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Gale v. The City and County of Denver

United States Court of Appeals, Tenth Circuit

May 17, 2019

FRANKLIN GALE, Plaintiff-Appellant,

          D.C. No. 1:16-CV-02436-MSK-KMT (D. Colo.)

          Before TYMKOVICH, Chief Judge, BACHARACH, and MORITZ, Circuit Judges.


          Timothy M. Tymkovich Chief Judge.

         The United States Court of Appeals for the Tenth Circuit, acting under Tenth Circuit Rule 27.2, asks the Supreme Court of Colorado to exercise its discretion under Colorado Appellate Rule 21.1 to accept the following certified question of Colorado law:

Has the Colorado Supreme Court crafted an exception to the doctrine of res judicata such that a prior action under Colorado Rule of Civil Procedure 106(a)(4) cannot preclude 42 U.S.C. § 1983 claims brought in federal court, even though such claims could have been brought in the prior state action?

         The controlling precedent from the Colorado Supreme Court is unclear, and the answer to this question will be determinative of the appeal now pending in this court. The court may reformulate this question as it sees fit.

         I. Background

         In January 2015, the Denver Sheriff Department terminated Deputy Sheriff Frank Gale. Denver alleged Gale violated career service rules and then engaged in deceptive acts to hide purported misbehavior. For his part, Gale alleged Denver terminated his employment in retaliation for his outspoken union organizing activities.

         Gale challenged his termination in an administrative proceeding that was subsequently affirmed by the Denver Career Services Board. Pursuant to Colorado Rule of Civil Procedure 106(a)(4), Gale appealed the administrative decision in state district court. The court affirmed the administrative determination, as did the Colorado Court of Appeals. The Colorado Supreme Court denied review.

         Shortly after filing his Rule 106(a)(4) appeal in state court but before the state courts had resolved the appeal, Gale brought constitutional claims in federal district court under 42 U.S.C. § 1983, alleging retaliation for his exercise of association and speech rights in violation of the First Amendment. Once the state court judgment became final, Denver amended its answer to include defenses of res judicata and collateral estoppel. The federal district court granted summary judgment to Denver based on res judicata, and Gale appealed to our court.

         II. Analysis

         Res judicata, or claim preclusion, "precludes the parties or their privies from relitigating issues that were or could have been raised in the prior action." Wilkes v. Wyo. Dep't of Emp't, 314 F.3d 501, 503 (10th Cir. 2002). Colorado preclusion law applies because Denver asserted the preclusive effect of a judgment rendered by a Colorado court. See Nichols v. Bd. of Cty. Comm'rs, 506 F.3d 962, 967 (10th Cir. 2007) ("In determining the preclusive effect of a state court judgment, the full faith and credit statute, 28 U.S.C. § 1738, directs a federal court to refer to the preclusion law of the State in which judgment was rendered." (internal quotation marks omitted)), abrogated on other grounds as recognized by Onyx Properties LLC v. Bd. of Cnty. Comm'rs, 838 F.3d 1039, 1043 n.2 (10th Cir. 2016).

         Under Colorado law, res judicata bars a claim in a current proceeding when four elements are met: "(1) the judgment in the prior proceeding was final; (2) the prior and current proceeding involved identical subject matter; (3) the prior and current proceeding involved identical claims for relief; and (4) the parties to both proceedings were identical or in privity with one another." Foster v. Plock, 394 P.3d 1119, 1123 (Colo. 2017) (internal quotation marks omitted).

         The question presented in this certification request concerns the third element of res judicata-identity of claims. Identity of claims exists when "the claim at issue in the second proceeding is the same claim that was (or could have been) brought in the first proceeding." Foster, 394 P.3d at 1127. Colorado "disregard[s] the form of the action and instead look[s] at the actual injury underlying the first proceeding" using a transactional analysis to determine whether the claims "seek redress for essentially the same basic wrong, and rest on the same or a substantially similar factual basis." Id. (internal quotation marks omitted). Gale's previous state Rule 106 action and this federal ยง 1983 action both arise from the same injury, namely, the ...

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