Plotkin v. Lehman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JUDITH PLOTKIN, Doctor,
Plaintiff-Appellant,
v.
BRUCE A. LEHMAN, officially,
Assistant Secretary of Commerce,
Commissioner of Patents and
No. 98-1638
Trademarks; JANE S. MYERS,
individually and officially, Director,
Information Services; JOSEPH JONES,
individually; GLORIA GUTIERREZ,
individually; WAYNE YOSHINO,
individually,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-98-216-A)
Submitted: April 13, 1999
Decided: April 30, 1999
Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John M. DiJoseph, Ted Kavrukov, KAVRUKOV, MEHROTRA &
DIJOSEPH, Arlington, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Rachel C. Ballow, Assistant United States
Attorney, Alexandria, Virginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Judith Plotkin appeals the district court order dismissing her claims
under the Rehabilitation Act of 1973, 29 U.S.C.A.§§ 701-797 (West
1985 & Supp. 1998), and the Fifth Amendment. We affirm.
Plotkin first asserts that the law of the case doctrine barred the dis-
trict court from adjudicating Defendants' motion to dismiss because
the district court for the District of Columbia denied that motion in
its order transferring the case to the Eastern District of Virginia. Plot-
kin's claim is misplaced. "Interlocutory orders, including denials of
motions to dismiss, remain open to trial court reconsideration, and do
not constitute the law of the case." Perez-Ruiz v. Crespo-Guillen, 25
F.3d 40, 42 (1st Cir. 1994). The fact that a different district court may
have made the initial ruling is of no consequence. See Tang v. Rhode
Island, Dep't of Elderly Affairs, 163 F.3d 7, 11 (1st Cir. 1998) (recog-
nizing that ruling of one trial judge does not preclude another trial
judge from reconsidering interlocutory ruling). Therefore, the district
court did not err in ruling on the motion.
Plotkin next claims that the district court erred in finding that the
principles of res judicata barred the relitigation of her claim under the
Rehabilitation Act of 1973. This court reviews de novo the district
court's determination that Plotkin's claim under the Rehabilitation
Act was barred on res judicata grounds. See Gray v. Farley, 13 F.3d
142, 145 (4th Cir. 1993). "Res judicata precludes the assertion of a
claim after a judgment on the merits in a prior suit by parties or their
privies based on the same cause of action." Meekins v. United Transp.
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Union, 946 F.2d 1054, 1057 (4th Cir. 1991). To successfully plead the
doctrine, a party must show: (1) a final judgment on the merits in a
prior suit; (2) an identity of the cause of action in both the earlier and
the later suit; and (3) an identity of parties or their privies in the two
suits. Id. We find no error in the district court's determination that
these prerequisites were met. Plotkin had a full and fair opportunity
to raise her claim under the Rehabilitation Act in her 1994 action and
the principles of res judicata bar her from relitigating the claim.
Plotkin's final claim is that the temporary suspension of her user
pass enabling her to access the Patent and Trademark Office ("PTO")
facilities violated her procedural due process rights. To maintain a
procedural due process claim, Plotkin must establish that she had a
protected property or liberty interest. See Mathews v. Eldridge, 424
U.S. 319, 332 (1976). Assuming without deciding that Plotkin has a
protected property or liberty interest in accessing the PTO facilities,
the district court correctly found that the lack or a pre-deprivation
hearing did not violate Plotkin's due process rights. This court looks
to three factors in assessing what procedures are mandatory prior to
the deprivation of a protected liberty or property interest: the private
interest that will be affected by the official action, the risk of an erro-
neous deprivation of such interest, and the government's interest and
the burdens that additional procedural requirements would entail. See
Scott v. Williams, 924 F.2d 56, 59 (4th Cir. 1991) (citing Mackey v.
Montrym, 443 U.S. 1, 10 (1979)). After reviewing these factors, we
agree with the district court that the temporary suspension of Plotkin's
user pass without a hearing did not violate her procedural due process
rights.
We therefore affirm the district court's order awarding Defendants
summary judgment on Plotkin's claims. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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