UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUDITH PLOTKIN, Doctor,

Plaintiff-Appellant,

v.

BRUCE A. LEHMAN, officially,

Assistant Secretary of Commerce,

Commissioner of Patents and

No. 98-1638

Trademarks; JANE S. MYERS,

individually and officially, Director,

Information Services; JOSEPH JONES,

individually; GLORIA GUTIERREZ,

individually; WAYNE YOSHINO,

individually,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CA-98-216-A)

Submitted: April 13, 1999

Decided: April 30, 1999

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John M. DiJoseph, Ted Kavrukov, KAVRUKOV, MEHROTRA &

DIJOSEPH, Arlington, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Rachel C. Ballow, Assistant United States

Attorney, Alexandria, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Judith Plotkin appeals the district court order dismissing her claims

under the Rehabilitation Act of 1973, 29 U.S.C.A.§§ 701-797 (West

1985 & Supp. 1998), and the Fifth Amendment. We affirm.

Plotkin first asserts that the law of the case doctrine barred the district court from adjudicating Defendants' motion to dismiss because

the district court for the District of Columbia denied that motion in

its order transferring the case to the Eastern District of Virginia. Plotkin's claim is misplaced. "Interlocutory orders, including denials of

motions to dismiss, remain open to trial court reconsideration, and do

not constitute the law of the case." Perez-Ruiz v. Crespo-Guillen, 25

F.3d 40, 42 (1st Cir. 1994). The fact that a different district court may

have made the initial ruling is of no consequence. See Tang v. Rhode

Island, Dep't of Elderly Affairs, 163 F.3d 7, 11 (1st Cir. 1998) (recognizing that ruling of one trial judge does not preclude another trial

judge from reconsidering interlocutory ruling). Therefore, the district

court did not err in ruling on the motion.

Plotkin next claims that the district court erred in finding that the

principles of res judicata barred the relitigation of her claim under the

Rehabilitation Act of 1973. This court reviews de novo the district

court's determination that Plotkin's claim under the Rehabilitation

Act was barred on res judicata grounds. See Gray v. Farley, 13 F.3d

142, 145 (4th Cir. 1993). "Res judicata precludes the assertion of a

claim after a judgment on the merits in a prior suit by parties or their

privies based on the same cause of action." Meekins v. United Transp.

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Union, 946 F.2d 1054, 1057 (4th Cir. 1991). To successfully plead the

doctrine, a party must show: (1) a final judgment on the merits in a

prior suit; (2) an identity of the cause of action in both the earlier and

the later suit; and (3) an identity of parties or their privies in the two

suits. Id. We find no error in the district court's determination that

these prerequisites were met. Plotkin had a full and fair opportunity

to raise her claim under the Rehabilitation Act in her 1994 action and

the principles of res judicata bar her from relitigating the claim.

Plotkin's final claim is that the temporary suspension of her user

pass enabling her to access the Patent and Trademark Office ("PTO")

facilities violated her procedural due process rights. To maintain a

procedural due process claim, Plotkin must establish that she had a

protected property or liberty interest. See Mathews v. Eldridge, 424

U.S. 319, 332 (1976). Assuming without deciding that Plotkin has a

protected property or liberty interest in accessing the PTO facilities,

the district court correctly found that the lack or a pre-deprivation

hearing did not violate Plotkin's due process rights. This court looks

to three factors in assessing what procedures are mandatory prior to

the deprivation of a protected liberty or property interest: the private

interest that will be affected by the official action, the risk of an erroneous deprivation of such interest, and the government's interest and

the burdens that additional procedural requirements would entail. See

Scott v. Williams, 924 F.2d 56, 59 (4th Cir. 1991) (citing Mackey v.

Montrym, 443 U.S. 1, 10 (1979)). After reviewing these factors, we

agree with the district court that the temporary suspension of Plotkin's

user pass without a hearing did not violate her procedural due process

rights.

We therefore affirm the district court's order awarding Defendants

summary judgment on Plotkin's claims. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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