Yelder v. Gates

• Court: District Court, District of Columbia
• Decided: June 22, 2010
• Docket: Civil Action No. 2009-1301
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GLORIA DEAN YELDER, ) ) Plaintiff, ) ) v. ) Civil Case No. 09-1301 (RJL) ) ) ROBERT GATES, ) SECRETARY OF DEFENSE, et al., ) ) Defendant. )

MEMORAN~ ORDER (JuneZ,"2,.-201O) [# 8]

Pro se plaintiff Gloria Dean Yelder ("plaintiff'), a former employee of the United

States Department of Defense ("DOD"), Defense Security Services ("DSS"), brought this

action against defendants DSS, Robert M. Gates, Secretary of Defense, and DOD's

Washington Headquarter Services ("WHS"), asserting violations of Title VIII of the Civil

Rights Act of 1964 ("Title VII") and the Due Process Clause of the Fifth Amendment to

the United States Constitution; defamation of character; concealment and

misrepresentation of material information; and fraud. Before the Court is defendants'

Motion to Dismiss the Amended Complaint. After careful consideration, the Court

I Plaintiff alleges "Race Discrimination under Title VI of the Civil Rights Act of 1964, as

amended," Am. Compi. ,-r1, but she states no facts germane to a Title VI claim. Defendants have treated this claim as a Title VII claim, which plaintiff has not disputed. Because plaintiff was employed by the defendant, the Court will also treat this claim as a violation of Title VII of the Civil Rights Act of 1964. GRANTS the defendants' motion for the following reasons.

ANALYSIS

Plaintiffs multiple claims must be dismissed for two reasons: the doctrine of res

judicata and her failure to oppose the defendants' Motion to Dismiss as to the two

arguably new claims she filed in her Amended Complaint.

As to the first group of her claims, the doctrine of res judicata, or claim preclusion,

provides that "a final judgment on the merits bars further claims by parties or their privies

based on the same cause of action," Montana v. United States, 440 U.S. 147, 153 (1979),

on "any ground for relief which [the parties] already have had an opportunity to litigate[,]

even if they chose not to exploit that opportunity[,]" and regardless of the soundness of

the earlier judgment, Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981).

Accordingly, res judicata bars a lawsuit "ifthere 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, 471 F.3d 186, 192 (D.C. Cir. 2006) (citations

omitted). An action based on the same nucleus of facts as that of a prior action is said to

share the same cause of action, and therefore is barred by claim preclusion, even if the

latter action is predicated on a different legal theory. See Page v. United States, 729 F.2d

818, 820 (D.C. Cir. 1984).

Plaintiffs claims here arise from her employment at DSS and subsequent

2 termination in August 1998, when she was terminated following revocation of her

security clearance. Am. Compl. at,-] 6. Since that time, plaintiff has filed a series of civil

lawsuits against the DOD contesting the revocation of her security clearance and ultimate

termination. See Ex. C - Ex. P to Def.'s Mot. to Dismiss. Indeed, two of these suits have

already resulted in a final judgment on the merits. Yelder v. Dep 't ofDe!, No. 04-1032

(N.D. Ala., Jan. 13,2005) (order of dismissal); Yelder v. Dep't ofDe! , No. 00-0458

(N.D. Ala., Feb. 5,2002) (order granting summary judgment and dismissing action). The

defendant in those cases, of course, is in privity with the current defendants.2 Moreover,

plaintiff's current Title VII, due process, and defamation claims arise from the same

nucleus of facts as her prior lawsuits in the Northern District of Alabama: the revocation

of her security clearance and subsequent termination from her employment at DSS. Thus,

res judicata bars litigation of these claims and they must therefore be dismissed. 3

With respect to plaintiff's two arguably new claims, the plaintiff's suit should be

dismissed due to her failure to respond to the defendants' motion pursuant to Local Rule

of Civil Procedure 7(b). LCvR 7(b); see also Fox v. American Airlines, Inc., 389 F.3d

1291, 1294 (D.C. Cir. 2004). Indeed, "[i]t is understood in this Circuit that when a

plaintiff files an opposition to a dispositive motion and addresses only certain arguments

2Robert Gates is the Secretary of Defense; DSS is a DOD agency, and WHS is a DOD Field Activity.

3In fact, these identical claims have already been dismissed on identical grounds by the District Court for the Northern District of Alabama. Yelder, No. 04-1032 (N.D. Ala., Jan. 13,2005) (order of dismissal).

3 raised by the defendant, a court may treat those arguments that the plaintiff failed to

address as conceded." Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003). While

treating a motion as conceded under Local Rule of Civil Procedure 7(b) is highly

discretionary, our Circuit Court has noted that "[w ]here the district court relies on the

absence of a response as a basis for treating the motion as conceded, [the D.C. Circuit

will] honor its enforcement of the rule." Twelve John Does v. District a/Columbia, 117

F.3d 571,577 (D.C. Cir. 1997).

The government here argued alternatively in its Motion to Dismiss that plaintiffs

concealment and misrepresentation of fraudulent information claims should be dismissed

because: (1) they are barred by res judicata since they arise from the same cause of action;

(2) they are non-actionable torts under the Federal Tort Claims Act ("FTCA"), which

prohibits liability for "[a]ny claim arising out of ... libel, slander, misrepresentation [or]

deceit", 28 U.S.C. § 2680(h); or (3) even assuming the FTCA does apply, this Court lacks

subject matter jurisdiction, as plaintiff has failed to comply with the time requirements for

administrative exhaustion as set out in the FTCA, 28 U.S.C. § 2401(b). Though plaintiff

filed an opposition to the defendants' Motion to Dismiss, she did not oppose these

arguments by the government. See generally Pl.'s Opp'n to Def.'s Mot. to Dismiss.

Thus, these claims must also be dismissed as conceded.

4 F or the reasons set forth above, it is hereby

ORDERED that the defendants' Motion to Dismiss [#8] is GRANTED,

and it is further

ORDERED that the above-captioned case be dismissed with prejudice.

SO ORDERED.

(? ' I~ RICHARD J. LEON United States District Judge