                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                              )
ROBERT F. COOPER, JR.,                        )
                                              )
               Plaintiff,                     )
                                              )
       v.                                     )       Civil No. 12-1340 (RMC)
                                              )
GREGORY JACKSON, et al.,                      )
                                              )
               Defendants.                    )
                                              )

                                            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


                                                  1
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



                                               2
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



1
 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.
                                                3
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




                                                4
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

2
 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.
                                                   5
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
                                                  6
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



                                                  7
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

3
  “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).
                                                 8
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.



                                                   9
                                     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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