ALD-353                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 16-1143
                                    ___________

                               AMBROSIO ROUSE,
                                          Appellant

                                          v.

                            II-VI INCORPORATED;
                       BRUCE GLICK, individual capacity;
                      CSABA SZELES, individual capacity;
                  SAMUEL J. PASQUARELLI, individual capacity;
                    BEVERLY A. BLOCK, individual capacity;
                    FRANCIS J. KRAMER, individual capacity;
                     CARL J. JOHNSON, individual capacity;
                 JUDGE MARILYN J. HORAN, individual capacity;
               JUDGE CHERYL LYNN ALLEN, individual capacity;
              JUDGE SALLIE UPDYKE MUNDY, individual capacity;
               JUDGE CORREALE F. STEVENS, individual capacity;
                JUDGE JOHN L. MUSMANNO, individual capacity
                    ____________________________________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                           (D.C. Civil No. 2-13-cv-00065)
                    District Judge: Honorable Arthur J. Schwab
                    ____________________________________

          Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 21, 2016
            Before: AMBRO, SHWARTZ, and NYGAARD, Circuit Judges

                            (Opinion filed: July 26, 2016)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Ambrosio Rouse appeals pro se from orders of the United States District Court for

the Western District of Pennsylvania, which, inter alia, denied his motion to reopen his

civil action and his petition for a preliminary injunction. We will affirm the District

Court’s judgment.

       In January 2013, Rouse filed a complaint in the District Court, seeking to relitigate

several employment discrimination cases that he had brought in Pennsylvania state court

against his former employer, II-VI Incorporated. His federal complaint added civil

conspiracy allegations against the attorneys and state court judges who were involved in

those cases. On August 26, 2013, the District Court granted the defendants’ motions to

dismiss and, in a separate order, denied three then-pending motions that had been filed by

Rouse. After the District Court denied his motion for reconsideration, Rouse appealed.

We summarily affirmed, concluding that Rouse’s claims were foreclosed by claim and

issue preclusion, barred by judicial immunity, and untimely under the applicable statute

of limitations. 1 In re Rouse, C.A. No. 13-4233 (order entered June 10, 2014).




*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  At the same time, we also denied a mandamus petition in which Rouse sought to
challenge Judge Schwab’s denial of his motion for recusal.

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       Shortly thereafter, Rouse filed in the District Court a motion to reopen the

proceedings. The District Court denied that motion, citing the law of the case doctrine.

Rouse filed “exceptions” to that order. By order entered August 28, 2014, the District

Court denied Rouse’s exceptions. Rouse filed a notice of appeal. We again summarily

affirmed, concluding that the District Court did not abuse its discretion in denying the

motion to reopen as there was no change in controlling law, new evidence, or a need to

correct a clear error of law. Rouse v. II-VI Inc., 609 F. App’x 62, 64 (3d Cir. 2015)

(nonprecedential opinion), cert. denied, 

(2015). We also denied

Appellees’ motion for fees and costs pursuant to Federal Rule of Appellate Procedure 38.

Rouse also filed a mandamus petition, which we denied. We concluded that Rouse’s

allegations pertained solely to his displeasure with legal rulings and failed to set forth a

reasonable basis for questioning Judge Schwab’s impartiality. In re Rouse, 582 F. App’x

132 (3d Cir. 2014) (nonprecedential opinion).

       On December 11, 2015, Rouse filed a motion to reopen, asking the District Court

to consider his complaint and rule on all of his causes of actions. Rouse also filed a

motion for preliminary injunction, alleging that the Pennsylvania Superior Court violated

his rights under 42 U.S.C. § 1981 by denying his request for publication of an opinion of

the court. The District Court denied both motions, holding that they were foreclosed by

claim and issue preclusion, barred by judicial immunity, and were untimely under the

statute of limitations.

       Rouse filed a notice of appeal on January 19, 2016, seeking review of (1) the

orders denying Rouse’s motions for a hearing, to extend the time limit for service, for a

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hearing on the propriety of judicially noticed facts, for recusal, and for reconsideration, as

well as the order dismissing the complaint (“the 2013 orders”), (2) the orders denying

Rouse’s motions for reconsideration and to reopen (the 2014 orders), and (3) the order

denying Rouse’s motions to reopen and for a preliminary injunction entered on December

17, 2015. Appellees filed a filed a joint motion to summarily affirm, which Rouse

opposes. Appellees have also filed a separate motion to award damages and costs under

Federal Rule of Appellate Procedure 38, which Rouse opposes.

       We have jurisdiction under 28 U.S.C. § 1291 of Rouse’s appeal of the District

Court’s December 17, 2015, order. However, we lack jurisdiction over Rouse’s appeals

of the 2013 orders and the 2014 orders as the notice of appeal was untimely filed as to

them. Fed. R. App. P. 4(a)(1)(A) (“[i]n a civil case, … the notice of appeal required by

Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or

order appealed from.”). Moreover, no party filed any timely post-judgment motion as

enumerated in Rule 4(a)(4)(A), and, thus, no exception to this rule applies.

       Rouse’s December 2015 motions to reopen and for injunctive relief were

predicated on claims previously addressed by this Court. As we have indicated

previously, the law-of-the-case doctrine generally bars reconsideration of issues already

resolved. See Atl. Coast Demolition & Recycling, Inc. v. Bd. of Chosen Freeholders of

Atl. Cnty., 

, 663 (3d Cir. 1997). The traditional exceptions to the law-of-

the-case doctrine, an intervening change in the controlling law, new evidence that was

not available, or a need to correct a clear error of law, do not apply here. 

see

Max’s Seafood Café v. Quinteros, 

, 673 (3d Cir. 1999). Accordingly, there

                                              4
is nothing that calls into doubt our previous determination that the judicial defendants are

immune from liability, Stump v. Sparkman, 

, 356 (1978); Azubuko v.

Royal, 

, 303 (3d Cir. 2006) (per curiam), that the claims are foreclosed by

claim and issue preclusion, see Burlington N. R.R. Co. v. Hyundai Merchant Marine Co.,

Ltd., 

, 1231 (3d Cir. 1995), and that the claims are untimely under the

applicable statute of limitations, Kach v. Hose, 

, 634 (3d Cir. 2009).

       Turning to Appellees’ motion to award damages and costs, Rule 38 allows, but

does not require, us to award damages and costs to appellees where an appeal is

frivolous. Fed. R. App. P. 38. For purposes of Rule 38, an appeal is frivolous when,

viewed objectively, it is wholly without merit, i.e. when there is no “colorable argument”

in support of the appeal. Mellon Bank Corp. v. First Union Real Estate Equity & Mortg.

Invs., 

, 1413 (3d Cir. 1991); Huck v. Dawson, 

, 52 (3d Cir.

1997). Awards under Rule 38 are based on the merits of the appeal; we do not consider

whether an appellant has acted “out of malice, ignorance, or deceit.” Beam v. Bauer, 

, 108 (3d Cir. 2004). Rule 38 serves “to make whole a party victimized by

needlessly having to expend money for attorney’s fees to protect a valid judgment from a

baseless attack.” 

reasons we have just detailed, Rouse’s appeal is objectively frivolous. See

. Rouse had ample notice that this appeal had no merit. The

District Court in denying Rouse’s motion for leave to appeal in forma pauperis clearly

explained that an appeal was without merit and not taken in good faith. See Kerchner v.

Obama, 

, 210 (3d Cir. 2010) (“[i]n the past, we cautioned counsel that a

                                             5
finding by a District Court that a lawsuit is frivolous should serve as notice to the parties

and their attorney to exercise caution, pause, and devote additional examination to the

legal validity and factual merit of his contentions.”) (internal quotations and citation

omitted). In addition, Rouse failed to heed either the District Court’s conclusion that his

assertions were “nonsense” or our own previous dismissals of his appeals. For the third

time since we affirmed the District Court’s original decision, Rouse comes to this Court

expressing his displeasure with legal rulings but fails to present any colorable argument

for reviewing them. We note, too, that Rouse was put on notice of the possibility of an

award for damages and fees in this case when the Appellees requested sanctions after

Rouse’s previous appeal.

       Proponents of sanctions shoulder an obligation to mitigate the harm from frivolous

appeals. Berwick Grain Co. v. Ill. Dep't of Agric., 

, 506 (7th Cir. 2000)

(citation omitted). Appellees have requested nearly $6,000 in attorney’s fees for

preparing a single motion. Although this motion was not required, Appellees were able

to use our summary action procedure to good effect and will not have to file a brief. See

Local Appellate Rule 27.4(b); Fed. R. App. P. 27(a)(2)(C). Taking into account Rouse’s

status as a pro se litigant, we believe that the requested amount is not just under the

circumstances. 2 However, because we do not wish to reward this frivolous appeal, we

will pare down, rather than eliminate, the Appellees’ damages. See Berwick Grain 

.


2
 Rouse does not challenge the amount of damages requested, only the propriety of the
sanction.
                                              6
      For the foregoing reasons, we will grant the Appellees’ motion to summarily

affirm the District Court’s order. See 3d Cir. LAR 27.4; I.O.P. Ch. 10.6. We also grant

the motion for Rule 38 damages in the amount of $1,000.00.




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