United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
concerns the fourth lawsuit in a series of repetitive civil
actions brought by a pro se plaintiff against this
federal defendant.[*] This order Grants
his motion to dismiss.
three separate cases before this have arisen from the same
pattern of facts. In brief, pro se plaintiff Tatyana
Drevaleva left work at New Mexico Veterans Affairs Medical
Center (VAMC) without proper permission to undergo in-vitro
fertilization in Russia. New Mexico VAMC then fired plaintiff
for being absent without leave. On June 25, 2018, plaintiff
filed the first of the series of lawsuits against the United
States Department of Veterans Affairs and Robert Wilkie in
the United States District Court Northern District of
California. Drevaleva v. U.S. Dep't of Veterans Aff.
and Robert Wilkie, No. C 18-03748 WHA (N.D. Cal. Dec. 3,
2018). Plaintiff has since filed two other complaints in
district court against the same defendants alleging
discrimination and seeking reinstatement to her position.
June 2018 complaint alleged the following: (1) gender and
pregnancy discrimination under Title VII of the Civil Rights
Act; (2) disability discrimination under the ADA and failure
to accommodate under the Rehabilitation Act of 1973; (3) age
discrimination under the Age Discrimination in Employment
Act; (4) tort claims for libel and intentional infliction of
emotional distress; and (5) deprivation of liberty and
property without due process. On December 3, 2018, an order
dismissed the entire suit and denied plaintiff's motion
for preliminary injunction. Her tort and constitutional
claims drew a dismissal with prejudice because Title VII
provided the exclusive remedy for those claims. The order
also dismissed the United States Department of Veterans
Affairs as an improper defendant.
December 2018 order detailed the legal standards for each of
plaintiff's discrimination claims, explained why
plaintiff's complaint was insufficient, and allowed leave
to file an amended complaint. On July 11, 2019, the remaining
claims were dismissed with prejudice and judgment resulted
for Robert Wilkie. Plaintiff appealed the final judgment
which remains pending decision from our court of appeals (No.
18-03748, Dkt. Nos. 154, 155, 157).
instant case originated in December 2018, when she filed with
the Merit Systems Protection Board (MSPB) for review of her
constitutional claims. The MSPB, however, found that it had
no jurisdiction over those claims because it did not consider
her to be a federal employee with the right to appeal to the
MSPB. Plaintiff appealed this decision. The United States
Court of Appeals for the Federal Circuit, however, held that
it had no authority to review plaintiff's constitutional
claims because they arose out of the June 2018 employment
discrimination action filed in district court. The Federal
Circuit found that its jurisdiction did not extend to
reviewing discrimination claims and when “jurisdiction
lies in the district court . . . the entire action falls
within the jurisdiction of that court.” Plaintiff
argued to split her claims so she could pursue her
constitutional claims with the Court of Appeals for the
Federal Circuit and the discrimination claims in district
court. The Federal Circuit did not agree and transferred this
case to the United States District Court Northern District of
California (Dkt. No. 1 at 5-7, 25-26).
argues that both the Federal Circuit and MSPB have
jurisdiction to consider her constitutional claims and asks
for a transfer back to the Federal Circuit. The defense moves
to dismiss plaintiff's claims. This order follows full
briefing and oral argument.
judicata prohibits successive litigation of claims that have
already been litigated as well as those that could have been
litigated based on the same operative facts. 21A Fed. Proc.,
L.Ed. § 51:227. Res judicata is applicable when there is
(1) privity between parties, (2) an identity of claims, and
(3) a final judgment on the merits. Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 713 (9th
Cir.2001). Here, res judicata precludes plaintiff's
claims in the instant suit.
here, there is no question as to the privity of the parties
as plaintiff Tatyana Drevaleva and defendants United States
Department of Veterans Affairs and the Secretary of Veterans
Affairs have been the same named parties to all of the
plaintiff's claims alleged here relate to her termination
from New Mexico VAMC. This is the same grievance previously
decided in Drevaleva v. U.S. Dep't of Veterans Aff.
and Robert Wilkie, No. C 18-03748 WHA.
the United States District Court Northern District of
California entered final judgment on the merits on July 11,
2019. Plaintiff contends that res judicata cannot apply
because our court of appeals has not decided on the appeal of
the July 2019 order. Our court of appeals, however, holds
that “[t]he established rule in federal courts is that
a final judgment retains all of its res judicata consequences
pending decision of the appeal.” Tripati v.
Henman, 857 F.2d 1366, 1367 (9th Cir. 1988). Res
judicata, therefore, applies to the final judgment of the
district court. Plaintiff then argues that the district court
did not dismiss her constitutional claim on the merits. This
order disagrees. The district court held that because
plaintiff's “tort and constitutional claims arise
from the same factual predicate as her discrimination ...