Wu v. Haaland

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

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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
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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.”).

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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.

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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.

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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.
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