United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted April 3, 2018 Decided June 29, 2018

No. 17-5136

ANICA ASHBOURNE,

APPELLANT

v.

DONNA HANSBERRY, DIRECTOR, GLOBAL HIGH WEALTH, ET 

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00908)

Anica Ashbourne, pro se, was on the briefs for appellant.

Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and 

Benton Peterson, Assistant U.S. Attorneys, were on the brief 

for appellees.

Before: TATEL, SRINIVASAN and MILLETT, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: This appeal turns on the answer 

to a single question: Are Anica Ashbourne’s employment 

discrimination claims under Title VII, 42 U.S.C. § 2000e et 
2

seq., subject to ordinary principles of res judicata, even though 

at the time she filed her earlier suit she had not yet received a 

notice of her right to sue for those claims? We now join every 

circuit court to have addressed that question, as well as a 

number of our own prior unpublished dispositions, and hold 

that res judicata applies to such Title VII claims, at least in the 

absence of a particularized showing that prosecuting or 

otherwise preserving the claims in the initial litigation was 

infeasible. Because including Ashbourne’s Title VII claims in 

her initial litigation was entirely feasible, the judgment of the 

district court is affirmed. 

I

In June 2010, the Department of the Treasury’s Internal 

Revenue Service hired Anica Ashbourne, a tax attorney and 

certified public accountant, into its Global High Wealth 

division, subject to a one-year probationary period. Shortly 

before her probationary year expired, the IRS terminated 

Ashbourne for having provided false or misleading information 

about her employment history in the job application process. 

The termination became final on May 28, 2011. 

Ashbourne I

Ashbourne brought challenges related to her termination

on two separate fronts: She raised Title VII claims asserting 

race and gender discrimination in a Treasury Department 

administrative proceeding, and she pressed a number of other 

challenges tied to her termination in federal court. 

On the federal-court front, Ashbourne filed three separate 

lawsuits in the United States District Court for the District of 

Maryland between September 30 and November 30, 2011. 

Ashbourne’s first complaint alleged that the Treasury 
3

Department and her former supervisors violated her 

constitutional right to due process by jeopardizing her chances 

for future employment without an evidentiary hearing. 

Ashbourne v. Geithner, 8:11-cv-02818-RWT (D. Md. Sept. 30, 

2011). Her two subsequent complaints collectively alleged 

violations of her statutory rights under the Age Discrimination 

in Employment Act, 29 U.S.C. § 621 et seq., the Equal Pay Act, 

29 U.S.C. § 206(d)(1), and the Privacy Act, 5 U.S.C. § 552A. 

See Ashbourne v. Geithner, 8:11-cv-03199-RWT (D. Md. Nov. 

9, 2011); Ashbourne v. Department of the Treasury, 8:11-cv03456-RWT (D. Md. Nov. 30, 2011).

The district court in Maryland consolidated all three 

complaints into a single action. Ashbourne v. Geithner, 2012 

WL 2874012, at *1 (D. Md. July 12, 2012). At no point did 

Ashbourne raise any claims under Title VII in her consolidated 

cases. See id.

On the administrative front, Ashbourne filed a complaint 

in November 2011 with the Treasury Department’s equal 

employment opportunity office, in which she alleged that her 

termination and related events violated Title VII. Treasury 

denied her administrative claim in December 2012, and 

informed Ashbourne that she could either appeal that decision 

to the Equal Employment Opportunity Commission (“EEOC”) 

or file a civil suit in district court. Ashbourne v. Hansberry, 

1:16-cv-908-CKK, ECF No. 6-2 (D.D.C. Aug. 18, 2016) 

(“Ashbourne II”). Treasury also informed her that, if she 

chose EEOC review, she could still file a civil action if the 

EEOC did not issue a final decision within 180 days. Id. 

On January 26, 2013, Ashbourne chose to appeal to the 

EEOC rather than to join her Title VII claims with her pending 

litigation. 
4

Meanwhile back in the courtroom, the district court 

transferred Ashbourne’s three consolidated complaints to the 

United States District Court for the District of Columbia. 

Ashbourne, 2012 WL 2874012, at *5; see also Ashbourne v. 

Geithner, 1:12-cv-1154-BAH, ECF No. 10 (D.D.C. July 12, 

2012) (“Ashbourne I”). Ashbourne moved the D.C. district 

court to transfer the case back to Maryland, but the court 

declined. Ashbourne I, 1:12-cv-1153-BAH, Minute Order 

(D.D.C. Dec. 5, 2012).

Ashbourne appealed the denial of retransfer, and moved 

this court to hold the appeal in abeyance until the EEOC acted

on her pending Title VII claims. Ashbourne v. Wolin, No. 13-

5006, Motion to Stay Proceedings at 3, ECF No. 1420479

(D.C. Cir. Feb. 13, 2013). Treating Ashbourne’s interlocutory 

appeal as a petition for a writ of mandamus, see In re Briscoe, 

976 F.2d 1425, 1426 (D.C. Cir. 1992) (per curiam), this court 

denied both the challenge to the transfer and the motion for 

abeyance. See Ashbourne v. Wolin, No. 13-5006, ECF No.

1442038 (D.C. Cir. June 19, 2013). 

When the case returned to district court, Ashbourne was 

ordered to file “a single, consolidated complaint” that would 

“contain[] all claims remaining in this consolidated case.” 

Ashbourne I, 1:12-cv-1153-BAH, ECF No. 44 at 2 (D.D.C. 

Aug. 9, 2013). She complied on October 29, 2013. 

Ashbourne’s consolidated complaint asserted only her claim 

under the Due Process Clause and four causes of action under 

the Privacy Act. Id., ECF No. 49 (D.D.C. Oct. 29, 2013). 

Title VII was nowhere mentioned in the consolidated 

complaint, even though Ashbourne had been advised that she 

could have brought suit on her Title VII claims due to the 

EEOC’s delay in ruling, 42 U.S.C. § 2000e-16(c). See 

Ashbourne II, 1:16-cv-908-CKK, ECF No. 6-2. Neither did 

she ask the district court for a stay of proceedings pending the 
5

EEOC’s decision or otherwise notify the court of the pending 

administrative Title VII claims.

In September 2015, the EEOC dismissed Ashbourne’s 

appeal of her Title VII claims on the ground that its regulations 

prohibit the simultaneous pursuit of administrative and judicial 

remedies. See 29 C.F.R. § 1614.409. Ashbourne did not 

notify the district court of that dismissal or seek to add the Title 

VII claims to her pending case.

Around that same time, the district court dismissed 

Ashbourne’s alleged Due Process Clause violation, which she 

had filed under 42 U.S.C. § 1983, for failure to state a plausible 

legal claim for relief. Ashbourne I, 2014 WL 12666716, at *1

(D.D.C. Sept. 3, 2014). The court also dismissed without 

prejudice the claims against the defendants in their personal 

capacities for improper service of process. Id. 

Two months later, the district court sua sponte dismissed 

Ashbourne’s Privacy Act claims against the individual 

defendants because the Act provides a cause of action only 

against federal agencies. Ashbourne I, 2015 WL 11303198, at 

*11 (D.D.C. Nov. 24, 2015). And the court granted summary 

judgment for the agency on the ground that Ashbourne failed 

to adduce evidence of a single instance in which the agency 

either improperly disclosed her records or relied on inaccurate 

records in reaching its termination decision. Id. at *8–10.

Closing the loop on Ashbourne I, this court affirmed the 

district court’s final judgment on the ground that Ashbourne’s 

claims “impermissibly recast a federal personnel management 

decision as a factual challenge under” the Privacy Act, and that

she had received adequate process to protect her professional 

reputation. Ashbourne v. Hansberry, 703 F. App’x 3, 4 (D.C. 

Cir. 2017) (mem.). 
6

Ashbourne II

In May 2016, roughly eight months after the EEOC 

dismissed her administrative appeal and about six months after 

the district court entered judgment for the government in 

Ashbourne I, Ashbourne filed a second complaint in the 

District of Columbia district court. Ashbourne II, 1:16-cv908-CKK, ECF No. 1 (D.D.C. May 18, 2016). This time, 

Ashbourne alleged that her firing violated Title VII. The Title 

VII complaint was against the same defendants and involved 

the same factual allegations of adverse employment actions 

involving unequal pay, a hostile work environment, and 

termination as Ashbourne I. Id. ¶¶ 325. 

The district court dismissed the complaint on the ground 

that the Title VII claims were barred by res judicata. 

Ashbourne II, 245 F. Supp. 3d 99, 101 (D.D.C. 2017). The 

district court concluded that the Title VII complaint arose out 

of the same nucleus of operative facts surrounding her 

termination and involved the same parties as Ashbourne I. Id. 

at 104–105; compare Ashbourne II, 1:16-cv-908-CKK, ECF

No. 1, Compl. ¶¶ 8–25 (describing circumstances of Plaintiff’s 

termination from the Treasury Department), with Ashbourne I, 

1:12-cv-1153-BAH, ECF No. 49, Amended Compl. ¶¶ 20–40 

(same). Because Ashbourne’s challenges to the same actions 

of the same defendants had already been fully adjudicated on 

the merits by the district court in Ashbourne I, and because 

Ashbourne neither joined her Title VII claims when able nor 

sought a stay pending exhaustion from the district court, the

court ruled that traditional claim-preclusion principles barred 

further prosecution of the case. Ashbourne II, 245 F. Supp. 3d

at 104–106.
7

II

Ashbourne’s attempt to relitigate employment claims 

resolved against her in favor of the same defendants in her first 

lawsuit fits res judicata doctrine to a T. The only colorable 

argument that Ashbourne asserts to fend off res judicata is that

she had not been given a timely right-to-sue letter in her 

administrative proceedings. But when, as here, the absence of 

that letter was no barrier to joining the claims to her pending 

federal court action, Ashbourne’s voluntary choice to stick 

with the administrative forum is just as much subject to res 

judicata consequences as any other strategic choice to withhold 

a claim from litigation. 

We review de novo the district court’s application of res 

judicata. Ibrahim v. District of Columbia, 463 F.3d 3, 7 (D.C. 

Cir. 2006).

Res judicata is an ancient legal doctrine that, in simple 

terms, limits parties to one bite at the litigation apple. 

Generally speaking, it bars successive lawsuits if a prior 

litigation (1) involving the same claims or causes of action, (2) 

between the same parties or their privies, (3) ended in a final, 

valid judgment on the merits, (4) entered by a court of 

competent jurisdiction. Smalls v. United States, 471 F.3d 186, 

192 (D.C. Cir. 2006). Whether successive cases involve the 

same cause of action “turns on whether the[] [causes of action] 

share the same nucleus of facts.” Drake v. FAA, 291 F.3d 59, 

66 (D.C. Cir. 2002) (internal quotation marks omitted). Said 

another way, the test is whether the latter case involves issues 

that “were or could have been raised” in the earlier case. Allen 

v. McCurry, 449 U.S. 90, 94 (1980). Summary judgment and 

dismissal for failure to state a claim both constitute final 

judgments on the merits. See Prakash v. American Univ., 727 
8

F.2d 1174, 1182 (D.C. Cir. 1984); see also Bell v. Hood, 327 

U.S. 678, 682 (1946).

Ashbourne’s second lawsuit checks every one of those 

boxes. The district court’s jurisdiction in the original case is 

unquestioned. Ashbourne’s Title VII claims and the claims 

already fully adjudicated on the merits in Ashbourne I share a 

common genesis: the termination of her federal employment 

and alleged adverse employment actions tied up with that 

termination. And the Title VII lawsuit targets the same 

defendants that had already been forced to defend the same 

conduct against factually related claims, on which they 

obtained a judgment on the merits in their favor. See 

Ashbourne II, 245 F. Supp. 3d at 104–106. 

The only question is whether the administrative 

exhaustion requirements for Title VII claims change the res 

judicata calculus. We hold that administrative exhaustion 

does not do so if the plaintiff had a full and fair opportunity to 

bring the Title VII claims in the initial action. Ashbourne had 

two distinct opportunities to join her Title VII claims to her 

pending litigation and multiple chances to seek a stay in district 

court, but availed herself of none of them. 

First, she could have added the Title VII claims to her 

litigation after Treasury’s equal employment opportunity 

office denied her claim in December 2012. See 42 U.S.C. 

§ 2000e–16(c) (indicating that, after timely filing a formal 

administrative complaint, a federal employee may file a civil 

action in federal court within ninety days of receiving the 

agency’s notice of a final administrative decision). At that 

point, her consolidated cases were at a very early procedural 

juncture—it was nearly nine months before the district court 

ordered Ashbourne to file a final, consolidated complaint 

containing all claims—so the addition of new claims was 
9

presumptively permissible. See FED.R.CIV. P. 15(a)(2) (“The 

court should freely give leave [to amend the complaint] when 

justice so requires.”). 

Second, she could have added her Title VII claims to the 

final consolidated complaint filed in district court after the 

transfer, when the district court specifically invited her to 

include all claims she wished to litigate against the defendants 

in a single proceeding. Ashbourne I, 1:12-cv-1153-BAH, 

ECF No. 44 (D.D.C. Aug. 9, 2013) (“[I]n the interest of judicial 

efficiency * * * [Ashbourne] is directed to file by September 

11, 2013, a single, consolidated complaint containing all 

claims remaining in this consolidated case” “so as to allow the 

defendants to address all remaining claims in this action in a 

single motion[.]”) (emphasis added). Exhaustion was no bar 

at that point because the EEOC had failed to issue a decision 

within 180 days, which freed her to proceed to district court 

without awaiting further EEOC action or notice of her right to 

sue. See 42 U.S.C. § 2000e-16(c). 

Ashbourne, of course, had the right to prefer the continued 

pursuit of administrative review to federal court litigation. 

But that choice, like any other strategic choice a party might 

make to refrain from litigating a particular claim, has res 

judicata consequences. 

In so holding, we find ourselves in good company. Every 

other circuit to address the question has held that res judicata 

principles apply to claims that could have been included in the 

earlier litigation. See, e.g., Woods v. Dunlop Tire Corp., 972 

F.2d 36, 39 (2d Cir. 1992) (“[T]he language and policy of Title 

VII do not undercut the application of res judicata, and we see 

no reason militating against application of well-settled claim 

preclusion principles.”); Davis v. Dallas Area Rapid Transit, 

383 F.3d 309, 314 (5th Cir. 2004) (“While factual allegations 
10

articulated in the [later Title VII lawsuit] differ, all of the 

claims in question originate from the same continuing course 

of allegedly discriminatory conduct[.]”); Herrmann v. Cencom 

Cable Assocs., 999 F.2d 223, 225 (7th Cir. 1993) (concluding 

that where “one transaction [i]s alleged to violate a host of 

different laws, [] it would not make much sense to say that the 

plaintiff must file all but the Title VII claim in one suit but may 

wait and bring a second suit charging violations of Title VII 

alone”). Prior unpublished decisions from this court are of the 

same mind. See Coleman v. Potomac Elec. Power Co., No. 

04-7043 (D.C. Cir. Oct. 19, 2004) (unpub. mem.) (affirming 

that res judicata barred a Title VII retaliation claim where all 

alleged factual predicates for the retaliation claim were 

adjudicated in previous suit); Yelder v. Gates, No. 10-5285 

(D.C. Cir. Dec. 28, 2010) (unpub. mem.) (same).

Alternatively, Ashbourne could have sought a stay of the 

initial litigation from the district court pending the conclusion 

of administrative proceedings. That would have put everyone 

on notice that she was seeking to vindicate Title VII claims

alongside the other constitutional and statutory claims already 

being litigated, and would have allowed the district court to 

take the procedural steps necessary to efficiently manage the 

litigation. But Ashbourne did not pursue a stay of the district 

court proceedings either. See, e.g., Battle v. Peters, No. 06-

5424 (D.C. Cir. Aug. 9, 2007) (unpub. mem.) (explaining that 

obtaining a stay of the first action until receipt of the right-tosue letter for the Title VII claims could prevent res judicata

from attaching); Woods, 972 F.2d at 39 (“We are of the firm 

opinion that a district court faced with a stay request in this type 

of situation—where a Title VII plaintiff is seeking to defer 

further proceedings in non-Title VII causes of action while 

pursuing Title VII administrative remedies—should grant the 

stay absent a compelling reason to the contrary.”); Davis, 383 

F.3d at 315 (agreeing with Woods that staying the first-filed 
11

action would have prevented a res judicata bar to subsequent 

Title VII claims); Owens v. Kaiser Found. Health Plan, Inc., 

244 F.3d 708, 714–715 (9th Cir. 2001) (unless a plaintiff seeks 

a stay from the district court to pursue administrative remedies 

or attempts to amend the complaint to include Title VII claims, 

those claims are subject to res judicata); Wilkes v. Wyoming 

Dep’t of Employment, 314 F.3d 501, 506 (10th Cir. 2002) 

(holding that Title VII claim was barred where plaintiff neither 

sought a stay, nor attempted to amend after later receiving a 

right-to-sue letter); cf. Air Line Pilots Ass’n v. Miller, 523 U.S. 

866, 879 n.6 (1998) (noting “district courts’ discretion to defer 

* * * proceedings pending the prompt conclusion” of other

proceedings bearing upon the federal litigation).

 

Nor did Ashbourne seek expedited issuance of a right-tosue letter from the EEOC so that she could timely join the Title 

VII claims to the pending litigation. See Herrmann, 999 F.2d 

at 225; Rivers v. Barberton Bd. of Educ., 143 F.3d 1029, 1032–

1033 (6th Cir. 1998) (plaintiff who could have received a rightto-sue letter and could have perfected claims during the 

pendency of the first-filed action was barred by res judicata

from bringing subsequent Title VII suit); Heyliger v. State 

Univ. & Community College Sys., 126 F.3d 849, 854–856 (6th 

Cir. 1997) (requiring a plaintiff to seek a right-to-sue letter and 

to amend his complaint to add the federal claim would not 

impose a burden on him beyond ordinary due-diligence 

requirements); see also Jang v. United Techs. Corp., 206 F.3d 

1147, 1149 (11th Cir. 2000) (finding that res judicata 

precluded Americans with Disabilities Act claim where 

plaintiff failed to obtain right-to-sue letter during pendency of 

previous litigation); Churchill v. Star Enters., 183 F.3d 184, 

193–194 (3d Cir. 1999) (same).

Here, Ashbourne, a licensed attorney, failed at every turn

to avail herself of the procedural safeguards available for 
12

prosecuting or preserving her Title VII claims. She has 

identified no reason why, with ordinary diligence, she could 

not have litigated or otherwise preserved her Title VII claims

in the initial litigation. Neither the administrative agencies 

nor the district court impeded the inclusion of her Title VII 

claimsin Ashbourne I. Nor was a reasonable request for a stay 

of litigation denied by the district court. 

Ashbourne’s passing suggestion that her Title VII claims 

arose out of a different nucleus of relevant facts from those at 

issue in Ashbourne I is without merit. See Ashbourne Br. 20. 

As the district court found, the operative complaints in 

Ashbourne’s first and second federal actions are both 

predicated on her termination and interrelated adverse

employment actions. See Ashbourne II, 245 F. Supp. 3d at 

104. So both cases arise from the same factual circumstances. 

Even Ashbourne concedes, as she must, that “her termination 

is a common fact in all of her lawsuits.” Ashbourne Br. 20. 

There is, in short, no factual basis for extracting Ashbourne’s 

Title VII claims from the same nucleus of operative facts that 

underlay her first action. Accordingly, well-established 

principles of res judicata foreclose her Title VII claims.

Ashbourne also argues that her motion in this court to hold 

the retransfer appeal in abeyance should have sufficed to 

preserve her Title VII claims. Ashbourne Br. 17–18; Reply 

Br. 10–11. Ashbourne is correct that she styled that request as 

a “Motion to Stay Proceedings and Memorandum in Support.” 

No. 13-5006, Doc. No. 1420479 (Feb. 13, 2013). But that is 

not enough. 

For starters, that document never references Title VII, 

administrative exhaustion, or res judicata. She nowhere 

explains that the appellate stay she is seeking is needed to also 

halt the district court litigation in order to preserve a Title VII 
13

claim that she could not otherwise bring. More to the point, 

no stay motion was filed in district court, as the rules require

when a stay of district court proceedings is sought. FED. R.

APP. P. 8; see D.C. CIR. RULE 8. Instead, Ashbourne filed her 

motion in this court seeking only to stay this court’s action on 

her interlocutory appeal challenging the transfer decision. 

Ashbourne never sought a stay of the district court litigation 

pending exhaustion of her administrative remedies. 

Ashbourne’s belated effort to repurpose her filing in this court 

thus is no answer to settled res judicata law. 

III

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.