William E. Hughes, Appellant, v. Howard J. Hoffman, Superintendent, Missouri Highway Patrol, Appellee, 750 F.2d 53 (8th Cir. 1984)

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US Court of Appeals for the Eighth Circuit - 750 F.2d 53 (8th Cir. 1984) Submitted Nov. 15, 1984. Decided Dec. 12, 1984

Alex Bartlett, Jefferson City, Mo., for appellant.

Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.

PER CURIAM.


William E. Hughes appeals the district court's1  dismissal of his 42 U.S.C. § 1983 complaint. On April 23, 1984 Hughes filed a complaint seeking a temporary restraining order, injunctive relief and attorney fees to prevent what he alleged to be his unconstitutional job transfer from Western Missouri to Eastern Missouri. For reversal Hughes argues that the district court erred in finding that the suit was barred by res judicata. The appellee, Hoffman, argues that this court should award attorney fees and costs for the filing of a frivolous appeal.

Hughes, a member of the Missouri State Highway Patrol, brought this action against Harold J. Hoffman, Superintendent of the Missouri Highway Patrol, for alleged violations of his constitutional rights. Hughes alleged, inter alia, that a March 9, 1984 transfer order was issued in retaliation for his exercise of his first amendment rights in challenging and appealing an October 16, 1981 transfer order.

In 1982 the District Court for the Western District of Missouri granted Hughes an injunction in regard to his transfer order. Hughes v. Whitmer, 537 F. Supp. 93 (W.D. Mo. 1982). This court, ruling that the 1981 transfer did not violate first amendment rights, dissolved the district court's permanent injunction. Hughes v. Whitmer, 714 F.2d 1407, 1414-17 (8th Cir. 1983). After an unsuccessful petition for a rehearing and rehearing en banc, on February 29, 1984 the United States Supreme Court denied a petition for a writ of certiorari. Hughes v. Whitmer, --- U.S. ----, 104 S. Ct. 1275, 79 L. Ed. 2d 680 (1984). On March 29, 1984 the patrol revived or reissued the October, 1981 transfer order. Hughes claims that the 1984 transfer is in retaliation for his appeals.I.

"The doctrine of res judicata is a principle of universal jurisprudence. It should be applied to bring litigation to an end where it is correct and just to do so." St. Louis Typographical Union No. 8 v. Herald Co., 402 F.2d 553, 555 (8th Cir. 1968). This case falls into the category that St. Louis Typographical Union No. 8 intended to address. Once a court with jurisdiction to hear the matter has entered a final judgment on the merits, the parties and their privies are forever bound. Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S. Ct. 715, 719, 92 L. Ed. 898 (1948). Thus, a final judgment on the merits bars future claims by the same parties based on the same cause of action. Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210 (1979).

Hughes is attempting to sue on the cause of action already adjudicated in Hughes v. Whitmer, 714 F.2d 1407 (8th Cir. 1983). Hughes has alleged that the circumstances have changed, and that the present transfer order is in retaliation for defending his rights in a court of law. We must disagree. The Patrol is merely seeking to implement an order which had been held up for several years as the subject of the original litigation. Hughes has ignored this court's previous ruling and chooses to bring this action without a proper basis.

The appellee makes a claim for attorney fees on appeal. In Ueckert v. Commissioner, 721 F.2d 248, 251 (8th Cir. 1983), we said "in the future, this court will consider assessing just damages ... for taking frivolous appeals on issues already clearly resolved."

Hughes is attempting to relitigate a matter which has been litigated and closed. His appeal is groundless, without merit and legally frivolous. While we decline fully to compensate appellee for damages, costs and attorney fees on appeal, we assess as against appellant and his attorneys jointly and severally double costs on appeal together with attorney fees in the modest amount of $500.00. See 28 U.S.C. §§ 1912 and 1927; FRAP 38.

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The Honorable Scott O. Wright, United States District Judge, Western District of Missouri