author: CHARLES R. RICHEY, District Judge.

text:
    Francis X. McLAUGHLIN, Plaintiff, v. Benjamin C. BRADLEE, et al., Defendants.
    Civ. A. No. 84-1776.
    United States District Court, District of Columbia.
    Dec. 21, 1984.

      Francis X. McLaughlin, Kensington, Md., pro se.
    William E. McDaniels, David E. Kendall, Kevin T. Baine, and Gerson A. Zweifach, Williams & Connolly, Washington, D.C., for defendants The Washington Post Co., Bradlee, and Chesire.
    Hugh E. Donovan, Donovan & Nash, Silver Spring, Md., for defendants Alban and Michaleski.
    David A. Levin, Digges, Wharton & Levin, Annapolis, Md., for defendant Montgomery County.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

The Court has before it several motions in this case. All of the defendants have moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and Fed.R.Civ.P. 11 on the grounds that this action is barred by the doctrine of res judicata and collateral estoppel. The defendants also request that the Court impose sanctions against the plaintiff pursuant to Fed.R.Civ.P. 11 and 28 U.S.C. § 1927. Additionally, three of the defendants herein, Montgomery County, Maryland, Stanley Michaleski, and Miles Alban, have moved to dismiss on the grounds of improper venue. The plaintiff has opposed all of these motions, and they have been fully briefed and are now ripe for decision. For the reasons set forth in this Opinion, the Court has, by Order of even date herewith, denied the Motions to Dismiss for Improper Venue, and granted the Motions to Dismiss for failure to state a claim upon which relief can be granted. The Court has also decided to deny the requested sanctions at this time, but to retain jurisdiction of the question of sanctions until it is determined what further actions, if any, the plaintiff may take. If further proceedings are undertaken on the issues herein decided, the defendants may make application for a hearing to re-open this request at the earliest possible date consistent with the Court’s docket and other responsibilities.

BACKGROUND

A. The Complaint and the Underlying Facts

The Complaint in this case contains four counts, all based on an alleged conspiracy. The first three counts are brought pursuant to 42 U.S.C. § 1983. The fourth count is a pendent claim for malicious prosecution. The named defendants are: The Washington Post Company; Post Executive Editor, Benjamin C. Bradlee; Post reporter, Maxine Chesire; Montgomery County, Maryland; and two detectives on the Montgomery County Department of Police (“MCDP”), Miles F. Alban, Jr. and Stanley Michaleski.

The facts underlying the alleged conspiracy described in the instant suit, (and in three previous suits), can be gleaned from the Complaint, the memoranda in support of the Motions to Dismiss, and from the judicial discussion of the plaintiff’s previous litigation, discussed more fully herein.

In 1970, the plaintiff, an attorney, drafted a will for his client and friend, George P. Marshall, Jr. Marshall was the son of the founder of the Washington Redskins. When Marshall died in 1976, his daughters filed suit in Florida to invalidate the will. They ultimately prevailed on the ground that McLaughlin had exercised undue influence over the testator, Marshall. In re Estate of George Preston Marshall, Jr., No. 76-3773 (Fla.Cir.Ct., 17th Judicial Circuit, May 10, 1978). During the course of the Florida probate proceeding, McLaughlin filed an affidavit, which had been executed in Montgomery County, Maryland, representing that he did not exercise undue influence over Mr. Marshall and that the witnesses to the will had never been financial participants with him, McLaughlin, “in any law practice or venture.”

Sometime after that affidavit was filed in Florida, defendant Chesire, a Post reporter, began an investigation of the relationship between Tongsun Park and Speaker of the House of Representatives, Tip O’Neill. During the course of this “Koreagate” investigation, Chesire came across the name of Mr. McLaughlin, who apparently had some contacts with the Speaker. Chesire conducted an investigation of McLaughlin to determine if there was a relationship between him, Park, and O’Neill, apparently finding no such connection.

Ms. Chesire brought some information and rumors about McLaughlin to the attention of defendant Alban, who was a member of the organized crime unit in the MCDP. As a result, Alban also became involved in investigations into McLaughlin’s background.

After some investigation, Alban concluded that there was probable cause to believe that Mr. McLaughlin had committed perjury in the execution of the affidavit in the Florida probate proceeding. In a letter dated February 24, 1978, defendant Michaleski, at the time Alban’s superior in the MCDP, communicated this belief to Ms. Muriel Waldmann, an agent in the Organized Crime Bureau of the Fort Lauderdale Police Department.

On March 22, 1978, McLaughlin was charged by Information in Florida with the felony of perjury. (This Information was superceded by a similar Information dated April 11, 1978, and the March Information was “nol grossed ”.) The Information alleged that plaintiff’s affidavit, which had been filed in the Marshall probate proceeding in Florida, was false. Although the affidavit had stated that none of the witnesses to the will had been financial participants with McLaughlin, one of those witnesses, Mr. Robert F. Steeves, had served as an incorporator and director with McLaughlin in two Maryland corporations, Gaelic Gifts, Ltd., and Tex-on, Inc.

On April 3,1978, McLaughlin was arrested in Maryland on the basis of a fugitive warrant obtained in Maryland by the Bro-ward County, Florida, Sheriff’s Office. Mr. McLaughlin was released the same day. The Maryland extradition proceedings were apparently in a state of flux for four years until 1982, when McLaughlin travelled to Florida. On March 25, 1982 he was arrested and jailed by Florida authorities on the 1978 perjury charges.

After his Florida arrest, McLaughlin’s penury charge was dismissed. The Florida Attorney General appealed this dismissal to the Florida Court of Appeals. That court affirmed the dismissal on May 29, 1983.

B. The Previous Litigation

Because this case involves the assertions of preclusion based on the doctrines of res judicata and collateral estoppel, a review of the relevant previous litigation is necessary. In 1981, Mr. McLaughlin filed, on behalf of himself and his wife, three complaints growing out of these circumstances — one in this Court, one in the United States District Court for the District of Maryland, and one in the Circuit Court for Montgomery County, Maryland. These three complaints were photocopies of one another with only the headings changed to reflect the different defendants named in each court. In the 1981 suit in this Court, McLaughlin joined as defendants Maxine Chesire, Miles Alban, and nine unknown “J. Doe” defendants. In the District of Maryland federal action, McLaughlin joined The Washington Post Company, E. Norman Veazy (a Wilmington, Delaware attorney), Michael J. Satz (a Florida prosecutor), David G. Vinikoor (a Florida prosecutor), the State of Florida, Stanley Michaleski, Muriel Waldmann (a Fort Lauderdale police investigator), Bryan Brooks (a Fort Lauder-dale policeman), the City of Fort Lauder-dale, and six unknown “J. Doe” defendants. In the Montgomery County suit, McLaughlin named Miles Alban, Montgomery County, MCDP, Robert J. DiGrazia (former chief of MCDP), Ms. Chesire, and “numerous ‘J. Does’ ”.

The 1981 complaints alleged a broad “conspiracy to discredit and oust Speaker Thomas P. O’Neill, Jr. of the House of Representatives and to discredit and to tortiously injure Plaintiff Francis X. McLaughlin.” (1981 Complaints at 2). Each of the complaints included seven counts: abuse of process, false imprisonment, malicious prosecution, intentional infliction of emotional distress, invasion of privacy, business tort, and denial of constitutional rights. Id. at 11-15.

1. The Proceedings in This Court

On November 5, 1982, in the suit in this Court, Judge Gesell decided to decline to exercise pendent jurisdiction over the first six claims in the 1981 complaint, since they would be tried in the Montgomery County Circuit Court. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Doe v. Board of Professional Responsibility, 717 F.2d 1424, 1427 (D.C.Cir.1983). On June 2, 1983, Judge Gesell granted Chesire summary judgment as to the remaining claim, count seven, which alleged that plaintiff had been deprived of various constitutional rights, including the right to due process. The June 2 Memorandum also granted in part defendant Alban’s motion to dismiss by eliminating McLaughlin’s claim of false arrest in Maryland on the fugitive charge. (Memorandum at 7). This decision was based on a finding that “the arrest was lawful and none of his constitutional rights were infringed.” Id. Judge Gesell found that “[tjhere was a reasonable basis to believe perjury had occurred.” Id. at 6.

On June 21, 1983, Judge Gesell denied McLaughlin’s motion for reconsideration. On July 6, 1983, McLaughlin moved for relief pursuant to Fed.R.Civ.P. 60(b), contending that he had newly-discovered evidence of “discovery fraud” by Chesire’s counsel. That motion was denied on July 15, 1983. McLaughlin appealed to the Court of Appeals for the District of Columbia Circuit. On March 9, 1984, that court summarily affirmed Judge Gesell’s Order, with costs. McLaughlin v. Chesire, No. 83-1725 (D.C.Cir. March 9, 1984). Judge Gesell later denied another Rule 60(b) motion.

After the instant lawsuit was filed, the case against defendant Alban went to trial before Judge Gesell on the single remaining issue: “Did Alban knowingly supply, false information to the Florida States (sic) Attorney in a reckless and malicious manner under circumstances constituting unlawful state action?” Memorandum at 8. On September 13, 1984, at the close of McLaughlin’s evidence as to liability, Judge Gesell granted Alban’s motion for directed verdict. Ruling from the bench, Judge Ge-sell found that “[tjhere is no evidence that can go to the jury here that Mr. Alban did not have a reasonable belief that the information he was communicating was true and appropriate consistent with his duties.” (Tr. at 170). Judge Gesell also stated that Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), among other cases, demonstrated the insufficiency of the plaintiffs case. (Tr. at 171). Finally, Judge Gesell relied on plaintiffs failure to establish “that officer Alban caused the lodging of the perjury information against Mr. McLaughlin.” Id. at 172. Judge Gesell awarded costs to the defendant. Id. at 173.

2. The Proceedings in the Circuit Court for Montgomery County

The proceedings in the Montgomery County Circuit Court were very complicated. On June 9, 1981, Judge Roslyn B. Bell granted defendant Alban’s demurrer to Counts I (abuse of process) and VI (“Business Tort”, i.e. interference with contractual relations), and plaintiff later filed amended Counts I and VI. On September 3, 1981, Judge Bell granted defendant Che-sire’s demurrers to amended Count I, and Counts IV (“Intentional Infliction, Etc.”) and V (invasion of privacy). On September 18, 1981, plaintiff filed a twice-amended Count I, and amended Counts IV and V. On December 2, 1981, Judge Bell granted the demurrers by defendants Chesire, Al-ban, and DiGrazia to these three counts without leave to amend. On January 7, 1982, Judge Bell reversed herself as to the dismissal of twice-amended Count I, and reinstated this Count as against defendant Chesire.

On January 18, 1982, Judge Bell granted defendant Alban’s Motion for Summary Judgment as to Counts II (false imprisonment), III (malicious prosecution), and VII (denial of constitutional rights). On January 31, 1983, Judge Bell dismissed, with prejudice, the last remaining Count as to defendant Alban, Count VI, as a sanction for plaintiff’s continued refusal to comply with discovery orders.

Some of the Counts were still alive as to defendants Chesire and DiGrazia when Judge Bell recused herself on April 13, 1983, McLaughlin had sought her recusal because of, inter alia, Washington Post endorsements of the incumbent Montgomery County Judges, including Judge Bell. Circuit Judge Calvin R. Sanders was appointed to hear the case.

The case went to trial in October, 1983. McLaughlin proceeded against defendant Chesire on Counts I (abuse of process), II (false imprisonment), III (malicious prosecution), VI (interference with contractual relations), and VII (denial of constitutional rights), and against defendant DiGrazia on Counts I and VI. The plaintiffs’ case consumed 13 complete days of trial. On November 2, 1983, at the close of plaintiff’s case, Judge Sanders entered a directed verdict for DiGrazia as to his remaining Counts (I and VI), and for Chesire as to Counts I and VII. Defendant Chesire then presented her case in four days, and McLaughlin put on a rebuttal case. On November 10, 1983, one month to the day after the start of the trial, the Montgomery County jury returned a verdict for Chesire on all three remaining counts.

McLaughlin appealed to the Maryland Court of Special Appeals. In that appeal, he attacked some of Judge Bell’s orders, and also complained of “discovery fraud” during the trial. On June 28, 1984, the Maryland Court of Special Appeals rejected plaintiff’s arguments. In its unreported Opinion, the Court stated that “the McLaughlins cite little or no authority to support the arguments raised on appeal.” McLaughlin v. Alban, No. 1608, slip op. at 4 (Md.Ct.Spec.App. June 28, 1984). Citing five violations of the Maryland Rules, the Court dismissed the appeal with costs and with the following scolding:

Counsel is obligated to comply with the Maryland Rules of Procedure. In a series of holdings so numerous as not to need citation, the Court of Appeals and this Court have warned over and over again that failure to read and obey the rules may result in a dismissal of the appeal. In this case we propose to do exactly that. The appeal is dismissed.

Id. at 4-5. On November 21, 1984, the Court of Appeals of Maryland denied McLaughlin’s petition for certiorari.

3. The Proceedings in the United States District Court for the District of Maryland

On January 21, 1982, in the plaintiffs suit in the United States District Court for the District of Maryland, Judge Miller administratively closed the case because the plaintiff was still charged with perjury in Florida. The Court later issued a stay pending the outcome of the District of Columbia ease, and the Montgomery County case. On February 29, 1984, after the plaintiffs return from Florida and after trial court judgments in the other two cases, Judge Miller issued a twenty-two page Memorandum and Order granting the Post’s Motion for Summary Judgment as to all seven counts. The bases for the grant of Summary Judgment were the preclusive effects of the litigation in the other courts. McLaughlin v. Washington Post, No. M81-779, Order of Feb. 29, 1984 (D.Md. 1984).

On March 7,1984, McLaughlin moved for reconsideration. He contended, inter alia, that Judge Miller’s application of non-mutual issue preclusion was unfair. He also contended that he was denied a full and fair opportunity to litigate the case, pointing to a newly discovered MCDP report. Judge Miller noted that a party’s inability to present crucial evidence is but one of several factors in determining whether defensive issue preclusion is appropriate. McLaughlin v. The Washington Post Co., Order of June 25, 1984 at 10, n. 6 (D.Md. 1984). In denying the motion, Judge Miller stated:

The information provided by the plaintiffs is not sufficient to require such action [i.e. reconsideration] by this court. The document produced provides a slim reed upon which to base a conclusion that the plaintiffs were deprived of crucial evidence in their claim.

Id. at 10. McLaughlin did not appeal any of Judge Miller’s orders.

THE CONSPIRACY ALLEGED IN THE 1981 COMPLAINTS IS IDENTICAL TO THE ONE ALLEGED IN THE INSTANT COMPLAINT

Plaintiff’s three 1981 complaints and the instant complaint all seek to impose liability on the basis of the same alleged conspiracy. The 1981 complaints allege that in 1977 the various conspirators “acting under color of law, used the powers of the Montgomery County Department of Police, the Fort Lauderdale Police Department, the State Attorney in Fort Lauderdale, Fla., the Federal Bureau of Investigation and certain elements of the print and broadcast media to tortiously injure” the plaintiff by, inter alia, “widely publicizing] McLaughlin’s arrest on a false charge which they arranged to be placed.” 1981 complaints at 2.

The alleged conspiracy in the instant complaint is virtually identical. “[Beginning in late 1977,” the various defendants “maliciously entered into a conspiracy to use the powers of state law to conduct an official investigation of McLaughlin” with the intent to, inter alia, have him falsely charged and arrested for perjury. Complaint ¶¶ 10, 17-20. Plainly, McLaughlin is complaining of the same conspiracy in all four lawsuits. However, he contends that the counts of the instant complaint allege “new” injuries to plaintiff, concerning claims and issues which have not yet been litigated. Accordingly, after considering the defendants’ claim of improper venue, the Court analyzes each count of this complaint.

BECAUSE SOME OF THE ACTS IN FURTHERANCE OF THE ALLEGED CONSPIRACY TOOK PLACE IN THE DISTRICT OF COLUMBIA, VENUE IS PROPER IN THIS COURT

Defendant Montgomery County, Maryland, and defendants Michaleski and Alban, two Montgomery County police officers, claim that venue in this Court is improper as to them. See 28 U.S.C. § 1391(b). The case, however, involves four counts of conspiracy, in which these Montgomery County defendants are alleged to be co-conspirators. The plaintiff alleges that at least some of the conspirators furthered the conspiracy by taking actions within the District of Columbia. (Complaint ¶ 40). Accordingly, venue is established as to all co-conspirators in this district. See Schreiber v. W.E. Hutton Co., 382 F.Supp. 297, 299 (D.D.C.1974). Since venue is proper in this Court as to all named defendants, the Court has denied the Rule 12(b)(3) motions of these Montgomery County defendants.

COUNT I IS BARRED BY THE DOCTRINE OF RES ' JUDICATA

Count I of the instant complaint, brought pursuant to 42 U.S.C. § 1983, avers that the defendants’ conspiracy violated “plaintiff’s constitutional right to privacy against the disclosure of personal information which had been acquired under color of state law and which was maliciously disclosed by defendant Alban, acting individually and on behalf of the other defendants, to defendant Chesire in her own right and on behalf of defendants Bradlee and the ‘Post’.” Complaint 1143. This claim, however, has been conclusively adjudicated, and plaintiff is precluded from raising it again.

The plaintiff’s 1981 complaints each contained a count entitled “Invasion of Privacy.” 1981 complaints ¶¶ 16-18. The plaintiff now asserts that this constitutional privacy claim is different than his earlier claim. Even assuming, arguendo, that the common law privacy claim differed from a constitutional privacy claim, it is clear that the plaintiff has already pressed a constitutional right to privacy claim in the proceedings before Judge Gesell. As McLaughlin stated in his brief before the Court of Appeals, while appealing Judge Gesell’s dismissal of one of his § 1983 Counts against some defendants:

A district court may not arbitrarily dismiss a Sec. 1983 claim when the record shows that the plaintiff’s constitutional right to privacy has been infringed by an unlawful police investigation ____ The plaintiffs also contend that the conspirators, acting under color of law (the MCDP) raised the invasion of their rights to the- level of a constitutional violation

Appellants’ Brief, at 24-25, McLaughlin v. Chesire, D.C.Cir. No. 83-1725 (filed Sept. 19, 1983).

The plaintiff also states that this constitutional right to privacy count cannot be barred by the doctrine of res judicata because it was not until defendant Alban’s testimony on October 19, 1983, and thereafter, that he learned of the unlawful disclosures of personal information. However, this claim seems to be nothing more than an assertion that the plaintiff has newly-discovered evidence to support his earlier privacy claims, brought in three separate courts. He has already presented this evidence to three courts, and all have rejected his arguments.

Significantly, the plaintiffs filed a supplemental brief in the Court of Appeals after those dates. There McLaughlin argued:

The cumulative incorporation into Count YII [Denial of Constitutional Rights] of all preceeding “facts and matters” necessarily included the allegations ... that certain of [plaintiff’s] constitutional rights had been denied under color of law. A reading of the incorporated paragraphs shows that the appellants were alleging, among other things, a denial of their constitutional right to privacy. The district court ... overlooked plaintiff’s claims in Count VII that they had been denied their constitutional rights to privacy.

Appellants’ Supplemental Brief, McLaughlin v. Chesire, No. 83-1725 (D.C.Cir.) (filed February 3, 1984) (emphasis supplied). Rejecting these arguments, the Court of Appeals summarily affirmed Judge Gesell’s orders. McLaughlin v. Chesire, 731 F.2d 995 (D.C.Cir.1984).

Plaintiff also moved for relief from Judge Gesell’s order pursuant to Fed.R. Civ.P. 60(b). That rule provides for relief from final judgments based, inter alia, on “newly discovered evidence”. On June 20, 1984, well after plaintiff had discovered this new evidence, Judge Gesell denied the motion.

The case as against defendant Alban proceeded to trial before Judge Gesell on September 12 and 13,1984. At that trial plaintiff put into evidence the “further additional proofs which had previously been fraudulently withheld by Alban.” Complaint ¶ 14. Despite that evidence, Judge Gesell directed a verdict against McLaughlin on his Section 1983 claim.

McLaughlin also presented this new evidence to Judge Miller, who had either dismissed or granted summary judgment for all defendants on all counts of the 1981 complaint (including the common law privacy count, and the constitutional claim in Count VII, which, according to plaintiff, contained the constitutional right to privacy claim). On June 25, 1984, Judge Miller denied McLaughlin’s Motion for Reconsideration, stating that the new evidence “provide^] a slim reed upon which to base a conclusion that the plaintiffs were deprived of crucial evidence of their claim.” McLaughlin v. The Washington Post Co., Order of June 25, 1984 at 10 (D.Md.1984). See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 333, 91 S.Ct. 1434, 1445, 28 L.Ed.2d 788 (1971).

Thus, plaintiff’s previous litigation provided several opportunities for him to press his § 1983 constitutional right to privacy claim. He has urged that his 1981 complaint covered such a claim. Having so contended, he cannot now claim that his earlier complaints did not encompass a constitutional privacy claim. And he has presented the same “new” evidence which is now before this Court to two other federal judges, based on that earlier complaint. The plaintiff has lost on this same claim, with the same evidence, in at least two courts. The defendants contend that this extensive previous litigation should preclude plaintiff from again raising this claim.

A valid and final judgment on a claim precludes a second action on that claim or any part of it. Restatement (Second) of Judgments §§ 18, 19 (1982). Claim preclusion extinguishes “all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.” Id. § 24. Clearly, in the present case, plaintiff’s privacy claim arose out of the same conspiracy, or “series of connected transactions”, as that alleged in the 1981 suits.

For the plaintiff to be precluded from again raising this claim, he must have previously received a “full and fair opportunity” to litigate it. E.g. Kremer v. Chemical Construction Corp., 456 U.S. 461, 481, n. 22, 102 S.Ct. 1883, 1897, n. 22, 72 L.Ed.2d 262, reh’g denied, 458 U.S. 1133, 103 S.Ct. 20, 73 L.Ed.2d 1405 (1982). It is abundantly clear that McLaughlin has had such an opportunity for this claim. As previously noted, he has already pressed this constitutional claim, together with the “new” evidence, in two federal forums. Surely this constitutes a “full and fair opportunity” to litigate this claim. Kremer, 456 U.S. at 481, n. 22, 102 S.Ct. at 1897, n. 22.

The defendants here may defensively assert claim preclusion against McLaughlin even though none of the prior suits named all six of them as defendants. (Actually, all but one of the current defendants, Post Editor Bradlee, has been named in at least one of McLaughlin’s previous suits.) As Judge Miller noted in his February 29, 1984 Memorandum and Order, the leading case concerning the nonmutual use of claim preclusion is Gambocz v. Yelencsis, 468 F.2d 837 (3d Cir.1972). McLaughlin v. Washington Post, No. 81-M779, slip op. at 9-10 (D.Md. Feb. 29, 1984). See also 18 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 4464 at 587 (1981) (hereinafter “Wright and Miller”).

The facts of Gambocz closely resemble those of the present case. In Gambocz the plaintiff had brought suit claiming a conspiracy to interfere with his mayoral election campaign. That action was dismissed, with prejudice, on the plaintiffs motion. The plaintiff later brought suit on the same claim against the original defendants and some new ones.. The court held that because the defendants in the second suit were closely related to those in the first, in that all were allegedly involved in the same conspiracy, the defensive assertion of claim preclusion was appropriate. 468 F.2d at 842.

There is no question that the defendants in the present suit are closely related to those named in the 1981 complaints. As in Gambocz, most of the instant defendants were also defendants in at least one of the earlier suits. Also, as in Gambocz, there is only one alleged conspiracy. Indeed, the Court can find no mitigating circumstances in favor of the plaintiff, who seeks to prohibit preclusion. Accordingly, Count I of the complaint is precluded, and must be dismissed.

There is an additional ground for holding that Count I fails to state a claim upon which relief can be granted. As Judge Gesell observed in granting a directed verdict for defendant Alban, the leading case of Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), stated that certain police actions, which may be actionable as torts, cannot form the basis of a § 1983 privacy claim. (Tr. at 171). As in Paul, McLaughlin’s privacy claim here is “far afield” from any of the cases recognizing a constitutionally protected interest in privacy (i.e., “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education”). 424 U.S. at 713, 96 S.Ct. at 1166. Therefore, as in Paul, this Count fails to state a claim.

COUNT II IS BARRED BY THE DOCTRINE OF RES JUDICATA

Count II of the complaint states a claim entitled “Constitutional Right Against False Imprisonment”. This count is brought pursuant to 42 U.S.C. § 1983.

McLaughlin asserts that, although his earlier complaints contained a false imprisonment claim, this “new” Count is based on his March, 1982 arrest and brief imprisonment in Florida. Because these incidents took place after the filing of his 1981 complaints, plaintiff continues, these claims could not have been determined in the earlier suits. However, as demonstrated below, it has been conclusively determined that the Florida authorities had probable cause to arrest McLaughlin. Therefore, plaintiff is precluded from bringing this claim.

The plaintiff has cited no cases recognizing a constitutional cause of action based on false imprisonment. Presumably, because plaintiff’s “liberty” interest is at stake, there is no violation if the plaintiff received “due process”. Similarly, the common law tort of false imprisonment depends on a lack of “proper legal authority.” W. Prosser, Handbook of the Law of Torts, § 11 at 46 (4th ed. 1971). The plaintiff has the burden of proving the absence of due process or legal authority. Id.

It has been conclusively established that the Florida authorities had probable cause to arrest plaintiff for perjury. Judge Gesell, in his June 2,1983, Memorandum, addressed McLaughlin’s § 1983 claim. There he ruled that “[t]here was a reasonable basis to believe perjury had occurred.” McLaughlin v. Chesire, No. 81-0779, slip op. at 6 (D.D.C. June 2, 1983). “[T]he decision to charge [plaintiff] [with perjury] was made by Florida officials on the basis of sufficient evidence to constitute probable cause.” Id. The plaintiff’s arrest for perjury, although some years later than the initial charge of perjury, was the direct result of that charge. Thus, Judge Gesell’s finding of probable cause is fatal to plaintiff’s present Count based on false imprisonment.

The doctrine of issue preclusion prohibits relitigation of this issue. The Rule states that if an issue of fact or law was actually litigated and determined by a valid and final judgment, the determination is conclusive in a later action. Restatement (Second), § 27. To preclude relitigation, however, this issue must have been essential to the first judgment. Id. See also Synanon Church v. United States, 579 F.Supp. 967, 973 (D.D.C.1984).

Judge Gesell’s finding of probable cause was actually litigated and essential to the determination of plaintiff’s § 1983 claim, where the issue was whether plaintiff was “falsely charged with perjury in Florida.” McLaughlin, slip op. at 2. See Synanon, 579 F.Supp. at 973. Indeed, the plaintiff has not challenged the defendants’ contention that this finding was necessary to the dismissal of plaintiff’s § 1983 claim. See Memorandum in Support of Motion to Dismiss by “Post Defendants”, at 30. Therefore, Judge Gesell’s finding of probable cause for the plaintiff’s perjury charge, which finding was summarily affirmed by the Court of Appeals, is fatal to Counts II and IV of McLaughlin’s latest complaint.

It is clear that the defendants may rely on this assertion of issue preclusion in the present case. “[N]on-mutual issue preclusion is permitted unless it would be unfair.” 18 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure, § 4464 at 570 (1981). Fairness depends on several factors, among them whether the parties are substantially the same, the substantial identity of the issues, whether the earlier judgment was final, and whether the plaintiff had a full and fair opportunity to litigate the issue in the first trial. See Jack Faucett Associates v. American Telephone & Telegraph, 744 F.2d 118, 125 (D.C.Cir.1984). See also Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892 (1942); Blonder-Tongue, 402 U.S. at 333, 91 S.Ct. at 1445; Wright and Miller, § 4464 at 572-73.

Plainly McLaughlin cannot meet his burden of proving unfairness in the present case. His only claim to the denial of a fair opportunity to litigate the ease turns on the defendants’ alleged withholding of evidence. However, as previously shown, that “new” evidence has been presented to both Judge Miller and Judge Gesell, who were familiar with the facts of the case. Therefore, the plaintiff will not be heard to raise these already stale claims in this court again.

COUNT IV IS BARRED BY THE DOCTRINE OF RES JUDICATA

In Count IV, plaintiff asserts a pendent claim for malicious prosecution. According to McLaughlin, this Count, like Count II, relates to his 1982 arrest in Florida. However, as shown below, Judge Gesell’s finding of probable cause defeats this claim.

Under Florida law, for McLaughlin to prevail on a claim for malicious prosecution, he would have to prove each of the following elements: (1) instigation of the prosecution by the defendants, (2) termination in favor of the plaintiff, (3) malice on the part of the defendants, (4) want of probable cause, and (5) damages. Warriner v. Burdines, Inc., 93 So.2d 108, 109 (Fla.1957) (Emphasis supplied). As the underscored language demonstrates, plaintiff has the burden of proving lack of probable cause.

The analysis for Count IV, therefore, is the same for Count II. Because plaintiff may not relitigate the previous determination that the Florida officials had probable cause to arrest McLaughlin, Count IV, like Count II, must be dismissed.

COUNT III IS BARRED BY THE DOCTRINE OF RES JUDICATA

In Count III, plaintiff alleges a denial of due process based on “discovery fraud” by the defendants. Complaint 1149. Again, plaintiff asserts that because he did not learn of this information until October, 1983, it could not have been a basis for the earlier suits. This Count is grounded on 42 U.S.C. § 1983.

The history of plaintiff’s litigation conclusively demonstrates that this is not the first time plaintiff has raised this argument. In his appeal to the Maryland Court of Special Appeals, plaintiff raised the “discovery fraud” issue. In a brief to that Court, McLaughlin argued that “[p]roofs of highly relevant and extensive discovery fraud were obtained by the appellants some three months after the trial of this matter in the Circuit Court for Montgomery County.” “Application to Enlarge Time, Etc.” at 1, McLaughlin v. Alban, No. 1608 (Md.Ct.Spec.App. April 9, 1984). Because the alleged “discovery fraud” took place in McLaughlin’s Montgomery County suit, the Maryland Court of Special Appeals was the appropriate forum in which to present that issue. See Md.Cts. & Jud. Proc.Code Ann. § 12-308. However, on April 18, 1984, that Court denied plaintiff’s application.

Similarly, plaintiff presented this claim to Judge Miller. Judge Miller held that it was “impossible to conclude that the new evidence is crucial to the extent that plaintiffs were deprived of a full and fair opportunity to litigate.” McLaughlin v. The Washington Post, Order of June 25,1984 at 10 (D.Md.1984).

This finding precludes any “Due Process” claim in this Court. Certainly, if the plaintiff received “a full and fair opportunity to litigate” his claim in the Maryland court, he was not deprived of due process. Therefore, Judge Miller’s determination, necessary to the judgment, precludes McLaughlin from raising the issue again here. See Restatement (Second) of Judgments § 27 (1982). The summary rejection of the argument by the Maryland Court of Special Appeals also compels this conclusion. See Migra v. Warren City School District Board of Education, — U.S. -, 104 S.Ct. 892 at 896, 79 L.Ed.2d 56 (state court judgment to be given same preclusive effect in federal court as it would be given in courts of that state).

For the reasons addressed in the discussion of the previous Counts, it is fair to allow the defendants to assert that this issue has been precluded by the previous litigation. See generally Wright and Miller § 4464. Indeed, under the facts of this case, it would be exceedingly unfair to require the defendants to again face these charges. Thus, Count III fails to state a claim upon which relief can be granted.

CONCLUSION

Each of the claims put forth by plaintiff’s present complaint is precluded by the doctrine of res judicata. Plaintiff has had several “full and fair opportunities]” to litigate these issues. Blonder-Tongue, 402 U.S. at 333, 91 S.Ct. at 1445. “There must be an end to litigation at some point.” Maryland v. Capital Airlines, Inc., 267 F.Supp. 298, 304 (D.Md.1967). Today the Court has issued an Order dismissing, with prejudice, each Count presented in this case. Hopefully this will mark the end of this litigation.’ If it does not signal the end of plaintiff’s litigation on these issues, the Court might later consider the defendants’ requests for sanctions.

      . McLaughlin v. Chesire et al., No. 81-0779 (D.D.C. filed April 2, 1981) (Gesell, J.).

      . McLaughlin v. The Washington Post Co. et al., No. M81-779 (D.Md. filed April 8, 1981).

      . McLaughlin v. Alban et al., No. 51047, (Cir.Ct. Montgomery County filed June 2, 1981). This suit in Montgomery County was actually first instituted on January 31, 1979. In 1981, however, McLaughlin filed an "Amended Declaration”, which was a photocopy of the other two complaints.

      . In his January 21, 1982 Memorandum and Order, Judge Miller ruled on several motions. The only remaining defendant in that case which is also named in the instant case is the Washington Post. (Stanley Michaleski had earlier been dismissed, with prejudice). The case was administratively closed on "abstention" grounds, based on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. Memorandum at 14-16.

      . The identity of issues is not crucial, because a final judgment on an action precludes parties from “relitigating issues that were or could have been raised." Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69 L.Ed.2d 103 (1981) (emphasis added).

      . Plaintiff had also moved for partial summary judgment on Count I (constitutional right to privacy) as against defendants Alban and Montgomery County. That motion is disposed of with today’s dismissal.


source: Caselaw Access Project

license: Public Domain

text:
    James Edward ANTOSH, Plaintiff, v. FEDERAL ELECTION COMMISSION, Defendant.
    Civ. A. No. 84-3048.
    United States District Court, District of Columbia.
    Dec. 21, 1984.

      H. Richard Mayberry, Jr., Jonathan I. Epstein, Stephen M. Griffin, Law Office of H. Richard Mayberry, Jr., Washington, D.C., Michael E. Avakian, Martha M. Poindexter, Center on Nat. Labor Policy, North Springfield, Va., for plaintiff.
    Charles N. Steele, Richard B. Bader, R. Lee Andersen, Washington, D.C., for defendant.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

This case, which is before the Court on cross-motions for summary judgment, was brought by the plaintiff, Mr. Antosh, pursuant to 2 U.S.C. § 437g(a)(l). Mr. Antosh claims that the Federal Election Commission’s action in dismissing his administrative complaint was “contrary to law.” 2 U.S.C. § 437g(a)(8). The Court agrees. The record before the Court clearly demonstrates that the Commission, in deciding to dismiss the complaint, erred in construing certain facts. The Commission’s action was plainly arbitrary and capricious, or, to use the language of the Federal Election Campaign Act, “contrary to law.” Id. The Court has today issued an order granting the plaintiff’s motion for summary judgment.

FACTS

On May 31, 1984, the plaintiff, James Edward Antosh, filed a complaint with the Federal Election Commission (“FEC” or “Commission”) alleging that the Engineers Political Education Committee/International Union of Operating Engineers (“EPEC/IUOE”) and Supporters of Engineers Local 3 Federal Endorsed Candidates (“SELFEC”) made illegal contributions to the Tom Lantos for Congress Committee (“Lantos Committee”) for the 1982 primary election for nomination to a California congressional seat. This complaint, filed pursuant to 2 U.S.C. § 437g(a)(l), alleged that EPEC/IUOE and SELFEC made contributions totalling $8,600, exceeding the $5,000 limit of 2 U.S.C. § 441a(a)(2)(A). Mr. An-tosh further alleged that the Lantos Committee violated 2 U.S.C. § 441a(f) by knowingly accepting the $3,600 of excess contributions from EPEC/IUOE and SELFEC, and that the Lantos Committee failed to accurately report these contributions, in violation of Commission Regulation 11 C.F.R. § 110.14(d). The complaint was designated Matter Under Review (“MUR”) 1719 by the Commission.

On June 26, 1984, pursuant to 2 U.S.C. § 437g(a)(l), the Commission received responses to its notification of complaint from EPEC/IUOE and from counsel for Supporters of Engineers Local 3 Endorsed Candidates (“SELEC”), which apparently retained control of the SELFEC records pertinent to this matter. On June 28, 1984, the Commission received a response from the Lantos Committee. These responses addressed the allegations raised in the plaintiff’s administrative complaint.

On July 24, 1984, the FEC general counsel submitted a First General Counsel’s Report to the Commission. That report made a determination, based upon the submitted affidavit of Tom Lantos and upon a letter provided by EPEC/IUOE, that certain of the contributions had been improperly designated for the 1982 federal primary election, and that “the excessive contribution made by EPEC/IUOE and SELFEC and accepted by the Lantos Committee [was] $500.” The report therefore recommended that the Commission: (1) Find reason to believe that EPEC/IUOE and Frank Hanley, as treasurer, violated 2 U.S.C. § 441a(a)(2)(A) by making an excessive contribution of $500 and violated 11 C.F.R. § 104.14 of the FEC’s regulations for failure to file accurate reports with the Commission, but take no further action; (2) Find reason to believe that SELFEC and Rober Marr, as treasurer, violated 2 U.S.C. § 441a(a)(2)(A) in connection with the same contribution, but take no further action; and (3) Find reason to believe that the Lantos Committee and Katrina Lantos-Swett, as treasurer, violated 2 U.S.C. § 441a(f) by accepting an excessive contribution from EPEC/IUOE and SELFEC of $500, but take no further action. The general counsel also recommended that the Commission close the file in MUR 1719.

On July 31, 1984, the Commission voted, without dissent, to follow the recommendations of the First General Counsel’s Report. On August 6, 1984, the Commission notified complainant Antosh and the respondents in writing of its determinations, pursuant to 2 U.S.C. § 437g(a)(2). The file was closed by the Commission, and the complaint in MUR 1719 was dismissed.

On October 1, 1984, Mr. Antosh filed the complaint in this Court pursuant to 2 U.S.C. § 437g(a)(8)(A). In this action Mr. Antosh requests that the Court declare the Commission’s action in dismissing the complaint without conducting an investigation to be contrary to law, and to direct the Commission to conform to such declaration within thirty days. See 2 U.S.C. §§ 437g(a)(8)(A), g(a)(8)(C).

THE COURT MAY DECLARE THE COMMISSION’S ACTION TO BE CONTRARY TO LAW IF IT WAS ARBITRARY AND CAPRICIOUS

This case is brought pursuant to 2 U.S.C. § 437g(a)(8), which in relevant part provides:

(C) In any proceeding under this paragraph the court may declare that the dismissal of the complaint ... is con- ■ trary to law, and may direct the Commission to conform with such declaration within 30 days, failing which the complainant may bring, in the name of such complainant, a civil action to remedy the violation involved in the original. complaint.

(Emphasis supplied). As can be seen from the underscored language, a condition precedent to any court order is a determination that the Commission has acted contrary to law.

This section bars “arbitrary and capricious” action by the Commission. Common Cause v. FEC, 489 F.Supp. 738, 744 (D.D.C.1980); In re Federal Election Campaign Act Litigation, 474 F.Supp. 1044, 1046 (D.D.C.1979). “[T]he Court must test the Commission’s decision according to the standard commonly applied to judicial review of administrative decisions. This standard requires the reversal of agency action which is either arbitrary or capricious.” FECA Litigation, 474 F.Supp. at 1046. Therefore, for the purposes of this section of the Act, the term “contrary to law” is interchangeable with the term “arbitrary and capricious.”

The arbitrary and capricious “standard of review is a highly deferential one ... which presumes the agency’s action to be valid.” Environmental Defense Fund v. Costle, 657 F.2d 275, 283 (D.C.Cir. 1981) (citations omitted). The Court must affirm the agency’s decision if it is supported by a rational basis, “even though [the court] might otherwise disagree.” Id. However, the Court is not required “to accept ‘meekly administrative pronouncements clearly at variance with established facts.’ ” Braniff Airways, Inc. v. Civil Aeornautics Board, 379 F.2d 453, 463 (D.C.Cir.1967) (quoting NLRB v. Morganton Full Fashioned Hosiery Co., 241 F.2d 913, 916 (4th Cir.1957). Factual determinations by administrative agencies “are not final and conclusive unless relevantly supported by the record — an administrative order without factual support is without due process.” Garvey v. Freeman, 397 F.2d 600, 610 (10th Cir.1968). The Court should correct improper administrative fact-finding “if the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a ‘hard look’ at the salient problems, and has not genuinely engaged in reasoned decision-making.” Greater Boston Television v. FCC, 444 F.2d 841, 851 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). With these instructions in mind, the Court now applies this arbitrary and capricious standard to the Commission’s actions in this case.

THE COMMISSION’S DISMISSAL OF THIS COMPLAINT WAS ARBITRARY AND CAPRICIOUS

Mr. Antosh’s complaint before the Commission alleged that EPEC/IUOE and SELFEC violated § 441a(a)(2) of the Act. That section provides:

No multicandidate political committee shall make contributions to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceeds $5,000.

2 U.S.C. § 441a(a)(2)(A). The complaint additionally alleged that the Lantos Committee violated 2 U.S.C. § 441a(f) by receiving contributions in excess of $5,000. These excess contributions allegedly were attributal to the 1982 primary election. •

During 1981 and early 1982, EPEC/IUOE made three direct contributions to the Lantos campaign totalling $3,600. EPEC/IUOE reported these as contributions for the 1982 Lantos Committee’s primary campaign, but the Lantos Committee reported two of them, totalling $3,100, as received for the retirement of a 1980 campaign deficit. In June, 1982, both SELFEC and the Lantos Committee reported a $5,000 “in-kind” contribution for the Committee’s 1982 primary campaign. (This “in-kind” contribution took the form of printing costs for campaign flyers and literature by SELFEC for the Lantos Committee.)

Mr. Antosh alleged in his administrative complaint that these four contributions must be aggregated for the Lantos Committee’s 1982 primary election campaign, totalling $8,600, or an excessive combined contribution by EPEC/IUOE and SELFEC of $3,600.

The Commission, however, concluded that $3,100 of the contributions were not actually attributable to the 1982 primary campaign, and therefore the contributions exceeded the limit by only $500 instead of $3,600. The Lantos Committee had submitted a response to the administrative complaint indicating that the 1981 contributions of $600 and $2,500 “had been specifically solicited by the Lantos Committee in the course of a sustained effort to raise the funds necessary to retire a substantial 1980 general campaign debt.” The Lantos Committee supported this contention with an affidavit from Tom Lantos. Thus, the Commission concluded that the Lantos Committee had correctly reported these two contributions as attributable to the 1980 campaign deficit, and that EPEC/IUOE had erroneously reported these contributions as being for the 1982 primary election campaign.

After taking into account these corrections, based on sworn testimony before the Commission, the general counsel determined that the $3,600 in excess contributions alleged in Antosh’s administrative complaint was reduced to $500. The Commission followed the recommendation of the general counsel that “[d]ue to the small amount in question,” the Commission should find reason to believe that the respondents had violated the Act, but take no further action. Pursuant to 2 U.S.C. § 437g(a)(2), the Commission notified the respondents and Mr. Antosh of its final action on MUR 1719. The letters to the respondents, dated August 6, 1984, notified them of the $500 violations, and indicated that the Commission’s file would become public in thirty days. Thus, it seems that it is now a matter of public record that the Commission had reason to believe that the respondents had committed violations of the Act involving only $500.

There is, however, a major problem in the Commission’s treatment of this matter. Although the Commission received evidence indicating that, due to the improper designation of the use of the contributed funds, the alleged violations only involved $500, the Commission apparently ignored persuasive evidence in the administrative record that the violations in fact involved the entire $3,600. The Lantos Committee had filed a 1980 Year-end and 1981 Midyear reports with the FEC. Those public documents establish that the Lantos Committee’s 1980 general election debt had been paid off and extinguished as of April 13, 1981. On that date the Lantos Committee paid off the remaining $5,000 owed to Lantos.

Because these documents reflect that the Lantos Committee’s 1980 general election debt was extinguished by April 13, 1981, (but see footnote 4), neither the $600 May 6, 1981 contribution nor the $2,500 June 22, 1981 contribution could have been designated for reducing that debt. This is so despite Lantos’s affidavit to the contrary. The veracity of this documented information is strengthened by the FEC’s refusal to deny this observation, which the plaintiff included in his memorandum in support of his motion for summary judgment. Thus, it appears that the Commission erred.

This Court has stated that the Commission “must take into consideration all available information concerning the alleged wrongdoing.” In re Federal Election Campaign Act Litigation, 474 F.Supp. 1044, 1046 (D.D.C.1979). Further, “a consideration of all available materials is vital to a rational review of Commission decisions.” Id. See also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (the agency’s decision must be “based on a consideration of the relevant factors”). Although the Court applies the deferential arbitrary and capricious standard, the Court is not required “to accept ‘meekly administrative pronouncements clearly at variance with established facts.’ ” Braniff Airways, Inc. v. Civil Aeronautics Board, 379 F.2d 453, 463 (D.C.Cir.1967) (quoting NLRB v. Morganton Full Fashioned Hosiery Co., 241 F.2d 913, 916 (4th Cir.1957).

In this case, the Commission’s dismissal was solely based on the General Counsel’s First' Report. Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 38, n. 19, 102 S.Ct. 38, 45 n. 19, 70 L.Ed.2d 23 (1981). That report urged dismissal based upon a misinterpretation of the facts. Significantly, the Commission has made public the dismissal and the reasons therefor. Those reasons, now public, indicate that the Commission dismissed MUR 1719 because it only involved violations of $500. The public has been kept in the dark because the violations in fact appear to involve considerably more money, and are thus more egregious than the Commission realized. For these reasons, the Commission’s dismissal of MUR 1719 was arbitrary and capricious and, thus, contrary to law. See 2 U.S.C. § 437g(a)(8).

CONCLUSION

It is clear that the Commission has erred in concluding that there was merely a $500 violation of the Act. The persuasive, indeed undisputed, evidence in the record compels the conclusion that this case involved a violation of at least $2,500, and more likely $3,600. (See footnote 4, supra, p. 855) The commission simply ignored this evidence.

In these days of public revenues and expenditures reaching into multi-billion dollar figures, a violation of $500, and even one of $3,600, may sound small by comparison. While these amounts may not seem large to the Commission, they surely would to the vast majority of the American people. Most political candidates, particularly non-incumbents, would consider $500 a substantial sum of money. This Court, and the Commission, cannot lose sight of the most recent national election, of November 6, 1984, where it was patently obvious that many candidates won and lost by less than a very few votes. Any political candidate involved in such a race would greatly welcome a $500 contribution. It is definitely arbitrary and capricious for this Commission, charged with enforcing this Act designed to protect the integrity of federal elections, to give short shrift to a complaint by labelling the amount herein involved so miniscule as to warrant no action.

The Commission claims that it has limited resources. See generally Rockford League of Women Voters v. United States Nuclear Regulatory Commission, 679 F.2d 1218, 1222 (7th Cir.1982). If the Commission does not have the resources to pursue violations of $500 or $3,600, it should so advise the Congress. Or Congress, in the exercise of its oversight responsibilities, 2 U.S.C. § 437c(b)(2), should do something about the matter. Perhaps then any group’s sacred exercise of the right and privilege of franchise will not be in vain.

The Court fearfully imagines the state of this nation’s election laws if they did not grant private citizens, such as Mr. Antosh, standing to file complaints, and to have them decided promptly and properly. 2 U.S.C. § 437g. If the enforcement of these laws rested entirely within the prosecutorial discretion of this Commission, incidents such as this might go unnoticed. The Court from other cases before it notes substantial regulatory lag in FEC proceedings. See generally Johnson v. Secretary, Department of Health and Human Services, 587 F.Supp. 1117 (D.D.C.1984). The Court is aware of a matter before Judge Oberdorfer with which the Commission has toyed for over two years with apparently no legitimate excuse. See Rose v. Federal Election Commission, No. 84-2278 (D.D.C. 1984) (Oberdorfer, J.). Certainly cases such as the one presently before this member of the Court do nothing to promote public confidence in the electoral process and its integrity.

In sum, in the present case, it is clear to the Court that there is no basis in this record not to find a violation of the applicable sections of the Act. The Commission’s dismissal of the complaint was contrary to law. Having declared that the Commission has acted contrary to law, the Court now “may direct the Commission to conform with such declaration within 30 days.” 2 U.S.C. § 437g(a)(8)(C). Accordingly, the Court, as required by the aforesaid statute, remands this case to the Federal Election Commission for proceedings consistent with this Opinion.

      . It is undisputed that SELFEC and EPEC/IUOE are affiliates by the terms of 2 U.S.C. § 441a(a)(5). Thus, any contribution by one must be aggregated with contributions of the other to determine the amount subject to the limit in § 441a(a)(2)(A).

      . The following table sets forth the contributor, the amount, and the date for each contribution. as well as how the respondents designated the contribution:
      Contributor Amount Date Election Reported By Contributor Election Reported By Recipient
      EPEC/IUOE $600 5- 6-81 Primary General ’80 Deficit
      EPEC/IUOE 2,500 6-22-81 Primary General '80 Deficit
      EPEC/IUOE 500 2-9-82 Primary Primary
      SELFEC 5,000 6- 7-82 Primary Primary
      Total $8,600

      . The Commission rejected the argument advanced by the respondents that the June 1982 $5,000 in kind contribution was made primarily for the 1982 general election, even though both committees reported it as having been made for the primary campaign. The First General Counsel’s Report concluded that the in kind contribution was made during the primary campaign, and cannot "extend in time to the date of the ultimate use of the campaign material.”

      . Although the date on the FEC’s microfilm record appears to be April 13, 1981, due to the poor quality of the microfilm reproduction before the Court, it is possible that the date could have been May 13 or June 13, 1981. Even if the debt was extinguished as late as June 13, 1981, the $2,500 contribution made by EPEC/IUOE on June 22 would still have been made after the Lantos Committee completely paid off its debt.

      . While the Commission is vested with some prosecutorial discretion, In re Federal Election Campaign Act Litigation, 474 F.Supp. 1044, 1046 (D.D.C.1979), its actions cannot escape review. Section 437g(a)(8)(C) of the Act empowers the Court to declare the Commission’s dismissal of a complaint to be contrary to law. Clearly this is case where the Commission has abused its discretion.

      . The egregiousness of the Commission’s delay is compounded by the Act’s sweeping secrecy provisions. See 2 U.S.C. '§§ 437g(a)(4)(B), 437g(a)(12). While the Court does not suggest that an innocent person should have his name scrawled across public documents on baseless charges, the Act’s blanket of confidentiality raises serious constitutional questions involving First Amendment values and the public’s right to know. In general, a lawsuit is the public’s business, and, therefore, with the exception noted above, for at most a very short time, should be conducted in public. The Court invites the Congress and the Commission to reconsider these provisions.

      . If the Commission does not conform with the Court’s declaration within 30 days, the plaintiff may bring suit directly against the respondents for the violations alleged in the administrative complaint. 2 U.S.C. § 437g(a)(8).


author: JOHN P. MOORE, District Judge.

text:
    Jean BORUMKA, Plaintiff, v. ROCKY MOUNTAIN HOSPITAL AND MEDICAL SERVICE, d/b/a Blue Cross & Blue Shield of Colorado; John Ecord; Alfred Knaub; and Donald Blanchard, Defendants.
    No. 84-JM-1758.
    United States District Court, D. Colorado.
    Dec. 21, 1984.

      Richard C. LaFond, Ajai R. Khandke, LaFond & Evangelisti, Denver, Colo., for plaintiff.
    Theodore A. Olsen, Sherman & Howard, Denver, Colo., for defendants.
   ORDER

JOHN P. MOORE, District Judge.

This matter is before me on motions to dismiss and strike filed by defendants in this action. The motions have been fully briefed and oral argument would not materially assist the resolution of this matter. Jurisdiction lies pursuant to 28 U.S.C. §§ 1331 and 1343 and the doctrine of pendent jurisdiction.

The plaintiff asserts claims for relief under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., alleging that she was deprived of employment opportunities because of her age and that defendants retaliated against her because of her opposition to employment practices made unlawful by the ADEA. The complaint additionally alleges pendent state law claims for outrageous conduct and violation of the Colorado age discrimination statute, Colo.Rev.Stat. § 8-2-116. Plaintiff seeks equitable relief, along with compensatory and punitive damages.

Defendants first move to dismiss all claims against defendant Donald Blanchard for failure to state a claim, arguing the complaint does not specifically allege a cause of action against him. In response to this motion, plaintiff has sought leave of Court to amend her complaint in order to state in more specific terms the actions and conduct of defendant Blanchard that give rise to claims against him. At this early stage in the litigation, I think its appropriate to give plaintiff an opportunity to amend and will accordingly deny the motion to dismiss the claims against defendant Blanchard without prejudice.

Defendants next move for partial summary judgment on the ADEA claims as against defendant Blanchard because Blanchard was not named as a respondent in the charge plaintiff filed with the U.S. Equal Employment Opportunity Commission (EEOC). In this Circuit, omission of a party’s name from the EEOC charge is not necessarily fatal to a subsequent action against that party. Dismissal is not mandated where, as here, the defendant was informally referred to in the body of the charge and where there is a sufficient identity of interest between the respondent named in the EEOC action and the defendant to satisfy the notice and conciliation purposes of the exhaustion requirement and to insure the unnamed party is not prejudiced by the omission. Romero v. Union Pacific R.R., 615 F.2d 1303 (10th Cir.1980). See also Glus v. G.C. Murphy Co., 562 F.2d 880 (3rd Cir.1977); Shehadeh v. Chesapeake & Potomac Telephone Co., 595 F.2d 711 (D.C.Cir.1978).

Defendants also move to dismiss the claim for retaliation (second claim for relief) against all defendants on the grounds that the EEOC charge filed by the plaintiff contained no allegation of retaliation. While the express term “retaliation” is not used in the EEOC complaint, a fair reading of the charge as a whole reflects that the allegations of the second claim are reasonably related to the allegations in the EEOC charge. I find this satisfies the notice and conciliation purposes of the exhaustion rule. See Scaramuzzo v. Glenmore Distilleries Co., 501 F.Supp. 727 (N.D.Ill.1980); Goodman v. Board of Trustees of Com. College, 498 F.Supp. 1329 (N.D.Ill.1980); Gupta v. East Texas State University, 654 F.2d 411 (5th Cir.1981).

It is axiomatic that an aggrieved party may not bypass the administrative process with a direct appeal to the courts, and in making these rulings, I do not seek to undercut this principle. However, the rule of exhaustion must be interpreted with a recognition that “technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972).

Defendants additionally move to dismiss the third claim for relief for failure to state a claim because the Colorado statute on which plaintiff relies, Colo.Rev.Stat. § 8-2-116, does not give rise to a private cause of action on the part of persons allegedly discharged from employment in violation of it. Although one judge in this district has interpreted the statute at issue to give rise to a private cause of action, Colorado courts have not had the occasion to address the issue. Accordingly, the dual concerns of federalism and that a surer-footed reading of the state law could be obtained in state court, operate against the exercise of pendent jurisdiction over the third claim. I reach this conclusion even though this claim shares a common nucleus' of operative fact with the federal claim. I am further persuaded that jury confusion, as well as the possible perversion of congressional intent, may result from the different measures of recovery that are available under the federal ADEA scheme and under state law. Accordingly, applying the analysis set out in United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), I respectfully disagree with my colleague, and I exercise my discretion to decline jurisdiction over the pendent state law claims contained in the third and fourth claims for relief.

Finally, defendants move to strike the prayer for compensatory and punitive damages from the complaint pursuant to Fed.R.Civ.P. 12(f). It is established law in this Circuit that damages other than those enumerated in the ADEA, including compensatory damages and punitive damages, are not recoverable under the ADEA. See Perrell v. Financeamerica Corp., 726 F.2d 654 (10th Cir.1984); Smith v. Montgomery Ward & Co., Inc., 567 F.Supp. 1331 (D.Colo.1983). Because the two ADEA claims are all . that will remain in the complaint when the pendent state law claims are dismissed, the prayer for compensatory and punitive damages cannot stand.

Upon the foregoing, it is

ORDERED the pendent state law claims (third and fourth claims for relief) are dismissed without prejudice.

FURTHER ORDERED the prayer for compensatory and punitive damages is stricken from the complaint. The defendants’ motion to dismiss is denied in all other respects.

FURTHER ORDERED plaintiff may file an amended complaint on or before January 9, 1984.

      . Romero is a decision that deals with a Title VII action and not with an action under ADEA. Procedural interpretations of Title VII are frequently applied to interpret the ADEA given the similarity of language and purpose behind the two statutes. See, e.g., Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 784 (D.Md.1978).

      . Because "exhaustion of administrative remedies can often be what its name implies, exhausting ... the administrative requirements 'are not to be interpreted in an overly technical manner.’” Sampson v. Civiletti, 632 F.2d 860, 863 (10th Cir.1980), citing, Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir.1979).

      . See Rawson v. Sears Roebuck & Co., 530 F.Supp. 776, 778 (D.Colo.1982) (Kane, J.).

      . A federal court may exercise pendent jurisdiction over state claims if the federal claim is "substantiar, if the state law claims arise out of" the same "nucleus of operative facts” as does the federal claim, and if the natures of the claims are so related that a plaintiff would ordinarily be expected to try all the claims in the same proceeding. United Mine Workers of America v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).