Richardson v. McHugh

Filing 11

MEMORANDUM Signed by Judge Catherine C. Blake on 10/24/2011. (c/m 10/24/2011 CH/aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOHNNY D. RICHARDSON

:

:
v.
:
:
THE HONORABLE JOHN M. MCHUGH, :
Secretary of the Army
:
:

Civil Action No. CCB-11-2607

MEMORANDUM
Plaintiff Johnny D. Richardson, a former employee of the Department of the Army (“the
Army”), brought a claim for breach of contract against the Honorable John M. McHugh, the
Secretary of the Army, in Maryland state court on August 18, 2011. The claim, filed pro se, is
substantially similar to a claim that Mr. Richardson previously brought in this court in 2008. See
Richardson v. Geren, 2009 WL 1313224 (D. Md. May 8, 2009). As the instant case is a civil suit
against a federal officer and agency, it was properly removed to this court pursuant to 42 U.S.C.
§ 1442. The Army has now filed a motion to dismiss the case. Mr. Richardson has filed a
response brief, and the Army has filed a reply. No oral argument is necessary. See Local Rule
105.6 (D. Md. 2011). The motion will be granted.
On May 24, 2007, Mr. Richardson and the Army entered into a Negotiated Settlement
Agreement (“NSA”) to resolve a discrimination complaint. The NSA specified that, prior to his
resignation, Mr. Richardson would be afforded “75 calendar days” of paid administrative leave.
(ECF No. 2 at 4). In Mr. Richardson’s initial claim, he alleged that the Army breached the
agreement by affording him only fifty-seven days of paid administrative leave, because it
included weekend days as part of its calculation of “calendar days.” He argued that the term
“calendar days” was ambiguous, that there was no meeting of the minds as to its meaning, and
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therefore that the contract should be voided and he should be reinstated to his position. This
court granted the Army’s motion to dismiss, or, in the alternative, for summary judgment, on two
grounds. First, it found that Mr. Richardson had failed to timely exhaust his administrative
remedies by notifying the Army’s EEO director within 30 days of notice of the alleged
noncompliance, as required by the NSA and the applicable EEOC regulation, 29 C.F.R. §
1614.504(a). And, second, it found that the term “calendar days” was not ambiguous, and
therefore the contract was not void. Richardson, 2009 WL 1313224 at *1. The decision was
affirmed on appeal by the Fourth Circuit. Richardson v. Geren, 370 Fed.Appx. 385 (4th Cir.
2010).
In this new suit, Mr. Richardson again argues that the Army breached the NSA by failing
to afford him seventy-five paid days of administrative leave. The complaint contains no new
arguments, though Mr. Richardson raises new arguments in his response to the Army’s motion to
dismiss. There, he claims that the statutory definition of annual and sick leave provided by 5
U.S.C. 6302 provides the proper lens for interpreting the language of the NSA, and that he
signed the contract only under duress. (ECF No. 8 at 4). He again seeks reinstatement, but also
$2,000 in monetary damages.
The Army argues that the new suit should be dismissed under the doctrine of res judicata,
which operates to “bar[ ] a party from relitigating a claim that was decided or could have been
decided in an original suit.” Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161 (4th Cir.
2008). Because Mr. Richardson’s 2008 lawsuit was a federal court matter in this district court,
the preclusive effect of res judicata on the claims raised in that suit is determined by federal law.
See Grausz v. Englander, 321 F.3d 467, 472 (4th Cir. 2003). And, under federal law, an earlier
claim bars a later one when: “1) the prior judgment was final and on the merits, and rendered by

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a court of competent jurisdiction in accordance with the requirements of due process; 2) the
parties are identical, or in privity, in the two actions; and, 3) the claim[ ] in the second matter [is]
based upon the same cause of action involved in the earlier proceeding.” Id. (alterations in
original) (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1315 (4th Cir. 1996)).
Res judicata may not apply, however, where the district court has dismissed the first case
“on alternative grounds, one procedural and one substantive.” Pizlo v. Bethlehem Steel Corp.,
884 F.2d 116, 119 (4th Cir. 1989) (citation omitted) (“When a dismissal is based on two
determinations, one of which would not render the judgment a bar to another action on the same
claim, the dismissal should not operate as a bar.”). It is not entirely clear whether the dismissal
for failure to satisfy administrative exhaustion deadlines would be sufficient to establish claim
preclusion, although Stebbins v. Nationwide Mutual Insurance Co., 528 F.2d 934 (4th Cir.1976),
supports that result in this case. Cf. Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir. 1996) (noting
that “[a] decision by a federal court that . . . an administrative deadline bars an action is a
decision on the merits for the purposes of claim preclusion”).
In the alternative, the related doctrine of collateral estoppel bars Mr. Richardson’s
attempt to relitigate the exhaustion question. Collateral estoppel “forecloses the relitigation of
issues of fact or law that are identical to issues which have been actually determined and
necessarily decided in prior litigation in which the party against whom [collateral estoppel] is
asserted had a full and fair opportunity to litigate.” Sedlack v. Braswell Servs. Group, Inc., 134
F.3d 219, 224 (4th Cir.1998) (internal quotation marks and citation omitted).
Whether considered under claim preclusion or issue preclusion, this suit is barred. The
previous ruling was final, valid, and affirmed by the Fourth Circuit. The facts in this case remain
exactly the same as they were two years ago. Mr. Richardson has taken no steps to remedy his

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jurisdictional problem. Indeed, because of the time limit of the administrative remedy, there is no
way he can do so. Mr. Richardson had a full and fair opportunity to litigate the exhaustion issue
in his prior appearance before this court. Further, it remains true that the term “75 calendar
days” in the NSA was not ambiguous. The Army’s interpretation of the document is correct.
For all of the foregoing reasons, this case is dismissed. A separate order follows.

October 24, 2011
Date

/s/ 

Catherine C. Blake
United States District Judge

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