# Petition — McDonald v. West Branch

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 284

## Text

>

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
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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

A6

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

Al4

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

Al6

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0221%3A01. Public record. Not legal advice.