Filed: Sep. 12, 2013
Latest Update: Mar. 28, 2017
Summary: ECF No. 332.1, We note that Mr. Leo made a related argument in at least one previous, postjudgment motion filed under Rule 60(b)(1)—that Garmin diverted the district, court, mid-case, to rule on the 2007 Software Engineer position rather than the 2008, Embedded Software Engineer position.
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 12, 2013
Elisabeth A. Shumaker
Clerk of Court
ALEX HUAQIANG LEO,
Plaintiff-Appellant,
v. No. 13-3114
(D.C. No. 2:09-CV-02139-KHV)
GARMIN INTERNATIONAL, INC., (D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior
Circuit Judge.
Alex Huaqiang Leo appeals from four orders of the district court. In one
order, the court denied his postjudgment motion, and in another, the court denied his
motion for an order to show cause regarding the taking of judicial notice. In the
other two orders, the court directed its Clerk not to file Mr. Leo’s notices of appeal
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
from the order denying his motion to show cause. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
Mr. Leo twice sought positions as a software engineer with Garmin
International, Inc. The first time was in June 2007, a position he refers to as
“Software Engineer.” He was not hired. The second time was in January or
February 2008 for a position referred to as an “Embedded Software Engineer.”
When he was not hired for that job, he filed a charge of age discrimination with the
Equal Employment Opportunity Commission (EEOC) (Mr. Leo was 46 years old at
the time). The EEOC dismissed his charge and issued him a right to sue letter.
With that letter in hand (and attached to his complaint), Mr. Leo filed suit
pro se, asserting two claims under the Age Discrimination in Employment Act of
1967 (ADEA) (disparate treatment and disparate impact) and a claim under Title VII
of the Civil Rights Act of 1964 asserting that Garmin refused to hire him because he
is Chinese. The district court dismissed the disparate impact and Title VII claims for
failure to exhaust administrative remedies because he never presented them to the
EEOC. The district court also granted summary judgment to Garmin on the disparate
treatment claim because Mr. Leo could neither establish a prima facie case of
discrimination nor show that Garmin’s reasons for its employment decision were a
pretext for age discrimination. We affirmed those rulings. See Leo v. Garmin Int’l,
Inc., 431 F. App’x 702, 704-05 (10th Cir. 2011).
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Obviously dissatisfied, Mr. Leo continued to litigate his case with multiple and
voluminous postjudgment motions, none of which were successful. He also filed two
separate, equally unsuccessful actions. Eventually, in his original case, the district
court terminated his electronic filing privileges and ordered him to seek permission
before filing any additional motions in the case or file any new case that appears
related to the issues in the present one. This court also terminated Mr. Leo’s
electronic filing privileges and determined that one of his appeals (from the denial of
seven of his postjudgment motions in this case) was frivolous, warranting an award
of attorney’s fees to Garmin as a sanction. We remanded for the district court to
determine the appropriate amount of attorney’s fees. See Leo v. Garmin Int’l, Inc.,
464 F. App’x 744, 746 (10th Cir. 2012).
Despite all of these adverse decisions, Mr. Leo has continued on what Garmin
once “aptly describe[d] as [his] litigation odyssey,” Leo v. Garmin Int’l, Inc.,
464 F. App’x 737, 738 (10th Cir.) (internal quotation marks omitted), cert. denied,
133 S. Ct. 484 (2012). He filed another Rule 60(b)(4) motion in his initial case
against Garmin, the denial of which is part of this appeal. He asked the district court
to take judicial notice of what he termed “adjudicative facts” and to determine that
Garmin had fraudulently diverted the court into considering and ruling on Garmin’s
refusal to hire him for the 2007 Software Engineer position rather than the 2008
Embedded Software Engineer position. Based on those allegations, Mr. Leo argued
that the district court lacked subject matter jurisdiction because he had not exhausted
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his administrative remedies as to Garmin’s refusal to hire him for the 2007 Software
Engineer position. See Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1306,
1317 (10th Cir. 2005) (holding that administrative exhaustion is a jurisdictional
prerequisite to an ADEA suit).1
In a terse, text-only docket entry, the district court denied that motion, stating
that Mr. Leo had “presented no basis for the Court to vacate any prior orders in this
case.” ECF No. 330. The court also overruled (also in a text-only docket entry)
Mr. Leo’s motion for an order to show cause why the court had not taken judicial
notice of the adjudicative facts he had presented. ECF No. 332. The court reminded
him of its earlier ruling that he must seek permission before filing any new
documents in the case and warned him that if he failed to abide by the court’s order,
it would impose a $500 sanction without further notice. Id.
Mr. Leo appealed from ECF No. 330. He also filed a notice of appeal from
ECF No. 332. The district court ordered its Clerk of Court not to file that notice of
appeal because Mr. Leo had not sought the court’s permission to file it. ECF No. 340
(text-only docket entry). Mr. Leo filed a second notice of appeal from ECF No. 332,
1
We note that Mr. Leo made a related argument in at least one previous
postjudgment motion filed under Rule 60(b)(1)—that Garmin diverted the district
court, mid-case, to rule on the 2007 Software Engineer position rather than the 2008
Embedded Software Engineer position. The district court denied that motion, and we
affirmed that denial. See Leo v. Garmin Int’l, Inc., 464 F. App’x 740, 742-43
(10th Cir.), cert. denied, 133 S. Ct. 178 (2012).
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and the court once again ordered its Clerk not to file it due to its earlier order
requiring him to seek the court’s permission. ECF No. 343 (text-only docket entry).
Mr. Leo then filed a notice of appeal in this court, which we construed as an
amended notice of appeal and ordered the district court to file it as such. We
concluded that the scope of our appeal is limited to the orders (1) denying the
Rule 60(b)(4) motion (ECF No. 330); (2) denying the motion for an order to show
cause (ECF No. 332); and (3) the orders directing the clerk not to file Mr. Leo’s
notices of appeal (ECF Nos. 340 and 343). Garmin has elected not to participate in
this appeal.
We review the district court’s denial of Mr. Leo’s Rule 60(b)(4) motion
de novo. See United States v. Buck, 281 F.3d 1336, 1344 (10th Cir. 2002). Because
he is pro se, we afford his filings a liberal construction, but we do not act as his
advocate. See Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
Regarding the denial of his Rule 60(b)(4) motion, Mr. Leo restates the
argument he presented to the district court. That argument stretches the limits of
credulity far beyond the breaking point. Our review of the record confirms that the
parties litigated, and the court decided, whether Garmin violated the ADEA when it
refused to hire Mr. Leo for the Embedded Software Engineer position he applied for
in 2008, not the Software Engineer position he applied for in 2007. Although, as
Mr. Leo points out, the word “Embedded” is omitted from the position title in various
places in the record, there is no doubt that the subject of the litigation was Garmin’s
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refusal to hire him for the position he applied for in 2008, not its refusal to hire him
for the position he applied for in 2007. The 2008 refusal was the subject of a charge
of discrimination Mr. Leo filed with the EEOC and attached to his complaint; hence,
that claim was exhausted. And federal district courts undoubtedly have Article III
jurisdiction over ADEA claims. Thus, the district court properly exercised
jurisdiction in this case, and we see no abuse of discretion in the district court’s
denial of Mr. Leo’s Rule 60(b)(4) motion or its failure (in ECF No. 332) to provide a
detailed, reasoned basis for refusing to take judicial notice of the purported
adjudicative facts Mr. Leo presented to the court. We further conclude that
Mr. Leo’s appeal from the court’s rulings in ECF Nos. 330 and 332 is frivolous, and
we caution him that further frivolous appeals may result in appellate filing
restrictions or sanctions.
Mr. Leo also complains that the district court violated his constitutional rights
when it directed its Clerk of Court (in ECF Nos. 340 and 343) not to file his notices
of appeal from ECF No. 332. We see no violation. Courts may restrict a litigant’s
filing rights without violating the Constitution when the litigant has a history of
abusive filing practices. Winslow v. Hunter, 17 F.3d 314, 315 (10th Cir. 1994). The
district court here imposed filing restrictions on Mr. Leo because of such practices,
requiring him to seek permission to file any further documents in this case. He failed
to comply with this requirement. Therefore, the district court did not violate his
constitutional rights.
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For the foregoing reasons, we affirm the district court’s text-only rulings set
out in ECF Nos. 330, 332, 340, and 343.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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