Tadlock v. Foxx , 601 F. App'x 595 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT January 27, 2015
Elisabeth A. Shumaker
Clerk of Court
RODNEY K. TADLOCK,
Plaintiff - Appellant,
v. No. 14-3088
(D.C. No. 2:12-CV-02148-JAR-JPO)
ANTHONY FOXX, Secretary of the (D. Kansas)
Department of Transportation, .
Defendant – Appellee.
ORDER AND JUDGMENT
Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
Mr. Rodney Tadlock worked for the Department of Transportation as an air traffic
controller. In this job, Mr. Tadlock had to comply with federal health regulations.
 When the action began, the Secretary of the Department of Transportation was Ray
LaHood. But, while the action remained pending, Mr. LaHood was replaced by Anthony
Foxx. Because the Secretary is sued in his official capacity, we substitute Mr. Foxx for
Mr. LaHood. See Fed. R. App. P. 43(c)(2).
 This order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But, under some
circumstances, citation may be permissible under Fed. R. App. P. 32.1(a) and 10th Cir. R.
32.1(A).
Tadlock v. LaHood, 550 F. App’x 541, 543 (10th Cir. 2013) (unpublished). That did not
pose a problem until Mr. Tadlock had a recurrence of sinusitis and required surgery. In
the aftermath, Mr. Tadlock perceived mistreatment and he filed a discrimination charge
with the Equal Employment Opportunity Commission.
At some point, the Department of Transportation asked Mr. Tadlock for medical
records and denied him permission to move from an evening shift to a morning shift. To
Mr. Tadlock, these actions constituted retaliation for the EEOC charge, leading him to sue
under the Rehabilitation Act of 1973. The district court granted summary judgment to the
defendant, and we upheld that ruling on appeal.
In addition to appealing, Mr. Tadlock moved to vacate the summary judgment
award and filed two amended complaints and two amended responses to the summary
judgment motion. The district court denied the motion to vacate and struck the amended
documents. With these rulings, Mr. Tadlock appealed again. We affirm.1
I. Denial of the Motion to Vacate
The district court did not err when it denied the motion to vacate the summary
judgment ruling.
1
The parties have not requested oral argument; thus, the Court has decided the appeal
based on the briefs.
-2-
A. Standard of Review
Mr. Tadlock’s motion was based on Fed. R. Civ. P. 60(b)(1) and (6). Under Rule
60(b)(1), vacatur is available for “mistake, inadvertence, surprise, or excusable neglect.”
Fed. R. Civ. P. 60(b)(1). Rule 60(b) provides four other situations in which vacatur may
be available, adding a catch-all in Rule 60(b)(6) for “any other reason that justifies relief.”
Fed. R. Civ. P. 60(b)(6).
Vacatur of the summary judgment ruling would involve an extraordinary remedy
and would be available only in exceptional circumstances. Servants of Paraclete v. Does,
204 F.3d 1005, 1009 (10th Cir. 2000). The district court concluded that the circumstances
did not warrant vacatur of the judgment, and we review that ruling under an
abuse-of-discretion standard. Id. We conclude that the district court acted within its
discretion in denying Mr. Tadlock’s motion.
B. New Allegations
On appeal, Mr. Tadlock argues in part that the district court and Department of
Justice committed misconduct. This argument is invalid for two reasons: (1) it was not
raised in district court, and (2) it is unsupported.
We need not consider arguments raised for the first time on appeal. See Valdez v.
Squier, 676 F.3d 935, 950 (10th Cir. 2012). In part because Mr. Tadlock did not raise this
argument in district court, we decline to reverse on this ground. But, reversal would be
inappropriate anyway because Mr. Tadlock has not provided any evidence of misconduct
by the district court or the Department of Justice.
-3-
Mr. Tadlock makes four strong allegations against the district court:
1. The record contained evidence of illegal activity by the Department of
Justice, and the district court removed that document from the record.2
2. The district court deleted all other evidence of governmental wrongdoing
from the record.
3. The district court did not allow truth into the record.
4. The district judge was partial.
Both in district court and on appeal, Mr. Tadlock failed to provide any evidence of these
strong allegations.
The same is true of Mr. Tadlock’s allegations against the Department of Justice.
He states that the Department of Justice controls the courts and was a coconspirator. But,
Mr. Tadlock has presented no evidence of these allegations.
Mr. Tadlock alleges not only conspiratorial misconduct, but also overly aggressive
tactics in the litigation. For example, he accuses the Department of Justice of a conflict of
interest that hindered his ability to obtain a jury trial. The Justice Department
unquestionably had an interest adverse to Mr. Tadlock because it represented the party (the
Department of Transportation) that he sued. 28 U.S.C. § 519. As counsel for the
Department of Transportation, the Department of Justice (like any other counsel) had the
2
Mr. Tadlock identified the document as “Defense Exhibit 10.” Appellant’s
Opening Br. at 5 (July 24, 2014). This exhibit was a transcript of the EEOC hearing. The
transcript continues to appear in the district court’s docket sheet and is electronically
accessible through the district court’s “Pacer” system. See
https://ecf.ksd.uscourts.gov/doc1/07912994940.
-4-
right to make motions. Thus, Mr. Tadlock has not justified relief under Rule 60(b) based
on the Justice Department’s litigation tactics.
C. Allegations Preserved in District Court
Mr. Tadlock also argues that the district court should have excused his failure to
verify the complaint and response to the summary judgment motion. Though this
argument was arguably preserved in district court, it would not justify reversal.
When Mr. Tadlock asked the district court to vacate the summary judgment ruling,
he did not allege mistake or excusable neglect for the failure to verify his filings. Instead,
he submitted declaration pages and asked the district court to accept them. With this
submission, the district court declined to vacate the summary judgment ruling, explaining
that the result would have been the same even with the declaration pages because
Mr. Tadlock’s allegations were conclusory, involved hearsay, and contained inadmissible
statements of belief.
This ruling reflected an appropriate exercise of judicial discretion. Like any other
litigant, Mr. Tadlock could not defeat summary judgment based on submission of an
unverified complaint or unsworn statement. Conaway v. Smith, 853 F.2d 789, 792
(10th Cir. 1988). Though Mr. Tadlock lacked an attorney, he remained obligated to
comply with the procedural rules. Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir.
1994). The district court had the discretion to enforce these procedural rules and decline
to consider unsworn documents in opposition to the motion for summary judgment.
-5-
But here, the district court went further and explained that the result would have
been the same even with the newly submitted declaration pages. We upheld that ruling on
direct appeal, and Mr. Tadlock does not supply a reason to vacate the award of summary
judgment based on the belated submission of declaration pages.
D. Arguments Rejected in the Prior Appeal
Mr. Tadlock raises four other arguments:
1. The Federal Aviation Administration retaliated by asking him to submit
medical records after he had filed the EEOC charge.
2. The federal government submitted false statements, including perjured
testimony.
3. There was evidence of temporal proximity between the adverse actions and
the EEOC charge, which should have been enough to defeat summary
judgment.
4. He was constructively discharged when deemed “disqualified” by the FAA’s
doctor.
These arguments were considered and rejected in the prior appeal.3 With our decision
affirming the summary judgment ruling, the district court appropriately declined to allow
Mr. Tadlock to allow relitigation of these arguments. See Cashner v. Freedom Stores,
Inc., 98 F.3d 572, 577 (10th Cir. 1996); Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991).
3
See Appellant’s Opening Br. at 3, 7, Tadlock v. LaHood, 550 F. App’x 541
(10th Cir. 2013) (unpublished) (arguing that Troy Price knowingly submitted false
testimony); id. at 7 (arguing that Dr. Wilson and his staff committed perjury); id. at 2-3
(arguing temporal proximity and constructive discharge); id. at 6-7 (arguing retaliation
through a request for medical records).
-6-
II. Striking of the Amended Complaints and Amended Responses to the
Summary Judgment Motion
After Mr. Tadlock moved for vacatur of the award of summary judgment, he filed
two amended complaints and two amended responses to the summary judgment motion.
The court struck these documents based on mootness, viewing
 the first round of amendments moot when Mr. Tadlock filed a second round
of amendments and
 the second round of amendments moot in light of the decision to decline
vacatur of the judgment.
It is unclear whether Mr. Tadlock is intending to appeal the order striking the two
amendments to the complaint and the response to the summary judgment motion.4 If he
is, however, he has not provided any ground for reversal.
We again apply an abuse-of-discretion standard. See Durham v. Xerox Corp.,
18 F.3d 836, 840 (10th Cir. 1994). Applying this standard, we conclude that the district
court acted within its discretion when it struck the documents.
When striking the documents, the district court had already declined to vacate the
summary judgment ruling. Once the court declined to vacate the summary judgment
ruling, it would have been too late for Mr. Tadlock to file an amended complaint or an
amended response to the summary judgment motion. Thus, we would decline to reverse
4
In the notice of appeal, Mr. Tadlock appealed all orders issued on March 31, 2014.
The district court’s order striking the two amended complaints and two amended response
briefs was filed on March 31, 2014.
-7-
in the event that Mr. Tadlock had intended to appeal the striking of his amended complaints
and amended responses to the summary judgment motion.
III. Disposition
We affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
-8-