UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

LIMING WU, 

 Plaintiff - Appellant, 

v. 

DEB HAALAND, Secretary of the 

United States Department of 

Interior;* UNITED STATES 

DEPARTMENT OF INTERIOR, 

Bureau of Land Management; NEW 

MEXICO STATE OFFICE, DOI 

BLM; ADEN SEIDLITZ; BUREAU 

OF LAND MANAGEMENT; 

UNITED STATES OF AMERICA, 

 Defendants - Appellees. 

No. 20-2067 

(D.C. Nos. 1:14-CV-00150-RB-KRS, 

1:17-CV-00113-MV-LF, 

1:18-CV-00813-KBM-SCY) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT**

_________________________________ 

Before TYMKOVICH, Chief Judge, HOLMES, and BACHARACH, 

Circuit Judges. 

* During the pendency of this appeal, Ms. Deb Haaland became 

Secretary of the United States Department of the Interior. She is thus 

substituted for Mr. David Bernhardt as the defendant-appellee. See Fed. R. 

App. P. 43(c)(2). 

** We conclude that oral argument would not materially help us to 

decide the appeal, so we have decided the appeal based on the record and 

the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). 

Our order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value if 

otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 8, 2021

Christopher M. Wolpert 

Clerk of Court
2 

_________________________________ 

This appeal stems from the district court’s denial of pro se plaintiff 

Ms. Liming Wu’s motion to reconsider orders based on newly discovered 

evidence. In that motion, Ms. Wu sought to set aside a settlement 

agreement. The district court denied the motion, characterizing it as a 

motion under Federal Rule of Civil Procedure 60(b). We affirm, concluding 

that the district court did not abuse its discretion. 

1. Background

 Ms. Wu worked as a geologist for the United States Department of 

the Interior (DOI), Bureau of Land Management. Ms. Wu sued the DOI’s 

Secretary, claiming discrimination (based on her race, national origin, and 

age), retaliation, and negligence. She entered a settlement agreement with 

the DOI, which required dismissal of her claims and retirement from the 

DOI. In exchange, the DOI would pay $200,000 and provide a neutral letter 

of recommendation. The agreement allowed Ms. Wu to revoke the 

agreement through written notice. To exercise this option, Ms. Wu had to 

deliver the notice of revocation in time for it to be received within seven 

days at a given address. R., Vol. 1 at 118. 

Ms. Wu tried to revoke the agreement by sending notice through 

FedEx’s standard overnight service. But the notice was not delivered until 

the eighth day. (Another federal agency received the notice on the sixth 
3 

day, but that wasn’t the agency identified in the agreement to receive the 

notice.) 

Ms. Wu returned to work, but she fainted after her first day back and 

suffered a traumatic brain injury. The DOI moved to enforce the 

agreement, and Ms. Wu consented. The district court thus granted the 

motion, Ms. Wu accepted $200,000, and the parties stipulated to dismissal 

of the action with prejudice. 

Roughly three years later, Ms. Wu moved to set aside the stipulated 

order of dismissal, the agreement, and the order enforcing the agreement. 

The district court treated the motions as Rule 60(b) motions and denied 

relief. 

Ms. Wu also filed two more suits in 2017 and 2018, asserting claims 

involving her employment with the DOI. The district court dismissed part 

of the 2017 suit and allowed Ms. Wu to file a fifth amended complaint on 

the surviving claims. The court dismissed the 2018 action as duplicative of 

the first. 

Instead of filing a fifth amended complaint in the 2017 action, 

Ms. Wu appealed, seeking review of various orders from the three actions. 

We dismissed that appeal in part for lack of jurisdiction and otherwise 

affirmed. See Wu v. Bernhardt, 820 F. App’x 669, 671 (10th Cir. 2020). 

While that appeal was pending, Ms. Wu moved for relief under 

Rule 60(b). (We refer to this as “the third Rule 60(b) motion.”) In the 
4 

motion, Ms. Wu did not say which order she wanted reconsidered. The 

court assumed that Ms. Wu wanted reconsideration of an order issued in 

February 2019, which had denied the first two Rule 60(b) motions. 

In denying the third Rule 60(b) motion, the court addressed Ms. Wu’s 

argument that two pieces of new evidence showed coercion into 

withdrawing her objection to the DOI’s motion to enforce the agreement. 

One piece of evidence was a generic medication instruction in an 

after-visit note from a March 2019 doctor’s visit. The note showed a 

recommendation that if Ms. Wu were to obtain sedative medications, she 

should not make any important decisions or sign any legal documents. The 

court determined that the note had not related to Ms. Wu’s mental state in 

August 2015 (when she consented to enforcement of the settlement 

agreement). The second piece of evidence was a text message that 

Ms. Wu’s employer had sent shortly after the fall: 

Please call me in the morning to tell me the . . . prognosis and 

what your plan for the week is. If you will not be attending work, 

I will need a doctor note no later than Thursday by noon. I hope 

this is not serious and you feel better soon. 

R., Vol. 1 at 719. Ms. Wu characterized the text as coercion to acquiesce in 

the DOI’s motion to enforce. The district court rejected this 

characterization. 

 Ms. Wu also complained of the employer’s filing of a redacted 

motion to enforce the agreement. Ms. Wu characterized the redaction as an 
5 

effort to cover up earlier efforts to coerce her into acquiescing in the 

motion to enforce the agreement. The district court disagreed for two 

reasons. First, the redaction did not delete documents from the court’s 

electronic filing system, so the court could still access the unredacted 

version. Second, the redactions simply avoided public disclosure of two 

categories of information: (1) the name, address, and account information 

for payment of the $200,000 and (2) the tax identification number for Ms. 

Wu’s attorney. The court found no intent by the DOI to harm Ms. Wu and 

declined to reconsider the February 2019 order. 

 Ms. Wu also alleged violation of the Older Workers Benefits 

Protection Act, which provides that a waiver of rights under the Age 

Discrimination in Employment Act must be knowing and voluntary. The 

court first examined two of the requirements for an individual’s waiver of 

an age-discrimination claim: (1) the individual must be “given a period of 

at least 21 days within which to consider the agreement,” 29 U.S.C. 

§ 626(f)(1)(F)(i); and (2) the agreement must “provide[] that for a period 

of at least 7 days following the execution of such agreement, the individual 

may revoke the agreement,” id. § 626(f)(1)(G). The court concluded that 

these requirements do not apply to the settlement of a court action. 

Though the court concluded that the DOI had satisfied the statute, 

Ms. Wu argued that the agreement was voidable because the DOI had not 

sent a neutral letter of recommendation. The court disagreed, explaining 
6 

that Rule 60(b) provided the only available remedy and the DOI’s failure 

to send the letter had not justified relief. R., Vol. 1 at 768. The court added 

that Ms. Wu had failed to address 

 “why the DOI’s provision of the letter in response to [an 

earlier] motion [was] insufficient to accomplish justice” or 

 “why she did not simply ask the DOI to provide the letter 

earlier.” 

Id. at 768-69 (citation & internal quotation marks omitted). 

2. Appellate Jurisdiction

 We first address the existence and scope of our jurisdiction. In the 

notice of appeal, Ms. Wu referred only to the district court’s denial of the 

third Rule 60(b) motion. Because this is the only order identified in the 

notice of appeal, our jurisdiction does not extend beyond this order. See 

Williams v. Akers, 837 F.3d 1075, 1078 (10th Cir. 2016) (stating that the 

requirement for designation of the order being appealed is jurisdictional). 

Even if the notice of appeal had encompassed the preceding orders, 

however, “the timely filing of a notice of appeal in a civil case [would be] 

a jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). 

The only order timely appealed was the denial of the third Rule 60(b) 

motion. 

The deadline for the notice of appeal was the 60th day following 

entry of the underlying order. Fed. R. App. P. 4(a)(1)(B)(i). The district 

court clerk file-stamped the denial of the third Rule 60(b) motion on 
7 

March 16, 2020. But this order was not entered on the civil docket until 

March 17. See R., Vol. 1 at 13 (text for docket entry 132). So the 60-day 

period began to run on March 17 and ended on Saturday, May 16. Because 

the last day of the period was a Saturday, Ms. Wu’s notice of appeal was 

due the following Monday, which was May 18. See Fed. R. App. 

P. 26(a)(1)(C). Because Ms. Wu filed her notice of appeal on May 18, the 

notice was timely as to the March 16 order. But the notice of appeal would 

have been late as to the earlier orders. So irrespective of the limited scope 

of the notice of appeal, our jurisdiction would be confined to review of the 

March 16 order.1

Ms. Wu cannot skirt these jurisdictional limitations by virtue of the 

district court’s treatment of the third Rule 60(b) motion as requesting 

reconsideration of its February 2019 order denying her first two Rule 60(b) 

motions. “An appeal from a denial of a Rule 60(b) motion addresses only 

the district court’s order denying the motion, and not the underlying 

1

 In her reply brief, Ms. Wu quotes Davis v. Passman, 442 U.S. 228 

(1979), for the proposition that the district court had subject-matter 

jurisdiction over the preceding rulings. The district court did have subjectmatter jurisdiction, but subject-matter jurisdiction differs from an 

appellate court’s jurisdiction. See Arthur Anderson LLP v. Carlisle, 556 

U.S. 624, 628 n.3 (2009) (“[T]here are good reasons for treating subjectmatter jurisdiction differently . . . from the appellate jurisdiction here 

conferred.”). 
8 

decision itself.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 

(10th Cir. 2000).2

3. Standard of Review 

 We review the denial of a Rule 60(b) motion for “an abuse of 

discretion, keeping in mind that Rule 60(b) relief is extraordinary and may 

only be granted in exceptional circumstances.” Lebahn v. Owens, 813 F.3d 

1300, 1306 (10th Cir. 2016) (internal quotation marks omitted). An abuse 

of discretion occurs when a district court’s ruling “is arbitrary, capricious, 

whimsical or manifestly unreasonable[,] or when we are convinced that the 

district court made a clear error of judgment or exceeded the bounds of 

permissible choice in the circumstances.” Dodge v. Cotter Corp., 328 F.3d 

1212, 1223 (10th Cir. 2003) (internal quotation marks omitted). 

4. Revocation of the Settlement Agreement 

Invoking the Older Workers Benefits Protection Act, Ms. Wu denies 

that she had enough time to consider or revoke the settlement of her agediscrimination claim. We disagree. 

Under that Act, waiver through settlement of a court action is 

“knowing and voluntary” only upon satisfaction of “subparagraphs (A) 

2

 In her reply brief, Ms. Wu reurges her constitutional claims and 

criticizes a prior opinion that found improper claim splitting. Wu v. 

Bernhardt, 820 F. App’x 669, 676–77 (10th Cir. 2020) (unpublished). But 

the third Rule 60(b) motion did not address any constitutional claims or 

claim-splitting. 
9 

through (E) of paragraph (1).” 29 U.S.C. § 626(f)(2). But there’s nothing 

to require satisfaction of subparagraphs (F) and (G), which set forth the 

time periods to consider a settlement and revoke it. Under § 626(f)(2), a 

claimant can settle a court action involving an age-discrimination claim 

without waiting a specified number of days. See Walters v. Wal-Mart 

Stores, Inc., 703 F.3d 1167, 1173 (10th Cir. 2013). So the district court 

correctly concluded that the statutory timing provisions (21 days to 

consider a waiver and 7 days to revoke the waiver) do not apply. 

Ms. Wu argues that the district court’s decision conflicts with Oubre 

v. Entergy Operations, Inc., 522 U.S. 422 (1998). We disagree. Oubre

concerned an employee’s release of claims “as part of a termination 

agreement,” id. at 423, not a settlement of a court action.3

 

In her reply brief, Ms. Wu contends that the agreement violated 

§ 626(f)(1)(C), which provides that “the individual does not waive rights 

or claims that may arise after the date the waiver is executed.” “We 

generally do not consider arguments raised for the first time in a reply 

3

 Though the statutory provision for revocation does not apply, the 

settlement agreement specified that Ms. Wu had seven days to revoke the 

settlement agreement. The third Rule 60(b) motion does not address 

satisfaction of the settlement agreement’s provision for revocation. The 

agreement is specific about revocation by stating that the Director of the 

Office of Civil Rights had to receive the notice of revocation within seven 

days at Mailstop 4310, 1849 C Street, N.W., Washington, D.C. 20240. R., 

Vol. 1 at 118. 
10 

brief.” Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 676 n.9 

(10th Cir. 2016). 

But this contention would fail even if we were to consider it. The 

agreement states that it resolved all claims “arising out of or relating to 

Plaintiff’s employment with the Agency, up to and including the date [she] 

signs this Settlement agreement.” R., Vol. 1 at 117. This provision 

necessarily excluded any waiver of rights or claims that may have arisen 

after the date of the waiver. So the district court did not abuse its 

discretion in concluding that the agreement satisfies § 626(f)(1)(C). 

5. Alleged Failure to Provide a Neutral Letter of Recommendation

In a prior appeal, we rejected Ms. Wu’s argument that the alleged 

failure to provide a neutral letter of recommendation would justify 

avoidance of the stipulated dismissal. We explained that “[a]bsent any 

basis for setting aside the stipulated dismissal, the district court properly 

declined to set aside the [agreement].” Wu v. Bernhardt, 820 F. App’x 669, 

675 (10th Cir. 2020). That ruling constitutes the law of the case. See 

Dobbs v. Anthem Blue Cross & Blue Shield, 600 F.3d 1275, 1279-80 

(10th Cir. 2010) (explaining that an appellate decision on a rule of law 

governs the same issue in later stages of the same case). So we will not 

second-guess our prior opinion on this issue. 
11 

6. New Evidence

In moving for reconsideration, Ms. Wu submitted a doctor’s note 

from 2019, recommending caution if she’d received sedation. But Ms. Wu 

had agreed to the settlement 3-1/2 years earlier. Given the timing, the 

district court discounted the doctor’s note because Ms. Wu had never 

presented any evidence that she was under the influence of a sedative when 

she agreed to the settlement. Ms. Wu does not present any reason to 

question this conclusion. 

7. Deletion of the Original Motion to Enforce the Settlement 

Agreement

Ms. Wu also argues that a defense attorney tinkered with the docket 

system, deleting a motion to enforce the settlement agreement. The district 

court explained that the clerk’s office (not defense counsel) sealed the 

motion because the document contained private financial information as to 

Ms. Wu and her counsel. So the court found that nothing had been deleted. 

Ms. Wu again does not present any reason to question this finding. 
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8. Conclusion

 We affirm the denial of the third Rule 60(b) motion.4

Entered for the Court 

Robert E. Bacharach 

Circuit Judge 

4

 We also deny the government’s motion to dismiss this appeal as moot 

because the government withdrew the motion.