COOPER v. JACKSON et al

Filing 23

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 4/23/2013. (KD)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROBERT F. COOPER, JR.,
Plaintiff,
v.
GREGORY JACKSON, et al.,
Defendants.

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Civil No. 12-1340 (RMC)

OPINION
Pro se Plaintiff Robert Cooper, Jr., brought this suit regarding events that
occurred decades ago. Because some of his claims were barred by statutes of limitations, those
claims were dismissed. See Order [Dkt. 3]. Mr. Cooper seeks reconsideration and reversal of
the order dismissing those claims. Defendants oppose reconsideration and also seek dismissal of
the remaining claims on res judicata grounds. Both matters are fully briefed. As explained
below, Mr. Cooper’s motion for reconsideration will be denied and Defendants’ motion to
dismiss will be granted.
I. FACTS
In 1981, Mr. Cooper was employed as a Metropolitan Police Department (MPD)
police officer. Midway through his probationary first year, in June 1981, he was dismissed. He
brought suit in federal court in that year challenging his dismissal and seeking reinstatement. See
Mot. to Dismiss [Dkt. 12], Ex. 1 [Dkt. 12-1] (Cooper v. Barry, Civ. No. 81-2883, slip op. at 1
(D.D.C. Sept. 27, 1989)). In a January 13, 1984 opinion, the district court ordered MPD to
reinstate him, finding that the dismissal violated Mr. Cooper’s rights to Due Process under the

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Fifth Amendment. Id. MPD required Mr. Cooper to undergo a reinstatement physical exam on
May 30, 1985 and a reinstatement psychiatric exam on October 2, 1985; MPD reinstated Mr.
Cooper on December 22, 1986.
Upon reinstatement, Mr. Cooper was required to undergo another physical exam,
including a drug test. He tested positive for marijuana, and MPD recommended his termination.
Id. at 2. Mr. Cooper unsuccessfully challenged this recommendation before MPD’s Adverse
Action Panel, also known as MPD’s Trial Board. Id. MPD adopted the Panel’s recommendation
of termination, and Mr. Cooper appealed to the Chief of Police. The Chief denied the appeal on
February 15, 1989. Id. Mr. Cooper was terminated on March 11, 1989. Id.
Mr. Cooper continued to challenge his termination. Much litigation ensued, as
described below, with courts sometimes ruling in favor of Mr. Cooper and other times ruling in
favor of the MPD. In the end, Mr. Cooper’s termination was upheld.
The additional litigation regarding Mr. Cooper’s termination proceeded as
follows: After his termination on March 11, 1989, Mr. Cooper requested a hearing before the
Office of Employee Appeals (OEA). He alleged that MPD tampered with his urine sample,
rendering faulty results, and thus MPD should not have been allowed to use the urine sample as
evidence for his termination. See Mot. to Dismiss, Ex. 2 [Dkt. 12-2] (Metropolitan Police Dep’t
v. D.C. Office of Employee Appeals, 2008 CA 8607, slip op. at 2 (D.C. Super. Ct. Feb. 7, 2012)).
Mr. Cooper also raised constitutional claims. The OEA rejected Mr. Cooper’s arguments and
affirmed the ruling of the Trial Board. Id.
While the OEA appeal was pending, Mr. Cooper filed in federal district court a
motion for contempt and to enforce the 1984 judgment requiring reinstatement. Mr. Cooper
alleged that MPD acted improperly by requiring him to take a physical exam and that he was

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treated unfairly as a “marked man.” Cooper, Civ. No. 81-2883, slip op. at 3. The district court
denied the motion, noting that Mr. Cooper was in fact reinstated as ordered. Id. Further, the
court explained the OEA, as the relevant administrative body, was the proper forum for
addressing Mr. Cooper’s claims. Id. at 5-6.
Mr. Cooper appealed the OEA ruling to the full OEA Board. He again raised his
claim that MPD should not have used his urine sample as evidence. He did not appeal the denial
of his constitutional claims. The OEA Board determined that MPD had not established a proper
chain of custody and remanded the case for consideration of the irregularities in the custody
chain. On remand, the administrative judge reversed the ruling of the Trial Board. MPD
appealed, and the ruling of the administrative judge was affirmed. MPD then filed a petition in
D.C. Superior Court, asking that the OEA decision requiring reinstatement be vacated and that
the Trial Board’s first decision terminating Mr. Cooper’s employment be affirmed. Metropolitan
Police Dep’t, 2008 CA 8607, slip op. at 3. The D.C. Superior Court vacated the OEA decision
and remanded the case to the Trial Board for reimposition of the original order that terminated
Mr. Cooper. Id. at 9. The Superior Court concluded that the OEA had erred in reversing the
Trial Board’s ruling because the OEA had transgressed its appellate authority. The Trial Board’s
decision to admit the urine specimen was supported by substantial evidence, and the OEA was
not permitted to substitute its judgment on appeal. Id. at 7-9. In sum, on February 7, 2012, the
Superior Court affirmed Mr. Cooper’s 1989 termination. Id. 1
Subsequently, on August 8, 2012, Mr. Cooper brought this suit against Gregory
Jackson, D.C. Superior Court Judge; Peter Nickles, former D.C. Attorney General; Frank

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Mr. Cooper moved for reconsideration of the Superior Court’s ruling, but his motion was
denied. See Mot. for Recons. [Dkt. 8], Ex. 2 (Metropolitan Police Dep’t, 2008 CA 8607, slip op.
(D.C. Super. Ct. Apr. 23, 2012)). Mr. Cooper did not appeal.
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McDougald, Assistant Attorney General; Nadine Wilburn, Chief Counsel of the D.C. Labor and
Employment Division; Andrea Comentale, Chief of the D.C. Personnel and Labor Relations
Section; Cathy Lanier, Chief of the D.C. MPD; Jack Raher, Chief Psychiatrist of the Board of
Police and Fire Surgeons; James Wellhouse, Psychiatrist employed by the Board of Police and
Fire Surgeons; Robert Noyes, MPD Captain; Thomas Carroll, MPD Inspector; Robert Boggs,
MPD Captain; and William Ritchie, MPD Captain (collectively, Defendants). He alleges that
Defendants (1) violated the 1984 federal court opinion and order requiring Defendants to
reinstate him; (2) improperly required him to undergo a physical exam in May 1985 and
psychiatric exam in October 1985; (3) labeled him a “sociopath” and a “con man” pursuant to the
examinations; and (4) improperly required him to undergo a second physical exam in 1987. He
further alleges that psychiatric records that he discovered on November 6, 1991 “revealed
defendants’ predisposition to effecting complainant’s disqualification and dismissal.” Compl.
[Dkt. 1] at 8. Mr. Cooper claims defamation, libel, employment discrimination, harassment,
retaliation, and violations of the Fourth, Fifth, Seventh, and Fourteenth Amendments.
The Court sua sponte dismissed Mr. Cooper’s claims for defamation, libel, and
constitutional violations because those claims were barred by statutes of limitations. See D.C.
Code § 12-301(4) (one-year statute of limitations applies to defamation and libel claims); Carney
v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998) (three-year statute of limitations applies to
constitutional claims under 42 U.S.C. § 1983). Those claims were untimely, as the latest actions
alleged in the Complaint occurred or were discovered in 1991, more than twenty years ago.
Mr. Cooper moves for reconsideration of the claims for defamation, libel, and

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violations of the Fourth, Seventh, and Fourteenth Amendments. 2 Defendants oppose and move
for dismissal of the remaining claims of discrimination, harassment, and retaliation based on res
judicata.
II. LEGAL STANDARDS AND ANALYSIS
A. Motion for Reconsideration
Mr. Cooper moves for reconsideration of the order dismissing his claims for
claims for defamation, libel, and constitutional violations due to the applicable statutes of
limitations. Federal Rule of Civil Procedure 54(b), which governs Mr. Cooper’s motion,
provides that “any order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time
before the entry of judgment adjudicating all the claims and all the parties’ rights and liabilities.”
Fed. R. Civ. P. 54(b). Relief under Rule 54(b) is available “as justice requires.” DL v. District of
Columbia, 274 F.R.D. 320, 324 (D.D.C. 2011). “[A]sking ‘what justice requires’ amounts to
determining, within the court’s discretion, whether reconsideration is necessary under the
relevant circumstances.” Cobell v. Norton, 355 F. Supp. 2d 531, 539 (D.D.C. 2005).
Circumstances that may be relevant include whether the court has “patently misunderstood a
party, has made a decision outside the adversarial issues presented to the Court by the parties,
has made an error not of reasoning, but of apprehension, or where a controlling or significant
change in the law or facts [has occurred] since the submission of the issue to the Court.” Ficken
v. Golden, 696 F. Supp. 2d 21, 35 (D.D.C. 2010) (quoting Cobell v. Norton, 224 F.R.D. 266, 272
(D.D.C. 2004)) (alterations in original). A court’s discretion under Rule 54(b) is limited by the
law of the case doctrine and is “subject to the caveat that, where litigants have once battled for
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Mr. Cooper titled his motion for reconsideration as “Motion to Reinstate Claims.” He did not
move to revive the Fifth Amendment claim, and that claim stands dismissed. See Mot. for
Recons. at 1.
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the court’s decision, they should neither be required, nor without good reason permitted, to battle
for it again.” Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005).
Mr. Cooper has not met the standard for reconsideration. He has not shown that
the Court misunderstood him, made a decision outside the issues presented, or made an error of
apprehension. See Ficken, 696 F. Supp. 2d at 35. Nor has he pointed to any significant change
in the law or facts. Id. Instead, Mr. Cooper argues that the statutes of limitations should be
tolled because he has been involved in the extensive litigation described above. This argument
fails because pending administrative proceedings and litigation do not toll limitations periods.
“The pendency of a grievance, or some other method of collateral review of an employment
decision, does not toll the running of the limitations period.” Del. State Coll. v. Ricks, 449 U.S.
250, 261 (1980). In other words, where a plaintiff may concurrently pursue claims independent
of internal grievance procedures, such as those under 42 U.S.C. § 1983 or Title VII, 42 U.S.C.
§ 2000e et seq., courts do not toll the limitations period for those claims. See, e.g., Foster v.
Gonzales, 516 F. Supp. 2d 17, 24 (D.D.C. 2007). Mr. Cooper’s motion for reconsideration will
be denied.
B. Motion to Dismiss
1. Rule 12(b)(6) Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated
a claim. Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) requires that a complaint
contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(1). A complaint must be sufficient “to give a defendant fair notice of what
the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal citations omitted). Although a complaint does not need detailed factual
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allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief “requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Id. The facts alleged “must be enough to raise a right to relief above the
speculative level.” Id. Rule 8(a) requires an actual showing and not just a blanket assertion of a
right to relief. Id. at 555 n.3.
A court must treat a complaint’s factual allegations as true, “even if doubtful in
fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth
in a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at
679.
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508
F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted); see Covad
Commc’ns Co. v. Bell Atlantic Co., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (permitting judicial
notice of facts contained in public records of other proceedings).
2. Res Judicata
Defendants move for dismissal of Mr. Cooper’s claims of discrimination,
harassment, and retaliation pursuant to the doctrine of res judicata. Res judicata, also called
claim preclusion, is an affirmative defense that is generally pleaded in an answer, but also may

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be properly brought in a pre-answer motion to dismiss under Rule 12(b)(6). Hemphill v.
Kimberly-Clark Corp., 530 F. Supp. 2d 108, 111 (D.D.C. 2008). “[U]nder res judicata, ‘a final
judgment on the merits of an action precludes the parties or their privies from relitigating issues
that were or could have been raised in that action.’” Drake v. FAA, 291 F.3d 59, 66 (D.D.C.
2002) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980) (emphasis added)); see I.A.M. Nat’l
Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 947 (D.C. Cir. 1983). That is, res judicata
bars a subsequent suit “if there had 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.” Porter v. Shah, 606 F.3d 809, 813 (D.C. Cir. 2010). 3 Two cases involve the
same cause of action if they share the same “nucleus of facts.” Drake, 291 F.3d at 66
(quoting Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984)). To determine whether two
cases share the same nucleus of facts, courts consider “whether the facts are related in time,
space, origin, or motivation[;] whether they form a convenient trial unit[;] and whether their
treatment as a unit conforms to the parties’ expectations or business understanding or usage.”
Stanton v. D.C. Court of Appeals, 127 F.3d 72, 78 (D.C. Cir. 1997).
Res judicata advances the “purpose for which civil courts have been established,
the conclusive resolution of disputes within their jurisdictions.” Montana v. United States, 440
U.S. 147, 153 (1979). “To preclude parties from contesting matters that they have had a full and
fair opportunity to litigate protects their adversaries from the expense and vexation attending
multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by
minimizing the possibility of inconsistent decisions.” Id. at 153-54. In short, the doctrine
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“A privy is one so identified in interest with a party to the former litigation that he . . .
represents precisely the same legal right in respect to the subject matter of the case––in other
words, a person who or entity that is in privity with the party.” Wilson v. Fulwood, 772 F. Supp.
2d 246, 261 (D.D.C. 2011) (internal quotation marks and citation omitted).
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embodies the principle “that a party who once has had a chance to litigate a claim before an
appropriate tribunal usually ought not to have another chance to do so.” SBC Commc’ns. Inc. v.
FCC, 407 F.3d 1223, 1229 (D.C. Cir. 2005). Thus, a plaintiff is required to present in a single
suit all claims for relief that he may have arising out of the same transaction or occurrence. U.S.
Indus. Inc. v. Blake Constr. Co., Inc., 765 F.2d 195, 205 (D.C. Cir. 1985).
Administrative proceedings have preclusive effect when “the administrative
tribunal ‘is acting in a judicial capacity and resolves issues of fact . . . which the parties have had
an adequate opportunity to litigate,’ and there is an opportunity for judicial review of adverse
decisions.” Bers v. United States, 666 F. Supp. 1, 2 (D.D.C. 1987) (quoting United States v.
Utah Constr. & Mining Co., 384 U.S. 394, 422 (1965)). In Bers, the plaintiff claimed that he
was dismissed in retaliation for whistleblowing. The court found that the claim was barred by
res judicata because the plaintiff had the opportunity to litigate it in prior administrative
proceedings before the Merit Systems Protection Board. Id. at 2-3.
Mr. Cooper litigated his claims before administrative tribunals––the Trial Board
and the OEA––and, finally, in D.C. Superior Court. While his claims for discrimination,
harassment, and retaliation may be different than the precise claims he already litigated, he had
the opportunity to litigate all such claims in the administrative fora and in Superior Court. The
Superior Court issued a final judgment against him on the merits. Res judicata bars this suit
because there has been prior litigation involving the same nucleus of operative facts, between the
same parties or their privies, resulting in a final valid judgment. See Porter, 606 F.3d at 813.
Res judicata precludes Mr. Cooper from relitigating issues that were or could have been raised in
the prior action. See Drake, 291 F.3d at 66. Accordingly, Defendants’ motion to dismiss will be
granted.

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III. CONCLUSION
Mr. Cooper’s motion for reconsideration [Dkt. 8] will be denied. Further, because
res judicata bars Mr. Cooper’s other claims, the Court will grant Defendants’ motion to dismiss
[Dkt. 12]. The Complaint will be dismissed with prejudice. A memorializing Order
accompanies this Memorandum Opinion.

Date: April 23, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge

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