Petition for Writ of Certiorari — Bush v. Water Pollution Control Authority

: 1) | Court, U.S

(90-1442 in

MAR 11 1991

- QFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

GARRET T. BUSH, III and HELEN F. BUSH,

Petitioners

versus

WATER POLLUTION CONTROL AUTHORITY

FOR THE TOWN OF WATERFORD,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Garret T. Bush, III

Pro Se

723 Vauxhall St. Ext.

Waterford, CT 06385

(401) 849-5300

QUESTIONS PRESENTED FOR REVIEW

l. In this federal civil action,

that was brought to the court of first

instance specifically under jurisdiction

conveyed by Title 28 U.S.C. § 1343(a),

did the presiding Judge of the United

States District Court for the District

of Connecticut violate plaintiffs'

constitutional rights of equal protection

and due process when he ordered dismissal

of the Complaint at a preliminary

hearing, sua sponte, on grounds that

his Court seemed to lack subject matter

jurisdiction?

2. Should Rule 12(h)(3) of the Federal

Rules of Civil Procedure be struck down

as unconstitutional because it permits

abridgment of the right of due process of

ii

law, as assured by Amendment XIV of the

Constitution of the United States?

3. In the appeal of this federal civil

action, brought to the United States

Court of Appeals for the Second Circuit

On several issues claiming abuse of

discretion by the presiding District

Judge, did the Appellate Panel violate

plaintiffs' constitutional rights of

equal protection and due process when it

bypassed all issues on appeal, and yet

affirmed the judgment by ordering

dismissal on grounds of res judicata,

on its own conclusions of fact, without

benefit of a federal evidentiary hearing |

Or an antecedent order on such grounds

from a trial court?

iii

LIST OF PARTIES TO THE PROCEEDINGS

All parties are identified in the

caption of the case.

TABLE OF CONTENTS

Topic ) Page

QUESTIONS PRESENTED FOR REVIEW ....i

LIST OF PARTIES TO THE PROCEEDINGS . iii

TABLE OF CONTENTS . ... . 2. « »« « © iii

TABLE OF AUTHORITIES ......+.. Vi

REFERENCE TO THE OFFICIAL

AND-UNOFFICIAL REPORTS OF

OPINIONS DELIVERED IN THE

CASE BY OTHER COURTS ......-.-. Wii

GROUNDS ON WHICH JURISDICTION

OF THE SUPREME COURT IS INVOKED... vii

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED IN THE CASE... viii

STATEMENT OF THE CASE ....-+-+ e+e e il

ARGUMENT ” . . . 7 . . . . . . . . . . 5

ES Se ee ee ee ee ee ee

iv

TABLE OF CONTENTS (continued)

Topic Page

(i) RULING AND ORDER DELIVERED

UPON THE RENDERING OF JUDGMENT BY

THE COURT WHOSE DECISION IS SOUGHT

TO BE REVIEWED, AS TRANSCRIBED ... 12

(ii) OTHER RULING AND ORDER

RENDERED IN THE CASE BY

A COURT . . . 7 . ° . . e . o 18

(iii) ORDERS CONCERNING A REHEARING 25

(iii.l) DISTRICT COURT ORDER... 25

(iii.2) APPELLATE COURT ORDER .. 27

(iv) JUDGMENT DOCUMENT ...... 29

(v) OTHER APPENDED MATERIALS ... 31

(v.1) EXCERPT FROM PLAINTIFFS'

FEDERAL COMPLAINT ...... 31

(v.2) EXCERPT FROM PLAINTIFFS'

MOTION TO ALTER OR AMEND

JUDGMENT * _ . . . o . . . . e 33

(v.3) EXCERPT FROM PLAINTIFFS'

APPELLATE BRIEP ...+.+++ 35

(v.4) EXCERPT FROM PLAINTIFFS'

PETITION FOR REHEARING .... 41

TABLE OF CONTENTS (continued)

Topic Page

(v.5) PAGES REPRODUCED FROM

UNITED STATES REPORTS .... 45

Allen v. McCurry,

449 wes 90 . . . ° o . . . 100

101

Mitchum v. Foster,

407-U.8. 223 « «© © © © « « « 242

243

District of Columbia

Carter, 409 U.S. 418 .... 428

429

<

Kremer v. Chemical

Construction Corp.,

436 U.8. 6h 2. s« 2 0 0 0 0 0 SEG

477

482

483

vi

TABLE OF AUTHORITIES

Topic Pages

Allen v. McCurry, 449 U.S. 90,

1 0, Ol 1 0 . . . . . . . . . . . . 9

Constitution of the United States

Amendment XIV (Section 1) .. ii, viii, l

District of Columbia v. Carter, 409

0.8. 418, 426, 429 (1972) « « «© we eo eo es

Federal Rules of Civil Procedure,

mae Setmetss « « « « « Se Be Se 7, 8

| a oe ea er ae

ge | ee ee eer ee ee

Kremer v. Chemical Construction

Corp., 456 U.S. 461, 476, 482 (1981). . 9

Mitchum v. Foster, 407 U.S. 225,

242 (1971) . o . . . . . . . . .

» 9

Title 28 U.S.C. §1254(1) ..... viii

Title 28 U.S.C. §1343(a) i, ix, 1, 3, 7

Title 42 U.S.C. §1983 ...... XX, 3

Title 42 U.S.C. §1985 ....... Gx

vii

REFERENCE TO THE OFFICIAL

AND UNOFFICIAL REPORTS OF OPINIONS

DELIVERED IN THE CASE BY OTHER COURTS

There are no published reports of

opinions delivered in this federal case.

GROUNDS ON WHICH JURISDICTION OF THE

SUPREME COURT IS INVOKED

Date of the entry of judgment sought

to be reviewed:

August 25, 1989

(ruling and order from the bench)

August 29, 1989

(judgment issued by the clerk)

Date of the order concerning a rehearing:

February 16, 1990 (filed)

Date of the order concerning the appeal:

September 19, 1990

Date of the order concerning a rehearing

of the appeal:

December 12, 1990

viii

Statutory provision believed to confer on

the Supreme Court jurisdiction to review

the judgment in question by writ of

certiorari:

Title 28 uU.S.c. §1254(1)

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED IN THE CASE

United States Constitution,

Amendment XIV [1868]

Section 1. All persons born or

naturalized in the United States,

and subject to the jurisdiction thereof,

are citizens of the United States and of

the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of

the laws.

ix

28 uscS, §1343. Civil rights and

elective franchise

(a) The district courts shall have

Original jurisdiction of any civil action

authorized by law to be commenced by any

person:

(1) To recover damages for injury to

his person or property, or because of

the deprivation of any right or

privilege of a citizen of the United

States, by any act done in furtherance

of any conspiracy mentioned in section

1985 of Title 42 (42 uscs §1985];

(2) To recover damages from any

person who fails to prevent or to aid

in preventing any wrongs mentioned in

section 1985 of Title 42 which he had

knowledge were about to occur and

power to prevent;

(3) To redress the deprivation, under

color of any State law, statute,

ordinance, regulation, custom or

usage, Of any right, privilege or

immunity secured by the Constitution

of the United States or by any Act of

Congress providing for equal rights of

citizens or of all persons within the

jurisdiction of the United States;

(4) To recover damages or to secure

equitable or other relief under any

Act of Congress providing for the

protection of civil rights, including

the right to vote.

(June 25, 1948, ch 646, $1, 62 Stat.

932; Sept. 3, 1954, ch 1263, §42, 68

Stat. 1241; Sept. 9, 1957, P.L. 85-315,

Part III, $121, 71 Stat. 637; Dec. 29,

1979, P.L. 96-170, § 2, 93 Stat. 1284.)

42 USCS, §1983. Civil action for

deprivation of rights

Every person who, under color of any

statute, ordinance, regulation, custom,

or usage, of any State or Territory or

the District of Columbia, subjects, or

causes to be subjected, any citizen of

the United States or other person within

the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in

equity, or other proper proceeding for

redress. For the purposes of this

section, any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of

the District of Columbia.

(R.S. §1979; Dec. 29, 1979,

P.L. 96-170, §1, 93 Stat. 1284.)

STATEMENT OF THE CASE

This civil suit was filed pro-se

in the federal District Court by two

citizens of the United States, husband

and wife, seeking to redress the

deprivation, under color of State law,

of their right to hold property and

receive equal protection of the laws,

as secured by Amendment XIV, Section l

of the Constitution of the United States.

Plaintiffs alleged that their

federal rights had not been protected in

the State courts and invoked jurisdiction

in the federal court of first instance

under Title 28, USCS, Section 1343(a).

Plaintiffs' Complaint was dismissed

Sua sponte by the presiding federal

District Judge on reliance of Rule

12(h)(3) of the Federal Rules of Civil

Procedure. There was no evidentiary

hearing or written opinion.

The transcript of preliminary

proceedings indicates that the presiding

Judge believed that his Court lacked

subject matter jurisdiction because there

had been prior proceedings in the State

courts of Connecticut.

The District Judge concluded, over

plaintiffs' denials, that plaintiffs were

seeking a review of the State court

proceedings; that the District Court was

reguired to give full faith and credit

to the State court decision; and that

plaintiffs' only recourse to a decision

of the State courts lay in the

U.S. Supreme Court.

Plaintiffs moved the District Court

pursuant to Rules 52(b) and 59(e) of the

Federal Rules of Civil Procedure to hold

an evidentiary hearing for presentation

of material made pertinent by the Court's

issue of jurisdiction, and to reconsider

the dismissal, noting that jurisdiction

is conferred upon the District Court

by Title 28, USCS, Section 1343(a),

in concert with Title 42, USCS,

Section 1983. The presiding Judge

granted the motion, but did not provide

for introduction of evidence. The Court

remained convinced that its legal

reasoning on dismissal was sound,

and declined to modify its ruling.

Plaintiffs appealed to the Second

Circuit Court of Appeals on several

grounds of abuse of discretion. Argument

was presented in briefs prepared by

pro-se plaintiffs and by the attorney for

the defendant. The three-Judge panel of

the Second Circuit bypassed all issues

on appeal, but adopted the defense

attorney's premise that the doctrine of

res judicata should apply (as claimed

by an affirmative defense in the Answer).

The Appellate Panel then ordered

dismissal on factual grounds of

res judicata.

Plaintiffs petitioned the Second

Circuit to reconsider its decision; noted

that the Appellate decision contained

false statements; and questioned whether

the Appellate Court was entitled to make

a factual determination [that the State

action had been fully and fairly decided

on its merits], and order dismissal on

grounds of res judicata, without

evidentiary proceedings for that

determination to have been made in the

lower Court. Plaintiffs gave details on

several reasons why the doctrine of res

judicata could not apply in the instant

action, using citations from the

pleadings to demonstrate that point.

The petition was denied summarily,

and the lower Court judgment was affirmed

by mandate.

ARGUMENT

A writ of certiorari should be

allowed by the United States Supreme

Court because the issues entail a serious

departure by the lower Courts from

fundamental judicial principles, in a way

that can jeopardize all civil-rights

cases that are potentially brought to the

federal courts after the State courts had

failed to protect federal rights.

Rule 12(h)(3) of the Federal Rules

of Civil Procedure indicates that a trial

judge may dismiss any Complaint merely on

a perception:

"Whenever it appears by suggestion

of the parties or otherwise that the

court lacks jurisdiction of the

subject matter, the court shall

dismiss the action."

This rule gives a federal trial

judge power to act arbitrarily, and

therein lies a serious threat to

implementation of the nation's civil

rights statutes.

All civil rights violations that

occur within the proximate jurisdiction

of a State court must first be pursued in

that State court. If the State courts

should fail to protect federal rights,

jurisdiction then passes to the federal

trial courts, as provided by Title 28

U.S.C. § 1343(a).

However, under the provisions of

Rule 12(h)(3), the federal trial judge

may merely note the existence of that

earlier litigation, and then conclude

that the matter does not belong in his

court. He need only recite the regular

jurisdictional structure wherein:

decisions from the State courts shall

be brought to the United States

Supreme Court for purposes of appeal;

and

one trial court must give full faith

and credit to the decision of another

trial court.

Rule 12(h)(3) allows dismissal to

occur at any time -- before the close of

pleadings; before an evidentiary hearing;

without sworn testimony. It strikes at

the core of the civil judicial process by

allowing, prior to trial, a presumption

that statements in the defense pleadings

are true, and those of the Complaint are

false, thereby circumventing trial.

That is precisely what happened in

the instant action.

The United States Supreme Court has

given articulation on federal laws that

modify the regular judicial structure

whenever a case is brought to the federal

courts under the provisions of the civil

rights acts. The federal trial courts

are expressly given jurisdiction by Act

of Congress in such cases, and the

propriety of jurisdiction has been

affirmed repeatedly by our highest Court

in, for example:

Allen v. McCurry, 449 U.S. 90,

100, 101 (1980).

Kremer v. Chemical Construction

Corp., 456 U.S. 461, 476, 482

1).

—

District of Columbia v. Carter, 409

U.S. 418, 428, 429 (1972).

Mitchum v. Foster, 407 U.S. 225,

242 (1971).

[These pages of the United

States Reports are reproduced

in the Appendix.]

10

Plaintiffs called these precedents

to the attention of the federal District

and Appellate Courts, but both Courts

failed even to acknowledge their

existence.

The District Judge concluded that

his Court lacked jurisdiction to review

the State Court judgment, and ruled on

the basis of regular law; the Appellate

Court then avoided relevant articulation

by the United States Supreme Court,

and the law of jurisdiction at issue, and

ruled differently on allegations of fact

that the federal courts had not reviewed

nor allowed entered into evidence,

These decisions on federal matters

by the District and Appellate Courts

conflict with applicable decisions of the

ll

United States Supreme Court, and have so

far departed from the accepted and usual

course of judicial proceedings as to call

for an exercise of the Supreme Court's

power of supervision.

Resolution of the question on rules

can have broad impact in assuring fair

and impartial implementation of the civil

rights statutes in other cases brought to

the federal courts after the State courts

had failed to protect federal rights.

Petitioners therefore respectfully

request that this Petition for Writ of

Certiorari be granted.

OAS yu

Garret T. Bush, III and Helen F. Bush

723 Vauxhall St. Ext.

Waterford, CT 06385

18 February 1991

12

APPENDIX

(i) RULING AND ORDER DELIVERED UPON

THE RENDERING OF JUDGMENT BY THE COURT

WHOSE DECISION IS SOUGHT TO BE REVIEWED,

AS TRANSCRIBED:

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Civil Action No. H-89-55 (AHN)

GARRET T. BUSH, III, ET AL

Plaintiffs,

vs.

WATER POLLUTION CONTROL AUTHORITY

FOR THE TOWN OF WATERFORD

Defendant.

Hearing held before the Honorable Alan H.

Nevas, U.S.D.J., at the Federal Building

located at 450 Main Street, Hartford

Connecticut, on August 25, 1989.

PRELIMINARY HEARING OF DEFENSE

APPEARANCES:

Garret T. Bush, III

Representing the Plaintiffs

723 Vauxhall Street Ext.

Waterford, Connecticut 06385

PRO SE

13

LOCHIATTO & LAWRENCE

Representing the Defendant

P.O. Box 631

Mystic, Connecticut 06355

BY: LOIS J. LAWRENCE, ESQ.

DENISE D. HARPER-FORDE

Registered Professional Reporter

BRANDON REPORTING SERVICES

450 Main Street

Hartford, Connecticut 06103

(Ruling and order, page 40, line 14:]

* + *

The Court finds that the proceedings

which took place in the Superior Court

and in the Appellate Court, and the

petition for certiorari to the

Connecticut Supreme Court all resulted --

or that the original proceedings in the

Superior Court constituted a hearing on

the merits, and that the Plaintiff was

given a trial on the merits.

14

A judgment of dismissal was entered;

which was final order [sic]. That final

order was appealed to the Connecticut

Appellate Court. The Plaintiff, by his

own admission here this morning, has

indicated that he took many exceptions,

and he raised 16 different issues, and in

his appeal to the Connecticut Appellate

Court that appeal was rejected.

He then petitioned for certiorari

the Connecticut Supreme Court, and that

was rejected. So it seems to me, the

Plaintiff has had ample opportunities to

raise all of these issues, and whatever

issues he wished to raise in the context

of the State Court proceedings.

The opinion of the Court is that all

of those proceedings were all proceedings

15

in which there were hearings on the

merits, and there was a judgment on the

merits, as is evidenced by the language

of the Connecticut Practice Book, Rule

302, which talks in terms of a dismissal

if the Court believes that the Plaintiff

has failed to make out a prima facie

case; which the Connecticut Superior

Court Judge did so find.

The 28 United States Court [sic],

Section 1738, provides in pertinent parts

as follows: "The records and judicial

proceedings of any court of any state

shall have the same full faith and credit

in every court within the United States

as they have by law or usage in the Court

of such state."

16

I read this section to mean that

this Court is required to give the same

reclusive [sic] effect to a State Court

judgment as would be given that judgment

under the law of the State in which the

judgment was rendered, and I cite Migia

versus Wovern [sic] City School District

(Phonetic), 465 US 75, at page 81-1984,

United States Superior Court Case [sic].

Also, Allen versus McCorey [sic],

(Phonetic), 449 US 90, pages 95 and 96.

It's a 1980 case.

I believe that this finding goes to

the Court's subject matter; jurisdiction

subject [sic]. Jurisdiction is something

that can be raised at any time during the

course of the proceedings, and can be

raised by the Court itself if the parties

don't raise it, and the Court is in fact

17

raising the issue of subject matter

jurisdiction here, because I have found

that the State Court judgment was on the

merits.

It's this Court's finding and

conclusion that this Court lacks subject

matter jurisdiction to review the final

judgment of the State Court, and I cite

DC Court of Appeals versus Feldman, 460

US 462, at page 482-1983 [sic], U.S.

Supreme Court Case.

It seems to me that when the

Plaintiff's Certiorari petition was

denied by the Connecticut Supreme Court,

the only avenue of review open to the

Plaintiff was to petition to the U.S.

Supreme Court.

—— wf

18

So for all of those reasons,

the Court of its own motion is going to

enter an order of dismissal.

[transcript signed

6th Day of April, 1990)

Denise D. Harper-Forde

Registered Professional Reporter

(ii) OTHER RULING AND ORDER RENDERED IN

THE CASE BY A COURT

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on

the 19th day of September, one thousand

nine hundred and ninety.

Conn

H89-cv-

Nevas

$

2

19

PRESENT:

HONORABLE GEORGE C. PRATT,

HONORABLE J. DANIEL MAHONEY,

HONORABLE JOHN M. WALKER, JR.,

Circuit Judges.

Docket No. 90-7238

GARRETT T. BUSH, III and

HELEN F. BUSH,

Plaintiffs-Appellants,

- against -

WATER POLLUTION CONTROL AUTHORITY

FOR THE TOWN OF WATERFORD,

Defendant-Appellee.

This appeal from a final judgment of

dismissal by the United States District

Court for the District of Connecticut,

Alan H. Nevas, Judge, was submitted on

the transcript of the record.

ON CONSIDERATION WHEREOF, it is now

ordered that the judgment of dismissal

is affirmed.

20

Garrett and Helen Bush sued this

defendant in the state court of

Connecticut, seeking to prevent the

taking of a portion of their land,

by eminent domain, for an easement to

install a sewer pipe. The state court

denied them relief and dismissed the

action. The judgment was affirmed on

appeal, and the Supreme Court of

Connecticut declined to review the case.

The Bushes then brought the defendant

into federal court, claiming that the

taking deprived them of due process as

well as equal protection, and that the

state courts had failed to protect their

rights. The district court dismissed the

complaint sua sponte for lack of subject

matter jurisdiction. Plaintiffs appeal,

arguing that the district court denied

them due process, abused its discretion,

21

and was prejudiced against them.

Regardless of the district court's basis

for dismissal, we now affirm the

dismissal on the ground of res judicata.

Both the constitution and 28 U.S.C.

§ 1738 require federal courts to give

full faith and credit to state court

judgments and to give them the same

effect as would a court in the state

where the judgment was rendered.

U.S. Const., Art. IV, §1; 28 U.S.C. §

1738; Migra v. Warren County School Dist.

Bd. of Educ., 465 U.S. 75, 80-81 (1984);

Allen v. McCurry, 449 U.S. 90, 94 (1980).

In Connecticut, "[t]Jhe doctrine of

res judicata provides that a former

judgment serves as an absolute bar to a

Subsequent action involving any claims

relating to such cause of action which

22

were actually made or which might have

been made." Gagne v. Norton, 189 Conn.

29, 32, 453 A.2d 1162 (1983); see Duhaime

v. American Reserve Life Ins. Co., 200

Conn. 360, 364-65, 511 A.2d 333 (1986).

The Bushes concede that they first

brought this action in the state court;

that it was fully litigated through the

state court system; that there are no

constitutional issues that were not or

could not have been brought there; and

that they lost.

Moreover, the action was decided on

the merits, after a full hearing, when

the state court dismissed the suit after

finding for the defendant on the issues.

The Bushes claim that the action was

di: nissed as a non-suit, and therefore

not on its merits; however, they rely on

23

an outdated rule. Connecticut Practice

Book Rule § 302, the basis for the state

court's dismissal, was revised in 1978 to

provide for dismissal when the

plaintiff's evidence, taken as true,

would not permit the trier of fact to

decide the issues in the plaintiff's

favor. Lorraine Hinchliffe v.

American Motors Corp., 184 Conn. 607, 440

A.2d 810 (1981). Clearly, this was a

judgment based on the merits of the case.

Because this action was fully and fairly

decided on its merits in state court,

the Bushes may not now in federal court

relitigate a state court judgment which

they do not like. District of Columbia

Court of Appeals v. Feldman, 460 U.S.

462, 486 (1983).

———

24

Finally, since in this federal

action, the defendant raised the doctrine

of res judicata as an affirmative defense

in its answer, thereby putting the Bushes

on notice of this potential ground for

dismissal, they are not unfairly

prejudiced by our dismissal of the action

on that ground.

([s] George C. Pratt, U.S.C.J.

J. Daniel Mahoney, U.S.C.

John M. Walker, Jr., U.S.

FILED

SEP 19 1990

ELAINE B. GOLDSMITH, CLERK

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

25

(iii) ORDERS CONCERNING A REHEARING

(iii.l1) DISTRICT COURT ORDER

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Civil Action, File Number H89-55 AHN

GARRET T. BUSH, III and

HELEN F. BUSH, Plaintiffs

Vv

WATER POLLUTION CONTROL AUTHORITY

FOR THE TOWN OF WATERFORD, Defendant

Endorsement Ruling on

Plaintiff's Motion to Reconsider

On August 25, 1989 the court

dismissed this action sua sponte for

lack of subject matter jurisdiction.

The Clerk of the Court entered judgment

for the defendant on August 29, 1989.

The plaintiffs have moved the court,

pursuant to 52 (b) and 59 (e), Fed. R.

Civ. P., to reconsider its decision and

26

alter the judgment. The defendant

opposes the motion.

The court grants the motion to

reconsider but after review of the

permanent court file and the parties'

latest submissions declines to modify its

August 25 ruling. Notwithstanding the

plaintiff's challenge to the August 25

ruling, the court remains convinced that

its reasoning is sound and its conclusion

valid. The plaintiff's avenue of redress

now leads to the appellate level.

In summary, though the court grants

the plaintiffs' motion to reconsider and

has reviewed all information relevant to

the motion, it affirms its ruling of

August 25, 1989 and the judgment of

August 29, 1989.

27

SO ORDERED this 15th day of

February, 1989 [sic] at Hartford,

Connecticut.

{s]) Alan H. Nevas, U.S.D.J.

FILED

FEB 16 929 AM ‘90

CLERK

U.S. DISTRICT COURT

HARTFORD, CONN

(iii.2) APPELLATE COURT ORDER

United States Court of Appeals

for the

Second Circuit

At a stated term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse, in the City of New York, on

the 12th day of December, one thousand

nine hundred and ninety.

28

DOCKET NO. 90-7238

GARRET T. BUSH, III and HELEN F. BUSH,

Plaintiffs-Appellants,

Vv

WATER POLLUTION CONTROL AUTHORITY FOR THE

TOWN OF WATERFORD,

Defendant-Appellee.

A motion for rehearing containing a

suggestion that the action be reheard in

banc having been filed herein by

plaintiffs-appellants,

Garret T. Bush, III

and Helen F. Bush, pro se.

Upon consideration by the panel that

decided the appeal, it is

ORDERED that the said motion for

rehearing is DENIED.

It is further noted that the

suggestion for rehearing in banc has been

29

transmitted to the judges of the court in

regular active service and to any other

judge that heard the appeal and that no

such judge has requested that a vote be

taken thereon.

{[s] Elaine B. Goldsmith,

Clerk

FILED

DEC 12 1990

ELAINE B. GOLDSMITH, CLERK

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

(iv) JUDGMENT DOCUMENT

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CIVIL H-89-55 AHN

30

GARRET T. BUSH, III, ET AL.

Vs.

WATER POLLUTION CONTROL

AUTHORITY FOR THE TOWN OF

WATERFORD

— we ee ee eee

JUDGMENT

This action having come on for

consideration of a preliminary hearing on

defense before the Honorable Alan H.

Nevas, United States District Judge, and

The Court having considered the full

record of the case including applicable

principles of law, and the Court having

held a hearing on August 25, 1989, this

action is dismissed on the Court's own

motion,

It is accordingly ORDERED, ADJUDGED

and DECREED that judgment be and is

hereby entered dismissing the complaint.

—*

31

Dated at Hartford, Connecticut, this

29th day of August 1989.

KEVIN F. ROWE, Clerk

{[s] By Dennis P. Iavarone

Deputy in Charge

FILED

AUG 29 1054 AM ‘89

CLERK

U.S. DISTRICT COURT

HARTFORD, CONN

(v) OTHER APPENDED MATERIALS

(v.1) EXCERPT FROM PLAINTIFFS'

FEDERAL COMPLAINT

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Civil Action, File Number H89-55 AHN

Complaint

GARRET T. BUSH, III and

HELEN F. BUSH, Plaintiffs

Vv

WATER POLLUTION CONTROL AUTHORITY

FOR THE TOWN OF WATERFORD, Defendant

32

I. PREFACE

1. This is an action of a civil nature

brought by Garret T. Bush III and Helen

F. Bush to redress the deprivation,

under color of State law, of plaintiffs'

right to hold property and receive equal

protection of the laws, as secured

by Amendment XIV, Section l, of the

Constitution of the United States.

The district courts have original

jurisdiction of this civil action

pursuant to Title 28, USCS,

Section 1343(a).

2. The case contests a condemnation

action by defendant municipality --

a cause that plaintiffs have already

pursued through all available levels of

the Connecticut courts. Those courts in

turn deprived plaintiffs of their civil

33

rights of due process and equal benefit

of proceedings. " eS

FILED

JAN 31 922 AM '89

CLERK

U.S. DISTRICT COURT I

HARTFORD, CONN

(v.2) EXCERPT FROM PLAINTIFFS' MOTION

TO ALTER OR AMEND JUDGMENT

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Civil Action, File Number H89-55 AHN

Motion

3 September 1989

GARRET T. BUSH, III and

HELEN F. BUSH, Plaintiffs

Vv

WATER POLLUTION CONTROL AUTHORITY

FOR THE TOWN OF WATERFORD, Defendant

34

PLAINTIFFS' MOTION TO ALTER OR AMEND

JUDGMENT, INCORPORATING BY REFERENCE

PLAINTIFFS' MOTIONS DATED 28 AUGUST 1989

FOR AMENDMENT OF FINDINGS AND AMENDMENT

OF JUDGMENT OF DISMISSAL, AND FOR

RECONSIDERATION OF DISPOSITION OF

DEFENDANT'S AFFIRMATIVE DEFENSES

l. Pursuant to Fed. R. Civ. P. 59(e)

plaintiffs move the Court to vacate its

Order, Judgment, and Decree entered on

29 August 1989; and to enter an Order for

a hearing and reconsideration under this

Motion and under plaintiffs' Motions of

28 August 1989, incorporated herein by

reference. Plaintiffs respectfully

request that the Court identify in its

Order the specific Rule involved in its

jurisdictional concerns, identify whether

the issue is facial or factual, and

(if factual) set forth a schedule for

submitting additional affidavits and

documents as may be desired. ye eS

35

FILED

SEP 5 828 PM '89

CLERK

U.S. DISTRICT COURT

HARTFORD, CONN

(v.3) EXCERPT FROM PLAINTIFFS'

APPELLATE BRIEF

90-7238

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GARRET T. BUSH, III and

HELEN F. BUSH,

Plaintiffs - Appellants

-V-

WATER POLLUTION CONTROL

AUTHORITY FOR THE TOWN OF

WATERFORD,

Defendant - Appellee

APPEAL FROM JUDGMENT OF DISMISSAL OF

COMPLAINT BY UNITED STATES DISTRICT

COURT, DISTRICT OF CONNECTICUT

BRIEF FOR PLAINTIFFS - APPELLANTS

36

For Plaintiffs

Garret T. Bush III

Helen F. Bush

723 Vauxhall St. Ext.

Waterford, CT 06385

For Defendant

Lois J. Lawrence

Lochiatto & Lawrence

P.O. Box 631

Mystic, CT 06355

26 April 1990

c. THE DISTRICT COURT MADE A PRECLUSIVE

RULING THAT IS IN DIRECT CONFLICT

WITH THE PROVISIONS OF 42 USC SECTION

1983 AND UNITED STATES SUPREME COURT

PRECEDENT

The District Court Judge referred

to two decisions of the United States

Supreme Court in an attempt to set forth

an authority for a preclusiveé ruling

based on 28 USC Section 1738, as shown

in lines 13-17 on page 42 of the

transcript for 25 August 1989

37

(Supplemental Record Document 1).

The citations were:

Migra v. Warren City School Dist.

Ba. of Education, 465 U.S. 75, 61; and

Allen v. McCurry, 449 U.S. 90, 95, 96.

In quick review, the District Court

Judge had alleged that the existence of

a certain judgment file in the State of

Connecticut created a preclusion to

subject-matter jurisdiction in the

Federal District Court. An examination

of the United States Supreme Court

decisions cited by the District Court

leads to a conclusion that is exactlv

opposite.

The United States Supreme Court

n Migra at 81 said that a federal court

——n

38

must give to a State court judgment the

same preclusive effect as would be given

that judgment under the law of the State

in which judgment was rendered * * *

IN THE ABSENCE OF FEDERAL LAW MODIFYING

THE OPERATION OF SECTION 1738.

(emphasis added)

The U.S. Supreme Court in Migra thus

placed a limitation on the "full faith

and credit" statute. A district court

must be mindful of other federal laws

that modify the operation of 28 USC

Section 1738, such as 28 USC Section

1343(a) and 42 USC Section 1983

in suits involving the deprivation of

Constitutional rights. Whenever the

State courts refuse to adjudicate

Constitutional issues action is

specifically directed, not to

39

the U.S. Supreme Court, but to the

federal district courts.

" *** Purpose of federal civil rights

Statute (42 USCS Section 1983)

authorizing action at law, suit in

equity, or other proper proceeding for

redress of deprivation, under color of

State law, of rights secured by Federal

Constitution and federal laws, is to

interpose federal courts between states

and people, as guardians of people's

federal rights, and thus to protect

people from unconstitutional action

under color of state law, whether that

action be executive, legislative,

Or judicial ***

"Mitchum v. Fostex, supra.

* * *

40

When the District Court Judge

referred to Allen, supra, he failed to

recognize that the U.S. Supreme Court

had made a statement of how the

CONSTITUTIONALITY of a prior State

judgment affects new federal action

based on 42 USC Section 1983.

In Allen v. McCurry, 449 U.S. 90,

100, 101 the opinion of the U.S. Supreme

Court was voiced as follows: * * *

The district court is thus NOT

barred by the full faith and credit

Statute from reaching merits of claim

where merits of claim may have been

previously litigated but not decided.

+ = *

~ ee

RECEIVED

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

MAY 2 1990

(v.4) EXCERPT FROM PLAINTIFFS'

PETITION FOR REHEARING

90-7238

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GARRET T. BUSH, III and

HELEN F. BUSH,

Plaintiffs - Appellants

-V-

WATER POLLUTION CONTROL

AUTHORITY FOR THE TOWN OF

WATERFORD,

Defendant - Appellee

APPEAL FROM JUDGMENT OF DISMISSAL OF

COMPLAINT BY UNITED STATES DISTRICT

COURT, DISTRICT OF CONNECTICUT

PLAINTIFFS' PETITION FOR REHEARING

41

WITH A SUGGESTION FOR REHEARING EN BANC

42

For Plaintiffs

Garret T. Bush III

Helen F. Bush

723 Vauxhall St. Ext.

Waterford, CT 06385

For Defendant

Lois J. Lawrence

Lochiatto & Lawrence

P.O. Box 631

Mystic, CT 06355

l October 1990

The Panel chose not to address

the District Court's grounds for

dismissal, or plaintiffs’ three issues

on appeal. Instead the Panel chose to

affirm the lower court's action by

ordering its own dismissal on the ground

of res judicata, which had been claimed

by defendant as an affirmative defense.

43

Plaintiffs ask the Honorable Court

of Appeals to take notice of the

precedents cited in Plaintiffs'

Memorandum of i4 August 1989 * * *

- It is well settled that the

courts must examine the record of

prior proceedings to ascertain

res judicata effect. * * *

- It is well settled that a defense

of res judicata is not open for

preliminary determination under

the Federal Rules of Civil

Procedure. * * *#*

Plaintiffs desire that the Honorable

Court of Appeals give an explanation of

how it can justify making a determination

of res judicata during appellate review,

when the case under appeal did not have

the necessary evidence, nor had

progressed sufficiently under the Rules

for such a determination to have been

made in the lower court. How could the

44

Honorable Court of Appeals conclude that

the principle of res judicata should

apply, without any supporting proof

by affidavit, testimony, or evidentiary

hearing to show that res judicata does

o-——

apply? * * *

RECEIVED

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

ocT 2 1990

(v.5)

45

PAGES REPRODUCED FROM

UNITED STATES REPORTS ~

Allen v. McCurry, 449 U.S. 90

(pages 100 and 101)

Mitchum v. Foster, 407 U.S. 225

(pages 242 and 243)

District of Columbia v. Carter,

409 U.S. 418

(pages 428 and 429)

Kremer v. Chemica. Construction

Corp., 456 U.S. 461

(pages 476, 477, 482, and 483)

100 OCTOBER TERM, 1980

Opinion of the Court 449 U.S.

tions that the state courts would retain their established

jurisdiction so that they could, when the then current polit-

ical passions abated, demonstrate a new sensitivity to federal

rights.**

To the extent that it did intend to change the balance of

power over federal questions between the state and federal

courts, the 42d Congress was acting in a way thoroughly con-

sistent with the doctrines of preclusion. In reviewing the

+) legislative history of § 1983 in Monroe v. Pape, supra, the

Court inferred that Congress had intended a federal remedy

in three circumstances: where state substantive law was

facially unconstitutional, where state procedural law was

16 Senator Edmunds, the floor manager of the bill in the Senate, observed

at the end of the debates:

“The bill, like all bills of this character. in its first and second sections, is

a declaration of rights and a provision for the punishment of conspiracies

against constitutional rghts, and a redress for wrongs. It does not under-

take to overthrow any court.... It does not undertake to interpose itself

out of the regular order of the administration of law. It does not attempt

to deprive any State of the honor which is due the punishment of cnme.

It is a law acting upon the citizen like every other law, and it is a law

to be enforced by the courts through the regular and ordinary processes

of judicial administration, and in no other way, until forcible resistance

shall be offered to the quiet and ordinary course of justice.” Cong. Globe,

42d Cong., Ist Sess., 697-698 (1871).

Representative Coburn expressed his belief that after passage of the Act “the

tumbling and tottering States will spring up and resume the long-neglected

administration of law in their own courts, giving, as they ought, them-

selves, equal protection to all.” Jd. at 460. Representative Sheldon

noted :

“Convenience and courtesy to the States suggest a sparing use [of na-

tional authority} and never so far as to supplant the State authority ex-

cept in cases of extreme necessity, and when the State governments cnm-

inally refuse or neglect those duties which are imposed on them.... It

seems to me to be sufficient, and at the same time to be proper, to make

a permanent law affording to every citizen a remedy in the United States

courts for injuries to him in those rights declared and guaranteed by the

Constitution... .” Jd., at 368.

ALLEN v. McCURRY 101

90 Opinion of the Court

inadequate to allow full litigation of a constitutional claim,

and where state procedural law, though adequate in theory,

was inadequate in practice. 365 U.S., at 173-174. In short,

the federal courts could step in where the state courts were

unable or unwilling to protect federal rights. Jd., at 176.

This understanding of § 1983 might well support an excep-

tion to res judicata and collateral estoppel where state law

did not provide fair procedures for the litigation of consti-

tutional claims, or where a state court failed to even acknowl-

edge the existence of the constitutional principle on which a

litigant based his claim. Such an exception, however, would

be essentially the same as the important general limit on rules

of preclusion that already exists: Collateral estoppel does not

apply where the party against whom an earlier court decision

is asserted did not have a full and fair opportunity to litigate

the claim or issue decided by the first court. See supra, at

95. But the Court’s view of § 1983 in Monroe lends no

strength to any argument that Congress intended to allow

relitigation of federal issues decided after a full and fair

hearing in a state court simply because the state court’s

decision may have been erroneous,”

17 The dissent suggests, post. at 112, that the Court’s decision in England

v. Medical Examiners, 375 U. S. 411, demonstrates the impropriety of

affording preclusive effect to the state-court decision in this case. The

England decision is inapposite to-the question before us. In the England

case, a party first submitted to a federal court his claim that a state stat-

ute violated his constitutional rights. The federal court abstained and

remitted the plaintiff to the state courts, holding that a state-court deci-

sion that the statute did not apply to the plaintiff would moot the federal

question. /d.,at 413. The plaintiff submitted both the state- and federal-

law questions to the state courts, which decided both questions adversely

to him. /d., at 414. This Court held that in such a circumstance, a

plaintiff who properly reserved the federal issue by informing the state

courts of his intention to return to federal court, if necessary, was not

precluded from litigating the federal question in federal court. The

holding in England depended entirely on this Court’s view of the purpose

of abstention in such a case: Where a plaintiff properly invokes federal-

242 OCTOBER TERM, 1971

Opinion of the Court 407 U.S.

courts, but whether this innovation was necessary or

desirable.**

This legislative history makes evident that Congress

clearly conceived that it was altering the relationship

between the States and the Nation with respect to the

protection of federally created rights; it was concerr.2d

that state instrumentalities could not protect those

rights; it realized that state officers might, in fact, be

antipathetic to the vindication of those rights; and it

believed that these failings extended to the state courts.

V

Section 1983 was thus a product of a vast trans-

formation from the concepts of federalism that had

prevailed in the late 18th century when the anti-

injunction statute was enacted. The very purpose of

€ 1983 was to interpose the federal courts between the

States and the people, as guardians of the people's

federal rights—to protect the people from unconstitu-

tional action under color of state law, “whether that

action be executive, legislative, or judicial.” Ez parte

Virginia, 100 U. S., at 346. In carrying out that pur-

pose, Congress plainly authorized the federal courts

to issue injunctions in § 1983 actions, by expressly au-

thorizing a “suit in equity” as one of the means of re-

dress. And this Court long ago recognized that federal

injunctive relief against a state court proceeding can

in some circumstances be essential to prevent great,

immediate, and irreparable loss of a person’s constitu-

tional rights. Ez parte Young, 209 U.S. 123; ef. Truaz

v. Raich, 239 U. S. 33; Dombrowski v. Pfister, 380 U. S.

479. For these reasons we conclude that, under the

32 See, e. g., Cong. Globe, 42d Cong., Ist Sess., 361 (Rep. Swann) ;

385 (Rep. Lewis) ; 416 (Rep. Biggs); 429 (Rep. McHenry); App.

179 (Rep. Voorhees); 599-600 (Sen. Saulsbury); App. 216 (Sen

Thurman).

MITCHUM v. FOSTER 243

225 Borcer, C. J., concurring

criteria established in our previous decisions construing

the anti-injunction statute, § 1983 is an Act of Congress

that falls within the “expressly authorized” exception of

that law.

In so concluding, we do not question or qualify in

any way the principles of equity, comity, and federalism

that must restrain a federal court when asked to enjoin

a state court proceeding. These principles, in the con-

text of state criminal prosecutions, were canvassed at

length last Term in Younger v. Harris, 401 U. S. 37, and

its companion cases. They are principles that have been

emphasized by this Court many times in the past. Fen-

ner v. Boykin, 271 U. S. 240; Spielman Motor Sales

Co. v. Dodge, 295 U. S. 89; Beal v. Missouri Pac. R.

Co., 312 U. S. 45; Watson v. Buck, 313 U. S. 387; Wil-

lams vy. Miller, 317 U. S. 599; Douglas v. City of Jean-

nette, 319 U. S. 157; Stefanelli v. Minard, 342 U. S.

117; Cameron v. Johnson, 390 U. S. 611. Today we

decide only that the District Court in this case was in

error in holding that, because of the anti-injunction

statute, it was absolutely without power in this § 1983

action to enjoin a proceeding pending in a state court

under any circumstances whatsoever.

The judgment is reversed and the case is remanded

to the District Court for further proceedings consistent

with this opinion.

It is so ordered.

Mr. Justice PoweE.t and Mr. Justice REHNQUIST

took no part in the consideration or decision of this case.

Mr. Cuier Justice Burcer, with whom Mr. JustTIcEe

Waite and Mr. Justice BLACKMUN join, concurring.

I concur in the opinion of the Court and add a few

words to emphasize what the Court is and is not de-

ciding today as I read the opinion. The Court holds

ae

428 OCTOBER TERM, 1972

Opinion of the Court 409 U.S.

state courts to vindicate essential rights arising under the

Constitution and federal laws.” ™ Zuickler v. Koota,

389 U. S. 241, 245 (1967). With the growing awareness

that this reliance had been misplaced, however, Con-

gress recognized the need for original federal court juris-

diction as a means to provide at least indirect federal

control over the unconstitutional actions of state offi-

cials.?? Congressman Coburn explained: *

“The United States courts are further above mere

local influence than the county courts; their judges

can act with more independence, cannot be put

under terror, as local judges can; their sympathies

are not so nearly identified with those of the

vicinage; the jurors are taken from the State, and

not the neighborhood; they will be able to rise

above prejudices or bad passions or terror more

easily.... We believe that we can trust our United

States courts, and we propose to do so.”

Thus, in the final analysis, § 1 of the 1871 Act may be

viewed as an effort “to afford a federal right in federal

courts because, by reason of prejudice, passion, neglect,

intolerance or otherwise, state laws might not be enforced

the United States ... .” Act of Mar. 3, 1875, §1, 18 Stat.

470. The jurisdictional amount has since been raised from $500 to

$2,000 by the Act of Mar. 3, 1887, § 1, 24 Stat. 552; to $3,000 by

the Act of Mar. 3, 1911, § 24, 36 Stat. 1091; and to $10,000 by the

Act of July 25, 1958, 72 Stat. 415. The provision 1s now codified as

28 U.S. C. § 1331 (a).

21 The only exception was §25 of the Judiciary Act of 1789,

1 Stat. 85, providing for Supreme Court review whenever a claim

of federal right was denied by a state court.

22 Thus, as originally enacted, § 1 of the 1871 Act provided that

the proceedings authorized by the Act are “to be prosecuted in the

several district or circuit courts of the United States... .” 17

Stat. 13. This aspect of § 1 is now codified as 28 U.S. C. § 1343 (3).

23 Cong. Globe, 42d Cong., Ist Sess., 460.

DISTRICT OF COLUMBIA v. CARTER 429

418 Opinion of the Court

and the claims of citizens to the enjoyment of rights,

privileges, and immunities guaranteed by the Fourteenth

Amendment might be denied by the state agencies,”

Monroe v. Pape, 365 U. S., at 180.

There was no need, however, to create federal court

jurisdiction for the District of Columbia. Even prior

to 1871, the courts of the District possessed general juris-

diction over both federal and local matters. Act of

Mar. 3, 1863, c. 91, 12 Stat. 762. Thus. the jurisdic-

tional aspects of § 1 of the 1871 Act were entirely super-

fluous with respect to the District. Moreover, while

Congress was unable to exert any direct control over

the actions of state officials. it was authorized under

Art. I, § 8, cl. 17, of the Constitution to exercise plenary

power over the District of Columbia and its officers.”*

Indeed, “[t]he power of Congress over the District of

Columbia includes all the legislative powers which a

State may exercise over its affairs.” Berman v. Parker,

348 U. S. 26, 31 (1954); see District of Columbia v.

Thompson Co., 346 U. S. 100, 108 (1953); National

Insurance Co. v. Tidewater Co., 337 U. S. 582, 602

(1949); Kendall v. United States, 12 Pet. 524, 619

(1838). And since the District is itself the seat of the

National Government, Congress was in a position to

observe and, to a large extent, supervise the activities

of local officials.* Thus, the rationale underlying Con-

**In pertinent part, Art. I, §8, cl. 17, of the Constitution pro-

vides that Congress shall have power “[t]o exercise exclusive

Legislation in all Cases whatsoever, over such District . . . as

may ... become the Seat of Government of the United States... .”

** The District of Columbia police system, for example, was oper-

ated under the direction of a board of five commissioners appointed

by the President with the advice and consent of the Senate. The

Statutes creating the metropolitan police svstem established a net-

work of regulations and reporting requirements that enabled the

476 OCTOBER TERM, 198]

Opinion of the Court 456 U. S.

Senator Williams, another proponent of the 1972 bill, echoed

Senator Javits’ remarks: “I do not believe that the individual

claimant should be allowed to litigate his claim to completion

in one forum, and then if dissatisfied, go to another forum to

try again.” /d., at 3372. After Senator Javits and Senator

Williams spoke, an evenly divided Senate refused to approve

the Hruska amendment.

It is sufficiently clear that Congress, both in 1964 and 1972,

though wary of assuming the adequacy of state employment

discrimination remedies, did not intend to supplant such

laws. We conclude that neither the statutory language nor

the congressional debates suffice to repeal § 1738’s longstand-

ing directive to federal courts.

B

Our finding that Title VII did not create an exception to

§ 1738 is strongly suggested if not compelled by our recent

decision in Allen v. McCurry that preclusion rules apply in 42

U.S. C. §1983 actions and may bar federal courts from

freshly deciding constitutional claims previously litigated in

state courts. Indeed, there is more in § 1983 to suggest an

implied repeal of §1738 than we have found in Title VII.

) In Allen, we noted that “one strong motive” behind the en-

actment of § 1983 was the “grave congressional concern that

the state courts had been deficient in protecting federal

rights.” 449 U.S., at 98-99. Nevertheless, we concluded

that “much clearer support than this would be required to

hold that § 1738 and the traditional rules of preclusion are not

applicable to § 1983 suits.” J/d., at 99.

ceedings, Senator Javits’ comments “should in context also be read as ex-

cluding state proceedings from any application of res judicata in Title VII

suits.” Reply Brief for Petitioner 9, n. **. Not only is the idea that even

a full state judicial proceeding be excluded from res judicata effect implau-

sible on its face, but Senator Javits prefaced his res judicata statement by

discussing the very New York employment discrimination laws under

which Kremer proceeded. 118 Cong. Rec. 3370 (1972).

KREMER v. CHEMICAL CONSTRUCTION CORP. 477

461 Opinion of the Court

Because Congress must “clearly manifest” its intent to de-

part from § 1738, our prior decisions construing Title VII in

situations where § 1738 is inapplicable are not dispositive.

They establish only that initial resort to state administrative

remedies does not deprive an individual of a right to a federal

trial de novo on a Title VII claim. In McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and Chandler v.

Roudebush, 425 U. S. 840 (1976), we held that the “civil ac-

tion” in federal court following an EEOC decision was in-

tended to be atrial de novo. This holding, clearly supported

by the legislative history, is not a holding that a prior state

court judgment can be disregarded.

The petitioner and the Courts of Appeals which have de-

nied res judicata effect to such judgments rely heavily on

our statement in Alexander v. Gardner-Denver that “final

responsibility for enforcement of Title VII is vested with fed-

eral courts.” 415 U.S., at 44." We did not say, and our

language should not be read to imply, that by vesting “final

responsibility” in one forum, Congress intended to deny final-

ity to decisions in another. The context of the statement

makes this clear. In describing the operation of Title VII,

we noted that the EEOC cannot adjudicate claims or impose

sanctions; that responsibility, the “final responsibility for en-

forcement,” must rest in federal court.

The holding in Gardner-Denver was that a private arbitra-

tion decision concerning an employment discrimination claim

did not bind the federal courts. Arbitration decisions, of

course, are not subject to the mandate of §1738. Further-

more, unlike arbitration hearings under collective-bargaining

agreements, state fair employment practice laws are explic-

itly made part of the Title VII enforcement scheme. Our de-

cision in Gardner-Denver explicitly recognized the “distinctly

separate nature of these contractual and statutory rights.”

"See, e. g., Smouse v. General Electric Co., 626 F. 2d, at 334-335; Gun-

ther v. lowa State Men's Reformatory, 612 F. 2d, at 1082-1083.

482 OCTOBER TERM, 1981

Opinion of the Court 456 U. S.

fect of state judgments. Rather, it goes beyond the common

law and commands a federal court to accept the rules chosen

by the State from which the judgment is taken. McElmoyle

v. Cohen, 13 Pet. 312, 326 (1839); Mills v. Duryee, 7 Cranch

481, 485 (1813). As we recently noted in Allen v. McCurry,

supra, “though the federal courts may look to the common

law or to the policies supporting res judicata and collateral

estoppel in assessing the preclusive effect of decisions of

other federal courts, Congress has specifically required all

federal courts to give preclusive effect to state-court judg-

ments whenever the courts of the State from which the judg-

ments emerged would do so.” 449 U. S., at 96.

The State must, however, satisfy the applicable require-

ments of the Due Process Clause. A State may not grant

preclusive effect in its own courts to a constitutionally infirm

judgment,” and other state and federal courts are not re-

quired to accord full faith and credit to such a judgment.

Section 1738 does not suggest otherwise; other state and fed-

eral courts would still be providing a state court judgment

with the “same” preclusive effect as the courts of the State

from which the judgment emerged. In such a case, there

petitioner’s Title VII suit whether his Title VII claim is precluded by the

New York judgment or whether he is collaterally estopped by that judg-

ment from complaining that Chemico had discriminated against him. Res

judicata has recently been taken to bar claims arising from the same trans-

action even if brought under different statutes, Nash County Bd. of Ed. v.

Biltmore Co., 640 F. 2d 484, 488 (CA4), cert. denied, 454 U. S. 878 (1981).

See also Restatement (Second) of Judgments §61(1) (Tent. Draft No. 5,

Mar. 10, 1978); Currie, Res Judicata: The Neglected Defense, 45 U. Chi. L.

Rev. 317, 340-341 (1978). It may be that petitioner would be precluded

under res judicata from pursuing a Title VII claim. However that may be,

it is undebatable that petitioner is at least estopped from relitigating the

issue of employment discrimination arising from the same events.

®Cf. McDonald v. Mabee, 243 U. S. 90, 92 (1917) (“{AJn ordinary per-

sonal judgment for money, invalid for want of service amounting to due

process of law, is as ineffective in the State as it is outside of it”); Haddock

v. Haddock, 201 U. S. 562, 567, 568 (1906).

i taal ita aia

KREMER v. CHEMICAL CONSTRUCTION CORP. 483

461 Opinion of the Court

could be no constitutionally recognizable preclusion at all.”

We have little doubt that Kremer received all the process

that was constitutionally required in rejecting his claim that

he had been discriminatorily discharged contrary to the stat-

ute. We must bear in mind that no single model of proce-

dural fairness, let alone a particular form of procedure, is dic-

tated by the Due Process Clause. Mitchell v. W. T. Grant

Co., 416 U. S. 600, 610 (1974); Inland Empire Council v.

~ Millis, 325 U. S. 697, 710 (1945). “‘The very nature of due

process negates any concept of inflexible procedures univer-

sally applicable to every imaginable situation.’” Mitchell v.

W. T. Grant Co., supra, at 610 (quoting Cafeteria Workers v.

McElroy, 367 U. S. 886, 895 (1961)). Under New York law,

a claim of employment discrimination requires the NYHRD

to investigate whether there is “probable cause” to believe

that the complaint is true. Before this determination of

probable cause is made, the claimant is entitled to a “full

| opportunity to present on the record, though informally, his

charges against his employer or other respondent, including

the right to submit all exhibits which he wishes to present

and testimony of witnesses in addition to his own testimony.”

State Div. of Human Rights v. New York State Drug Abuse

Comm'n, 59 App. Div. 2d 332, 336, 399 N. Y. S. 24 541, 544

(1977). The complainant also is entitled to an opportunity

“to rebut evidence submitted by or obtained from the re-

spondent.” 9N. Y. C. R. R. §465.6 (1977). He may have

an attorney assist him and may ask the division to issue sub-

poenas. 9N. Y.C. R. R. §465.12(c) (1977).

If the investigation discloses probable cause and efforts at

conciliation fail, the NYHRD must conduct a public hearing

“The Court's decisions enforcing the Full Faith and Credit Clause of the

Constitution, Art. IV, §1, also suggest that what a full and fair opportu-

| nity to litigate entails is the procedural requirements of due process.

Sherrer v. Sherrer, 334 U. S., at 348 (“there is nothing in the concept of

due process which demands that a defendant be afforded a second opportu-