UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) LAURA ELKINS, et al ., ) ) P laintif fs, )

) v. ) Civil Action No. 04-480 (R MC) ) DISTRICT OF COLUMBIA, et al ., ) ) Defendan ts. ) )

MEMORAN DUM OP INION
This case conce rns the seizure of documents at the home of L aura Elkins and J ohn
Robbins pursuant to a search warr ant t hat authoriz ed only a sea rch of the home. The parties have litigated the leg ality of both the sear ch and the seizure of documents since 2004, and this Court held
that the sear ch was v al i d , but that Plaintiffs’ Four th Amendment rig hts wer e violated due to the

unrea sonable seizure o f d o cu m ents

. Trial was schedule d for April 2010 to deter mine whether
Plaintiffs wer e entitled to compensa tory and/or punitive damag es. Howeve r, at the pretria l
confe renc e on Marc h 8, 2010, Plaintiffs moved for entry of judgme nt for nominal damag es ag ainst
the rema ining defe ndants (Toni Wil liams-Cherry , Denzil Noble, and Gre g ory L ove) in further ance of Plaintiffs’ plan to appea l this Court’s ruling that the sear ch was valid. Plaintiffs believe that their 1
claim that Def

endants conducte d an illega l sear ch of their home supports compensa tory and punitive damag es. As explained below, Plaintiffs’ motion for entry of judgme nt will be g rante d in part and judgme nt for nominal damag es will be enter ed ag ainst Toni Wil l i am s -C h er ry and Denzil Noble.

See Tr. Mar . 8, 2010 at 2-3, 6-7. 1Gre g ory

L ove will be dismissed as a de fenda nt.
I

. F ACTS 2
Pl a in ti f f s o b ta in e d b u il ding permits and approva ls f r o m th e D

. C. H is to r ic Pr e s e r v a ti o n Offic e and the Building and L and Reg ulation Administration of the D.C. Depa rtment of Consumer
and Reg ulatory Affa irs (“D CRA”) for construction at their h i s t o ri c home on Capitol Hill. After
construction beg an, city officia ls believed that Plaintiffs wer e building in violation of their permits,
and they obtained a war

rant t o co nduct a sear ch of Plaintiffs’ home in order to find evidenc e of illega l construction. The office rs inspected the residenc e and took ph o t o s
. Al so, althoug h the

war rant did not authorize it, officials seized ce rtain docume nts during the sear ch.

I n the context of pro ce eding s on the District of Columbi a’s notice to Plaintiffs of proposed revoc ation of the building permits, Plaintiffs and the District litigated the leg ality of both
the sear ch and seizure befor e the D.C. Offic e of Administrative Hea ring s (“O AH”)

. On November 22, 2005, the Hea

ring Offic er found that while the sear ch was valid, the seizure of documents was
not constitutionally permissible beca use it was not expressly authorized by the sear ch war rant, citing
Groh v. Ramirez , 540 U.S. 551, 559 (2004). See Pls.’ Mot. for Partial Summ. J

. [Dkt. # 42], Ex

. 21 (“O AH Orde r on Mot. to Suppress”) at 13-16, 21. This Court held that collater al estoppel prec luded
the relitig ation of these issues and thus that Plaintiffs’ Four th Amendment rig hts wer e violated due

to the unrea sonable seizure of documents. See Elkins I , 527 F. Sup p
. 2 d at 4 6

. T h is Court explained:
The collateral es t o p p el doctrine applies t o Plaintiffs’ Four th Amendment claim beca

use the parties have alre ady liti gat ed and

More detailed fac ts a

re set forth in Elkins v. District of Columbia , 527 F. Supp. 2d 36, 46 2 (D.D.C. 2007) ( “ Elkins I

”).
-2-OAH has alre ady decide d, without appea l, the question of the leg ality of the sear ch of the Property and the seizure of documents. Plaintiffs contend that their Four t h Am endment rig ht to be fre e from unrea sonable sear ch and seizu re was violated when Def endants conducte d an administrative sear ch o f their Property and seized documents. I n support of their motion to suppress, Plaintiffs litigated this very issue befor e OAH. After an eviden t i ar y h ear ing on the i s s u e, t h e Hea

ring Offic er held that the sear ch was rea sonable as it was based on probable cause , but tha t the seizure of doc uments was not rea sonable. The Four th Amendment provides “no war rants shall issue, but upon probable cause
. . . and particula rly descr ibing the place to be sear ched and the persons or things to be seized.” See Groh v. Ramirez , 540 U.S. 551, 557 (2004) (wa rra nt itself must particula rly descr ibe the things to be seized). Be cause the war rant did not specify any documents to be seized, the seizure of the documents was outside the scope of the war rant and in violation of Plai n t i ff s ’ Four th Amendment rig hts.
Def endants arg ue t h at t hey had probable cause to seize phy sical evidenc e that they found when sear chi n g Plaintiffs’ home, citing Texas v. Brown , 460 U.S. 73 0 , 7 4 2 (1983) (proba ble cause “mer ely require s that the fac ts available to the office r would war rant a [ person] of reasonable caution i n the belief that cer tain items may be

. . . useful as evidenc e.”) As explained above, OAH found that the District had probable cause to sear ch the proper ty

. Fur ther, with reg ard to the sei z u re , t h e critica l issue was not whether there was probable cause to seize evidenc e. The issue was whether the war rant was prope rly

“par ticularized,” whic h it was not.
Def endants do not addre ss Plainti ffs’ claim that the seizure was invalid beca

use the wa rrant was not particula rized; thus, this issue is conce ded. See FDIC v. Bende r , 127 F.3d 5 8 , 6 7 -6 8 (D.C. Cir. 1997) (on summary judgme nt, a court may trea t those arg uments that the plaintiff failed to addre ss as conce ded); L CvR 7.1(b) (same)

.

. . . I n sum, D efe ndants are corr ect that Plaintiffs a re collater ally estopped from asser

ting liabil i ty based on the alleg ed unrea sonable sear ch, as that matter was litigated and decide d in Def endants’ favor

. Fur ther, Plaintiffs are corr ect that Def endants are estopped from contesting liability based on the unrea sonable seizure, as t h at issue was litiga ted and de cided in Plaintiffs’ fa vor.

-3-Id. at 45-46. Subsequently , this Court deter mined t h at Plaintiffs are entitled to rec over nominal damag es for the unco n s t itutional seizure and at trial they might rec over compensa tory and/or punitive damag es cause d by th e d o cu m en t s eizure alone. Elkins v. District of Columbia , 610 F. Supp. 2d 52, 63-64 (D.D.C. 2009) (“ Elkins II ”). This Court clar ified in a l ater opinion that 3
“Plaintiffs may not proce ed on any claim for damag es cause d by actions other than the seizure alone,
for example, on any claim for damag es cause d by the sear ch of their home including the enter ing of
children’ s rooms and the opening of draw ers, damag es cause d by the permit revoc ation proce eding , damag es cause d by the April 24, 2002 stop-work order , or damag es cause d by any other stop-work
order .” Elkins v. District of Columbia , 636 F. Supp. 29, 32 (D.D .C. 2009) (“ Elkins III ”). 4
Plaintiffs soug ht rec onsideration of both Elkins I and Elkins III , and rec onsideration

was denied. See Elkins v. District of Columbia , Civ. Action No. 04-480, 2010 WL 517410 (D.D.C.
Fe b. 12, 2010) (

Elkins IV ). I n Elkins IV

, the Plaintiffs arg ued that this Court should not have applied
collater al estoppel in Elkins I beca use the unde rly ing de cision of the He aring Offic er w as pate ntly

err oneous. See W

inder v. Erste , 511 F. Supp. 2d 1 6 0 , 1 76 (D.D.C. 2007) (re fusing to apply
collater al estoppel due to manifest err or in underly ing administrative proce eding ), aff’d in part and
rev’ d in part on other grounds , 566 F.3d 209 (D.C. Cir. 2009). The Hea ring Offic er relied on Groh , 540 U.S. at 558, in finding that the seizur e o f documents was not constitutionally permissible

Elkins II also dismiss ed the District of Columbi a as a defe ndant in this case
. 610 F. Supp. 3 2d at 59. Elkins III also dismiss ed as a defe ndant David Maloney , an Offic er wi t h D.C.’s Historic

4 Preser vation Offic e, due to Plaintiffs’ failure to prese nt any evidenc e that Mr. Maloney was involved in the illega l seizure. 636 F. Supp. 2d at 33-34.
-4-beca

use t he seiz ure was not expressly authorize d by the warrant. Under Groh , a search warr ant’s
l ac k of particula

rity reg arding the items to be seized cause d the Supreme Court to find that t h e

war rant wa s invalid in its e ntirety

. Id

. Plaintiffs arg ued that the wa rra nt at issue here should have
been found to be simil arly invalid in its entirety , and thus Plaintiff should be permitted to pursue damag es ca

used by the sea rch of their home.
This Court reje cted Plaintiffs’ arg ument, explaining that Plaintiffs overstate d Groh ’s application to this case:

I n Groh , a Burea

u of Alcohol, Tobac co, a n d Fi rearms ag ent applied fo r a sear ch warra nt indicating that he believed t hat various au t o m atic wea

pons and explos ive device s exis ted on the Ramirez ranc h. The ag ent presented the application with a detailed aff idavit and a form war

rant to a mag istrate, and the mag istrate s i g ned the war rant for m. The proble m was that in the par t of the wa

rra nt form that asked for a descr iption of the person or proper ty to be seized, the ag ent ty ped in a descr iption of the house and not a descr iption of the firea rms. The war

rant descr ibed the proper

ty to be seized as a “sing le dwelling residenc e
. . . blue in color,” and it did not inco rp o rate by ref ere nce the itemiz ed list of firear m s that was part of the war rant application. The Four

th Amendment s tates that “no Warrants shall issue, but upon probable cause , supported by Oath or aff irmation, and particula rly descr ibing the place to be sear ched and the persons or things to be seized.” U.S. Const. Amd. I V; see Michigan v. Clif ford , 464 U.S. 287, 294-98 (1984) (the object of the sear ch deter mines the ty pe of war rant require d and the scope of the permissible sear ch). I n light of the Four

th Amendment’s unam biguous require ment that a war rant must descr ibe the “thing s to be seized” with particula rity , the Supreme Court in Groh found that the war rant that failed to descr ibe any item to be seized was so “obvi o u s l y d eficient that [t he Court] must reg ard the sear ch as ‘ war rantless.’” Id . at 559.
Plaintiffs arg ue th at the sear ch war rant here , like the one in Groh , did not descr ibe t he items to be seized at all and thus that the war rant was so lacking in particula rity that the Hea

ring Offic er should have found that the war

rant was invalid. Plaintiffs overstate Groh ’s limit ed application to t h i s case. I n Groh , the office rs wer e investiga ting firea

rms violations but they failed to obtain a war rant to

-5-sear ch for and seize firea rms. I nstead, they conducte d a sear ch pursuant to a war

rant that did not authori z e t h e s eizure of any thing other than the hous e wher e the items wer e located. I n the instant matter, the office rs were investigating co nstruction code violations, but they failed to obtain a wa rr ant that permitted the seizure of rele van t d o cuments, such as blue prints and construction invoices. Howeve r, the war

rant did acc urate ly descr ibe Plaintiffs’ home by its street addre ss and it d i d expressly authorize the sear ch for construction code v i o lations. Such code violations could be discovere d by viewing the proper ty inside and outside. The office rs inspected the home and took photos of the construction as permitted by the terms of the war

rant.
More specific ally , Denzil Noble, then Acting Administrator of the Building and L and Use Administration of the DCRA, applied for a war rant to se arc h Plaintiffs’ home for evidenc e of construction code violations. A judge of the D.C. Superior Court found probable ca use and issued a war

rant. The war

rant stated that the DCRA had “proba ble ca use to believe that on the

. . . premises

. . . known as 20 9th Street, N.E. Wash[ ington] D.C.

. . . , t h er e i s now being conce aled cer

tain proper

ty , namely unlicence d construction work” and the war

rant aut h o ri zed a sear ch for the same. Def s.’ Mot. to Dismis s [ Dk t

. # 7], Ex

. 10 (Sear ch Warrant)

. Be cause the war rant specific ally ref

ere nced the subject proper ty and beca

use the purpose of the war

rant was to sear ch for construct i o n code violations, the war rant was sufficie ntly specific to cover an inspection o f the proper ty and the taking of photos. The Hea ring Offic er found that the war rant was based on proba b l e cause , suppressed the items seized during the ins p ec tion, and ref used to suppress the photos and testimony reg arding the inspection:
I must suppres s the admission of all items seized by the Gover nment during its inspection. I am excluding the following items listed in the war rant return: elec trical approva ls, plumbing approva ls/permits; const ruction approva l permits; assorted documents including rec eipts and contra ct documents; assorted invoices; the notebook; and e stimates.
Be cause the warrant v al i d ly authorized the s ear ch of the premises, I am not suppressing the following evidenc e: testimony of officia ls as t o their observa tion s of the interior are as of the Property ;

-6-repor ts reg arding such observa tions; and photogr aphs taken by officia ls of the interior are as of the Property

. To the extent that such evidenc e al s o refers to the items illega lly seized from the Property , the evidenc e shall be re dacte d befor e it can be admitted.
OAH Or der on Mot. to Suppress at 21. By s u ppressing the documents seized but not the testimony of th e i n spectors or the photogr aphs, the Hea ring Offic er followed t h e doctrine of sever ability , separ ately con s i dering evidenc e obtained from the illega l seizure versus the valid sear ch. “I n acc ordanc e with the purposes underly

ing the war

rant require ment a

n d th e e x clusionary rule, ever y fede ral court to consider the issue has adopted the doctrine of sever ance , wher eby valid portions of a war rant are sever ed from the invalid portions and only materia ls se ized unde r the a uthority of the vali d p o rt ions, or lawfully seized while executing the valid portions, are admissible.” United States v. Sells , 463 F.3d 1148, 1 1 5 4 -55 (10th Cir. 2006); see also id

. at n.1 (all fede ral circ uit s follow the doctrine of sever ability , though courts ref er to it by differ ent terms — sever ability , s everanc e, reda ction, or partial suppression) (citi n g In re Search W arrant Dated July 4, 1977 , 667 F.2d 117, 133 (D.C. Cir. 1981), abrogated on other grounds , Horton v. California , 696 U.S. 128 (1990)).
Elkins IV , 2010 WL 517410, at *3-4.
Plaintiffs also arg ued in Elkins IV that the OAH decision was an incidental
evidentiar y ruling unnece ssary to the administrative decision on the merits and thus not entitled to
prec lusive eff

ect. This Court found that this arg ument was dising enuous bec ause: Plain t i ff s specific ally raised the issue of the constitutionalit y of the sear ch and seizure by movin g t o suppress evidenc e in the OAH proce eding s, and the OAH issued a 24 pag e decision on the motion. See OAH Orde r on Mot. to Suppress. That decision desig nated what evidenc e the Hea

ring Offic er could and could not rely upon in deciding whether to g rant the District’s petition to revoke Plaintiffs’ building permits. T h e OAH decision on Plaintiffs’ motion to s u ppress was nece ssarily decide d and it was critica l to the OAH decision on the merits. I t cannot be char acte rized as mere ly “incidenta l.”

-7-Elkins IV

, 2010 WL 517410, at * 4. 5
The rema ining Def

end an ts are Denzil Noble, the Administrator of the DCRA Building and L and R eg ulation Administration (“B L RA”); Ton i Wil liams-Cherry , an employ ee of
D.C. Historic Preser

vation Offic e and contra ct worke r for DCRA; and Gre g ory L ove, former BL RA
Administrator. Recog nizi ng that any case they may have for compensa tory or punitive damag es of
any rea l value lies with their cla im that the searc h itself was unc onstitut ional, Plaintiffs seek entr y of judgme nt –- ag ainst Def endants Noble, Cherry , and L ove — for nominal d am age s o n their

rema ining claim for damag es due t o an unconstitutional seizure. A final judgme nt will enable 6 Plaintiffs to appeal this Court’s ruling s reg arding the constitutionality of the sea

rch.
II. ST ANDAR

D OF REVIEW
Plaintiffs’ reque st for entry of judgme nt is revie wed under the standard for summary judgme nt. Under Rule 56 of the Fe dera l Rules of Civil Procedur e, summary judgme nt must be
g rante d when “the pleading s, depositions, answe r s to in te r r o g a to r ie s , a n d a d missions on file, toge ther
with the aff

idavits, i f any , show that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to a judgme nt as a matter of law.” Fe d. R. Civ. P. 56 (c) ; An derson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986); Diamond v. Atwood , 43 F.3d 1538, 1540 (D.C. Cir. 1995)

. Moreove r, summary judgme nt is proper ly g rante d ag ainst a party that “af ter adequate time for discovery and upon motion

. . . fails

Elkins IV also denied Plaintiffs’ reque st to reinstate David Maloney as a defe ndant in this 5 case
. See E lkins IV

, 2010 WL 517410, at * 5-6. Plaintiffs move d for entry of judgme nt on the rec ord on Marc h 8, 2010. Def endants filed 6 an opposi tion on Marc h 15, and P laintiffs replied on Marc h 22. See Def s.’ Opp’n [Dkt. # 112] & Pls.’ Reply

[Dkt. # 113]

. -8-to make a showing sufficie nt to establish the exis tence of an e lement essential to that party ’s case ,

and on which that party will bear the burden o f p roof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). To deter mine which fac ts are “mater ial,” a court must look to the substantive law

on which eac h claim rests. Anderson , 477 U.S. at 248. A “g enuine issue” is one whose resolution
could establish an element of a claim or defe nse and, there for e, aff ect the outcome of the action.
Celotex , 477 U.S. at 322; Anderson , 477 U.S. at 248.

I n ruling on a m o t ion for summary judgme nt, a court must draw all justifiable
infere nces in the nonmoving party ’s favor and acc ept the nonmovi n g p ar t y ’s evidenc e as true. Anderson , 477 U.S. at 255. A non m o v i n g p ar t y , howeve r, must establish more than “the mere exis tence of a scintilla of evidenc e” in support of its position. Id. at 252. To preva il on a motion for
summary j u d gm en t , the moving party must show that the nonmoving party “fa il[ ed] to make a showing sufficie nt to establish the exis tence of an element essential t o that party ’s case , and on which that party will bear the burden of proof at trial.” Celotex , 477 U.S. at 322. By pointing to the
ab s ence of evidenc e proffer ed by the nonm oving party , a movi ng party may succe ed on su m m ar y judgme nt. Id. I n addition, the nonmovi n g p ar t y may not rely solely on alleg ations or conclusory

s t at ements. Gree ne v. Dalton , 164 F.3d 671, 675 (D.C. C ir. 1999). Rather, the nonmo v i n g p ar t y
must prese nt specific fac ts that would enable a rea sonable jury to find i n i t s favor

. Id

. I f the
evidenc e “is mere ly colora ble, or is not signific antly probative, summary judgme nt may be g rante d.”
Anderson , 477 U.S. at 249-50 (c itations omi tted).
III. ANALYSIS
A. Mr . Love
Def endants previously moved for summary judgme nt, se eking the dismiss al of Mr.

-9-L ove by arg uing that there was insufficient evidenc e of his p er s o n al involvement in the illega l

seizure of Plaintiffs’ docume nts. See Def s.’ Mot. for Summ. J . [“Dkt. # 79”]. This Court denied 7
De fe n d ants’ motion with reg ard to Mr. L ove, as Plaintiffs proff ere d two piece s of evidenc e in support of the alleg ation that Mr. L ove was involved in the decision to seize Plaintiffs’ documents.
See E lkins II

, 610 F. Supp. 2d at 65, recons. de nied , Elkins III , 636 F. Supp. 2d at 34-35. V incent
For d, a BL RA supervisory inspector, stated in an affidavit t hat i n May 2002 “Mr. L ove ins tructed

me to “find a way ” to stop work at #20 9th Street, N.E. and forc e Mr. Robbins and Ms. Elkins to g o back to the Offic e of Historic Preser vation for re- approva l of their work.” Pls.’ Opp’n [“Dkt. # 80”],
Ex

. 10 (F ord Aff.) ¶ 20. Also, an email dated October 28, 2002 from D.C. counsel to Mr. L ove and
others asked what “additional info” was neede d and what “steps” should be taken next reg arding Plaintiffs’ building per

mits. Dkt. 80, Ex . 2 (Oc t. 28, 2002 email).
Plaintiffs now have decide d, as a matter of common sense and raw economics, that
the possible rec overy afte r a full trial limit ed to damag es for the seizure of documents alone would

not be worth the candle

. Howeve r, the case that Mr. L ove was persona lly involved in the seizure is
decide dly thin, and while enoug h to g et it to a jury , g rossly insufficient to win on summary judgme nt.
Mr. For d’s statement that Mr. L ove instructed me to “‘f ind a way ’ to stop work” may well ref er only

to the revocation of Plaintiffs’ building permits and not the s eizure of d o cu m en t s
. And t he email
ref ere nce to a meeting about g ather ing info rm at i o n and what steps to take next is too vag ue to conclusively establish that Mr. L ove was persona lly involved in the seizure of Plaintiffs’ documents.
To succe ed on summary judgme nt ag ainst Mr. L ove, Plaintiffs have to establish that Mr. L ove was

Public officials ar e not vicar iously liable for the actions of their subordinates; responde at 7 superior liability does not apply in civil rig hts case s under 43 U.S.C. § 1983. Hayne sworth v. Miller , 820 F.2d 1245, 1259 ( D.C. Cir. 1987). -10-persona lly involved with the illega l seizure of their documents. This the y have not a ccomplished,
and thus their motion for entry of judgme nt a g ainst Mr. L ove will be denied. Ordinar ily , denial of
Plaintiffs’ motion would result in a trial. Howeve r, Plaintiffs do not see k a trial for compensa tory and puni t i v e d am ages on their claim that their documents wer e seized in violation of the Four th
Amendment. There fore , instead of proce eding to trial, Plainti ffs’ c laim ag ainst Mr. L ove will be

8
dismiss ed. B. Collateral Estoppel and Ju dgm ent Against Ms. Cher ry and Mr. Noble

Plaintiffs’ motion for entry of judgme nt for nominal damag es is premised o n t h is
C ourt’s prior finding that the OAH decision should be g iven collater al estoppel eff ect

— t h at
“De fenda nts are estopped from contesting liability based on the unrea sonable seizure, as that issue was litiga ted and de cided in Plaintiffs’ favor .” Elkins I , 527 F. Supp. 2d at 46. De fenda nts Noble
and Cherry now for the first time a ssert that they are not bound by collater al estoppel beca use they

wer e not par

ties to the OAH proc eeding

. Under the doctrine of collater al estoppel, or issue prec lusion, “once a cou rt h as decide d an issue of fac t or law nece ssary to its judgme nt, that decision may prec lude relitig ation of
the issue in a suit on a differ ent cause of action involving a party to the first case .” Novak v. W orld
Bank , 703 F.2d 1305, 1309 (D.C. Cir. 1983) (citing Al l en v. McCurry , 449 U.S. 90, 94 (1980))

. Collateral es t o p p el ap p lies when (1) the issue at stake is identical to the one alleg ed in the prior litigation; (2) the issue was actua lly litigated in the prior litigation; (3) the deter mination of the issue

See Tr. Mar . 8, 2010 at 3 (Mr. Marzull a: [ W] e have s tipulated as a matter of

. . . fac t and 8 law that the damage s for the seizure of documents are nomi nal, bo th sides have said that.”); id

. at 6-7 (“COURT: [P laintiffs are ] seeking only nominal damag es in order to g et to the judgme nt so that [t hey ] can then, I presume, appea l on the more substantive parts of the case which are at the moment not available f

or trial. . . . Mr. Ma

rzulla: . . . You’ve cor

rec tly stated our position.”).
-11-in the prior litigation was a critica l and nece ssary part of the judgme nt in the ear lier action; and (4)

the party ag ainst whom the ear lier decision is asser ted had a full and fair opportunity to litig ate the
issue in the ear lier proce eding

. Sedlack v. Braswell Servs. Group, Inc ., 134 F.3d 219, 224 (4th Cir. 1998); In re Freem an , 30 F.3d 1459, 1465 (F ed. Cir. 1994). Collateral estoppel can be invoked by

a strang er to the prior action ag ainst a party to that prior action, as the Supreme Court “has virtually
elimi n at ed the mutuality require ment for collater al estoppel.” Novak , 703 F.2d at 1309 (citing
Parklane Hosiery Co. v. Shore , 439 U.S. 322, 326-28 (1979) and Blonder-Tongue Labs. v. Univ. of
Ill. Found. , 402 U.S. 313, 320-27 (197 1 ))

. T h e doctrine “pre cludes a plaintiff from relitig ating
identical issues by mere ly ‘switching adver saries.’ ” Parklane , 439 U.S. at 329. “To prec lude parties
from contesting matters t h at t h ey h ave had a full and fair opportunity to litigate protec ts their
adver saries from the expense and vexation attending multipl e law suits, conser ves judicial resour ces and fosters relianc e on judicial action by minimi zing the possibili ty o f inconsistent decisions.” Cutler v. Haye

s , 818 F.2d 879, 888 ( D.C. Cir. 1987).
The OAH proce eding adjudicate d the District ’s Dec ember 17, 2003 proposed

revoc ation of building permits and Plaintiffs’ objections to the proposed revoc ation; only the District

o f C olumbia and Plaintiffs wer e parties to the administrative proce eding

. Mr. Noble and Ms

. 9 Cherry can invoke collater al est oppel ag ainst Plaintiffs with reg ard to issues that wer e actua lly litigated and nece ssarily decide d by the OAH — such as t h e OAH finding that the sear ch of
Plaintiffs’ home was valid beca use it was conducte d pursuant to a war rant based on probable cause
. Howeve r, beca

use Mr. Noble and Ms. Cherry wer e not parties to the OAH proceed i ng , Plaintiffs

F a c t u a l f i n d i n g s b y D

. C

. ’ s a d m i n i s t r a t i v e a g e n c i e s a c t i n g i n a j u d i c i a l c a p a c i t y a r e e n t i t l e d 9 t o p r e c l u s i v e e f

f e c t , s o l o n g a s t h e p r o c e e d i n g w a s “ t h e e s s e n t i a l e q u i v a l e n t o f a j u d i c i a l p r o c e e d i n g
. ” W i n d e r v
. E r s t e , 5 1 1 F

. S u p p
. 2 d 1 6 0 , 1 7 6 ( D

. D

. C

. 2 0 0 7 )

. -12-cannot invoke c ollatera l estoppel ag ainst them. 1 0
Even so, the fac ts supporting liability for nominal damag es on Plaintiffs ’ Four th
Amendment claim are clea r and uncontested. Nominal damag es can be awa rded for the depriva tion
of a constitutional rig ht without proof of actua l injury , but substantial damag es can be awa rded only

to compe n s ate for actua l injury

. Carey v. Piphus , 435 U.S. 247, 266 (1978) (aw arding nominal damag es for a due proce ss violation even though no injury was proven) ; see also Mem phis , 477 U.S.

at 308 n.11 (nominal damag es are permissi b l e u n d er 42 U.S.C. § 1983). “The term ‘nominal damag es’ means a trivial sum – usually one cent or one dollar — awa rded to a plaintiff whose leg al rig ht has been technica lly violated but who has proved no rea l [pecuniary ] damag e. ” A b r a ms v. Comm. W orkers of Am. , 23 F. Supp. 2d 47, 51 (D.D.C. 1998) (quoting Chesapeake & Potomac Tel. Co. v. Clay , 194 F.2d 888, 890 ( D.C. Cir. 1952)).

The District of Columbi a seized documents i n t h e co urse of executing a sear ch

war rant and the war

rant did not authorize the seizure. The Four th Amendment st at es t h at “no
W arr ants shall issue, but upon probable cause , supported by Oath or aff irmation, and particula

rl y descr ibing the pla ce to be sear ched a nd the per sons or thing s to be seized.” U.S. Const. Amd. I V;

see Michigan v. Clif

ford , 464 U.S. 287, 294-98 (1984) (the object of the sear ch deter mines the ty

pe

Mr. Noble and Ms

. Cherry also arg ue that they wer e not in “privity ” with the Dis trict of 1 0 Columbi a beca

use g overnme nt employ ees sued in their indiv i d u al capa cities g ener ally are not in priv i t y with either their g overnme nt employ er or with themselves in their officia l capa city

. See Andrews v. Daw , 201 F.3d 521, 525(4th Cir. 2000) ; Morgan v. City of Rawlins , 792 F.2d 972, 980 (10th Cir. 1986); Johnson v. District of Columbia , Civ. No. 04-936, 2005 WL 1903551, *6 (D.D.C. J uly 20, 2005). “Privity ” is a conce pt that ap p l i es t o re s judicata, not collater al estoppel. The doctrines are fre quently confuse d, as often the term res judicata i s u s ed t o cover both doctrines. Novak , 703 F. 2 d at 1 3 0 9

. Res judicata applies only to parties or their privies. Id

. Collateral estoppel, in contra st, can be invoked by a someone who was not a party to the prior ac tion ag ainst a par ty to that action. Id

. -13-of war

rant require d and the scope of the permissible sear ch). No defe ndant here has ever challeng ed
Plaintiffs’ claim t hat t he seiz ure was i nvalid beca use t he warra

nt was not particula

rized. Thus, in
Elkins I , this Court fo u n d t h at t h e i ssue was conce ded. 527 F. Supp. 2d at 45-46 (citing FDIC v. Bende r , 127 F.3d 58, 67-68 (D.C. Cir. 1997) (o n s u m m ar y judgme nt, a court may trea t those
arg uments that the plaintiff fa iled to addre ss as conc eded)

.

Fur ther, Mr. No ble and Ms. Cherry have never disputed that Plaintiffs’ Four th
Amendment rig h t t o b e fre e from an unrea sonable seizure was clea rly established and they have

never moved for summary judgme nt based on qualified immunit y
. See W ilson v. Layne , 526 U.S. 601, 609 (1999) (qualified immunit y shields a g overnme nt officia l from liability under § 1983 provided that the officia l’s conduct did not violate a clea rly established constitutional rig ht of which

a re asonable person would ha ve known) ; LeClair v. Hart , 800 F.2d 692, 696 (7th Cir. 1986) (I RS
ag ents who seized documents outside the scope of a s ea rc h warrant wer e not entitled to qualified
immunit y beca

use the plaintiffs’ Four

th Amendment rig ht to be fre e from unrea sonable seizure was clea rly established).
Mr. Noble arg ued ear lier that he was not persona lly involved in the illega l seizure and

t h u s he cannot be held liable for the Fourth Amendment viol ation. See Dkt. # 79. How ev er , M r. Noble signe d the application for the war rant that did not authorize any seizure. A prior draf t of the

sear ch war

rant aff idavit written for Mr. Nob l e’ s signa ture included a reque st that the war rant authorize the seizure of docume n ts. The draf t stated, “Af

fiant further reque sts that the administrative

sear ch war

rant also authorize the seizure of documentar y and other materia ls that evidenc e any violation of the Stop W ork Orde r.” D kt. # 80, Ex

. 13 (dra ft aff idavit); see also Dkt. # 79, Ex

. 14 (Moy Dep. 31) (testify ing that an ear lier draf t of the war

rant application included a reque st to seize

-14-documents). Although in one portion of his deposition Mr. No b l e s tated that the purpose of the

sear ch war

rant was only to inspect the proper ty , see id. , Ex

. 9 (Noble Dep. 64), he also admitted that

one of the purposes of the sear ch war rant was to seize documents. Id ., Noble Dep. 62. These fac ts alone e stablish Mr. Noble’s per sonal involvement with the seizure.

Ms. Cherry has never contested her persona l involvement in the document seizure.
She acc ompanied the District of Columbi a’s attorney to Superior Court to apply for the war rant, she

was prese nt at the sear ch of Plaintiffs’ home, and she actua lly s ei z ed t h e documents in question.
Dkt

. # 8 0, Ex

. 6 (Cherr

y Dep. 41, 204). Her persona l involvement with the seizure is wellestablished. Ms. Cherry previously arg ued that she is not liable beca use she seized evidenc e in plain
view and beca

use Plaintiffs c onsented to tur ning over the documents. This Court held in Elkins II
and Elkins III that Def

endants are collater ally estopped from relitig ating the finding by the Hea ring
Offic er that t h e p l ai n v iew and consent exceptions to the war rant require ment did not apply

. See
Elkins II , 610 F. Supp. 2d at 64 n.10; Elkins III , 636 F. Supp. 2d at 35 (citing OAH Orde r on Mot.

to Suppress at 15, 21). Even if collater al estoppel does not apply , this Court would rea ch the same conclusion t hat t he Hearing Offic er reac hed. Documents recove red from inside draw ers were not in “plain view.” Fur

ther, there is no leg al s upport for Defe ndants’ cla im that obtaining a building permit for a private home constitutes “implied consent” to sear ch for a revie w of construction work.
See OAH Orde r on Mot. to Supp re s s at 1 6. Also, althoug h Ms. Cherry asser ts that Ms. Elkins voluntarily turned over the documents, the circ umstances of the sear ch belie this alleg ation. “When

a person in her home fac es a larg e number of officia ls who are disturbing her persona l proper ty , and

s o m e of the officia ls are arme d, one must conclude that any surre nder of documents constitute s acquie scenc e and not voluntar y action.” Id . at 15.

-15-I n sum, while the sear ch war rant was valid, it cannot be disputed that the seizure itself

was a violation of Plaintiffs’ Four th Amendment rig hts. Ms. Cherry was the office r who seized the documents, and Mr. Noble was the officia l who signe d the sear ch war rant application that failed to seek authorization for seizure of documents, knowing that one of the purposes of the sear ch was to seize documents. Their persona l involvement in the Four th Amendm en t v i o l ati on has been
establ i s h ed. By moving for entry of j udg ment of nom inal damag es, P laintiffs have conce ded that

n o m i n al damag es are sufficie nt with reg ard to the illega l seizure. Acc ording ly , judgme nt wi l l b e
g rante d in favor of Plaintiffs ag ainst Ms. Cherry and Mr. Noble, and nominal damag es in the amount of one dollar

eac h will be awa

rded a g ainst them.
IV. CONCLUSION
For the rea s o n s explained above, Plaintiffs’ motion for entry of judgme nt will be
g rante d in part and de nied in part a s follows: Pl aintiffs’ motion for e ntry of judgme nt ag ainst Mr.
L ove will be denied and he will be dismiss ed from this case
. J udg ment for nominal damag es in the

amount of one dollar eac h will be entered aga i n s t Mr. Noble and Ms. Cherry

. A memorializing
Orde r ac companies this Memora ndum Opinion.

Date: Ma y 3, 2010 /s/ ROSEMARY M. COL L YER United States District J udg e

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