A federal judge in California has, for the second time, told the pension fund for New York City’s public employees that it cannot sue Apple Inc.

The pension fund has been trying to sue Apple over backdated stock options, despite the fact that the pension fund had profited from its million shares of Apple’s stock, which have risen dramatically in value in recent years. Last year, the judge, Jeremy Fogel of U.S. District Court in a San Jose, ruled that the pension fund couldn¹t sue Apple for damages because the pension fund didn¹t suffer any economic harm.

Despite Judge Fogel’s ruling, the city tried to re-file a suit making similar claims but based on a different claims under the Securities Exchange Act. That application was the subject of Judge Fogel’s recent decision, in which he said, in essence, that the pension fund couldn’t get two bites at the apple.

Noting that the pension fund “made a strategic decision” only to pursue some claims when it first sued Apple Inc., more than two years ago, Judge Fogel said that allowing the city to add new claims at this point would “run counter to well-established” precedent and impose a “financial burden to Defendents.”

“We’re considering an appeal and believe that our claims are still strong,” the deputy chief of the pension’s division for the city’s Law Department, Carolyn Wolpert, said.

Judge Jeremy Fogel, who was nominated to the bench by President Clinton, appointed the New York City Employees Retirement System, as the pension fund is called, as lead plaintiff in the Apple backdating case before him. In a past ruling, Judge Fogel has advised NYCERS to join a derivative suit, on behalf of the company, which would mean the fund would not stand to receive a payout if it won. NYCERS’ board of trustees, which consists mostly of elected officials, made the final decision on whether to sue. Lawyers from the city’s law department play an advisory role. The pension fund is being represented in court by the law firm Grant & Eisenhofer.