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Ivey v. United States Dep't of the Treasury


October 22, 2007


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


This matter is before the Court on defendant's Motion to Dismiss and plaintiff's "Motion to Reassign Judge to Case." For the reasons set forth below, the Court will grant the former and deny the latter.


Plaintiff, a former employer of the Internal Revenue Service, brings this action against the United States Department of the Treasury ("Treasury") under the Privacy Act, see 5 U.S.C. § 552a.*fn1 Complaint ("Compl.") at 1. He appears to allege that Treasury has maintained and has disclosed three documents which contain information pertaining to him in the course of administrative proceedings and civil actions in federal courts without his consent in violation of the Privacy Act. See id. at 3-4. The documents are: (1) an undated electronic mail message from Robert M. Hall to Linda C. Ferguson, Karen D. Truss, and Brent E. Brown summarizing a telephone conversation between Angela Strong (a representative of the National Treasury Employees Union) and plaintiff; (2) correspondence dated March 5, 2001 signed by Robert M. Hall regarding his recommendation to terminate plaintiff; and (3) an electronic mail message dated April 2, 2001 forwarded by Karen D. Truss to Brent E. Brown regarding plaintiff's March 31, 2001 telephone conversation with Susan Karimi. Id., Ex. A, T and U respectively.

Plaintiff demands declaratory relief and an award of "relative fees and costs associated with the action and other relief as to it [sic] discretion for damages." Compl. at 5. Treasury moves to dismiss the complaint on the ground that plaintiff's claims are barred under the doctrine of res judicata.*fn2 See Memorandum in Support of Motion to Dismiss ("Def.'s Mot.") at 8-11.


A. Res Judicata Bars Plaintiff's Claims

Generally, a plaintiff is expected to "present in one suit all the claims for relief that he may have arising out of the same transaction or occurrence." U.S. Indus., Inc. v. Blake Const. Co., Inc., 765 F.2d 195, 205 (D.C. Cir. 1985) (quoting 1B J. Moore, Moore's Federal Practice, ¶ 0.410[1] (1983)). The doctrine of res judicata provides that a final judgment on the merits in a prior suit involving the same parties bars subsequent suits based on the same cause of action.

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979). Two cases implicate the same cause of action if they share the same nucleus of facts. Drake v. Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002), cert. denied, 537 U.S. 1193 (2003) (internal quotation marks and citation omitted). Res judicata bars not only claims that actually were litigated, but also claims that could have been litigated in the previous action. Allen v. McCurry, 449 U.S. 90, 94 (1980) (citation omitted); I.A.M. National Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 (D.C. Cir. 1983) (noting that res judicata "forecloses all that which might have been litigated previously") (citation omitted); Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981).

In order for res judicata to apply, Treasury must show: (1) the identity of parties in both suits, (2) a judgment rendered by a court of competent jurisdiction, (3) a final judgment on the merits, and (4) an identity of the cause of action in both suits. Paley v. Estate of Ogus, 20 F. Supp. 2d 83, 87 (D.D.C. 1998) (citing Brannock Assocs., Inc. v. Capitol 801 Corp., 807 F. Supp. 127, 134 (D.D.C. 1992) (citing U.S. Indus. Inc., 765 F.2d at 205 n.21 )).

Defendant argues that the Court's resolution of plaintiff's prior Privacy Act action against Treasury bars his claims in the instant civil action. See Def.'s Mot. at 8-9. In the prior action, plaintiff alleged that Treasury maintained records pertaining to him and disclosed these records to offices within Treasury and to other government agencies in violation of the Privacy Act. See id., Ex. 1 (Complaint, Ivey v. Snow, Civ. No. 04-0214 (EGS)). The three documents at issue in the instant civil action also were at issue in the prior action and were included as attachments to plaintiff's summary judgment motion. See Ivey v. Snow, Civ. No. 04-0214 (EGS) (D.D.C.) (Plaintiff's Motion for Summary Judgment [Dkt. #30], Ex. 4-5, 9). The Court ruled in Treasury's favor because its use and disclosure of these records in the course of defending itself in proceedings plaintiff brought before the Merit Systems Protection Board and the Equal Employment Opportunity Commission was authorized under the Privacy Act. Ivey v. Snow, No. 04-0214, 2005 WL 2474480, at *3 (D.D.C. Aug. 30, 2005), appeal dismissed, No. 05-5444 (D.C. Cir. Mar. 7, 2006).

Defendant thus demonstrates that the parties, plaintiff and Treasury, were the same in both civil actions. The causes of action are the same, in that plaintiff alleges violations of the Privacy Act arising from Treasury's maintenance and use of the same three documents in administrative proceedings and civil actions in federal court. In addition, Treasury shows that a court of competent jurisdiction entered a final judgment in its favor on the merits of those claims.

Plaintiff counters by arguing that his allegations of "perjury, forging of evidence, and subornation of perjury regarding the exhibits herein was not raised previously." Plaintiff's Reply to Motion to Dismiss ("Pl.'s Opp'n") ¶ 12. That plaintiff chose to raise some, but not all, of his claims in the prior suit works to his detriment. The doctrine of res judicata bars not only relitigation as to every ground of recovery or defense actually presented in the prior action, but also every ground which might have been presented. Flynn v. 3900 Watson Place, Inc., 63 F. Supp. 2d 18, 22 (D.D.C. 1999) (quoting Shin v. Portals Confederation Corp., 728 A.2d 615, 618 (D.C. 1999)).

The Court will grant Treasury's motion to dismiss on the ground that plaintiff's Privacy Act claims are barred under the doctrine of res judicata.

B. This Action Will Not Be Reassigned To Another Judge

Plaintiff notes that the same judge has been assigned to two of plaintiff's prior cases, Ivey v. Snow, Civ. No. 04-0214 (EGS), and Ivey v. Nat'l Treasury Employees Union, Civ. No. 05- 1147 (EGS). Motion to Reassign Judge to Case at 1. He asserts that this situation "creates a predetermined opinion for the above captioned case with the defendant, [and] it is improper for Judge Sullivan to be assigned to the present case." Id. at 2. Because "the plaintiff has filed misconduct charges against Judge Sullivan in [the United States Court of Appeals for the District of Columbia] Circuit, there is a conflict of interest in the outcome of the present case, [and] therefore, the case should be reassigned to another judge to provide fairness to the plaintiff." Id. at 3.

A judge shall disqualify himself "in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). In addition, a judge shall disqualify himself "[w]here he has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(b)(1).*fn3 The standard for disqualification under Section 455 is an objective one: whether a reasonable and informed observer would question the judge's impartiality. See In re Brooks, 383 F.3d 1036, 1043 (D.C. Cir. 2004); United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001) (en banc) (per curiam); In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991) (appearance-of-partiality test is objective one, depending upon whether "an informed observer would reasonably question the judge's impartiality"); CODE OF CONDUCT FOR UNITED STATES JUDGES, Canon 2, cmt. 2A ("The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired."). "The alleged bias and prejudice to be disqualifying must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).

Although plaintiff suggests that this Court is predisposed to rule in defendant's favor in the instant civil action, nothing in his motion suggests that this Court obtained information from any source other than the records of the cases before it and relied on such information in its rulings. A judge's legal decisions generally are not proper grounds for a claim of bias or impartiality. See Liteky v. United States, 510 U.S. 540, 555 (1994); Cotton v. Washington Metro. Area Transit Auth., 264 F. Supp. 2d 39, 42 (D.D.C. 2003) (denying motion for recusal where "claim of bias is predicated entirely upon the [magistrate judge's] rulings with respect to the conduct of discovery in the instant action, and rulings regarding discovery and other issues in three other actions filed by Plaintiffs' counsel"). Plaintiff's dissatisfaction with this Court's rulings may be a proper basis for an appeal to the United States Court of Appeals for the District of Columbia Circuit; it is not a proper basis for recusal. Nor are plaintiff's complaints of judicial misconduct a proper basis for recusal. See Anderson v. Bradford, No. 89-2776 (LFO), 1990 WL 161916, at *2 (D.D.C. Oct. 11, 1990) (concluding that plaintiff's "mere filing of a civil action against a judge does not indicate personal bias"). Accordingly, plaintiff's motion will be denied.


The Court concludes that plaintiff's Privacy Act claims against Treasury are barred and that recusal is not warranted. Accordingly, the Court grants defendant's motion to dismiss and denies plaintiff's motion to reassign this case to another district judge. An Order consistent with this Memorandum Opinion is issued separately on this same date.

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