UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) EDWARD RICHARDSON, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-794 (RMC) ) BILLY J. SAULS, et al., ) ) Defendants. ) _________________________________ )

MEMORANDUM OPINION

Edward Richardson, a former employee of the Board of Governors of the Federal

Reserve System, sues eleven current and former Board employees pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics,

(1971), under which

plaintiffs may allege constitutional torts directly against individual federal employees. Mr.

Richardson claims that Defendants violated his constitutional rights by taking various improper

actions related to his job, personnel records, and complaints of discrimination, leading to his

termination and undermining his subsequent attempts to challenge that termination. Defendants

move to dismiss on the grounds that the claims have already been litigated or are barred by

Defendants’ qualified immunity, among other arguments. Because Counts One through Eight in

Mr. Richardson’s Amended Complaint have been litigated fully in a related case, they are barred

by the principles of res judicata and collateral estoppel and will be dismissed. Counts Nine and

Ten will be dismissed because they are untimely. Count Eleven will be dismissed for failure to

state a claim upon which relief may be granted. As a result, the Amended Complaint will be

dismissed in its entirety.

1 I. BACKGROUND

A. Amended Complaint in this Action

Because the facts of this case have been summarized repeatedly in this and related

actions, see Richardson v. Yellen,

(D.D.C. 2016) (Richardson I);

Richardson v. Board of Govs. of the Fed. Res. Sys.,

(D.D.C. 2017)

(Richardson II), the Court provides only a brief summary.

Mr. Richardson worked as a conditional employee for the Board of Governors of

the Federal Reserve System (the Board) in its Law Enforcement Unit (LEU) from June 8, 2009

to June 7, 2010, when his employment was terminated. Am. Compl. for Damages (Am. Compl.)

[Dkt. 21] ¶¶ 3, 21-22. He is an African-American male and a former military police officer who

served in Iraq in 2003. Mr. Richardson previously alleged that his termination was illegal,

stemming from race-based and disability discrimination, see generally Richardson I,

, but those allegations are not the basis of the instant Complaint. Here Mr.

Richardson alleges numerous violations of his constitutional rights by some or all of the eleven

Defendants. As listed in the Complaint, Defendants are Billy Sauls, retired LEU chief; Albert

Pleasant, senior special agent within the Board’s Office of the Inspector General (OIG); Larence

Dublin, LEU lieutenant; Marvin Jones, LEU deputy chief of operations; Kevin May, Human

Resources specialist; Robert Bakale, LEU sergeant and Mr. Richardson’s direct supervisor;

Tyson Coble, LEU administrative lieutenant; Charles O’Malley, retired LEU assistant chief;

Margaret Shanks, Board ombudsman; Keisha Hargo, senior employee relations specialist in HR;

and Andre Smith, an Equal Employment Opportunity (EEO) specialist for the Board. See Am.

Compl. ¶¶ 4-14.

2 Mr. Richardson brings eleven counts by which he alleges constitutional torts

stemming from discriminatory harassment, improper tampering with documents and personnel

records, lying about his termination, and undermining his administrative complaints, among

other trespasses. Count One charges that Defendants Jones, Coble, Dublin, May, Sauls, Bakale,

and O’Malley violated Mr. Richardson’s Fourth Amendment rights when they allegedly

“conspired with one another to remove protected medical records from Plaintiff’s personnel file

that . . . should not have been in the defendants[’] possession.” Id. ¶ 168.

Counts Two and Five allege violations of Mr. Richardson’s rights under the

Fourth and Fifth Amendments, respectively, based on the claim that Messrs. Sauls and Pleasant

illegally obtained Mr. Richardson’s cell phone records “knowing the information used to obtain

those records to be falsified and [a] misrepresentation of facts,” and that they “willfully released”

his phone records to other people. Id. ¶¶ 83-84, 92, 178, 214-15.

Counts Three and Six allege that Mr. May violated the Fourth and Fifth

Amendments, respectively, when he “searched Plaintiff’s personnel file[,] retrieving only

documents that would be most character damaging to Plaintiff,” and “searched through

Plaintiff’s ongoing EEO activity file, removing specific documents, including his own EEO

affidavit and converted those documents to his personal use” by improperly mailing them to

JaCina Stanton of the Maryland Attorney Grievance Commission. Id. ¶¶ 188-89, 229-30.

Count Four alleges that Ms. Shanks and Messrs. Sauls, Bakale, Coble, Jones,

Dublin, and O’Malley violated Mr. Richardson’s Fifth Amendment rights and are liable for

wrongful termination because they “intentionally and callously remov[ed] 22 medical

documents” from Mr. Richardson’s personnel file; the absence of these medical records

3 allegedly deprived Mr. Richardson of the ability to document his medical “call-offs” when

requested; and his termination resulted. Id. at 28-30.

Count Seven alleges that Messrs. Bakale, Dublin, Jones, May, Sauls, Coble, and

O’Malley violated Mr. Richardson’s First Amendment rights by retaliating against him due to his

protected speech and, specifically, that Mr. Bakale “harass[ed]” Mr. Richardson when

confronted about the alleged removal of medical documents and asked Mr. Richardson why he

planned to “tak[e] the illegal removal of medical documents public and to the U.S. Dept. of

Veterans Affairs.” Id. ¶¶ 238-240.

Count Eight alleges that Messrs. Sauls and Pleasant violated Mr. Richardson’s

First Amendment rights by retaliating against him for engaging in protected speech following his

termination: Mr. Richardson claims that Messrs. Sauls and Pleasant “attempted to establish a

falsified investigation against Plaintiff and further attempt[ed] [to] have Plaintiff wrongfully

prosecuted by 4 separate law enforcement agencies,” in retaliation for Mr. Richardson’s “public

disclosures” concerning the removal of his medical documents. Id. ¶¶ 247-49. Also in Count

Eight, Mr. Pleasant is alleged to have investigated another employee for wrongful behavior, who

had not engaged in protected activities and who received a lesser discipline than Mr. Richardson.

Id. ¶¶ 250-52.

Count Nine alleges that Mses. Hargo and Shanks and Messrs. Jones, Sauls,

O’Malley, Bakale, Dublin, Coble, and May violated Mr. Richardson’s rights under the First and

Fifth Amendments by conspiring to retaliate against him and to deny his appeal of his

termination. The crux of count’s allegations is that Ms. Shanks’s purported reason for upholding

Mr. Richardson’s termination—that he had accumulated too many “tardies”—was pretextual and

a “malicious fabrication of evidence.” Id. ¶¶ 259-60. Mr. Richardson contends that Mr. May

4 had informed him that he was being terminated for failing to provide supporting documentation

for medical call-offs. Id. ¶ 262.

In Count Ten, Mr. Richardson complains of unequal treatment in violation of his

Fifth Amendment due process rights. See id. ¶ 280. Count Ten alleges that Mses. Shanks and

Hargo and Messrs. O’Malley, Jones, Sauls, Bakale, Dublin, Coble, and May failed to consider

prior misconduct of two white employees, Rocco Christoff and Darren Harris, when terminating

Mr. Richardson for comparable reasons in June 2010. Id. ¶¶ 273-78.

Finally, Count Eleven charges Mr. Smith, a senior EEO specialist with the Board,

with violations of Mr. Richardson’s rights under the First and Fifth Amendments for allegedly

failing to provide EEO counseling when Mr. Richardson submitted an administrative complaint

of discrimination in 2016, several years after his discharge. Id. ¶¶ 284-90. Specifically, Mr.

Smith allegedly deprived Mr. Richardson of his “right to free speech” by denying him adequate

investigation of his EEO claims and related counseling. Id. ¶¶ 286-87. Mr. Richardson also

contends that Mr. Smith violated the Fifth Amendment by denying him the opportunity “to be

heard and to bring his claims before an administrative judge or this Court.” Id. ¶ 288. He asserts

that Mr. Smith improperly forwarded new EEO charges filed by Mr. Richardson to Board senior

counsel Joshua Chadwick and that Messrs. Smith and Chadwick together “prevented Plaintiff’s

newly filed claims from moving forward” in the EEO process. Id. ¶ 156. Mr. Richardson

contends that Mr. Chadwick presented a “fabricated” EEO form to Mr. Richardson’s EEO

investigator, thus undermining his claim. Id. ¶ 162. He alleges that the failure to “conduct EEO

counseling . . . and a limited inquiry into Plaintiff’s new claims of discrimination” violated his

constitutional rights to due process and free speech. Id. ¶ 157. Related to this claim, Defendants

filed with the Court an exhibit, of which they ask the Court to take judicial notice, which is a

5 letter dated February 2, 2017, in which Mr. Smith informed Mr. Richardson that his complaint

was dismissed in accord with EEO regulations. See Mot. to Dismiss, Ex. 1, 2/2/2017 Letter to

Mr. Richardson (2017 Letter) [Dkt. 34-1] (citing

(a)(1), (3)); see also Am.

Compl. ¶¶ 156-58, 284-89 (referencing the 2017 Letter).

The Board moved to dismiss. See Mot. to Dismiss (Mot.) [Dkt. 34]. Mr.

Richardson opposed. Mem. in Opp’n to Mot. to Dismiss (Opp’n) [Dkt. 37]. Defendants replied.

Reply to Opp’n to Mot. to Dismiss (Reply) [Dkt. 39]. The motion is ripe for review.

B. Richardson I

Mr. Richardson sued the Board and Messrs. May, Sauls, Jones, Coble, Bakale,

Dublin, and Pleasant in a previous, related case. See Richardson I,

.

Richardson I concerned the Board’s alleged failures to provide reasonable accommodation for

Mr. Richardson’s “severe persistent asthma/allergies” and subsequent harassment by Mr.

Richardson’s superiors and co-workers. See

. Among alleged constitutional

violations, Mr. Richardson alleged that Mr. Pleasant “willingly and intentionally defamed [Mr.

Richardson’s] character to gain access to [his] cell phone records, by claiming that [Mr.

Richardson] was involved in a spoofing scandal against the Board”; and “access[ed] [Mr.

Richardson’s] cell phone records with malicious intent” “in violation of the Fourth Amendment.”

First Am. Compl., Richardson I (Richardson I Am. Compl.) [No. 14-cv-1673 Dkt. 8] ¶¶ 230-31.

Mr. Richardson also alleged that Mr. May knowingly removed from Mr. Richardson’s personnel

file a separation letter, the denial of an appeal, and an investigative affidavit, id. ¶¶ 235-36; and

that Messrs. Bakale and Coble retaliated against Mr. Richardson by removing medical

documents from his file so that he could be terminated before his probationary period was over.

Id. ¶ 243. Further, he alleged that all seven Richardson I defendants “knowingly, willingly, and

6 with malicious disregard for established laws, falsified testimony under penalty of perjury, while

knowingly defaming [Mr. Richardson’s] character, with intentional malice, to support their cause

that resulted in [his] termination.” Id. ¶ 238. Mr. Richardson also alleged that after he disclosed

certain protected activity to Messrs. Dublin, Jones, Sauls, and May, he was given undesirable

work assignments, including being “forced to work 3 different shifts weekly” until he was

terminated. Id. ¶ 243. The Richardson I complaint included allegations of denial of promotion,

denial of accommodation, and derogatory name-calling. Id. ¶ 253.

The Board moved to dismiss the Richardson I complaint as to all claims except

those brought under the Rehabilitation Act of 1973,

. Among the claims

dismissed were those alleged by Mr. Richardson as constitutional torts against individual

defendants, which the Court evaluated as Bivens claims and determined were untimely. See

Richardson I,

.

II. LEGAL STANDARD

A motion to dismiss for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).

A complaint must be sufficient “to give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly,

(2007) (internal

citation and quotation marks omitted). Although a complaint does not need detailed factual

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.”

To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim for relief that is “plausible on its face.”

. A

court must treat the complaint’s factual allegations as true, “even if doubtful in fact.”

.

7 But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal,

(2009). 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,

(D.C. Cir. 2007).

III. ANALYSIS

A. Res Judicata and Collateral Estoppel

Defendants argue that Counts One through Ten are barred under the doctrine of

res judicata or the related doctrine of collateral estoppel, because the claims at issue in those

counts have been litigated fully in Richardson I. For purposes of clarity when comparing

Richardson I to the instant matter, this case will be referred to as Richardson III.

1. Res Judicata

“Under the doctrine of res judicata, or claim preclusion, a subsequent lawsuit will

be barred 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.” Smalls v. United States,

(D.C. Cir. 2006). The first element is satisfied “when the cases are based on the ‘same nucleus

of facts,’ because ‘it is the facts surrounding the transaction or occurrence which operate to

constitute the cause of action, not the legal theory on which a litigant relies.’” Capitol Hill

Group v. Pillsbury Winthrop Shaw Pittman, LLP,

(D.D.C. 2008)

(quoting Page v. United States,

(D.C. Cir. 1984)).

“[R]es judicata (claim preclusion) bars relitigation not only of matters determined

in a previous litigation but also ones that a party could have raised.” Nat. Res. Defense Council

8 v. EPA,

(D.C. Cir. 2008) (quoting NRDC v. Thomas,

, 1252

(D.C. Cir. 1988)); accord Allen v. McCurry,

(1980) (“[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.”). In evaluating whether two cases share the same nucleus

of facts, “the court will 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.’” Apotex, Inc. v. FDA,

(D.C. Cir. 2004) (quoting I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co.,

, 949 n.5 (D.C. Cir. 1983)).

a. Prior Litigation Involving the Same Claim or Cause of Action

Mr. Richardson argues that res judicata does not foreclose the claims at issue

because he did not, in Richardson I, “allege a Bivens claim,” and that Defendants’ arguments fail

because “simply naming several of the current Defendants[] under a Title VII cause of action

does not preclude Plaintiff from asserting his constitutional violation claims.” Opp’n at 4. Mr.

Richardson is incorrect to the extent that he believes res judicata does not foreclose new legal

theories, not previously argued, arising from the same fact pattern (or patterns). The question is

whether “the facts surrounding the transaction or occurrence which operate to constitute the

cause of action” have already been litigated—not whether the litigant relies on a different legal

theory the second time around. Capitol Hill Group,

; see also Apotex,

(“There are no new facts. [Plaintiff] is simply raising a new legal theory. This is

precisely what is barred by res judicata.”). Mr. Richardson points to Drake v. FAA,

(D.C. Cir. 2002), for the proposition that his claims should not be barred by the doctrine of res

judicata because they are based on different legal authority (i.e., constitutional claims as opposed

9 to Title VII claims). In fact, however, Drake held that claims “based on a different nucleus of

facts than were those advanced” in an earlier action, and which had “not yet [been] in existence

at the time of the original action,” should not have been dismissed. Drake,

.

Many of Mr. Richardson’s allegations in the Richardson III Amended Complaint

are derived from the same “nucleus of facts” presented in Richardson I and thus constitute an

impermissible attempt to relitigate “the same claim or cause of action” that has been dismissed.

Smalls,

. Seven of the eleven defendants named in Richardson III—Billy Sauls,

Albert Pleasant, Larence Dublin, Marvin Jones, Kevin May, Robert Bakale, and Tyson Coble—

were also named in Richardson I. Moreover, Mr. Richardson’s allegations concerning these

Defendants in Richardson III overlap significantly with the factual allegations made in

Richardson I. Count One in this action charges Defendants Jones, Coble, Dublin, May, Sauls,

Bakale, and O’Malley with violating Mr. Richardson’s Fourth Amendment rights for allegedly

“remov[ing] protected medical records from Plaintiff’s personnel file that . . . should not have

been in the defendants[’] possession.” Am. Compl. ¶¶ 168, 171. Mr. Richardson made these

same allegations in Richardson I. See, e.g., Richardson I Am. Compl. ¶ 212; see also

¶¶ 26-

27 (Mr. Richardson allegedly observing Messrs. Sauls, Coble, and O’Malley with a folder that

may have contained the medical documents); id. ¶¶ 235-38 (alleging that Mr. May and other

defendants in Richardson I “intentionally and maliciously remov[ed] official medical documents

from my LEU file”); id. ¶ 243 (alleging that Messrs. Bakale and Coble allegedly removed

medical documents from Mr. Richardson’s file, leading to his termination). The facts

comprising Count One in Richardson III have already been litigated in Richardson I.

Counts Two and Five here allege violations of Mr. Richardson’s Fourth and Fifth

Amendment rights, respectively, based on the claim that Messrs. Sauls and Pleasant illegally

10 obtained Mr. Richardson’s cell phone records “knowing the information used to obtain those

records to be falsified and misrepresentation of facts,” and that they “willfully released” the

records to other people. Am. Compl. ¶¶ 83-84, 92, 178, 214-15. Richardson I alleged that Mr.

Pleasant “unlawfully accessed Mr. Richardson’s cell phone records by using Mr. Pleasant’s

investigation [into Mr. Richardson’s background] as a pretext,” and improperly “displayed” their

contents. Richardson I,

. The Richardson III Amended Complaint

states that Mr. Richardson received discovery on July 1, 2014, which supports its claim against

Messrs. Sauls and Pleasant vis-à-vis the telephone records. See Am. Compl. ¶¶ 178, 214. July 1,

2014 was almost nine months before Mr. Richardson filed an amended complaint in Richardson

I. Thus, although Richardson I alleged wrongdoing concerning Mr. Richardson’s phone only on

Mr. Pleasant’s part, the record is clear that Counts Two and Five in Richardson III “could have

[been] raised” against Mr. Sauls. See Nat. Res. Defense Council,

. The Court

finds that the claims in Counts Two and Five were or could have been litigated fully in

Richardson I.

Counts Three and Six in the present action allege that Mr. May violated Mr.

Richardson’s rights under the Fourth and Fifth Amendments, respectively, when he “searched

Plaintiff’s personnel file[,] retrieving only documents that would be most character damaging to

Plaintiff,” and “searched through Plaintiff’s ongoing EEO activity file, removing specific

documents, including his own EEO affidavit and converted those documents to his personal use”

by improperly mailing them to JaCina Stanton of the Maryland Attorney Grievance Commission.

Am. Compl. ¶¶ 188-89, 229-30. Mr. Richardson made functionally identical allegations in

Richardson I:

Kevin May engaged in prohibited personnel practices by removing my Board separation letter, Board Separation appeal letter, and his

11 EEO investigative affidavit, from my personnel file, and the [investigation report] from the Board’s property, and unlawfully converting the documents to his personal use. . . . JaCina Stanton, Esq. of the Attorney Grievance Commission of Maryland mailed me the package containing May’s statement and documents, as he mailed it to her, using his home address.

Richardson I Am. Compl. ¶¶ 51-53. Counts Three and Six have been litigated fully in

Richardson I.

Count Four in Richardson III alleges that Ms. Shanks and Messrs. Sauls, Bakale,

Coble, Jones, Dublin, and O’Malley are liable for wrongful termination in violation of Mr.

Richardson’s Fifth Amendment rights because they “intentionally and callously remov[ed] 22

medical documents” from Mr. Richardson’s personnel file, so that he could not document his

medical absences and was terminated. Am. Compl. at 28-30. As described above, Richardson I

included the same allegations that Defendants improperly removed medical documents from Mr.

Richardson’s file. See, e.g., Richardson I Am. Compl. ¶¶ 212, 235-38, 243. As here, in

Richardson I, Mr. Richardson specifically linked the alleged removal of medical documents to

his allegations that Defendants lied about the number of Mr. Richardson’s “unexcused call-offs,”

or absences, and lied about whether he had submitted required medical documents. Id. ¶¶ 218,

221. The allegations in Richardson III are certainly part of the same “nucleus of facts” as in

Richardson I: they “are related in time, space, origin” and alleged motivation, and they would

form a “convenient trial unit” because of their interrelatedness. Apotex,

. The

alleged facts underlying Count Four in the present action either could have been or have already

been litigated in Richardson I.

Count Seven alleges that Messrs. Bakale, Dublin, Jones, May, Sauls, Coble, and

O’Malley retaliated against Mr. Richardson after he engaged in protected speech and thereby

violated his First Amendment rights. The alleged retaliation involved comments relating to the

12 missing medical documents substantiating his absences. Am. Compl. ¶¶ 238-240. As discussed

above, that issue has been litigated fully. See Richardson I Am. Compl. ¶¶ 212, 235-38, 243.

Further, Richardson I claimed “whistleblower retaliation” when Mr. Jones failed to investigate

the removal of medical documents, and Mr. Bakale harassed and threatened to terminate Mr.

Richardson after he reported the removal of the documents from the file. Id. ¶ 245. The similar

allegations in Richardson III are part of the same “nucleus of facts” and have already been

litigated in Richardson I.

Count Eight in this action alleges that Messrs. Sauls and Pleasant retaliated

against Mr. Richardson for his protected speech after his termination: Mr. Richardson claims

that Messrs. Sauls and Pleasant “attempted to establish a falsified investigation against Plaintiff

and further attempt[ed] [to] have Plaintiff wrongfully prosecuted by 4 separate law enforcement

agencies,” in retaliation for Mr. Richardson’s “public disclosures” concerning the removal of his

medical documents from his personnel file. Am. Compl. ¶¶ 247-49. Additionally, Mr. Pleasant

is alleged to have investigated another employee, who had not engaged in protected activities,

but imposed a more lenient punishment than was imposed on Mr. Richardson. Id. ¶¶ 250-52.

The same allegations have already been litigated in Richardson I. See, e.g., Richardson I Am.

Compl. ¶¶ 233 (“Pleasant, with no probable cause, presented falsified documentation to 4 law

enforcement agencies for prosecutorial consideration against me”), 238 (“Sauls and Pleasant

knowingly and willingly engaged in a conspiracy to defame my character to promote malicious

prosecution, evidenced in Pleasant’s report.”). Mr. Richardson likewise raised the investigation

of the other employee as a comparator in Richardson I. See id. ¶¶ 162-64 (“I allege that [the

other employee] had no prior EEO activity against the Board; therefore, Pleasant did not seek

prosecutorial consideration against [him] . . . as he attempted to do with . . . myself. . . . I also

13 allege that [the other employee], to my knowledge possessed no known recorded disabilities, had

not previously requested a reasonable accommodation, and had no previous on-going EEO

activity.”). These facts have been litigated.

Count Nine in Richardson III alleges that Mses. Hargo and Shanks and Messrs.

Jones, Sauls, O’Malley, Bakale, Dublin, Coble, and May conspired to retaliate against Mr.

Richardson and to deny his 2010 termination appeal, in violation of his rights under the First and

Fifth Amendments. The crux of Mr. Richardson’s charge is that Ms. Shanks’s purported reason

for upholding Mr. Richardson’s appeal of his termination, that he had accumulated too many

“tardies,” was pretextual and thus a “malicious fabrication of evidence.” Am. Compl. ¶¶ 259-60.

Mr. Richardson asserts that Mr. May informed him that he was being terminated for failing to

provide supporting documentation for medical call-offs (i.e., the documentation that had been

allegedly improperly removed from his file). Id. ¶ 262. The complaint in Richardson I included

allegations that Mr. Bakale stated that Mr. Richardson’s “tardies” were a reason for switching

Mr. Richardson to a different shift. Richardson I Am. Compl. ¶¶ 68, 69, 71, 80, 182.

Richardson I also included allegations that Mr. Richardson’s appeal was improperly denied. Id.

¶ 238. However, the distinct claim that Mr. Richardson was given a “fabricated” reason for the

denial was not previously litigated in Richardson I. Count Nine will not be dismissed due to res

judicata.

Count Ten in this action alleges that Mses. Shanks and Hargo and Messrs.

O’Malley, Jones, Sauls, Bakale, Dublin, Coble, and May failed to consider prior misconduct of

two white employees, Rocco Christoff and Darren Harris, when Mr. Richardson was terminated

in June 2010 for reasons he believes to have been comparable. Am. Compl. ¶¶ 273-78. The

allegations raised in Count Ten of Richardson III are distinct from allegations made in

14 Richardson I, in which Mr. Richardson alleged “disparate treatment” and claimed that he was “of

a protected group and was treated less favorably . . . than all other LEU officers,” but did not

mention background investigations or evidence of misconduct in prior employment. Notably,

Messrs. Christoff and Harris are not mentioned in the Richardson I complaint. Richardson I Am.

Compl. ¶¶ 256-58. Count Ten will not be dismissed on res judicata grounds.

b. Same Parties or Their Privies

Seven of the eleven defendants named in Mr. Richardson’s Amended Complaint

in Richardson III—Billy Sauls, Albert Pleasant, Larence Dublin, Marvin Jones, Kevin May,

Robert Bakale, and Tyson Coble—were also named in Richardson I. For those seven original

defendants, the present action obviously involves the same parties.

c. Final Judgment on the Merits

The final requirement to find that a claim is barred by res judicata is that there

must have been a final, valid judgment on the merits by a court of competent jurisdiction in the

earlier litigated claim. Neither party challenges that this is a court of competent jurisdiction.1

The question on this element is whether the Court’s decision in Richardson I is a final judgment

on the merits. It is established law in the D.C. Circuit that a court’s dismissal for lack of

jurisdiction is not a decision on the merits and therefore does not have res judicata effect. See

Havens v. Mabus,

(D.C. Cir. 2014). In general, however, courts treat dismissal

on statute-of-limitations grounds “the same way they treat a dismissal for failure to state a

claim . . . : as a judgment on the merits.” Havens,

(quoting Plaut v. Spendthrift

1 The Court finds that it has jurisdiction over Mr. Richardson’s allegations of constitutional violations. See Bivens,

(holding that federal courts may hear plaintiffs’ allegations of constitutional torts against individual federal employees). The Court has subject-matter jurisdiction pursuant to

and

. Venue is proper because the acts alleged in Mr. Richardson’s complaint occurred in the District of Columbia.

15 Farm, Inc.,

(1995)); see also Musacchio v. United States,

(2016) (“Statutes of limitations and other filing deadlines ordinarily are not jurisdictional.”)

(internal quotation marks and citation omitted). Also relevant, Mr. Richardson now attempts to

relitigate in the same Court, and his Bivens claims are subject to the same statute of limitations

on which his Bivens claims in Richardson I were dismissed. See Richardson I,

(applying

and dismissing Mr. Richardson’s Bivens claims as time-

barred); see also Smalls v. United States,

(D.C. Cir. 2006) (affirming

dismissal on res judicata grounds where the same Administrative Procedure Act claim had been

dismissed on statute-of-limitations grounds by another district court, and characterizing that

dismissal as a judgment on the merits). The Court’s holding in Richardson I was a final, valid

judgment on the merits for res judicata purposes.

Counts Two, Three, Five, Six, and Eight in the instant Complaint will be

dismissed in full as barred by res judicata.2 Counts One and Seven will be dismissed on grounds

of res judicata except as to Mr. O’Malley, and Count Four will also be dismissed except as to

Mr. O’Malley and Ms. Shanks. These defendants were added to this action when Mr.

Richardson amended his complaint on February 9, 2017 and were not named in Richardson I.

The claims against them in Richardson III will not be dismissed under the doctrine of res

judicata.

2 Mr. Richardson argues that res judicata may not be raised in a motion to dismiss. See Opp’n at 9-10. As defendants point out, this is not the case; the D.C. Circuit has affirmed not only granting summary judgment but also dismissing a complaint on res judicata grounds. See, e.g., Sheptock v. Fenty,

(D.C. Cir. 2013); Smalls,

.

16 2. Collateral Estoppel

Defendants argue that collateral estoppel, or issue preclusion, applies to all of Mr.

Richardson’s claims against Mses. Shanks and Hargo and Mr. O’Malley, and all such claims

should be dismissed. See Mot. at 8-9.3 Those three new defendants are named in Counts Nine

and Ten in the present action, but the Court finds that the doctrine of collateral estoppel does not

bar those counts. However, the claims raised in Counts One, Four, and Seven were already

litigated in Richardson I and the Court therefore addresses Defendants’ collateral estoppel

argument as to those counts vis-à-vis Mr. O’Malley and Ms. Shanks. Ms. Hargo is not named in

Count One, Four, or Seven.

Collateral estoppel, or issue preclusion, bars “successive litigation of an issue of

fact or law actually litigated and resolved in a valid court determination essential to the prior

judgment.” Taylor v. Sturgell,

(2008). A party is barred from relitigating an

issue if (1) the same issue was “contested by the parties and submitted for judicial determination

in the prior case”; (2) the issue was “actually and necessarily determined by a court of competent

jurisdiction in that prior case”; and (3) “preclusion in the second case [does] not work a basic

unfairness to the party bound by the first determination.” Canonsburg Gen. Hosp. v. Burwell,

(D.C. Cir. 2015) (quoting Yamaha Corp. of Am. v. United States,

(D.C. Cir. 1992)). As described above, Counts One, Four, and Seven all center on the

alleged removal of medical documents from Mr. Richardson’s personnel file, and his belief that

3 Defendants incorrectly characterize their argument as one based upon the theory of “offensive collateral estoppel,” under which a defendant may not relitigate identical issues already lost against another plaintiff. See Jack Faucett Assocs., Inc. v. AT&T,

(D.C. Cir. 1984). Here, of course, it is the plaintiff, Mr. Richardson, whose claim against new defendants would be precluded by a theory of collateral estoppel. Thus the operative theory is collateral estoppel and not offensive collateral estoppel.

17 his inability to produce those documents led to his termination. These issues were previously

contested by the parties and their dismissal by the Court constituted a determination by a court of

competent jurisdiction. See generally Richardson I,

.

Issue preclusion here would not “work a basic unfairness” to Mr. Richardson.

Canonsburg Gen. Hosp.,

. Although Richardson III names new defendants and

alleges their involvement in the claims at issue, Mr. Richardson fails to advance any new

allegations that would materially change the facts or analysis on Count One, Four, or Seven.

Indeed, the allegations concerning Mr. O’Malley’s actions were covered at length in the

Richardson I complaint, including as related to medical documents and call-offs.4 Ms. Shanks

was not mentioned by name in Richardson I, but Mr. Richardson raises no new facts concerning

her involvement in the events at issue. Mr. Richardson claims that Ms. Shanks’s letter denying

Mr. Richardson’s termination appeal provided a dishonest reason for the termination. Am.

Compl. ¶ 199. However, because the central allegation in Count Four in Richardson III is based

on the termination itself and the removal of medical documents from the file, that claim has been

litigated. See, e.g., Richardson I,

(discussing Mr. Richardson’s

allegations that he was terminated in part as a result of the improper removal of medical

documents from his file).5

4 In at least one instance, the Richardson I complaint explicitly grouped Mr. O’Malley with the defendants named in that case. See Richardson I Am. Compl. ¶ 186 (“[T]here is no evidence that any Defendant, including O’Malley, made any effort to ascertain the legitimacy of my disability condition . . . all while harassing me for call-offs that I had provided medical documentation for.”). 5 Separately, in Count Nine, Mr. Richardson raises allegations about this alleged fabrication of a reason for his termination, which the Court has found to be distinct from the issues litigated in Richardson I.

18 Counts One, Four, and Seven will be dismissed in full on res judicata and

collateral estoppel grounds.

B. Timeliness of Claims Under Bivens

Counts Nine and Ten remain. Each is a claim under Bivens and Defendants argue

that they are all untimely. “When a federal action contains no statute of limitations, courts will

ordinarily look to analogous provisions in state law as a source of a federal limitations period.”

Hampton v. Comey, No. 14-cv-1607,

, at *13 (D.D.C. Feb. 8, 2016) (quoting

Doe v. DOJ,

(D.C. Cir. 1985)); see also Richardson I,

(construing Mr. Richardson’s arguments as Bivens claims and applying the statute of

limitations from

). In the context of a Bivens action claiming the deprivation

of constitutional rights, the D.C. Circuit has instructed that

provides the

relevant limitations period. See Zhao v. Unknown Agent of CIA,

(D.C.

Cir. 2010) (finding Bivens claims “barred by the applicable statute of limitations” and citing

); see also Doe,

(applying one-year statute of limitations for

defamation actions set out in

(4) to Bivens claim based on allegations of

dissemination of false and defamatory statements).

(8) provides a three-year

limitations period for actions “for which a limitation is not otherwise specially prescribed.”

Three years is therefore the longest period that could apply to Mr. Richardson’s Bivens claims.

Mr. Richardson’s amended complaint in Richardson I, in which he named some

(but not all) of the individual defendants in this action, was filed on March 20, 2015. Thus the

date of the alleged constitutional violations at issue in Richardson I must have been, at the

earliest, March 20, 2012. Count Nine in this matter alleges that Ms. Shanks gave Mr.

Richardson a “fabricated” reason for his termination on June 7, 2010, Am. Compl. ¶ 262, and

19 Count Ten alleges, also in 2010, that Defendants improperly considered allegations of prior

misconduct in deciding to terminate Mr. Richardson.

. These alleged acts occurred

well before the three-year limitations period that applied in Richardson I, and were even further

beyond the limitations period when Mses. Hargo and Shanks and Mr. O’Malley were named as

defendants in the present action.

Mr. Richardson contends that the statute of limitations for his Bivens claims

should be tolled because “much of the constitutional trespass violations were not to Plaintiff’s

knowledge” earlier. Opp’n at 10-11. However, Mr. Richardson alleges that he learned some

elements of the violations alleged in Counts Nine and Ten during contemporaneous meetings he

attended with Defendants. See Am. Compl. ¶¶ 262, 277. Moreover, Mr. Richardson fails to

specify the date on which he asserts he learned the necessary facts or what period of time should

be tolled. In the absence of admissible evidence, the Court cannot accept Mr. Richardson’s

broad and conclusory statement that he only learned of relevant details after the statute of

limitations had passed. Counts Nine and Ten will be dismissed as time-barred.

C. Qualified Immunity (Count Eleven)

Defendants urge the Court to dismiss Count Eleven because Mr. Smith, the only

defendant named therein, is protected by qualified immunity due to Mr. Richardson’s failure to

allege, with supporting facts, any violation of a clearly established constitutional right.

Count Eleven alleges that Mr. Smith, a senior EEO specialist with the Board,

violated Mr. Richardson’s rights under the First and Fifth Amendments by failing to provide

EEO counseling in response to an administrative complaint of discrimination Mr. Richardson

submitted after his termination. Am. Compl. ¶¶ 284-90. Mr. Richardson asserts that in

November 2016 he became aware of new information supporting a claim of race-based

20 discrimination, and in December 2016 he contacted Mr. Smith about the new EEO complaint he

wished to file. See

. Mr. Richardson further asserts that Mr. Smith failed to provide

EEO counseling and otherwise mishandled this new EEO complaint.

. Based on

these alleged failures, Mr. Richardson argues here that Mr. Smith deprived him of his “right to

free speech” by denying him an adequate investigation of his EEO claims and related counseling,

and that Mr. Smith violated the Fifth Amendment by denying Mr. Richardson the opportunity “to

be heard and to bring his claims before an administrative judge or this Court.”

.

Mr. Richardson also alleges that Mr. Smith “collu[ded]” with another Board

employee, senior counsel Joshua P. Chadwick, to prevent newly alleged discrimination claims

from progressing administratively. Opp’n at 14-15. Mr. Richardson asserts that Mr. Smith

forwarded the new EEO claim to Mr. Chadwick, and that Mr. Smith and Mr. Chadwick together

“prevented Plaintiff’s newly filed claims from moving forward” in the EEO process. Am.

Compl. ¶ 156. Finally, Mr. Richardson alleges that Mr. Chadwick presented a “fabricated” EEO

form to Mr. Richardson’s EEO investigator, thus undermining Mr. Richardson’s EEO charge.

. He alleges that the failure to “conduct EEO counseling . . . and a limited inquiry into

Plaintiff’s new claims of discrimination” constituted a violation of Mr. Richardson’s due process

and free speech rights.

.

Defendants acknowledge that Count Eleven is neither time-barred under the

applicable Bivens statute of limitations, nor res judicata. See Mot. at 5-6, 16. Instead, they

argue that the Court should dismiss Count Eleven for failure to state a claim upon which relief

may be granted, on the grounds that Mr. Smith is protected by qualified immunity because no

constitutional violations occurred, much less any “clearly established” violation of Mr.

Richardson’s constitutional rights.

.

21 Government officials are protected “from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald,

(1982); see

also Barham v. Ramsey,

(D.C. Cir. 2006). A right is “clearly established”

when “it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz,

, 202 (2001). In assessing an allegation of a

constitutional violation against a government official, courts may first address either whether the

defendant is entitled to qualified immunity or the merits of the constitutional claim itself. See

Pearson v. Callahan,

(2009) (“The judges of the district courts . . . should

be permitted to exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances in the

particular case at hand.”).

Defendants argue that Mr. Smith did not violate any clearly established right of

Mr. Richardson’s. Rather, they contend, Mr. Smith was following EEO regulations when he

determined that Mr. Richardson’s claim should be denied and, moreover, that failure properly to

process an EEO complaint cannot amount to a constitutional violation. See Mot. at 30.6 As to

the first point, the Court agrees in part with Defendants. Mr. Richardson filed his new EEO

claim via email to Mr. Smith on December 4, 2016. See 2017 Letter at 1 (describing Mr.

Richardson’s emailed claim). Approximately 2 months later, on February 2, 2017, Mr. Smith

issued a letter to Mr. Richardson denying the claim.

In his letter, Mr. Smith cited EEO

regulations that provide for the dismissal of an entire complaint under certain circumstances,

6 As requested by Defendants, see Mot. at 30 n.7, the Court takes judicial notice of the 2017 Letter from Mr. Smith, which Mr. Richardson also referenced in his Amended Complaint. See Am. Compl. ¶¶ 156-58, 284-89.

22 including where the complainant has a pending EEO complaint raising the same issues,

(a)(1), or where there is a pending case in United States District Court raising

the same issues, provided that at least 180 days have passed since the filing of the administrative

complaint.

(a)(3). Mr. Smith’s application of § 1614.107(a)(3), however,

appears to have been premature, because at the time of the denial less than 180 days had passed

since Mr. Richardson filed his December 4, 2016 complaint. See

(a)(3)

(permitting denial if the claim is pending or has been litigated in district court, but only if 180

days have passed since the administrative complaint was filed).

Regardless, accepting all of Mr. Richardson’s allegations as true and construing

his claims liberally, see Fed. R. Civ. P. 8(a)(2), (f), Mr. Richardson has not plausibly alleged any

constitutional violation. As Defendants argue, other Judges in this Court have found that alleged

improper handling of an EEO complaint does not give rise to a constitutional violation.

Defendants cite a line of cases that stand for the proposition that a district court does not sit to

review the administrative handling of EEO complaints. See, e.g., Coulibaly v. Kerry,

(D.D.C. 2016) (“[Plaintiff] request[s] that the Court review federal agencies’

handling of his discrimination allegations . . . . [T]he Court cannot do so—it may only review de

novo [Plaintiff’s] Title VII claims which were the subject of the investigations with which he

alleges the agencies conspired to interfere.”); Koch v. White,

(D.D.C.

2013) (finding that a complainant may not sue the Equal Employment Opportunity Commission

for improper handling of a discrimination charge and dismissing similar allegations against

another agency); see also Smith v. Casellas,

(D.C. Cir. 1997). If an employee

believes a claim has been mishandled he must first exhaust his administrative appeal remedies

and then proceed to a court for review of the substantive discrimination claim, not its

23 administrative processing. See Coulibaly,

. Mr. Richardson has already

pursued, in Richardson I, the discrimination claims at issue in the administrative complaint

denied by Mr. Smith. He has alleged no new, separate violation that is reviewable by the Court

now.

The allegations against Mr. Smith do not plausibly allege any constitutional

violation of a right that was “clearly established.” Mr. Smith is entitled to qualified immunity.

Count Eleven of Mr. Richardson’s complaint does not state a claim upon which relief may be

granted and will be dismissed without prejudice.

IV. CONCLUSION

For the reasons explained in this Memorandum Opinion, Counts One through Ten

of Mr. Richardson’s Amended Complaint will be dismissed with prejudice, and Count Eleven

will be dismissed without prejudice. A memorializing Order will accompany this Memorandum

Opinion.

Date: June 18, 2018 /s/ ROSEMARY M. COLLYER United States District Judge

24