Drevaleva v. Department of Veterans Affairs

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

10 TATYANA EVGENIEVNA DREVALEVA, 11 No. C 19-05927 WHA Plaintiff, 12

v.

13 ORDER DENYING PLAINTIFF'S ROBERT WILKIE, United States MOTION TO VACATE AND 14 Secretary of Veteran’s Affairs, VACATING HEARING 15 Defendant.

17 INTRODUCTION 18 Pro se plaintiff Tatyana Drevaleva has filed three previous employment suits against 19 various Veterans Affairs offices and officers alleging discrimination for her termination and 20 for their refusal to rehire her after she left without leave. Here, in her fourth of six lawsuits, 21 Ms. Drevaleva’s claims have been previously dismissed as res judicata (Dkt. No. 34). 22 Ms. Drevaleva now objects, filing: (1) a Rule 60 motion for relief from judgment; and 23 (2) an affidavit of bias and prejudice. For the following reasons, all relief is DENIED. 24 First, Ms. Drevaleva does not satisfy her burden under Rule 60. A Rule 60(a) motion for 25 relief from judgment corrects clerical mistakes or mistakes arising from oversight or omission 26 in an order. A Rule 60(b) motion permits relief from a judgment, where “appropriate to 27 accomplish justice,” in cases such as a party’s excusable neglect, opposing party’s misconduct, 1 discovery of new evidence, lack of subject-matter jurisdiction, or other “extraordinary 2 circumstances.” See Henson v. Fidelity Nat’l Fin., Inc., 943 F.3d 434, 443 (9th Cir. 2019). 3 Ms. Drevaleva argues no such errors in her motion. Instead she conveys her disagreement, 4 raises new claims, and re-litigates issues already addressed in the dismissal order. She fails to 5 point to specific errors of law, new material facts, misconduct, or extraordinary circumstances 6 warranting relief. Rule 60 permits district judges to realize and repair a glaring error without 7 troubling the court of appeals. There is no such instance here. 8 Ms. Drevaleva argues res judicata was misapplied because no privity exists between 9 Ms. Drevaleva and the Secretary of Veteran Affairs and that she raised new claims (Dkt. No. 10 37 at 30). Res judicata continues to be applicable whenever there exists (1) identity of claims, 11 (2) a final judgment on the merits, and (3) privity between parties. Tahoe-Sierra Pres. 12 Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (internal 13 citations and quotations omitted). Ms. Drevaleva raised the same claims that have been 14 already dismissed in case number C 19-02665 WHA against the same defendant, the Secretary 15 of Veteran Affairs (Dkt. No. 34). 16 Additionally, Ms. Drevaleva argues this Court lacks subject-matter jurisdiction over her 17 own lawsuit. The United States Court of Appeals for the Federal Circuit already addressed this 18 question. Ms. Drevaleva, additionally, concedes subject-matter jurisdiction when she asserts 19 in her motion that the United States Court of Appeals for the Federal Circuit “transferred [her] 20 claim to the District Court because [her] discrimination claims had been already pending there” 21 (Dkt. No. 37 at 20). In its order to transfer Ms. Drevaleva’s matter to this district, the United 22 States Court of Appeals for the Federal Circuit stated that it did “not have authority to decide 23 Ms. Drevaleva’s case.” It stated that “[a]lthough we have jurisdiction to review decisions of 24 the Board [of Veteran Affairs] concerning personnel actions . . . our jurisdiction does not 25 extend to cases in which the petitioner pursues a discrimination claim.” The Federal Circuit 26 then explained that while Ms. Drevaleva had timely filed her petition for review, she 27 simultaneously had filed complaints in the Northern District of California alleging 1 Appeals for the Federal Circuit when she filed in the Northern District of California (Dkt. No. 2 1 at 2). Thus, the United States Court of Appeals for the Federal Circuit confirmed this Court 3 properly retains subject-matter jurisdiction. 4 Second, the undersigned judge has carefully considered Ms. Drevaleva’s affidavit of bias 5 and prejudice and continues to appreciate Ms. Drevaleva’s vigorous disagreement with prior 6 rulings. However, as with prior affidavits to disqualify (see, e.g., No. C 19-03748 WHA, 7 Dkt. No. 102; No. C 19-02665 WHA, Dkt. No. 44), the undersigned judge remains determined 8 to give Ms. Drevaleva fair hearings and proceedings (see No. C 19-03748 WHA, Dkt. No. 9 129). All rulings against Ms. Drevaleva cut to the merits, not to any bias. Indeed, other judges 10 of our District, taking Ms. Drevaleva’s affidavits of bias on referral, have already found no bias 11 or impropriety (see id., Dkt. No. 138). As already ordered, there will be no further referrals on 12 grounds of bias (see No. C 19-02665 WHA, Dkt. No. 67). The undersigned judge continues to 5 13 assure Ms. Drevaleva she will continue to be heard fairly, impartially, and in accord with the 14 law, but she must also appreciate that her prolix and repetitive litigation of the same basic issue 3 15 may lead to a sanction. a 16 Ms. Drevaleva’s motion for relief under Rule 60 and to disqualify is DENIED. This order 3 17 hereby VACATES hearing on this motion, originally scheduled for March 12, 2020. 18 19 IT IS SO ORDERED. 20 21 Dated: March 2, 2020. Pee 22 (> WILLIAM ALSUP 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28