Pueschel v. Mineta , 241 F. App'x 71 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1305
DEBORAH KATZ PUESCHEL,
Plaintiff - Appellant,
versus
NORMAN Y. MINETA, in his official capacity as
Secretary, U.S. Department of Transportation,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonard D. Wexler, Senior
District Judge, sitting by designation. (1:01-cv-01471-LDW)
Argued: March 14, 2007 Decided: May 2, 2007
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated and remanded in part, and appeal
dismissed in part by unpublished per curiam opinion.
ARGUED: George Michael Chuzi, KALIJARVI, CHUZI & NEWMAN, P.C.,
Washington, D.C., for Appellant. Ralph Andrew Price, Jr.,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Chuck
Rosenberg, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The plaintiff in the present action, Deborah Katz Pueschel
(Plaintiff), is a former air traffic controller with the Federal
Aviation Administration (the FAA). On August 18, 1992, Plaintiff,
while still employed by the FAA, filed an administrative complaint
with the Equal Employment Opportunity Commission (EEOC) alleging,
inter alia, that the FAA had interfered with her filing of claims
with the federal Office of Worker’s Compensation Programs (OWCP) on
account of her gender, her disability, and in retaliation for her
engaging in protected activity (August 1992 EEOC Complaint). On
September 24, 2001, Plaintiff filed the present action in the
United States District Court for the Eastern District of Virginia
against Norman Y. Mineta, the Secretary of Transportation (the
Secretary), based upon the allegations in her August 1992 EEOC
Complaint. The district court complaint alleged gender
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and
disability discrimination and retaliation in violation of the
Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.
On November 6, 2002, the district court dismissed the present
action in toto under the doctrine of res judicata on the basis that
Plaintiff, having unsuccessfully litigated the same claims in a
prior action, including the Fourth Circuit affirming the judgment,
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see Pueschel v. Slater, 173 F.3d 425 (4th Cir. 1999), could not
relitigate those claims.
With one exception, the Fourth Circuit affirmed, holding that
res judicata barred all but one of Plaintiff’s claims. Pueschel v.
Mineta (Pueschel II), 369 F.3d 345, 349 (4th Cir. 2004) (“We also
hold, however, that her OWCP claim--which alleges that the FAA’s
interference with the processing of her workers’ compensation
claims has resulted in her benefits being improperly taxed--is not
precluded.”). Accordingly, we vacated the district court’s
dismissal of that claim and remanded for further proceedings. Id.
at 356.
On remand from Pueschel II, the district court denied
Plaintiff’s first motion for leave to amend her complaint to add
new claims based upon facts entirely different from those already
alleged in the complaint. The district court also set the case for
trial solely on the remanded claim. The magistrate judge removed
(from the docket) as moot, Plaintiff’s second motion for leave to
amend the complaint, which motion sought to add another new claim
based upon facts entirely different from those already alleged in
the complaint as well as an entirely new legal theory. Ultimately,
the district court dismissed the remanded claim pursuant to the
Secretary’s motion to dismiss for failure to state a claim upon
which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The
district court granted the motion based upon its mistaken belief
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that Plaintiff had voluntarily chosen to abandon prosecution of the
remanded claim and that none of the other allegations which she
sought to litigate on remand were within the scope of the remanded
claim. In this latter regard, the district court expressly
rejected Plaintiff’s argument that, in addition to incidents of
OWCP interference alleged in her August 1992 EEOC Complaint, the
Fourth Circuit had also remanded for further proceedings
allegations of OWCP interference based upon incidents that she
cited in a separate and distinct administrative complaint that she
had filed with the EEOC in 1994.
Plaintiff timely noted the present appeal. In the present
appeal, Plaintiff challenges: (1) the district court’s dismissal
of the remanded claim, which claim she argues included her
allegations of OWCP interference as set forth in her 1994 EEOC
Complaint; (2) the district court’s denial of her first motion for
leave to amend her complaint on remand; (3) the magistrate judge’s
removal (from the docket) as moot her second motion for leave to
amend her complaint; and (4) the district court’s alleged off-the-
record grant of the Secretary’s motion in limine to exclude any
evidence from being introduced at trial concerning alleged
instances of interference by FAA personnel with Plaintiff’s then
pending OWCP claims before 1987 and after the filing of Plaintiff’s
1992 EEOC Complaint.
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Having thoroughly reviewed the parties’ briefs and record on
appeal, and having heard oral argument in this case, we: (1)
affirm the district court’s dismissal of Plaintiff’s complaint in
the present action to the extent the district court held that the
Fourth Circuit did not remand for further proceedings allegations
of OWCP interference based upon the incidents cited in Plaintiff’s
1994 EEOC Complaint; (2) vacate and remand the district court’s
dismissal of Plaintiff’s complaint in the present action to the
extent Plaintiff’s complaint alleges violations of Title VII and
the Rehabilitation Act based upon allegations of OWCP interference
from April 1992 through August 1992 as contained in Plaintiff’s
August 1992 EEOC Complaint (the district court misunderstood
Plaintiff as having abandoned her allegations of OWCP interference
from April 1992 through August 1992); (3) affirm the district
court’s denial of Plaintiff’s first motion for leave to amend; and
(4) affirm the magistrate judge’s removal from the docket of
Plaintiff’s second motion for leave to amend. Finally, we dismiss
the Plaintiff’s appeal as to her assignment of error that the
district court erroneously granted the government’s motion in
limine. We lack appellate jurisdiction to consider this assignment
of error, because Plaintiff failed to comply with Federal Rule of
Appellate Procedure 10(c), which rule sets forth the procedure for
making an appealable record of an otherwise off-the-record ruling.
Cf. United States v. Burns, 104 F.3d 529, 539 (2d Cir. 1997)
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(refusing to review alleged off-the-record ruling because appellant
failed to comply with Federal Rule of Appellate Procedure 10(c)).
As the appealable record stands now, the district court did not
rule upon the Secretary’s motion in limine.
AFFIRMED IN PART, VACATED AND REMANDED
IN PART, AND APPEAL DISMISSED IN PART
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