United States Court of Appeals
Fifth Circuit
F I L E D
April 28, 2003
UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_______________________
Summary Calendar
No. 02-50948
_______________________
RICHARD ARIZPE; ET AL.,
Plaintiffs,
RICHARD ARIZPE,
Plaintiff-Appellant,
versus
NORMAN Y. MINETA, SECRETARY, DEPARTMENT OF
TRANSPORTATION; FEDERAL AVIATION ADMINISTRATION,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, San Antonio Division
02-CV-115
_________________________________________________________________
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Pro se appellant Richard Arizpe challenges the district
court’s grant of summary judgment in favor of appellees Norman Y.
Mineta and the Federal Aviation Administration (“the FAA”) on his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
claims under Title VII, 42 U.S.C. § 2000e, et seq. (2000); the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (2000);
and the Privacy Act of 1974, 5 U.S.C. § 551-552 (2000). Arizpe
also challenges various other rulings of the district court.
Finding no error, we affirm.
Arizpe originally filed this suit, pro se, purportedly on
behalf of himself and fifteen other plaintiffs. The district court
dismissed without prejudice the claims of the fifteen other
purported plaintiffs because Arizpe, who is not an attorney, was
the only plaintiff to have signed the pleadings and motions.
Arizpe’s claims challenged the FAA’s method of realigning
and reorganizing agency personnel within the FAA’s Airway
Facilities System (AFS) in the mid-1990's pursuant to the federal
government’s National Performance Review. Arzipe claimed that the
FAA’s selection processes were used during the realignment to
discriminate on the basis of race, national origin, age, and
gender. The district court granted summary judgment against
Arizpe’s individual claims because, inter alia, they were barred
under the doctrine of res judicata. The district court held that
a prior suit filed by Arizpe in federal court for the Western
District of Texas also challenged the reassignment and relocation
of FAA employees resulting from the 1995 realignment of the AFS
organization in the agency’s Southwest Region. The court in
2
Arzipe’s prior suit granted summary judgment on Arizpe’s Title VII
claims alleging discrimination based on national origin.
An action is barred under res judicata if the parties are
identical in both actions, the prior judgment was rendered by a
court of competent jurisdiction, the prior judgment was final on
the merits, and the cases involve the same cause of action.
Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 37 F.3d
193, 195 (5th Cir. 1994). This court employs a transactional test
to determine if two cases involve the same cause of action. Under
the transactional test, the court determines whether the claims in
this case are based on the same nucleus of operative facts as the
claims brought in the prior case. Id. As the district court
found, both of Arizpe’s cases challenge the FAA’s 1995 realignment
and reassignment of employees. The instant suit differs from the
prior suit only because it adds race, age, and gender as alleged
bases of discrimination. Since these claims arise out of the same
nucleus of operative facts as the prior case and the claims could
have been brought as part of the prior case, their relitigation is
barred by the transactional test, hence, the district court
correctly granted summary judgment on all of Arizpe’s claims.1
1
Arizpe also argues that the grant of summary judgment
violated his constitutional right to a trial by jury. This
argument is frivolous.
3
Arizpe also challenges the district court’s denial of his
motion to order the FAA to reprioritize his job duties so that he
could more ably prosecute this case. Arizpe failed to cite any
authority to the district court or this court supporting an award
of such extraordinary relief. The district court did not err in
denying Arizpe’s motion.
Arizpe next argues that he is entitled to a default
judgment because the FAA never filed an answer before the district
court. Arizpe did not raise this issue before the district court,
but in any event, the argument is wholly without merit because the
FAA timely filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b).
Arizpe challenges the court’s denial of his motion
seeking to disqualify any attorney from the FAA’s office of the
Assistant Chief Counsel for the Southwest Region from participating
in this case. Arizpe makes unsubstantiated claims that an attorney
employed by the Assistant Chief Counsel’s office engaged in the
destruction of evidence. Again, Arizpe cites no factual support or
legal authority to support his motion. The district court did not
abuse its discretion in denying this motion.
Finally, Arizpe asks this court to enjoin the FAA from
destroying documents relevant to this case. Once again, Arizpe’s
4
argument, which was never raised before the district court is
completely unsubstantiated.
The judgment of the district court is therefore
AFFIRMED.
5