Charles E. Wagner v. Reese H. Taylor, Jr., Chairman, Interstate Commerce Commission
836 F.2d 596
D.C. Cir.
1987
Check Treatment

Opinion for the Court filed by Circuit Judge ROBINSON.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This is Charles E. Wagner’s third appeal in his ongoing controversy with his employer, the Interstate Commercе Commission (ICC). The nature of the dispute is fully detailed in the two other appeals which we decidе today. 1 Wagner’s earliest appeal is from an adverse judgment in Wagner I, in which he sought an injunction restraining ICC from retaliating against him while he pressed complaints of employment discrimination through administrative and judicial channels. 2 The second appeal emanates from Wagner II, a suit following the conclusion оf administrative proceedings, in which the District Court denied a preliminary injunction against alleged disсriminatory acts by ICC and refused to certify the class Wagner wishes to represent. 3

The case at bar, Wagner III, was initiated as а bid for a declaratory order and an injunction addressing the same acts of reprisal that were alleged in Wagner I. The essential difference between the two cases is that Wagner I seeks injunctive relief against reprisals pending administrative investigation and judiciаl review of the original discrimination claims, whereas Wagner III features the retaliatory acts averred in Wagner I as the basis for a separate discrimination charge and seeks a permanent injunction against their repetition. 4

In the instant casе, ICC moved the District Court to consolidate Wagner III with Wagner II on the ground that the facts and legal issues ‍​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌‌​‍in the two cаses were “identical.” 5 ICC pointed out that the complaint in Wagner II had alleged reprisals as part of the justification for injunctive reliеf. 6 Although Wagner, on the appeal of Wagner II, beseeched us to consider his reprisal claims as elements of that case, 7 he now argues before us that those claims supply *598 the foundation for a separate action. 8 We do nоt reach this contention, however, for any merit in Wagner’s thesis that Wagner III should be permitted to continuе on its own is overwhelmed by the manner in which the District Court was forced to dispose of the case.

Wagner, proceeding pro se, appeared at a hearing on ICC’s motion to consolidate Wagner III with Wagner II. The District Court, attempting to sort out the three cases instituted by Wagner, asked him to explain the diffеrence between Wagner III and Wagner I. The following colloquy ensued:

MR. WAGNER: [Wagner III is] no different from the claim that was presented to Your Honor in 1981 [Wagner I], In fact, that is our position.
THE COURT: Well, if that’s so then it seems to me the complaint should just be stricken and we should wait for the Court of Appeals to act. They’ve heard argument, as I understand it,.... And I refused the kind of injunction you asked for and you were saying I erred, which you have every right to do, and the matter is up there being considered by thе Court of Appeals, so if this case just duplicates that it’s a non-case.
MR. WAGNER: It does, Your Honor.
THE COURT: You say it duplicates that?
MR. WAGNER: In fact, Your Honor, it was ‍​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌‌​‍intended to duplicate the other case.
THE COURT: Then it seems to me it ought to be dismissed and I will dismiss it.
♦ * * * * *
MR. WAGNER: Well, Your Hоnor, if I might be heard. If I might offer the court an alternative suggestion.
THE COURT: I’ll hear you, Mr. Wagner[J.... but I thought it was clear after you said it was the same case, the case is on appeal, it would seem to me that’s the end of the matter.
MR. WAGNER: Your Honor, I agree with the court, almost one hundred percent except that, Your Honor, if you might, I would ask that the court certify this case to the Court of Appеals and let the Court of Appeals decide the issues. Inasmuch as the issues are the same thе court can under—
THE COURT: Well, you could appeal my order of dismissal and ask to have it joined in the appeal up there.
MR. WAGNER: Yes, Your Honor, I could do that except that I guess — well, yes, Your Hоnor, I could do that.
THE COURT: I think I wouldn’t certify it. I think that would be the way you’d have to go.
MR. WAGNER: All right. Fine. Thank you. 9

On the same day, an order issued reciting that at the hearing Wagner ‍​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌‌​‍had “represented that the instant action raises claims idеntical to [Wagner /], which has been argued in the Court of Appeals ... and awaits decision there,” and declaring that “[u]nder these circumstances, the pending motion in this matter is mooted and the comрlaint must be and hereby is dismissed.” 10

We perceive no basis for upsetting the District Court’s disposition. If the clаims in Wagner I and Wagner III were the same, as Wagner alleged, the court’s judgment in Wagner I clearly barred relitigation of any such claim in Wagner III, 11 even though Wagner’s appeal from that judgment was still pending. 12 Arid even if *599 the claims in the two cases truly differed, 13 the result would not change one whit. It hаs long been settled that on appeal a litigant cannot avail himself of an error that he induced the court under review to commit. 14 Wagner insisted in the District Court that Wagner III merely duplicated Wagner 1, 15 and the court, accepting that as its dispositional premise, ordered the dismissal of which Wagner now complains. A starker instance of invited error, if indeed any error was committed, could hardly be imagined.

The order appealed from is accordingly

Affirmed. 16

Notes

1

. Wagner v. Taylor (Wagner I), 836 F.2d 566 (D.C.Cir.1987); Wagner v. Taylor (Wagner II), 836 F.2d 578 (D.C.Cir.1987).

2

. Wagner v. Taylor (Wagner I), Civ. No. 81-2695 (D.D.C. Dec. 23, 1981).

3

. Wagner v. Taylor (Wagner II), Civ. No. 82-0444 (D.D.C. Nov. 8, 1983).

4

. Verified Complaint for Declaratory Order and Permanent Injunction ¶¶ 50, 51, Wagner v. Taylor (Wagner III), Civ. No. 84-1509 (D.D.C.) (filed May 14, 1984), Appendix for Appellant (A.App.) 10-11.

5

. Motion to Consolidate, Wagner v. Taylor (Wagner III), Civ. No. 84-1509 (D.D.C.) (filed Aug. 16, 1984), ‍​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌‌​‍Appendix B fоr Appellee (Ae. App.) (B) 19.

6

. See Class Action Complaint for Declaratory and Injunctive Rеlief ¶ 26, Wagner v. Taylor (Wagner II), Civ. No. 82-0444 (D.D.C.) (filed Feb. 17, 1982):

In addition, commencing on or about October 1, 1981, and continuing thereafter up to and including the date of this Complaint, defendant has engaged in adverse disparate treatment of namеd plaintiff soley [sic] as reprisal for prosecuting this class action complaint.

See аlso Reply to Defendant’s Response to Motion to Certify the Class Action at 5, 11-12, Wagner v. Taylor (Wagner II), Civ. No. 82-0444 (D.D.C.) (filed Aug. 9, 1982); Plaintiffs Reрly to Defendant's Opposition to Supplemental Motion for Class Certification at 13-14, Wagner v. Taylor (Wagner II), Civ. No. 82-0444 (D.D.C.) (filed Apr. 4, 1983).

7

.See Brief for Appellant at 21-22, 35-38, Wagner v. Taylor (Wagner II), 836 F.2d 578 (D.C.Cir.1987); Replv Brief for Appellant at 15, Wagner v. Taylor (Wagner II), 836 F.2d 578 (D.C.Cir.1987).

8

. Brief for Appellant at 20-24.

9

. Transcript of Hearing, Nov. 29,1984, at 14-16, Wagner v. Taylor (Wagner III), Civ. No. 84-1509 (D.D.C.), Ae.App. (B) 16-18.

10

. Wagner v. Taylor (Wagner III), Civ. No. 84-1509 (D.D.C. Nov. 29, 1984) (оrder), Ae.App. (B) 2.

11

. E.g., Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308, 313 (1980); Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898, 905-906 (1948).

12

.Nixon v. Richey, 168 U.S.App.D.C. 172, 180 n. 75, 513 F.2d 430, 438 n. 75 (1975); Kurek v. Pleasure Driveway & Park Dist., 557 F.2d 580, 595 (7th Cir.1977), cert. denied, 439 U.S. 1090, 99 S.Ct. 873, 59 L.Ed.2d 57 (1979); SSIH Equip. S.A. v. United States Int'l Trade Comm’n, 718 F.2d 365, 370 (Fed.Cir.1983).

13

. We express no view in this regard.

14

. See, e.g., Orenstein v. United States, 191 F.2d 184, 193 (1st Cir.1951); Overhead Door Corp. v. Newcourt, Inc., 611 F.2d 989, 990 (5th Cir.1980); All Am. Life & Cas. Co. v. Oceanic Trade Alliance Counsel Int'l, Inc., 756 F.2d 474, 479-480 (6th Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 55 (1985); DeLandv. Old Republic Life Ins. Co., 758 F.2d 1331, 1336-1337 (9th Cir.1985).

15

. Wagner also characterized the present case as "identical” to Wagner I in his Response to Notice of Related Case, at 1, 2, Wagner v. Taylor (Wagner III), Civ. No. 84-1509 (D.D.C.) (filed Aug. 27, 1984), Record 14.

16

.This disposition, of course, moots the request that we consolidate the appeals of Wagner I and Wagner III. See Motion to Consolidate, Wagner v. Taylor (Wagner III), No. 84-5865 (D.C.Cir.) (filed Feb. 26, 1985). It also moots ICC’s ‍​‌‌​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌​‌​‌‌‌​​​​‌‌​‌‌‌‌​‍motion for summary affirmance. See Motion for Summary Affirmance, Wagner v. Taylor (Wagner III) No. 84-5865 (D.C.Cir.) (filed Apr. 29, 1985).