JOHNSON v. UNITED STATES OF AMERICA et al
MEMORANDUM OPINION. Signed by Judge Rosemary M. Collyer on 1/27/2012. (lcrmc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DUANE J. JOHNSON,
UNITED STATES OF AMERICA et al.,
Civ. Action No. 11-1075 (RMC)
In this action removed from the Superior Court of the District of Columbia,
plaintiff Duane Joseph Johnson, proceeding pro se, alleges that in 1994, “the United States and
the District of Columbia permitted Steven J. McCool to impersonate a federal prosecutor in the
District of Columbia [and] while unlawfully impersonating a federal prosecutor, McCool . . .
influenced police to arrest Plaintiff and urged witnesses to report to the grand jury and give false
testimony against [him] . . . .” Compl. Mr. Johnson seeks $5 million for defendants’
“negligence.” Id. The United States moves to dismiss the complaint on the ground of either res
judicata or collateral estoppel. Because the legitimacy of Mr. McCool’s prosecuting authority
was adjudicated in a previous action, this action is barred. Hence, the Court will grant the United
States’ motion to dismiss under Fed. R. Civ. P. 12(b)(6).1
“[T]he defense of res judicata . . . while having a ‘somewhat jurisdictional character’ . .
. does not affect the subject matter jurisdiction of the district court.” Smalls v. U.S, 471 F.3d 186,
189 (D.C. Cir. 2006) (quoting SBC Commc’ns Inc. v. FCC, 407 F.3d 1223, 1229-30 (D.C. Cir.
2005)) (other citations omitted).
1. The Legal Standard
The doctrine of res judicata, or claim preclusion, bars the court from hearing
“repetitious suits involving the same cause of action once a court of competent jurisdiction has
entered a final judgment on the merits .” United States v. Tohono O‘Odham Nation, ––– U.S.
–––, 131 S.Ct. 1723, 1730 (2011) (citation and internal quotation marks omitted). The doctrine
bars a subsequent lawsuit if there has been prior litigation (1) involving the same claims or cause
of action, (2) between the same parties or their privies, and (3) there has been a final, valid
judgment on the merits, (4) by a court of competent jurisdiction. Small v. United States, 471
F.3d 186, 192 (D.C. Cir. 2006) (citations omitted). Res judicata prevents the relitigation of
claims that were actually litigated in a prior suit and those that could have been litigated but were
not. Allen v. McCurry, 449 U.S. 90, 94 (1980); see Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir.
2002) (Res judicata bars the relitigation “of issues that were or could have been raised in [the
prior] action.” (emphasis in original) (quoting Allen, 449 U.S. at 94); I.A.M. Nat’l Pension Fund
v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 (D.C. Cir. 1983) (noting that res judicata “forecloses
all that which might have been litigated previously”). Thus, it relieves parties of the cost and
vexation of multiple lawsuits, conserves judicial resources, prevents inconsistent decisions, and
encourages reliance on adjudication. Montana v. United States, 440 U.S. 147, 153–54 (1979). In
addition, res judicata and the related doctrine of collateral estoppel “preclude parties from
contesting matters that they have had a full and fair opportunity to litigate.” Id. at 153.
“Under the  doctrine of collateral estoppel, or issue preclusion, an issue of fact
or law that was actually litigated and necessarily decided is conclusive in a subsequent action
between the same parties or their privies.” Johnson v. Duncan, 746 F. Supp. 2d 163, 168
(D.D.C. 2010). When the determination “is essential to the judgment, [it] is conclusive in a
subsequent action between the parties, whether on the same or a different claim.” Consolidated
Edison Co. of New York v. Bodman, 449 F.3d 1254, 1258 (D.C. Cir. 2006) (citation and internal
quotation marks omitted); see Allen, 449 U.S. at 94 (“Under collateral estoppel, once a court has
decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation
of the issue in a suit on a different cause of action involving a party to the first case.”); but see
id. (recognizing that “the Court has eliminated the requirement of mutuality [of parties] in
applying collateral estoppel to bar relitigation of issues decided earlier in federal-court suits . . .
.”) (citation omitted); Novak v. World Bank, 703 F.2d 1305, 1309 (D.C. Cir. 1983) (“Although in
the past the doctrine of mutuality applied to both res judicata and collateral estoppel, the
Supreme Court in recent decisions has virtually eliminated the mutuality requirement for
collateral estoppel.”) (citing cases).
Mr. Johnson’s challenge to Mr. McCool’s authority to prosecute him has been
decided by this Court more than once in actions against Mr. McCool or the United States as the
substituted defendant. See Johnson v. Sullivan, 748 F. Supp. 2d 1, 13 n.6. (D.D.C. 2010) (“The
plaintiff's challenge [to] the validity of the certification [pursuant to 28 U.S.C. § 2679(d)] filed by
McCool is meritless . . . . Even if the certification were invalid, the plaintiff cannot now be
allowed to undermine the validity of the criminal proceedings on the ground that McCool had not
taken a valid oath of office. ”) (citations omitted); Johnson v. McCool, No. 10-0634 (D.D.C. May
12, 2010) (dismissing for failure to state a claim Mr. Johnson’s action for a writ of quo warranto,
challenging Mr. McCool’s authority). Hence, the elements of same claim, same parties or
privies, and final judgment on the merits by a court of competent jurisdiction are present to
warrant dismissal of this action on the ground of res judicata.
Even if res judicata does not bar this action, Mr. Johnson would be collaterally
estopped from relitigating Mr. McCool’s prosecuting authority because that issue was necessarily
decided by the Court’s previous acceptance of the United States Attorney’s certification that “Mr.
McCool was acting within the scope of his employment as an assistant United States attorney at
the time of the allegations stated in the complaint,” Johnson, 748 F. Supp. 2d 1 at 13, and its
rejection of Mr. Johnson’s contrary argument, id. n.6.
For the foregoing reasons, the Court will grant the United States’ motion to
dismiss this action as barred under the doctrines of res judicata and collateral estoppel. A
separate Order accompanies this Memorandum Opinion.
ROSEMARY M. COLLYER
United States District Judge
Date: January 27, 2012
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