Peavy v. Labor Source, 030817 FED10, 17-3000

Docket Nº:17-3000
Opinion Judge:Scott M. Matheson, Jr. Circuit Judge
Party Name:PHILLIP A. PEAVY, Plaintiff - Appellant, v. LABOR SOURCE, d/b/a One Source ABM Industrial Incorporated, Defendant-Appellee.
Judge Panel:Before KELLY, MURPHY, and MATHESON, Circuit Judges.
Case Date:March 08, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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PHILLIP A. PEAVY, Plaintiff - Appellant,

v.

LABOR SOURCE, d/b/a One Source ABM Industrial Incorporated, Defendant-Appellee.

No. 17-3000

United States Court of Appeals, Tenth Circuit

March 8, 2017

         (D.C. No. 2:15-CV-02633-JAR-TJJ) (D. Kan.)

          Before KELLY, MURPHY, and MATHESON, Circuit Judges.

          ORDER AND JUDGMENT [*]

          Scott M. Matheson, Jr. Circuit Judge

         Pro se plaintiff Phillip A. Peavy1 appeals from the district court's order denying his motion to recall the mandate issued from this court in Peavy v. Labor Source, LLC, 620 Fed.App'x 676 (10th Cir. 2015) (unpublished), or to consider the matter under Federal Rule of Civil Procedure 60(b). The district court said it lacked jurisdiction to provide the requested relief. We agree and, exercising jurisdiction under 28 U.S.C. § 1291, affirm.

         On October 27, 2015, this court affirmed the district court's dismissal of Mr. Peavy's complaint. Peavy, 620 Fed.App'x at 678. Our mandate issued on December 21, 2015. Case no. 15-3185, Doc. 10328414. On October 26, 2016, Mr. Peavy filed his "Motion to Recall Mandate, " which asked the district court to recall the mandate or "allow the Appellate court to proceed with this matter" under Rule 60(b). App. at 226, 228.

         On December 6, 2016, the district court denied the motion because it lacked jurisdiction. The court explained that Mr. Peavy appeared to argue that he should have been able to revise his opening brief to this court because the district court clerk had not considered a motion to supplement the record. But, as the district court noted and we have confirmed, Mr. Peavy moved to supplement the record in this court, No. 15-3185, Doc. 10299303, which we granted before he filed his opening brief, No. 15-3185, Doc. 10299909.

         Apart from the fact this matter appears to be moot, district courts generally do not have jurisdiction to recall a circuit court's mandate. See United States v. Wilson, 511 Fed.App'x 761 (10th Cir. 2013) (unpublished) (denying a certificate of appealability because "reasonable jurists could not debate the district court's conclusion that [appellant's] motion to recall the mandate requires prior circuit-court authorization"); United...

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