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October 10, 1980

Russell N. SHEWMAKER, Plaintiff,
Daniel MINCHEW, Defendant

The opinion of the court was delivered by: OBERDORFER



 Plaintiff, Russell N. Shewmaker, the General Counsel to the International Trade Commission, brings this action for damages, alleging violations of his due process rights, his statutory rights, his constitutional and common law rights to privacy, and the common law torts of defamation, interference with his professional career, and intentional infliction of emotional harm. He seeks compensatory and punitive damages in excess of $ 10,000. Defendant, Daniel Minchew, was at all times material to this case a Commissioner and/or Vice Chairman or Chairman of the International Trade Commission. These allegations stem from defendant's allegedly unlawful behavior connected with plaintiff's discharge from his position at the Commission.

 The background of this case, as highlighted in plaintiff's complaint, is as follows: on December 8, 1977, Chairman Daniel Minchew of the International Trade Commission reassigned plaintiff Russell N. Shewmaker from his position as General Counsel to the position of Senior Advisor. In response, Shewmaker brought suit in this court against the then Chairman of the Commission and individual commissioners, including Minchew, all in their official capacities. He claimed the right to reinstatement to his former position because the reassignment failed to comply with the termination procedure specified by statute, 19 U.S.C. § 1331(a)(2). Shewmaker v. Parker, 479 F. Supp. 616 (D.D.C.1979). In his complaint in that case, plaintiff specifically cited allegedly unlawful acts by defendant as one basis for his action. See Complaint, PP 13, 20, 34. The court held that Shewmaker's transfer amounted to a termination from his position and, as a termination, failed to comply with the procedure delineated in § 1331(a)(2). Shewmaker sought equitable relief only, requesting a judgment declaring that defendants terminated him improperly, an order directing defendants to reinstate him, and asking for any additional relief the court deemed just and equitable. He did not request damages. The court ordered that he be reinstated to the position of General Counsel.

 In response to this complaint, defendant filed a motion to dismiss for failure to state a claim. Defendant argues that plaintiff's claim should be dismissed under the doctrine of res judicata because it is barred by plaintiff's earlier action against the same defendant. He further argues that, even if plaintiff's claim were not barred by res judicata, it would nevertheless have to be dismissed. First, defendant argues that plaintiff's common law tort claims must be barred under the doctrine of sovereign immunity because defendant was acting at all times within the scope of his official authority. Second, he contends that plaintiff's constitutional tort claims must be dismissed because they fail to allege the existence of a constitutionally protected liberty or property interest which has been violated. He further argues that no constitutional cause of action should be implied since plaintiff had available and successfully pursued an alternative avenue of relief: the suit in which Judge Parker gave judgment to plaintiff.

 The court now concludes that plaintiff's cause of action is barred by res judicata. And it further concludes that, even if the action were not barred, the court would grant defendant's motion to dismiss as to the constitutional claims, the statutory claim, and the common law tort claims of invasion of privacy, interference with his professional career, and intentional infliction of emotional harm. It would further hold for defendant on the defamation claim on summary judgment.


 The court agrees that principles of res judicata bar the present action. The judgment in Shewmaker v. Parker operates as a bar here because in that case plaintiff sought, and obtained, recovery for precisely the same injury complained of in this litigation. As plaintiff himself admits, "both cases involve essentially the same course of wrongful conduct." Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss ("Plaintiff's Memorandum") at 18. The fact that the earlier suit sought equitable relief, while this suit seeks monetary relief, is not a sufficient distinction to warrant the conclusion that the cases concern separate causes of action. See e.g. Walworth Co. v. United Steelworkers of America, 443 F. Supp. 349 (W.D.Pa.1978); Lambert v. Conrad, 536 F.2d 1183 (7th Cir. 1976); see generally 1B J. Moore, Federal Practice P 0.410 at 1156-57. Such a conclusion would be particularly inappropriate in light of the especially broad construction given the term of art for res judicata purposes. See e.g., Williamson v. Columbia Gas & Elec. Corp., 186 F.2d 464, 469 (1950), cert. denied, 341 U.S. 921, 71 S. Ct. 743, 95 L. Ed. 1355 (1951).

 The present cause of action is, moreover, before the same court that heard plaintiff's earlier complaint. Plaintiff was perfectly free at that time to sue the defendant in his personal capacity for damages as well as in his official capacity for equitable relief, as he did. *fn1" The failure to raise all the claims arising from a single course of conduct at that time bars the present suit. As our Court of Appeals has held: "(if) the doctrine of res judicata applies, both parties are concluded, not only as to things which were determined but as to all matters which might have been determined as well." Tutt v. Doby, 148 U.S. App. D.C. 171, 459 F.2d 1195, 1197 (D.C.Cir.1972). The suit now before the court does not involve facts or circumstances unknown to plaintiff at the time of the first suit. Compare Brotherhood of R. Trainmen v. Atlantic C. L. R. Co., 127 U.S. App. D.C. 298, 383 F.2d 225, 228 (D.C.Cir.1967), cert. denied, 389 U.S. 1047, 88 S. Ct. 790, 19 L. Ed. 2d 839 (1968). Accordingly, where, as here, plaintiff alleges no new found facts or circumstances, he must suffer the consequence of his own decision not to pursue all available avenues of relief for his injury at the outset. See Turner v. Dept. of Army, 447 F. Supp. 1207, 1211-12 (D.D.C.1978), aff'd, 193 U.S. App. D.C. 218, 593 F.2d 1372 (D.C.Cir.1979).

 The case of Mervin v. F.T.C., 192 U.S. App. D.C. 212, 591 F.2d 821 (D.C.Cir.1978) is instructive in this connection. Plaintiff in that case brought suit for reinstatement and damages against the Federal Trade Commission for his wrongful dismissal from a position as an attorney at the agency. The court held for the F.T.C. in part because it concluded that plaintiff's prior attempt at securing administrative review, as well as his two prior lawsuits challenging his dismissal, barred the subsequent suit on grounds of res judicata. The court so concluded because "it is clear that in his first two lawsuits, he was pursuing the same cause of action, involving the same dismissal, as he is in the present suit: seeking reinstatement because of allegedly improper dismissal procedures. Principles of res judicata prevent relitigation not only on the grounds or theories actually advanced, but also on those which could have been advanced in the prior litigation." Id. at 830.

 Plaintiff asserts that this suit is not barred under principles of res judicata because it involves a different defendant than Shewmaker v. Parker did. Plaintiff makes this claim because in Shewmaker v. Parker defendant was sued in his official capacity, while in this action he is sued in his personal capacity. He relies for this assertion on section 80 of the Restatement of Judgments, which states:

Where a judgment is rendered for or against a person who is a party to the actio solely in a representative capacity or who is otherwise acting solely for the benefit of another, of which fact the other party to the action has notice, the rules of res judicata do not apply in a subsequent action in which he is a party and is acting solely on his own account....

 This principle may preclude application of res judicata where a party's appearance in one, representative capacity in one law suit requires complete devotion to the interests of others, interests which are different from and potentially in conflict with his own interests when appearing in a second suit in his personal capacity. Barring the second action by res judicata might prevent that party with dual responsibility from fully discharging its divergent duties. Such was the concern in United States v. Washington, 459 F. Supp. 1020, 1084 (W.D.Washington, 1978), vacated on other grounds sub nom., Washington v. Fishing Vessel Assn., 443 U.S. 658, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979). In that case, the court held that the United States, a litigant on its own behalf, could not be bound by a previous holding in litigation where the United States appeared as the trustee of others. "To find otherwise," the court explained, "would prevent the United States from fully and completely fulfilling its trust obligations. A trustee must be free to act in the interests of the beneficiary and not ...

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