Freedom of Information Act. Presumably, agencies will be more likely to comply with the Freedom of Information Act if judgments against them are paid with their own money and not from the Claims and Judgment Fund of the United States Treasury. Congress probably thought this would give agencies sufficient incentive and did not consider that agencies might go rogue, as NASA has done here.
C. NASA’s new Counsel asserts that Margolin’s writ of execution is barred by sovereign immunity and particularly that “Plaintiff has failed to show that NASA has waived its sovereign immunity and consented to be sued via a writ of execution.” (#6 at 4). As Margolin points out in his Objection (#5) at 2, line 3:
A. The United States has waived Sovereign Immunity in Freedom of Information Act actions brought under 5 U.S.C. §552(a)(4)(B) and, absent statutory exceptions, is subject to the civil process under the Federal Rules of Civil Procedure and the Court’s Local Rules which includes the use of a Writ of Execution to satisfy a judgment as contained in Federal Rules of Civil Procedure Rule 69.
NASA’s
new Counsel appears to be asserting that NASA has their own
right to sovereign immunity apart from the
D. NASA’s new Counsel asserts that Margolin did not argue before the Magistrate that he is entitled to $107.99 in costs (#6 at 4).
1. In Margolin’s Objection he cited USDC-Nevada Document 82 and said (#5 at 9, line 8):
d. In Margolin’s Reply (Id.) he informed the Court (and NASA) that he had registered the November 2011 Judgment in U.S. District Court for the Middle District of Florida and moved for a Writ of Execution, and that he had incurred additional costs in the amount of $107.99 in doing so. Margolin also asked the Nevada Court whether the Nevada Court or the Florida Court now had jurisdiction over the payment of the judgment. (See Exhibit 3 at 24)
Margolin reproduced USDC-Nevada Document 82 in #5 Exhibit 3 but omitted several exhibits due to their length. Because Margolin cited USDC-Nevada Document 82 it should be considered as being incorporated by reference in his Objection. USDC-Nevada Document 82 Exhibit 12 is reproduced here as Exhibit 1 at 17.
2. Since then, Margolin has incurred additional expenses, such as the expenses in mailing his Objection (#5) and in using Pacer to track the case. These additional expenses consist of:
|
07/16/2012 |
Mailing cost to U.S. District Court for the Middle District of Florida |
$6.05 |
|
07/16/2012 |
Mailing cost to serve NASA/Administrator Bolden |
$6.05 |
|
07/16/2012 |
Mileage to and
from Post Office in |
$7.04 |
|
5/9/2012 – 6/28/2012 |
Pacer for MDFL |
$6.50 |
|
|
Total |
$25.44 |
See Exhibit 8 at 35 for the receipts for these additional expenses.
There
will undoubtedly be more of these expenses unless Margolin’s
motion to be allowed to register for and use the Court’s CM/ECF system (#5) is
granted. Indeed, as long as Margolin is required to
mail his filings Margolin cannot know the final post
judgment expenses (and submit receipts) without violating the Principle of
Causality.
E. NASA’s new Counsel asserts that (#6 at 4):
D. The District of Nevada judgment for $525.06 has been satisfied and Plaintiff offers no evidence that he incurred $107.99 in additional costs. Plaintiff readily admits that the $525.06 judgment from the District of Nevada has been satisfied. (#5 p. 10, line 4).
1. As detailed above in Section D, Margolin did present the Magistrate with evidence that he had incurred $107.99 in additional costs.
2. NASA paid the $525.06 judgment only after Margolin incurred the additional costs of registering the judgment and moving for a writ of execution in the Middle District of Florida. NASA’s new Counsel has failed to mention that fact, which makes his report of Margolin’s admission that the judgment has been paid immaterial, impertinent, and scandalous.
F. The RESPONSE (#6) by NASA’s new Counsel is an undisguised and untimely Opposition to Margolin’s Motion for Writ of Execution (#2).
1. NASA ends its RESPONSE with the words, “For the reasons argued above, this Court should deny the motion for writ of execution. (#4).” (See #6 at 5)
2. Margolin mailed a copy of his Motion for Writ of Execution
(#2) to NASA’s counsel in the
Conclusion
For the foregoing reasons Margolin respectfully requests that this Court strike NASA’s DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTION TO PROPOSED FINDINGS AND RECOMMENDATIONS (#4).
Respectfully submitted,
_________________________
Jed Margolin, plaintiff pro se
1981 Empire Rd.
VC
775-847-7845
jm@jmargolin.com
Dated: August 7, 2012
Certificate of Mailing
I hereby certify that a copy of the foregoing MOTION TO STRIKE has been sent by first-class mail to the following addressee on August 7, 2012:
Ralph E. Hopkins
Assistant
_________________________
Jed Margolin
[1] NASA ends its RESPONSE with the words, “For the reasons argued above, this Court should deny the motion for writ of execution. (#4).” (See #6 at 5)
[2] Margolin mailed a copy of his Motion for Writ of Execution to NASA’s counsel (Holly A. Vance, Assistant U.S. Attorney for the District of Nevada) on April 24, 2012. NASA failed to oppose his motion and no one representing NASA has even made an appearance in this present case until now (#6).