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11/14/86 Louis M. Borum, v. Metropolitan Radio

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


November 14, 1986

LOUIS M. BORUM, APPELLANT

v.

METROPOLITAN RADIO TELEPHONE SYSTEMS, INC., ET AL. APPELLEES 1986.CDC.387 DATE FILED: NOVEMBER 14, 1986

Before Bork and Buckley, Circuit Judges, and Harold H. Greene,* United States District Judge for the District of Columbia.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

Appeal from the United States District Court for the District of Columbia

APPELLATE PANEL:

This case was reviewed on the record on appeal from the United States District Court for the District of Columbia and was briefed and argued by counsel for the parties. The issues presented have received the Court's full consideration; they occasion no need for a published opinion. See D.C. Cir. R. 13(c).

Appellant sued his former employer and several others, claiming the commission of discriminatory acts in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982); 42 U.S.C. § 1981; 42 U.S.C. § 1985; and the District of Columbia Human Rights Act, D.C. Code Ann. §§ 1-2501 et seq. (1981). The district court dismissed the section 1981, section 1985, and D.C. Human Rights Acts claims as time barred, and it entered judgment for the defendant on the merits on the Title VII claim. Appellant has not challenged the lower court's ruling on the Title VII or the D.C. Human Rights Act claims, but he asserts that the court erred with respect to the remaining claims when it dismissed them on the basis of a one-year limitations period. For the reasons stated below, it is unnecessary for us to consider the statute of limitations issues, except to set aside the district court's finding that the section 1981 claim is governed by the one-year limitation specially provided for in D.C. Code Ann. §§ 1-2544(a) (1981). See Banks v. C & P Telephone Co., 802 F.2d 1416 (D.C. Cir. 1986).

Appellant's claims under sections 1981 and 1985 and his claim under Title VII were based on the same factual allegations and they involved the same transaction or occurrence. Moreover, the district court decided against appellant in the Title VII trial the very issues that were raised in his section 1981 and 1985 claims. On that basis, whether a res judicata test (see, e.g., Nilsen v. City of Moss Point, Mississippi, 701 F.2d 556, 559 (5th Cir. 1983) (en banc); I.A.M. Nat'l Pension Fund v. Industrial Gear Mfg., 232 U.S. App. D.C. 418, 723 F.2d 944, 948 (D.C. Cir. 1983)), or a collateral estoppel or issue preclusion test is applied (see, e.g., Jack Faucett Assocs. v. American Tel. & Tel. Co., 240 U.S. App. D.C. 103, 744 F.2d 118, 124-25 (D.C. Cir. 1984), cert. denied, 469 U.S. 1196, 105 S. Ct. 980, 83 L. Ed. 2d 982 (1985)), appellant is barred from relitigating his claims of discrimination or the factual issues underlying those claims. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by the Court that the judgment of the district court from which this appeal has been taken is affirmed. It is

FURTHER ORDERED by the Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. R. 14, as amended on November 30, 1981, and June 15, 1982. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

Per Curiam.

APPELLATE PANEL: FOOTNOTES

* Sitting by designation pursuant to 28 U.S.C. § 292(a).

19861114

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