stating that in general res judicata applies even if there has been a subsequent change in the law of the circuit, but noting that there are exceptions for reasons of compelling public policy, such as cases involving important questions of constitur tional law
How later courts described this case
- stating that in general res judicata applies even if there has been a subsequent change in the law of the circuit, but noting that there are exceptions for reasons of compelling public policy, such as cases involving important questions of constitur tional law
- holding that res judicata is not overcome by a subsequent change in the law of the Circuit
- explaining that subsequent judicial decisions are not a basis to override the doctrine of res judicata in civil cases, absent extraordinary circumstances such as "paramount questions of constitutional law or exclusive jurisdiction"
- noting that “on rare occasions the courts have been willing to override the bar of res judicata” in cases involving “paramount questions of constitutional law” (citing Moch v. E. Baton Rouge Parish Sch. Bd., 548 F.2d 594 (5th Cir.1977); Griffin v. State Bd. of Educ., 296 F.Supp. 1178 (E.D.Va.1969))
Written by the judges who cited it.
The opinion
BAZELON, Senior Circuit Judge,
concurring:
I concur, but I write separately to highlight two matters I believe to be implicit in the court’s opinion. First, the doctrine of res judicata does not apply to claims arising after the litigation in Michigan. Second, an act of administrative grace is not ipso facto shielded from judicial review.
Prior to his Michigan suit, Hardison had allegedly never been considered for promotion by a properly constituted selection board. He could have litigated that issue as part of the Michigan action; he could have appealed, on that ground, the Michigan court’s failure to enjoin his involuntary release from the Army. The release scheduled for July 1977 is therefore res judicata.
After the Michigan suit, the Army corrected Hardison’s record and reconsidered his promotion by means of standby advisory boards. He was again passed over and scheduled for release in 1979. These actions arguably give rise to a new claim. Hardison asserts that the standby advisory boards were not properly constituted to consider his promotion. These boards are, however, the bodies which normally (and lawfully) reconsider promotions after personnel records have been corrected. See Knehans v. Alexander, 566 F.2d 312, 314-15 (D.C.Cir.1977), cert. denied, 435 U.S. 995 , 98 S.Ct. 1646 , 56 L.Ed.2d 83 (1978). The standby advisory boards have thus not been “substituted” for regular promotion selection boards, but acted well within their authority. After considering Hardison’s corrected record, they refused to grant a promotion. Since Hardison’s complaint alleges no other unlawful action — such as discrimination, for example — it simply fails to state a claim upon which relief can be granted.