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

LIMING WU, Plaintiff - Appellant,



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.


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.


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.


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 complaint and granting Ms. Wu leave to file a fifth amended complaint, see id. at 612-35; and

o order dated April 17, 2019, denying leave to file a proposed fifth amended complaint but reiterating that Ms. Wu could file a fifth amended complaint that complied with the court's directives to properly plead the surviving claims, see Supp. R. at 218.2

As for No. 14-cv-150, we have jurisdiction to review the denial of relief under Fed.R.Civ.P. 60(b) because the underlying ruling was a final decision. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1008 (10th Cir. 2000). We also have jurisdiction to review the dismissal of No. 18-cv-813 for improper claim-splitting. See Katz v. Gerardi, 655 F.3d 1212, 1217 (10th Cir. 2011). We therefore proceed to the merits of the appeal.

B. Merits

1. No. 14-cv-150: Denial of Post-Judgment Relief

In 2014, Ms. Wu initiated No. 14-cv-150, claiming she was subjected to discrimination, retaliation, and negligence during her employment. On July 22, 2015, she entered a settlement agreement with the DOI, under the terms of which she agreed to release all claims that she brought, or could have brought, arising out of her employment. In consideration for the release, the DOI agreed to write a neutral letter of recommendation and to pay Ms. Wu $200, 000. Shortly afterwards, however, Ms. Wu attempted to revoke the settlement agreement. She returned to work and received a stressful assignment that caused her to lose sleep and, at some point, fall, hit her head, and suffer a traumatic brain injury (TBI). Meanwhile, the DOI moved to enforce the settlement agreement. Ms. Wu again changed course, withdrew her opposition to the settlement, and consented to the motion to enforce. Accordingly, the district court entered an order enforcing the settlement agreement and, on August 17, 2015, entered the stipulated dismissal with prejudice.

Nearly three years later, on May 31, 2018, Ms. Wu moved under Fed.R.Civ.P. 60(b)(6) to set aside the stipulated dismissal. She argued that she signed the settlement agreement under duress and fraudulent circumstances. She claimed she was under duress because the DOI's attorney moved to enforce the settlement agreement after she suffered the TBI. She asserted there was fraud because the DOI's attorney sought to enforce the settlement agreement to cover-up alleged criminal conduct of Ms. Wu's supervisor. She further claimed there were extraordinary circumstances warranting relief: she suffered a TBI, she became impoverished after the district court entered the stipulated dismissal, the DOI breached the settlement agreement by failing to provide her with a neutral letter of recommendation, and her attorney was negligent in handling the settlement.

Then, on August 20, 2018, Ms. Wu filed another Rule 60(b)(6) motion, this time seeking to set aside the settlement agreement and the order enforcing it. Repeating many of the same arguments made in her May 31 motion, sometimes verbatim, Ms. Wu asserted she signed the settlement agreement involuntarily and based on fraudulent misrepresentations.

The district court denied both motions. The court first declined to set aside the stipulated dismissal, ruling that Ms. Wu's allegations of fraud should have been brought under Rule 60(b)(3), which is subject to a one-year deadline for seeking relief. The court concluded her motion was untimely and, in any...

To continue reading