Petition — McDonald v. West Branch

>

33-219 Gg Al 1983

83 ALEAANDER L. STEVAS,

No. 7 CLERK

,

In the Supreme Court of the United States

October Term, 1983

GARY McDONALD,

Petitioner,

VS.

CITY OF WEST BRANCH, MICHIGAN; PAUL

LONGSTREET, CHIE OF POLICE; BERNARD C.

OLSON, CITY MANAGER; CHARLES W. JEN-

NINGS, CITY ATTORNEY; DEMETRE J. ELIAS,

CITY ATTORNEY; UNITED STEEL WORKERS OF

AMERICA, DISTRICT 29,

Respondents.

On WRIT oF CERTIORARI TO THE

UNITED STATES CourT or APPEALS

For THE SixTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

4

Davip ACHTENBERG (Counsel of Record)

ACHTENBERG & ACHTENBERG, P.C.

700 Ozark National Life Building

Kansas City, Missouri 64106

(816) 474-0550

Attorney for Petitioner

E. L. Menpennacy, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3080

QUESTION PRESEN'TED*

1. Should unappealed arbitration awards—as dis-

tinguished from state court decisions—be given preclusive

effect in cases brought under 42 U.S.C. §1983?

*All parties to the proceeding in the Court of Appeals are

listed in the caption.

TABLE OF CONTENTS

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REASONS FOR GRANTING THE WRIT—

I.

II.

Ill,

The Decision Below Erred in Its Resolution

of an Important Issue Significantly Affecting

the Administration of Justice—Whether Arbi-

tration Awards Should Be Given Res Judicata

en ccnceeusbionanes

The Decision Below Conflicts With This

Court’s Decision in Alexander v. Gardner-

Denver That Arbitration Awards Shall Not Be

Given Preclusive Effect in Title VII Cases ....

Four Courts of Appeals Have Decided That

State Administrative Determinations—and A

Fortiori Arbitration Awards—Should Not Be

Given Preclusive Effect. The Decision Be-

low Conflicts With Those Decisions ................

TT iets hb dicheansstnesoseiesennsesabshtacnsinibabenciasecesimamneries

APPENDIX A—OPINION OF THE UNITED STATES

I I occ scr saicesisipssineetoscenddssncbesmennsenn

APPENDIX B—JUDGMENT OF THE UNITED

es Ge ays hy il © 08) | y GO

APPENDIX C—ORAL ORDER OF THE UNITED

STATES DISTRICT COURT DENYING DEFEN-

DANTS’ MOTION FOR DIRECTED VERDICT ........

Il

APPENDIX D—ORDER OF THE UNITED STATES

DISTRICT COURT DENYING MOTION FOR

JUDGMENT NOTWITHSTANDING VERDICT ...... Al2

APPENDIX E—ORDER OF THE UNITED STATES

COURT OF APPEALS DENYING REHEARING .... Al4

APPENDIX F—SPECIAL INTERROGATORY FORM

REGARDING DEFENDANT LONGSTREET ........ Al5

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

Becton v. Detroit Terminal of Consolidated Freight-

ways, 687 F.2d 140 (6th Cir. 1982), cert. denied, ........

BS icsnanis ~ 5 MS RG) 5 aR 10, 13

Hawkins v. Babcock & Wilcox Co., 24 FEP Cases 794

2B SERRA ae SE nC TEE Loe 10, 13

James v. Board of Education, 461 F.2d 566 (2nd Cir.),

cert, denied, 409 U.S. 1042 (1972) .......eeeeeeeteeceeeseseees 9,12

Kern v. Research Libraries, 27 FEP Cases 1007 (S.D.

Beas IER cuktadh hands Soensncerth dads Dea inedasiandicsasetiectacounaecs 8, 10, 13

Kremer v. Chemical Construction Corp., 456 U.S. 461

I sich secicstisicedhlasneepchgconiaastbasininaaichapacuiebinsedlanbed 8,9, 10, 11

Liotta v. National Forge Co., 473 F. Supp. 1139 (W.D.

Pa. 1979), modified on other grounds, 629 F.2d 903

(3rd Cir. 1980), cert. denied, 451 US. 970 (1981)

STEN TAB Pena Pm? IO MNT AO ERI Oe ae A a POOLED SON PID EHO 10, 13

Mitchell v. National Broadcasting Co., 553 F.2d 265

fy Be EN Raa crn reat ola Wo tk RCE SR 2 Be RNa 12

Moore v. Bonner, 695 F.2d 799 (4th Cir. 1982) ........ 9,11, 12

Moore v. City of East Cleveland, 431 U.S. 494 (1977)

jp <dpiinpbadncshatiavaaaptadeaites aiboriella tailored’ anescetbin staat Midseit cidescel MN ial 9,13

IV

New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church v. New Jersey State Board

of Higher Education, 654 F.2d 868 (3rd Cir. 1981) ....9, 13

Patsy v. Florida International University, 634 F.2d 900

(5th Cir.) (en banc), rev’d on other grounds, ........

PaIEL Y ccencnceg UE Me te “SUE CRIME: - dfccucasetpconncinnanssnapomnenede 9,12

Pontiac Police Officers Association v. City of Pontiac,

Pe I I IN ans elise eedecteerciasenenticsecengthonctenseabens 7

Snow v. Nevada Department of Prisons, 543 F. Supp.

752 (D. Nev. 1982) ................... RRONEY Geer ae 9

Constitution

United States Constitution, First Amendment ............ 3, 4,6

Statutes

ri I I ics ves callbecescodsintenmontandcosoabons 8

BR, Ts UND PPI ssetenccttcrcemrepasviecidoiaceessapges 7-8

SI tN asic ssieundusempbenieceesesionns 7

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BE MINT IIIT, pstapectdissetnsaceahsitcesuscoodes pa eee Dee TS See FE 6

| ae | Gaerne i AA et APT ieee wae Lem 3

Re UE SII © vasa iienitecsveccdeernscatectoshcaadenadoeletindiinisocis cotchineceitbes passim

Other

1 Pub. Personnel Admin. (P-H) [6601 et seq. (1974) 8

1 Pub. Employee Bargaining Rep. (CCH)—

aI ES Re Ca 8

PI, 8

4810.05 (Firefighters) ......... cdabiatccudiassiane smnibianaisaihs 8

I IID eles tesidth tesptidsnistcspvisicucnslpcsire) dois erncasabadasniab 8

4870.16 (Turnpike Employees) ...

No. 83-

In the Supreme Court of the United States

October Term, 1983

GARY McDONALD,

Petitioner,

VS.

CITY OF WEST BRANCH, MICHIGAN; PAUL

LONGSTREET, CHIEF OF POLICE; BERNARD C.

OLSON, CITY MANAGER; CHARLES W. JEN-

NINGS, CITY ATTORNEY; DEMETRE J. ELIAS,

CITY ATTORNEY; UNITED STEEL WORKERS OF

AMERICA, DISTRICT 29,

Respondents.

On Writ or CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

For THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Sixth Circuit dated April 19, 1983.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

709 F.2d 1505 and is printed in Appendix A at pp. Al-A5.

It reversed the judgment of the United States District

Court which is printed in Appendix B at pp. A6-A7. The

District Court did not write a formal opinion. Its oral or-

der denying defendants’ motion for directed verdict is

printed in Appendix C at pp. A8-All. Its order denying

defendant Longstreet’s motion for judgment notwithstand-

ing the verdict is printed in Appendix D at pp. Al2-13.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on April 19, 1983. Peti-

tion for rehearing was denied on May 16, 1983. The juris-

diction of this Court rests on 28 U.S.C. §1254(1).

STATUTES INVOLVED

42 U.S.C. §1983

Civil action for deprivation of rights

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory 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 proceed-

ing for redress. For the purposes of this section, any Act

of Congress applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the District of

Columbia.

3

28 U.S.C. §1738

State and Territorial statutes and judicial proceedings;

full faith and credit

The Acts of the legislature of any State, Territory, or

Possession of the United States, or copies thereof, shall

be authenticated by affixing the seal of such State, Ter-

ritory or Possession thereto.

The records and judicial proceedings of any court

of any such State, Territory or Possession, or copies there-

of, shall be proved or admitted in other courts within the

United States and its Territories and Possessions by the

attestation of the clerk and seal of the court annexed, if

a seal exists, together with a certificate of a judge of the

court that the said attestation is in proper form.

Such Acts, records and judicial proceedings or copies

thereof, so authenticated, shall have the same full faith

and credit in every court within the United States and

its Territories and Possessions as they have by law or usage

in the courts of such State, Territory or Possession from

which they are taken.

STATEMENT OF THE CASE!

On November 25, 1976, petitioner Gary McDonald was

fired from his position as a West Branch, Michigan, police

officer. He believed there was no just cause for his fir-

ing and that the firing was retaliation for activities pro-

tected by the First Amendment. McDonald filed a griev-

1. The transcript of the first five days of proceedings con-

tains pages which are numbered 1 through 781. Those pages

will be designated “Tr. ......... " The transcript of the last two

days of proceedings contains different pages which are also num-

bered 1 through 252. | , To avoid confusion, these pages will be

designated “DTr. .........

4

ance under the union collective bargaining agreement to

challenge whether there was contractually required “proper

cause” for his discharge. The City prevailed at arbitration.

McDonald then filed a civil action under 42 U.S.C. $1983 to

establish that the firing violated his First Amendment

rights. In the civil action, the District Court declined to

give the arbitration decision preclusive effect, but received

it in evidence together with the arbitration transcript and |

testimony regarding the arbitration process. The jury ren-

dered a verdict for McDonald finding that the Chief of

Police had discharged him in violation of his First Amend-

ment rights.

McDonald’s grievance alleged that he had been dis-

charged without “proper cause” in violation of Article III

of the collective bargaining agreement.* (P. Ex. 8A). The

arbitrator treated the grievance as raising only one issue:

“Was the discharge of Officer Gary McDonald for just

cause?” (P. Ex. 35 at p. 2). McDonald did not raise the

issue of whether his discharge also violated his First

Amendment rights. The arbitrator’s authority was ex-

pressly limited to contractual issues and he did “not have

authority to alter, add to, delete from, disregard or amend”

the agreement. (P. Ex. 42 §21.2 - Step 5).

The arbitrator sustained McDonald’s discharge solely

on one charge—the charge that he had made “a sexual as-

sault on a minor female.” (P. Ex. 35 at pp. 12-13). How-

ever, until the arbitration hearing itself, defendants had

refused to inform McDonald who it was he was supposed

to have assaulted and when and where he was supposed

to have assaulted her. (Tr. 166, 235-236, 261-262, 535-536,

706-707, 715-716, 719-720, DTr. 89, 117).

2. Article III provides in relevant part that the City had

a's io “to discharge employees for proper cause.” (P. Ex.

5

The original discharge notice did not even mention a

sexual assault but only “conduct unbecoming an officer.”

(P. Ex. 8). The subsequent list of “specific incidents of

misconduct” referred to “a sexual assault upon a minor

female” but failed to indicate when, where or upon whom

the assault had allegedly been made. (P. Ex. 9). McDonald

made at least six separate requests for the part'culars of

the charges against him. He made such requests at the

time he was discharged (Tr. 155, 567), by phone the fol-

lowing day (Tr. 156-157, 239), at a City Council meeting

held December 6, 1976 (Tr. 159, 639), at a grievance com-

mittee hearing held December 29, 1976 (Tr. 160, 703-704,

P. Ex. 49B), at a City Council hearing held January 27,

1977 (Tr. 161, 399-400, 534-536, 619-621, 639-640, P. Ex.

49A), and at a hearing on March 15, 1977. (Tr. 162-163, 688).

He had asked the Chief of Police, the City Manager, the

Mayor, the City Council, and both City Attorneys for the

name of the “minor female” and the date and place of the

alleged “sexual assault.” (Tr. 155-163, 239, 261-262, 399-400,

534-576, 619-621, 639-640, 688, 703-704, P. Ex. 49A, P. Ex.

49B). Despite these requests, the City failed to identify

the alleged victim and the date and location of the alleged

assault until the arbitration hearing itself.

The City refused to tell McDonald the name of the

person he was supposed to have assaulted because the City

Manager thought it would “give the Union an unfair ad-

vantage” if the City had “to show [its] hand.” (Tr. 567-

568). The refusal was based on the advice of the City

Attorney who believed the information should be withheld

because “there had been rumors before [that] people had

been constantly intimidated.” (DTr. 89, 87, Tr. 716).

McDonald was advised by the Union’s attorney that

he did not have the right to appeal the arbitrator’s decision

and he did not do so. (Tr. 246). Instead, McDonald brought

suit under 42 U.S.C. £1983 asserting jurisdiction under 28

U.S.C. §1343. He alleged that he was discharged in retalia-

tion for exercising his First Amendment rights to freedom

of speech and assembly and his right to petition the gov-

ernment for redress of grievances. (App. at A2, Complaint

11 b). McDonald also alleged that his discharge had de-

prived him of property without due process.’

The District Court declined to give the prior arbitra-

tion award preclusive effect. (Tr. 68-69, DTr. 3-7). In-

stead, relying on this Court’s opinion in Alexander v.

Gardner-Denver Co., the court received the arbitrator’s

decision in evidence and permitted the parties to introduce

extensive evidence about the arbitration process. (E.g., Tr.

165-168, 237-247, DTr. 79-101, P. Ex. 34, P. Ex. 35). Both

attorneys discussed the decision and transcript in their

closing argument. (E.g., DTr. 184, 198). The jurors had

the decision and transcript with them in the jury room

during their deliberations. (DTr. 202, 259).

After a six-day trial, the jury found that Chief of

Police Longstreet had discharged McDonald for exercising

his First Amendment rights. (App. at Al5). It awarded

McDonald actual and punitive damages against the Chief.

(App. at Al6). The jury found against McDonald with

regard to the remaining defendants. (App. at A2). The

District Court entered judgment on the verdict. (App. at

A6-A7).

On appeal, the United States Court of Appeals for the

Sixth Circuit reversed, holding that “the district court

should have applied res judicata and collateral estoppel

principles to dismiss the Section 1983 action.” (App. at A3).

Rehearing was denied on May 16, 1983. (App. at Al4).

3. McDonald's complaint also alleged that the union had

breached its duty under state law to adequately represent him.

The trial court declined to exercise pendent jurisdiction over

this state law claim, and it is not before this Court. (App. at A2).

REASONS FOR GRANTING THE WRIT

I

The Decision Below Erred in Its Resolution of an

Important Issue Significantly Affecting the Admin-

istration of Justice—Whether Arbitration Awards

Should Be Given Res Judicata Effect in $1983 Cases.

The question presented is whether unappealed ar-

bitration awards—as distinguished from state court deci-

sions—should be given preclusive effect in employment

cases brought under 42 U.S.C. §1983. This is an im-

portant question of federal law which should be settled by

this Court. Public sector grievance arbitration has become

commonplace. Believing that constitutional as well as con-

tractual rights have been violated, public employees fre-

quently pursue both arbitration and an action under

§1983. It is crucial that this Court give early and defini-

tive guidance to litigants and the lower courts as to the

effect, if any, to be given arbitration awards in subsequent

$1983 actions.

Grievance arbitration has become a standard feature

of public sector employment relations. More than thirty

states and the District of Columbia permit or require griev-

ance arbitration for some or all public employees. In sev-

eral states, every collective bargaining agreement must

provide for grievance arbitration. E.g., Minn. Stat.

$179.70(1). In other states, grievance arbitration is a

mandatory subject for bargaining. E.g., Pontiac Police

Officers Association v, City of Pontiac, 397 Mich. 674

(1976). Even states without public employee collective

bargaining have approved grievance arbitration under

“meet-and-confer” statutes. E.g., Kan. Stat. Ann. §75-

r 8

4330(b). Arbitration provisions are contained in standard

forms for public employee collective bargaining agree-

ments. E.g., 1 Pub. Employee Bargaining Rep. (CCH)

4760.18 (Teachers), 4780.25 (Police), 4810.04 (Fire-

fighters), 4820.06 (Nurses), 4870.16 (Turnpike Employ-

ees); 1 Pub. Personnel Admin. (P-H) {6601 et seq.

(1974).

As in the private sector, the grievance arbitrator is

limited to interpretation of the contract and must not add to

or subtract from it. E.g., Fla. Stat. §447.401. Therefore, a

public employee who wishes to vindicate his constitutional

as well as his contractual rights must pursue both his

remedy under the arbitration agreement and his remedy

under 42 U.S.C. §1983. Since arbitration ordinarily is

completed first, the District Court trying the §1983 case

must determine what preclusive effect, if any, to give

the arbitration award. See, e.g., Kern v. Research Li-

braries, 27 FEP Cases 1007, 1008 (S.D. N.Y. 1979). Faced

with this recurring question, the District Courts need the

definitive answer which only this Court can provide.

Just as it was necessary in Alexander v. Gardner-Denver,

infra, to establish arbitration’s relationship to Title VII,

so it is now necessary to establish its relationship to §1983.

The importance of resolving this issue is vividly il-

lustrated by the decision below which misconstrues §1983

and this Court’s prior decisions. The considerations which

justified granting preclusive effect to state court decisions

have no validity if applied to arbitration awards. Unlike

state court decisions, arbitration awards “. . . are not

subject to the mandate of [28 U.S.C.] §1738.” Kremer v.

Chemical Construction Corp., 456 U.S. 461, 477 (1982).

Unlike a state court, an arbitrator must “. . . effectuate the

intent of the parties rather than the requirements of en-

acted legislation.” Alexander v. Gardner-Denver Co., 415

U.S. 36, 56-57 (1974). Unlike state courts and state ad-

ministrative agencies, arbitrators’ special competence is

“.. the law of the shop, not the law of the land.” Id. at

57; Kremer, supra, at 478. As is evident in the present

case, “. . . the factfinding process in arbitration usually is

not equivalent to judicial factfinding.” Alexander, supra,

at 57; Kremer, supra, at 478.

As this Court pointed out in Kremer, the character-

istics which make contractual grievance arbitration an in-

appropriate forum for resolving civil rights cases “cannot

be attributed to state administrative boards... .” Id. at

478. Yet the decision below would give preclusive effect

to an unappealed arbitration award while no such effect

is given to unappealed administrative decisions. Moore

», Bonner, 695 F.2d 799, 800-801 (4th Cir. 1982); Patsy v.

Florida International University, 634 F.2d 900, 910, 926

(5th Cir.) (en banc), rev’d on other grounds, ........ U.S.

econ , 102 S. Ct. 2557 (1982); James v. Board of Education,

461 F.2d 566 (2nd Cir.), cert. denied, 409 U.S. 1042 (1972);

New Jersey-Philadelphia Presbytery of the Bible Presby-

terian Church v. New Jersey State Board of Higher Edu-

cation, 654 F.2d 868, 877 (3rd Cir. 1981); Moore v. City of

East Cleveland, 431 U.S. 494, 524 at n. 2 (1977) (Burger,

C.J. dissenting); contra, Snow v. Nevada Department of

Prisons, 543 F. Supp. 752 (D. Nev. 1982).

II

The Decision Below Conflicts With This Court’s

Decision in Alexander v. Gardner-Denver That Arbi-

tration Awards Shall Not Be Given Preclusive Effect

in Title VII Cases.

The decision below conflicts with this Court’s holding

in Alexander v. Gardner-Denver, 415 U.S. 36 (1974) that

an arbitration award should not be given preclusive effect

10

in a subsequent civil rights action under Title VII. The

reasoning of Alexander is equally applicable to the re-

construction-era Civil Rights Acts. Becton v. Detroit Ter-

minal of Consolidated Freightways, 687 F.2d 140 (6th Cir.

1982) (42 U.S.C. §1981), cert. denied, ........ 8 Sea , 103

S. Ct. 1432 (1983); Kern v. Research Libraries, 27 FEP

Cases 1007 (S.D. N.Y. 1979) (42 U.S.C. §§1981, 1983 and

1985); Liotta v. National Forge Co., 473 F. Supp. 1139 (W.D.

Pa. 1979) (42 U.S.C. §1981), modified on other grounds,

629 F.2d 903 (3rd Cir. 1980), cert. denied, 451 U.S. 970

(1981); Hawkins v. Babcock & Wilcox Co., 24 FEP Cases

794 (N.D. Ohio 1980) (42 U.S.C. $1981).

The arbitrator is required to “effectuate the intent

of the parties rather than the requirements of enacted

legislation.” Alexander, supra, at 56-57; Kremer v. Chem-

ical Construction Corp., 456 U.S. 461, 478 (1982). He

violates that obligation if he bases his decision on the

requirements of Section 1983, just as much as if he bases

it on the requirements of Title VII. Alexander, supra,

at 53. An arbitrator’s special competence is “the law of

the shop, not the law of the land.”’ Id. at 57; Kremer,

supra, at 478. He has no more expertise in Section 1983

issues than he does in Title VII issues. Like Title VII,

Section 1983 contains “broad language [which] frequently

can be given meaning only by reference to public law

concepts” and needs the expertise of judicial construction.

Alexander, supra, at 57. Arbitration’s factfinding process

is no more adequate for Section 1983 than it is for Title

VII. Id. at 57; Kremer, supra, at 478.

11

III

Four Courts of Appeals Have Decided That State

Administrative Determinations—and A Fortiori Arbi-

tration Awards—Should Not Be Given Preclusive Ef-

fect. The Decision Below Conflicts With Those De

cisions.

At least four Courts of Appeals have determined ti:at

unappealed state administrative determinations should not

be granted preclusive effect in §1983 actions. This Court's

decision in Kremer establishes that administrative agen-

cies are better suited than arbitrators to resolve civil

rights cases. Kremer v. Chemical Construction Corp., 456

U.S. 461, 478 (1982). Therefore, a fortiori, the same Courts

of Appeals deny preclusive effect to unappealed arbitra-

tion awards. Thus, the decision below granting preclusive

effect to an unappealed arbitration award conflicts with

decisions in the Second, Third, Fourth and Fifth Circuits

denying such effect even to administrative decisions.

In Moore v. Bonner, 695 F.2d 799, 800-801 (4th Cir.

1982), the Fourth Circuit stated:

“It is well settled that the full-faith-and-credit clause

and its statutory parallel, 28 U.S.C. §1738 (1976), re-

quire federal courts to give preclusive effect to those

state court judgments which are given that same

effect by the courts of the forum State. See Allen v.

McCurry, supra. Federal decisions have not, however,

generally accorded this preclusive effect to the un-

appealed decisions of state administrative agencies and

to do so would be contrary to congressional policy

and to the rationale of recent Supreme Court de-

cisions.”

Preclusive effect was denied even though the district court

had found that the agency had “provided plaintiff virtually

12

a judicial type forum in which to present her case.” Moore

v. Bonner, 526 F. Supp. 143, 147 (D. S.C. 1981).

Similarly, in Patsy v. Florida International University,

634 F.2d 900 (5th Cir.) (en banc), rev’d on other grounds,

saiadens US. ........, 102 S. Ct. 2557 (1982), the Fifth Circuit

“Unlike judicial actions, state administrative proceed-

ings carry no res judicata or collateral estoppel bag-

gage into federal court. Resorting to appropriate and

adequate state administrative remedies in no way pre-

cludes federal court protection of federal constitutional

and statutory rights.” Id. at 910.

At least five of the dissenting judges agreed, stating:

“If the plaintiff loses on every point of the state ad-

ministrative claim, since neither res judicata nor col-

lateral estoppel apply, the plaintiff may then, having

exhausted administrative remedies, return to the fed-

eral court to continue the suit.” Id. at 926.‘

In James v. Board of Education, 461 F.2d 566 (2nd

Cir.), cert. denied, 409 U.S. 1042 (1972), a high school

teacher who had unsuccessfully appealed his dismissal to

the New York State Education Commissioner, declined

to appeal to state court. Id. at 570. In his subsequent

§1983 action, the Second Circuit rejected the argument

that the decision of the Commissioner was res judicata,

describing the argument as “wholly without merit.” Id.

at 571. The Second Circuit subsequently reaffirmed the

James decision in Mitchell v. National Broadcasting Co.,

553 F.2d 265, 276 (2nd Cir. 1977), stating that “Res judi-

4. To Petitioner's knowledge, the Court of Appeals for the

Eleventh Circuit has not yet dealt with this issue. However, all

12 present members of that court were members of the court which

heard Patsy and 11 of them joined in one or the other of the

statements quoted above.

13

cata attached when plaintiff chose to pursue her claim

in the state courts, and not before.”

The Third Circuit came to a similar conclusion in

a §1983 case stating that “neither 28 U.S.C. §1738 nor

federal common law principles of res judicata require def-

erence to administrative as distinct from judicial proceed-

ings.” New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church v. New Jersey State Board of Higher

Education, 654 F.2d 868, 877 (3rd Cir. 1981).

Chief Justice Burger has taken an identical position

stating that “state administrative agency determinations

do not create res judicata or collateral estoppel effects.”

Moore v. City of East Cleveland, 431 U.S. 494, 524 at

n. 2 (1977) (Burger, C.J. dissenting).

As discussed above, at least four Courts of Appeals

have held that administrative decisions should not be given

preclusive effect in §1983 actions. Other courts have

specifically held that arbitration awards should not be

given preclusive effect under the other reconstruction-

era Civil Rights Acts. Becton v. Detroit Terminal of

Consolidated Freightways, 687 F.2d 140 (6th Cir. 1982)

(42 U.S.C. $1981), cert. denied, ........ TR ces , 103 S.

Ct. 1432 (1983); Kern v. Research Libraries, 27 FEP Cases

1007 (S.D. N.Y. 1979) (42 U.S.C. §§1981, 1983 and 1985);

Liotta v. National Forge Co., 473 F. Supp. 1139 (W.D.

Pa. 1979) (42 U.S.C. §1981), modified on other grounds,

629 F.2d 903 (3rd Cir. 1980), cert. denied, 451 U.S. 970

(1981); Hawkins v. Babcock & Wilcox Co., 24 FEP Cases

794 (N.D. Ohio 1980) (42 U.S.C. §1981). There is no

reason to believe that Congress intended that arbitration

awards be given greater preclusive effect under £1983

than under the other reconstruction-era Civil Rights Acts.

(As discussed in Part II, there is also no reason to give

such awards greater preclusive effect under §1983 than

under Title VII.)

14

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the United States

Court of Appeals for the Sixth Circuit.

Respectfully submitted,

Davip ACHTENBERG (Counsel of Record)

ACHTENBERG & ACHTENBERG, P.C.

700 Ozark National Life Building

Kansas City, Missouri 64106

(816) 474-0550

Attorney for Petitioner

Al

APPENDIX

APPENDIX A

OPINION OF THE UNITED STATES

COURT OF APPEALS

(Filed April 19, 1983)

81-1420/1442/1707/1805

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GARY McDONALD,

Plaintiff-Appellant (81-1420/1707)

Cross-Appellee (81-1442/1805),

Vv.

CITY OF WEST BRANCH, et al.,

Defendant-Appellees (81-1420/1707)

Cross-Appellants (81-1805),

PAUL LONGSTREET,

Defendant-Appellee (81-1420)

Cross-Appellant (81-1442).

BEFORE: KEITH and MERRITT, Circuit Judges and

BROWN, Senior Circuit Judge.

ORDER

Plaintiff-appellant, Gary McDonald, brought this ac-

tion pursuant to 42 U.S.C. §1983. He was fired from his

job as a police officer after 9 1/2 years of service. At the

time of his dismissal, plaintiff was the local steward for

A2

the United Steelworkers of America, the collective bargain-

ing unit for the City of West Branch police officers.

On July 26, 1977, an arbitration proceeding was held

before Arbitrator George E. Bowles. Plaintiff was rep-

resented by a union attorney. The arbitrator held that

McDonald had been discharged for “just cause.” More

specifically, the arbitrator ruled that the plaintiff had

been discharged because of his participation in the “Dack

incident.” The “Dack incident” involved charges that

plaintiff had taken indecent liberties with Ms. Barbara

Jo Dack.

The plaintiff subsequently filed this section 1983 claim

against the City of West Branch and certain of its officers

in their official capacities—Chief of Police Longstreet, City

Manager Olson, City Attorney Charles Jennings and City

Attorney Demetre Ellias. The United Steelworkers was

joined as a defendant, but the trial court refused to ex-

ercise pendant jurisdiction over the claim against the

union. Plaintiff alleged in his complaint that he had been

fired for exercising his first amendment rights of free

speech and free association.

The case was tried to a jury for six days. The court

submitted Special Interrogatory Forms to the jury. Judg-

ment was entered in favor of plaintiff against defendant

Longstreet, but in favor of the other defendants. The

court awarded $4,400 to plaintiff against Longstreet, con-

sonant with the jury’s finding of damages. The court also

awarded attorney’s fees to the plaintiff against Longstreet

in the amount of $16,835.70. However, the attorney’s fee

award was offset by an assessment of $8,861.40 in attor-

ney’s fees against the plaintiff in favor of defendants

Ellias and Jennings, the city attorneys. The plaintiff was

thus awarded a net amount of only $7,974.30 as attorney’s

fees. Plaintiff appeals and defendant Longstreet cross-

appeals.

A3

Upon review of the record, particularly the arbitrator’s

award, we conclude that the district court should have ap-

plied res judicata and collateral estoppel principles to

dismiss the section 1983 action. It is clear from the ar-

bitrator’s award that he found that the reason for the

plaintiff’s dismissal was the Dack incident. Plaintiff's first

amendment argument seeks ‘o relitigate this issue and

hence to vacate the arbitrator’s award. The parties have

agreed to settle this dispute through the private means of

arbitration. Since we find no abuse of that process, we

conclude that its result should not be disturbed.

Therefore, the judgment entered against defendant

Longstreet is hereby reversed. Applying this court’s prin-

ciples of Northcross v. Memphis Board of Education, 611

F.2d 624 (6th Cir. 1979), cert. denied, 447 U.S. 911 (1980),

the plaintiff is entitled to no attorney’s fees against any of

the defendants because he is not a prevailing party. But

defendants Jennings and Ellias are entitled to attorney’s

fees against the plaintiff since the claims brought against

them were frivolous.

Accordingly, this case is remanded to the district court

for entry of judgment consistent with this opinion.

Nos. 81-1420/1442/1707/1805

McDONALD v. CITY OF WEST BRANCH, et al.

MERRITT, Circuit Judge, concurring. I concur in the

disposition of this case but believe further explanation

regarding the res judicata and collateral estoppel doc-

trines is necessary in order to inform the parties of our

reasoning on this complex issue.

Under the doctrines of res judicata or “claim pre-

clusion,” when a defendant prevails in an action, the

plaintiff is barred from asserting in a later proceeding

A4

against the defendant claims that were or could have been

raised at trial. The aim of claim preclusion is to avoid mul-

tiple suits on identical obligations between the same

parties since the subsequent litigation would necessarily

entail the redetermination of the same issues. A valid and

final arbitration award has the same effect for purposes

of claim preclusion as a court judgment. See Restate-

ment of the Laws of Judgments, 2d § 84(1). The arbi-

tration in this case was between the plaintiff, McDonald,

and the City of West Branch. The issues raised at the ar-

bitration encompassed or could have encompassed those

raised in this suit: the plaintiff's disr-issal for allegedly

unlawful purposes. Therefore, under the principle of res

judicata, the plaintiff is barred from bringing a second

action against the City of West Branch.

The plaintiff is also barred for two reasons from bring-

ing suit against the defendant Longstreet, sued in his of-

ficial capacity. First, the defendant may assert the de-

fense of claim preclusion because of his privity with the

defendant in the arbitration, the City of West Branch.

The defendant, as police commissioner, acted on behalf

of the City when he fired McDonald. The arbitrator

found that the City had acted with “just cause” and

had not violated the rights of the plaintiff. The doctrine

of res judicata has been enlarged in recent years. See,

e.g., Bruszewski v. United States, 181 F.2d 419, 422 (3rd

Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632

(1950); Miller v. United States, 438 F.Supp. 514, 520 (E.D.

Pa. 1977). Under the expanded rules of privity, the police

commissioner may assert the City’s defense of res judicata.

Secondly, the plaintiff is barred from suing the police

commissioner because of the principles of collateral estop-

pel or “issue preclusion.” The Restatement of the Law of

Judgments, 2d § 29 states that:

AS

A party precluded from litigating an issue with an

opposing party, in accordance with §§ 27 and 28, is also

precluded from doing so with another person unless

the fact that he lacked full and fair opportunity to

litigate the issue in the first action or other circum-

stances justify according him an opportunity to re-

litigate the issue.

Section 27 of the Restatement, referred to above, provides

that:

When an issue of fact or law is actually litigated and

determined by a valid and final judgment, and the

determination is essential to the judgment, the

determination is conclusive in a subsequent action

between the parties, whether on the same or a different

claim. :

Both Sections 28 and 29 contain exceptions to these general

rules on issue preclusion but none are applicable to this

case. It is clear from the arbitrator’s award that he found

that the reason for the plaintiff's dismissal was the Dack

incident involving sexual misconduct and not any speech

or union activities by the plaintiff. McDonald seeks to

relitigate these issues and hence to vacate the arbitrator’s

award. He has had a full and fair opportunity to be heard

on his charge of wrongful dismissal so he is precluded

from bringing suit again on those issues.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

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APPENDIX B

JUDGMENT OF THE UNITED STATES

DISTRICT COURT

(Filed March 23, 1981)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

CIVIL ACTION NO. 79-10281

GARY McDONALD,

Plaintiff,

Vv.

CITY OF WEST BRANCH, PAUL LONGSTREET,

BERNARD OLSON, CHARLES JENNINGS and

DEMETRE ELLIAS,

Defendants.

JUDGMENT

At a session of said court held in the Federal

Building, Bay City, Michigan, on the 23rd day of

March, 1981

PRESENT: HONORABLE JAMES HARVEY

United States District Judge

This action having come on for trial before the Court

and a jury, and the issues having been duly tried and the

jury having rendered its answers to the special interrog-

atories,

A7

IT IS ORDERED AND ADJUDGED that, as to de-

fendants City of West Branch, Bernard Olson, Charles

Jennings and Demetre Ellias, the plaintiff take nothing

and that the action be dismissed on the merits.

IT IS FURTHER ORDERED AND ADJUDGED that,

as to defendant Paul Longstreet, that the plaintiff recover

the sum of Four Thousand ($4,000.00) Dollars in com-

pensatory damages and Four Thousand ($4,000.00) Dollars

in punitive damages with interest thereon as provided

by law.

Each party will pay his own costs of action. FR Civ

P 54(d)

Dated at Bay City, Michigan, this 23rd day of March,

1981.

John P. Mayer, Clerk

/s/ Sara E. Bigsby

Sara E. Bigsby

Resident Deputy Clerk

Approved as to form pursuant to

FR Civ P 58.

/s/ James Harvey

James Harvey

United States District Judge

A8

APPENDIX C

ORAL ORDER OF THE UNITED STATES DISTRICT

COURT DENYING DEFENDANTS’ MOTION FOR

DIRECTED VERDICT ISSUED MARCH 13, 1983

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

GARY McDONALD,

Plaintiff,

v.

CITY OF WEST BRANCH, et al,

Defendants.

(D Transcript p. 3) THE COURT: Gentlemen, the

Court is prepared to rule on the motion for directed verdict

under Rule 50 of the Federal Rules of Civil Procedure,

which was made yesterday. The Court notes that all but

one of the grounds for this motion involved questions of

law which are of some magnitude in civil rights actions

such as this one. Quite frankly, the Court has not been

able to give the detailed and searching considerations of

these questions in the short time that it has had since

hearing the arguments of counsel. The Court has done the

best as it can to research these issues, and is prepared

to rule at this time. However, I point this out because

the Court may reevaluate or consider in greater depth its

rulings herein by way of a judgment notwithstanding the

verdict under Rule 50 if the same is brought within ten

days from any adverse jury verdict.

AQ

First of all, as to the sole factual basis of defen-

dants’ motion that there has been insufficient evidence to

establish plaintiff’s claims against Defendant Ellias, the

Court, quite frankly, does believe that there is merit to

this contention. However, viewing the evidence presented

in the light most favorable to the plaintiff, at this time

the Court is inclined to deny the motion and the defendant

may wish to raise it again in a motion for judgment not-

withstanding the (D Transcript p. 4) verdict.

As to the three legal bases for defendant’s motion,

the Court again, with qualifications that it is open for

reevaluation following the trial, will say it believes at this

time that they are without merit.

First of all, the argument that the arbitration deci-

sion should be considered res judicata: certainly, public

policy favors arbitration of labor disputes, and while this

Court believes that policy should be further expanded, the

Court also believes that the great weight of judicial au-

thority does not grant arbitration decisions any res judi-

cata effect in subsequent civil rights actions in federal

court. Res judicata bars a subsequent action on a matter

already litigated, basically if three requirements are met:

First of all, that the prior judgment was rendered by

a court of competent jurisdiction. Second, that the de-

cision was a final judgment on the merits.

And third, that it involved the same parties and the

same cause of action.

The primary reason for rejecting the application of

this doctrine in civil rights actions occurring subsequent

to arbitration hearings is the (D Transcript p. 5) belief

that arbitrators are not competent to resolve claims based

on the Federal Civil Rights Act. And the Court cites

in that regard, Alexander versus Gardner Denver Company

Al0

found at 415 United States page 36, being a 1974 decision;

Gardner versus Giarrusso found at 571 Fed Second, page

1330, being a Fifth Circuit decision decided in 1978.

Therefore, the first requirement for application of the

doctrine is not satisfied.

Finally, on the question of immunity for city attor-

neys, the Court will say that the Court has not received

any authority from counsel in support of their argument

in this case that Mr. Jennings and Mr. Ellias are entitled

to immunity as city attorneys. On the argument of im-

munity for city attorneys, let me say that the Court has

received no authority in support of their argument that

Mr. Jennings and Mr. Ellias are entitled to immunity as

city attorneys. While as a general proposition it appears

likely that they should possess a qualified immunity, they

certainly, the Court believes, are not absolutely immune

from suit as would be a prosecutor.

Having a qualified immunity, the good faith con-

duct of these defendants, however, is still a question of

fact for the jury.

(D Transcript p. 6) I neglected to say anything about

the other argument involving the Monnell case as to

whether the City of West Branch was a person for pur-

poses of Section 1983 under the Monnell decision. The

Court believes that defendants have read too narrowly,

let me say, the Supreme Court’s decision in Monnell versus

Department of Social Services found at 436 United States

page 658, decided in 1978. That case, as you recall, over-

ruled the court’s earlier decision in Monroe versus Pate

found at 365 United States page 167, a 1961 case, and held,

and I quote:

“Congress did intend municipalities and other local

government units to be included among those persons in

whom Section 1983 apply.”

All

Therefore, under Title 42 United States Code Section

1983, cities can be sued for monetary damages where the

action alleged to be unconstitutional implements or ex-

ecutes a policy statement, ordinance, regulation or decision

officially adopted and promulgated by that body’s officers.

And the Court would cite Antineau Federal Civil Rights

Act at pages 173 and 174, the 1980 addition.

And the Court would say finally in that regard that

the action by the City of West Branch in this case, it

would seem to the Court, could legally be (D Transcript

p. 7) interpreted as officially adopting or promulgating

a decision made by certain officers of the city.

For all of these reasons, the Court is turning down

the motion for a directed verdict under Rule 50, but sug-

gesting again they may be wished to be raised at a later

time on a motion for judgment notwithstanding the ver-

dict.

Al2

APPENDIX D

ORDER OF UNITED STATES DISTRICT COURT

DENYING MOTION FOR JUDGMENT

NOTWITHSTANDING VERDICT

(Filed May 28, 1981)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

GARY McDONALD,

Plaintiff,

v.

CITY OF WEST BRANCH, et al,

Defendants.

MEMORANDUM OPINION AND ORDER

At a session of said court held in the Federal

Building, Bay City, Michigan on the 28 day of

May, 1981

PRESENT: HONORABLE JAMES HARVEY

United States District Judge

This matter is before the Court on cross motions for

judgment notwithstanding the verdict filed by both plain-

tiff Gary McDonald, and defendant Paul Longstreet.

Having reviewed the arguments of counsel, the Court

finds the verdict of the jury, as set forth in their answers

to the special interrogatories, consistent with law and

Al3

with the instructions of the Court. Accordingly, the Court

is unwilling to reopen or set aside the judgment in this

matter, and therefore hereby DENIES the present motions

of both the plaintiff and the defendant.

IT IS SO ORDERED.

/s/ James Harvey

James Harvey

United States District Judge

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APPENDIX E

ORDER OF UNITED STATES COURT OF

APPEALS DENYING REHEARING

(Filed May 16, 1983)

Nos. 81-1420/42

81-1707/1805

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GARY MCDONALD,

Plaintiff-Appellant,

Cross-Appellee,

vs.

CITY OF WEST BRANCH, ET AL.,

Defendants-Appellees,

PAUL LONGSTREET,

Cross-Appellant.

ORDER

BEFORE: KEITH and MERRITT, Circuit Judges, and

BROWN, Senior Circuit Judge

Upon receipt and consideration of the petition for re-

hearing filed herein by the appellant, the Court concludes

that the issues raised in the petition were carefully con-

sidered upon the original submission and decision of this

case, and that rehearing is not required.

Accordingly, the petition for rehearing is denied.

ENTERED BY ORDER OF THE

COURT

/s/ John P. Hehman,

John P. Hehman, Clerk

Al5

APPENDIX F

SPECIAL INTERROGATORY FORM REGARDING

DEFENDANT LONGSTREET

(Filed March 14, 1981)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

CIVIL ACTION NO: 79-10281

GARY McDONALD,

Plaintiff,

v.

CITY OF WEST BRANCH, et al.,

Defendants.

SPECIAL INTERROGATORY FORM

Members of the Jury, after your deliberations are com-

* pleted, you are instructed to answer the following special

interrogatories:

Plaintiff's First Amendment Claim

1. Do you find that defendant Paul Longstreet discharged

the plaintiff from his position as a police officer in

retaliation for, or to suppress, his union activity, and

therefore in violation of his First Amendment rights to

freedom of speech or association?

a a seen

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Plaintiff's Due Process Claim

2.

Do you find that the plaintiff had a right to procedural

due process because he had a “liberty” interest in his

continued employment as a police officer, as previously

defined in these instructions?

. ae no X

Do you find that the plaintiff had a right to procedural

due process because he had a “property” interest in

his continued employment as a police officer, as previ-

ously defined in these instructions?

Sena no X

(If your answer to either question 2 or question 3

was “yes,” proceed to answer question 4, otherwise

do not answer the next question. )

If you find that the plaintiff had a right to procedural

due process because he had either a “liberty” or “prop-

erty” interest in his employment, do you find that de-

fendant Paul Longstreet deprived him of this right?

UD sectiias no X

(If your answer to either question 1 or question 4

was “yes,” proceed to answer question 5, otherwise

do not answer the next question.)

Damages

5.

What is the amount of damages which you find the

plaintiff has suffered for the deprivation of his rights

under 42 USC 1983?

Amount of Damages:

Compensatory or Nominal: $4,000.00

Punitive: $4,000.00

Date: 3/14/81 /s/ Thomas O. Baird

(Foreperson)