Wu v. Haaland ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 8, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
LIMING WU,
Plaintiff - Appellant,
v. No. 20-2067
(D.C. Nos. 1:14-CV-00150-RB-KRS,
DEB HAALAND, Secretary of the 1:17-CV-00113-MV-LF,
United States Department of 1:18-CV-00813-KBM-SCY)
Interior; * UNITED STATES (D. N.M.)
DEPARTMENT OF INTERIOR,
Bureau of Land Management; NEW
MEXICO STATE OFFICE, DOI
BLM; ADEN SEIDLITZ; BUREAU
OF LAND MANAGEMENT;
UNITED STATES OF AMERICA,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT * *
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES, and BACHARACH,
Circuit Judges.
*
During the pendency of this appeal, Ms. Deb Haaland became
Secretary of the United States Department of the Interior. She is thus
substituted for Mr. David Bernhardt as the defendant-appellee. See Fed. R.
App. P. 43(c)(2).
**
We conclude that oral argument would not materially help us to
decide the appeal, so we have decided the appeal based on the record and
the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
_________________________________
This appeal stems from the district court’s denial of pro se plaintiff
Ms. Liming Wu’s motion to reconsider orders based on newly discovered
evidence. In that motion, Ms. Wu sought to set aside a settlement
agreement. The district court denied the motion, characterizing it as a
motion under Federal Rule of Civil Procedure 60(b). We affirm, concluding
that the district court did not abuse its discretion.
1. Background
Ms. Wu worked as a geologist for the United States Department of
the Interior (DOI), Bureau of Land Management. Ms. Wu sued the DOI’s
Secretary, claiming discrimination (based on her race, national origin, and
age), retaliation, and negligence. She entered a settlement agreement with
the DOI, which required dismissal of her claims and retirement from the
DOI. In exchange, the DOI would pay $200,000 and provide a neutral letter
of recommendation. The agreement allowed Ms. Wu to revoke the
agreement through written notice. To exercise this option, Ms. Wu had to
deliver the notice of revocation in time for it to be received within seven
days at a given address. R., Vol. 1 at 118.
Ms. Wu tried to revoke the agreement by sending notice through
FedEx’s standard overnight service. But the notice was not delivered until
the eighth day. (Another federal agency received the notice on the sixth
2
day, but that wasn’t the agency identified in the agreement to receive the
notice.)
Ms. Wu returned to work, but she fainted after her first day back and
suffered a traumatic brain injury. The DOI moved to enforce the
agreement, and Ms. Wu consented. The district court thus granted the
motion, Ms. Wu accepted $200,000, and the parties stipulated to dismissal
of the action with prejudice.
Roughly three years later, Ms. Wu moved to set aside the stipulated
order of dismissal, the agreement, and the order enforcing the agreement.
The district court treated the motions as Rule 60(b) motions and denied
relief.
Ms. Wu also filed two more suits in 2017 and 2018, asserting claims
involving her employment with the DOI. The district court dismissed part
of the 2017 suit and allowed Ms. Wu to file a fifth amended complaint on
the surviving claims. The court dismissed the 2018 action as duplicative of
the first.
Instead of filing a fifth amended complaint in the 2017 action,
Ms. Wu appealed, seeking review of various orders from the three actions.
We dismissed that appeal in part for lack of jurisdiction and otherwise
affirmed. See Wu v. Bernhardt, 820 F. App’x 669, 671 (10th Cir. 2020).
While that appeal was pending, Ms. Wu moved for relief under
Rule 60(b). (We refer to this as “the third Rule 60(b) motion.”) In the
3
motion, Ms. Wu did not say which order she wanted reconsidered. The
court assumed that Ms. Wu wanted reconsideration of an order issued in
February 2019, which had denied the first two Rule 60(b) motions.
In denying the third Rule 60(b) motion, the court addressed Ms. Wu’s
argument that two pieces of new evidence showed coercion into
withdrawing her objection to the DOI’s motion to enforce the agreement.
One piece of evidence was a generic medication instruction in an
after-visit note from a March 2019 doctor’s visit. The note showed a
recommendation that if Ms. Wu were to obtain sedative medications, she
should not make any important decisions or sign any legal documents. The
court determined that the note had not related to Ms. Wu’s mental state in
August 2015 (when she consented to enforcement of the settlement
agreement). The second piece of evidence was a text message that
Ms. Wu’s employer had sent shortly after the fall:
Please call me in the morning to tell me the . . . prognosis and
what your plan for the week is. If you will not be attending work,
I will need a doctor note no later than Thursday by noon. I hope
this is not serious and you feel better soon.
R., Vol. 1 at 719. Ms. Wu characterized the text as coercion to acquiesce in
the DOI’s motion to enforce. The district court rejected this
characterization.
Ms. Wu also complained of the employer’s filing of a redacted
motion to enforce the agreement. Ms. Wu characterized the redaction as an
4
effort to cover up earlier efforts to coerce her into acquiescing in the
motion to enforce the agreement. The district court disagreed for two
reasons. First, the redaction did not delete documents from the court’s
electronic filing system, so the court could still access the unredacted
version. Second, the redactions simply avoided public disclosure of two
categories of information: (1) the name, address, and account information
for payment of the $200,000 and (2) the tax identification number for Ms.
Wu’s attorney. The court found no intent by the DOI to harm Ms. Wu and
declined to reconsider the February 2019 order.
Ms. Wu also alleged violation of the Older Workers Benefits
Protection Act, which provides that a waiver of rights under the Age
Discrimination in Employment Act must be knowing and voluntary. The
court first examined two of the requirements for an individual’s waiver of
an age-discrimination claim: (1) the individual must be “given a period of
at least 21 days within which to consider the agreement,” 29 U.S.C.
§ 626(f)(1)(F)(i); and (2) the agreement must “provide[] that for a period
of at least 7 days following the execution of such agreement, the individual
may revoke the agreement,” id. § 626(f)(1)(G). The court concluded that
these requirements do not apply to the settlement of a court action.
Though the court concluded that the DOI had satisfied the statute,
Ms. Wu argued that the agreement was voidable because the DOI had not
sent a neutral letter of recommendation. The court disagreed, explaining
5
that Rule 60(b) provided the only available remedy and the DOI’s failure
to send the letter had not justified relief. R., Vol. 1 at 768. The court added
that Ms. Wu had failed to address
 “why the DOI’s provision of the letter in response to [an
earlier] motion [was] insufficient to accomplish justice” or
 “why she did not simply ask the DOI to provide the letter
earlier.”
Id. at 768-69 (citation & internal quotation marks omitted).
2. Appellate Jurisdiction
We first address the existence and scope of our jurisdiction. In the
notice of appeal, Ms. Wu referred only to the district court’s denial of the
third Rule 60(b) motion. Because this is the only order identified in the
notice of appeal, our jurisdiction does not extend beyond this order. See
Williams v. Akers, 837 F.3d 1075, 1078 (10th Cir. 2016) (stating that the
requirement for designation of the order being appealed is jurisdictional).
Even if the notice of appeal had encompassed the preceding orders,
however, “the timely filing of a notice of appeal in a civil case [would be]
a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007).
The only order timely appealed was the denial of the third Rule 60(b)
motion.
The deadline for the notice of appeal was the 60th day following
entry of the underlying order. Fed. R. App. P. 4(a)(1)(B)(i). The district
court clerk file-stamped the denial of the third Rule 60(b) motion on
6
March 16, 2020. But this order was not entered on the civil docket until
March 17. See R., Vol. 1 at 13 (text for docket entry 132). So the 60-day
period began to run on March 17 and ended on Saturday, May 16. Because
the last day of the period was a Saturday, Ms. Wu’s notice of appeal was
due the following Monday, which was May 18. See Fed. R. App.
P. 26(a)(1)(C). Because Ms. Wu filed her notice of appeal on May 18, the
notice was timely as to the March 16 order. But the notice of appeal would
have been late as to the earlier orders. So irrespective of the limited scope
of the notice of appeal, our jurisdiction would be confined to review of the
March 16 order. 1
Ms. Wu cannot skirt these jurisdictional limitations by virtue of the
district court’s treatment of the third Rule 60(b) motion as requesting
reconsideration of its February 2019 order denying her first two Rule 60(b)
motions. “An appeal from a denial of a Rule 60(b) motion addresses only
the district court’s order denying the motion, and not the underlying
1
In her reply brief, Ms. Wu quotes Davis v. Passman, 442 U.S. 228(1979), for the proposition that the district court had subject-matter
jurisdiction over the preceding rulings. The district court did have subject-
matter jurisdiction, but subject-matter jurisdiction differs from an
appellate court’s jurisdiction. See Arthur Anderson LLP v. Carlisle, 556
U.S. 624, 628 n.3 (2009) (“[T]here are good reasons for treating subject-
matter jurisdiction differently . . . from the appellate jurisdiction here
conferred.”).
7
decision itself.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1009
(10th Cir. 2000). 2
3. Standard of Review
We review the denial of a Rule 60(b) motion for “an abuse of
discretion, keeping in mind that Rule 60(b) relief is extraordinary and may
only be granted in exceptional circumstances.” Lebahn v. Owens, 813 F.3d
1300, 1306 (10th Cir. 2016) (internal quotation marks omitted). An abuse
of discretion occurs when a district court’s ruling “is arbitrary, capricious,
whimsical or manifestly unreasonable[,] or when we are convinced that the
district court made a clear error of judgment or exceeded the bounds of
permissible choice in the circumstances.” Dodge v. Cotter Corp., 328 F.3d
1212, 1223 (10th Cir. 2003) (internal quotation marks omitted).
4. Revocation of the Settlement Agreement
Invoking the Older Workers Benefits Protection Act, Ms. Wu denies
that she had enough time to consider or revoke the settlement of her age-
discrimination claim. We disagree.
Under that Act, waiver through settlement of a court action is
“knowing and voluntary” only upon satisfaction of “subparagraphs (A)
2
In her reply brief, Ms. Wu reurges her constitutional claims and
criticizes a prior opinion that found improper claim splitting. Wu v.
Bernhardt, 820 F. App’x 669, 676–77 (10th Cir. 2020) (unpublished). But
the third Rule 60(b) motion did not address any constitutional claims or
claim-splitting.
8
through (E) of paragraph (1).” 29 U.S.C. § 626(f)(2). But there’s nothing
to require satisfaction of subparagraphs (F) and (G), which set forth the
time periods to consider a settlement and revoke it. Under § 626(f)(2), a
claimant can settle a court action involving an age-discrimination claim
without waiting a specified number of days. See Walters v. Wal-Mart
Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013). So the district court
correctly concluded that the statutory timing provisions (21 days to
consider a waiver and 7 days to revoke the waiver) do not apply.
Ms. Wu argues that the district court’s decision conflicts with Oubre
v. Entergy Operations, Inc., 522 U.S. 422 (1998). We disagree. Oubre
concerned an employee’s release of claims “as part of a termination
agreement,” id. at 423, not a settlement of a court action. 3
In her reply brief, Ms. Wu contends that the agreement violated
§ 626(f)(1)(C), which provides that “the individual does not waive rights
or claims that may arise after the date the waiver is executed.” “We
generally do not consider arguments raised for the first time in a reply
3
Though the statutory provision for revocation does not apply, the
settlement agreement specified that Ms. Wu had seven days to revoke the
settlement agreement. The third Rule 60(b) motion does not address
satisfaction of the settlement agreement’s provision for revocation. The
agreement is specific about revocation by stating that the Director of the
Office of Civil Rights had to receive the notice of revocation within seven
days at Mailstop 4310, 1849 C Street, N.W., Washington, D.C. 20240. R.,
Vol. 1 at 118.
9
brief.” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 676 n.9
(10th Cir. 2016).
But this contention would fail even if we were to consider it. The
agreement states that it resolved all claims “arising out of or relating to
Plaintiff’s employment with the Agency, up to and including the date [she]
signs this Settlement agreement.” R., Vol. 1 at 117. This provision
necessarily excluded any waiver of rights or claims that may have arisen
after the date of the waiver. So the district court did not abuse its
discretion in concluding that the agreement satisfies § 626(f)(1)(C).
5. Alleged Failure to Provide a Neutral Letter of Recommendation
In a prior appeal, we rejected Ms. Wu’s argument that the alleged
failure to provide a neutral letter of recommendation would justify
avoidance of the stipulated dismissal. We explained that “[a]bsent any
basis for setting aside the stipulated dismissal, the district court properly
declined to set aside the [agreement].” Wu v. Bernhardt, 820 F. App’x 669,
675 (10th Cir. 2020). That ruling constitutes the law of the case. See
Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1279-80
(10th Cir. 2010) (explaining that an appellate decision on a rule of law
governs the same issue in later stages of the same case). So we will not
second-guess our prior opinion on this issue.
10
6. New Evidence
In moving for reconsideration, Ms. Wu submitted a doctor’s note
from 2019, recommending caution if she’d received sedation. But Ms. Wu
had agreed to the settlement 3-1/2 years earlier. Given the timing, the
district court discounted the doctor’s note because Ms. Wu had never
presented any evidence that she was under the influence of a sedative when
she agreed to the settlement. Ms. Wu does not present any reason to
question this conclusion.
7. Deletion of the Original Motion to Enforce the Settlement
Agreement
Ms. Wu also argues that a defense attorney tinkered with the docket
system, deleting a motion to enforce the settlement agreement. The district
court explained that the clerk’s office (not defense counsel) sealed the
motion because the document contained private financial information as to
Ms. Wu and her counsel. So the court found that nothing had been deleted.
Ms. Wu again does not present any reason to question this finding.
11
8. Conclusion
We affirm the denial of the third Rule 60(b) motion. 4
Entered for the Court
Robert E. Bacharach
Circuit Judge
4
We also deny the government’s motion to dismiss this appeal as moot
because the government withdrew the motion.
12