Wu v. Bernhardt, 062620 FED10, 19-2068

Docket Nº:19-2068
Opinion Judge:Joel M Carson III Circuit Judge
Party Name:LIMING WU, Plaintiff - Appellant, v. DAVID BERNHARDT, Secretary, of the United States Department of Interior; UNITED STATES 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.
Judge Panel:Before HOLMES, PHILLIPS, and CARSON, Circuit Judges.
Case Date:June 26, 2020
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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LIMING WU, Plaintiff - Appellant,

v.

DAVID BERNHARDT, Secretary, of the United States Department of Interior; UNITED STATES 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.

No. 19-2068

United States Court of Appeals, Tenth Circuit

June 26, 2020

(D. N.M.) (D.C. Nos. 1:14-CV-00150-RB-KRS, 1:17-CV-00113-MV-LF, 1:18-CV-00813-KBM-SCY)

Before HOLMES, PHILLIPS, and CARSON, Circuit Judges.

ORDER AND JUDGMENT [*]

Joel M Carson III Circuit Judge

Liming Wu appeals pro se from several district court orders entered in three consolidated actions she brought against her former employer, the Department of Interior (DOI), and various federal officials. Most of the challenged orders are not final decisions, and we accordingly dismiss the appeal in part for lack of jurisdiction. To the extent we do have jurisdiction under 28 U.S.C. § 1291, we affirm the district court's judgment.

I

Ms. Wu worked for the DOI from 2010 until she was terminated in 2013. Over the next several years, she brought three different lawsuits against the DOI, her supervisor, and other federal officials, claiming she was subjected to discrimination and other wrongs during her employment. We need not chronicle the interwoven procedural histories of these cases. The first action concluded when Ms. Wu settled with the DOI, resulting in a joint stipulated dismissal of all her claims with prejudice under Fed.R.Civ.P. 41(a)(1)(A)(ii), see Wu v. Jewell, No. 14-cv-150 (D. N.M. Aug. 17, 2015), although she later sought post-judgment relief, which the district court denied. Almost a year and a half after the stipulated dismissal, Ms. Wu brought a second lawsuit, Wu v. Jewell, No. 17-cv-113 (D. N.M. Jan. 23, 2017), which remains pending in the district court. And in August 2018, she filed her third lawsuit, Wu v. Seidlitz, No. 18-cv-813 (D. N.M. Aug. 27, 2018), which the district court dismissed for improper claim-splitting. In each case, Ms. Wu relied on common facts to pursue different theories against various defendants, and at times she filed pleadings in one case seeking relief in another. Given the interrelated nature of the cases, the district court consolidated them under Fed.R.Civ.P. 42(a).

When a district court consolidates cases under Fed.R.Civ.P. 42(a), the "constituent cases retain their separate identities at least to the extent that a final decision in one is immediately appealable by the losing party. That is, after all, the point at which, by definition, a district court disassociates itself from a case." Hall v. Hall, 138 S.Ct. 1118, 1131 (2018) (internal quotation marks omitted). "[C]onsolidation does not merge separate suits into one cause of action." Harris v. Ill.-Cal. Express, Inc., 687 F.2d 1361, 1368 (10th Cir. 1982); see Hall, 138 S.Ct. at 1125 (recognizing that consolidation does not effect a "complete merger" and that the statutory history of Rule 42(a) "makes clear that one of multiple cases consolidated under the Rule retains its independent character . . . regardless of any ongoing proceedings in the other cases"). Consolidation is merely an administrative device used for convenience to "accomplish[] those considerations of judicial economy and fairness." Harris, 687 F.2d at 1368 (internal quotation marks omitted).

The consolidation of Ms. Wu's actions did not merge them or otherwise alter their independent character. Although the actions rely on shared facts, and Ms. Wu filed similar pleadings-sometimes seeking relief in other actions-the actions were independent of one another. We treat them accordingly throughout our analysis.

II

A. Scope of the Appeal

We first consider the scope of this appeal. Ms. Wu challenges multiple orders entered in No. 17-cv-113, but that case is still pending in the district court, and we lack jurisdiction to consider the non-final decisions contested on appeal. Indeed, the district court dismissed several claims made in the fourth amended complaint and granted Ms. Wu leave to file a fifth amended complaint. "[W]hen [a] dismissal order expressly grants the plaintiff leave to amend, that conclusively shows that the district court intended only to dismiss the complaint; the dismissal is thus not a final decision." Moya v. Schollenbarger, 465 F.3d 444, 451 (10th Cir. 2006) (emphasis omitted). We therefore dismiss the appeal to the extent it challenges the following orders entered in No. 17-cv-113: o order dated December 4, 2018, substituting the United States for defendants Mallory and Grohman, see Supp. R., Vol. 2 at 1-2;[1]

o order dated February 21, 2019, denying post-judgment relief in No. 14-cv-150, see R. at 587-99;

o order dated March 12, 2019, denying the motion to reconsider consolidating cases and requesting recusal; see id. at 604-11;

o order dated April 16, 2019, dismissing in part the fourth amended...

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