No. 1:16-CV-02436-MSK-KMT (D. Colo.)
TYMKOVICH, Chief Judge, BACHARACH, and MORITZ, Circuit
CERTIFICATION OF QUESTION OF STATE LAW
Timothy M. Tymkovich Chief Judge.
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
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
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.
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.
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.
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.
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).
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
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 § 1983 action both
arise from the same injury, namely, the ...