United States Court of Appeals For the First Circuit
THOMAS A. ATWATER,
MITCHELL D. CHESTER, as he is the Commissioner of Elementary and Secondary Education of the Commonwealth of Massachusetts; MANCHESTER-ESSEX REGIONAL SCHOOL DISTRICT,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Lynch, Chief Judge, Lipez and Thompson, Circuit Judges.
H. Reed Witherby, with whom Garrick F. Cole and Smith Duggan Buell & Rufo LLP were on brief, for appellant. Amy Spector, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee Mitchell D. Chester. Geoffrey R. Bok, with whom Stoneman, Chandler & Miller LLP was on brief, for appellee Manchester-Essex Regional School District.
September 20, 2013
THOMPSON, Circuit Judge. Appellant Thomas Atwater sought
review of his dismissal from his teaching position in the
Manchester-Essex Regional School District ("School District"),
first in Massachusetts state court and then in Massachusetts
federal district court. Concluding that Atwater's claims were
barred by res judicata, the district court granted summary judgment
in favor of Appellees, the School District and the Massachusetts
Commissioner of Elementary and Secondary Education
("Commissioner"). Atwater now appeals the grant of summary
judgment, presenting a number of reasons why res judicata does not
bar his federal claims from adjudication in federal court. Finding
none persuasive, we affirm.
Atwater was a teacher with "professional status" in the
School District until March 2005, when he was informed by letter of
the District Superintendent's intention to dismiss him from his
employment for inappropriate sexual conduct toward a student.1 The
1 A quick word about professional status. Formerly referred to as "tenure," a teacher who has served in the public schools of a Massachusetts school district for three consecutive school years is entitled to professional-teacher status. Mass. Gen. Laws ch. 71, § 41; see also Atwater v. Comm'r of Educ., 957 N.E.2d 1060 , 1062 n.2 (Mass. 2011). Teachers with professional status "shall not be dismissed except for inefficiency, incompetency, incapacity, conduct unbecoming a teacher, insubordination or failure on the part of the teacher to satisfy teacher performance standards . . . or other just cause." Mass. Gen. Laws ch. 71, § 42.
particular instances giving rise to Atwater's dismissal are not
necessary for our determination, and so we do not review them in
detail here. Atwater invoked his right under Mass. Gen. Laws ch.
71, § 42 to seek review of the Superintendent's action by filing a
petition for arbitration with the Commissioner. Pursuant to the
procedures required by section 42, the Commissioner coordinated the
selection of a private arbitrator to resolve Atwater's challenge to
his dismissal.2 After a five-day arbitration, the arbitrator
issued a ninety-nine page decision affirming Atwater's dismissal
for conduct unbecoming of a teacher and finding that the
Superintendent and the School District did not violate section 42
in dismissing him.
A Multiplicity of Lawsuits
On August 4, 2006, Atwater filed suit in Massachusetts
Superior Court challenging the discharge of his employment and
seeking to vacate the arbitrator's decision. Over three weeks
later, on August 30, Atwater filed this complaint in federal court.
Three counts advanced supposed state-law violations: the
arbitrator failed to employ the statutory standard in determining
his petition (count 1), which meant she exceeded her statutory
authority under section 42 (count 2), and, acting on behalf of the
2 Mass. Gen. Laws ch. 71, § 42 provides that teachers with professional-teacher status "may seek review of a dismissal decision within thirty days after receiving notice of his dismissal by filing a petition for arbitration with the commissioner."
Commissioner, she exhibited bias and prejudice against him (count
3). Three counts advanced supposed federal-law violations:
"ineffective administrative supervision," transgressing his right
to "procedural due process" (count 4); improper "delegation of a
governmental function" (count 5); and improper "insulation of
determination by private individual from meaningful judicial
review," transgressing some sort of generalized "due process" right
(count 6). In footnotes to his federal-court complaint, Atwater,
citing England v. Louisiana State Board of Medical Examiners, 375
U.S. 411 (1964), asserted that he included the state claims "for
completeness" but did not submit them for the federal court's
The very next day, August 31, Atwater amended his state-
court complaint so that it contained exactly the same six claims as
his federal-court complaint. And he noted that he had included the
federal claims only "for completeness" and not for the state
court's adjudication, again citing to England. Along with his
amended complaint, Atwater submitted to the state court a "Notice
of Reservation of Federal Claims," apprising that court that he had
sued the same defendants in federal court on the same grounds. He
again stated that he included the federal claims only "to inform"
the state court and "for completeness," and he purported to reserve
the claims for adjudication in federal court, once more referencing
England. He also noted his intent to seek a stay of the action in
federal court pending the state court's determination on his state-
law claims and after the conclusion of any additional proceedings.
In answering the amended state-court complaint, the
Commissioner and the School District objected to Atwater's attempt
to reserve his federal claims, stating that he had improperly
sought an "England reservation" of the federal claims in counts
four, five, and six. The Commissioner specifically noted that the
federal court had not yet remitted Atwater to state court on
abstention grounds, and the School District added that his claims
should be dismissed for improper claim splitting. The Commissioner
and the School District made the very same points in answering the
In a joint scheduling conference statement, the parties,
citing Railroad Commission of Texas v. Pullman Co., 312 U.S. 496
(1941), moved the federal court to stay further proceedings pending
the outcome of the "related" state-court case. Resolving that case
first "will affect substantially the constitutional issues" before
the federal court, the parties wrote, so "a stay based on Pullman
abstention principles is appropriate." But the parties stressed
that, by joining this motion, neither the Commissioner nor the
School District "waive[d] their objections to [Atwater's]
contention that he has effectively reserved his federal
constitutional claims for this [c]ourt's consideration." The
district court responded by entering an "order of closure for
statistical purposes," dismissing the federal-court case without
prejudice to the parties' "moving to restore [the case] to the
docket if any further action is required upon completion and
termination of any state court proceedings . . . ."
A State-Court Adjudication
Atwater proceeded with his state-law claims in state
court. On cross motions for summary judgment, the state-trial
court rejected Atwater's state-law claims and affirmed the
arbitrator's decision. In a footnote appearing on the opening page
of its decision, the state-trial court wrote that Atwater had also
alleged three federal-law claims in his state-court complaint but
had "expressly reserved" them "for adjudication" in federal court.
The Massachusetts Supreme Judicial Court ("SJC") upheld the entry
of summary judgment for the Commissioner and the School District,
with a footnote in the opinion's background section saying:
Atwater also raised three Federal claims, including Federal due process claims, which he has reserved for adjudication by the United States District Court for the District of Massachusetts. Thus, these claims are not before us.
Atwater, 957 N.E.2d at 1067 n.7.
Back to Federal Court
After the conclusion of his state-court case, Atwater
filed a motion to reopen his federal-court case, seeking to
adjudicate his federal claims. Neither the Commissioner nor the
School District opposed the restoration of the case. But both took
pains to again emphasize their view that Atwater's purported
England reservation was a nonstarter.
The Commissioner and the School District moved for
summary judgment, arguing that the state court's judgment was res
judicata in the federal proceeding and that his attempted England
reservation failed. Atwater opposed the motions and cross-moved
for summary judgment himself, asserting that res-judicata
principles did not bar his federal claims and that his England
reservation was effective. Rejecting Atwater's arguments, the
district court held that his supposed "England reservation" was
ineffective and that his federal claims could have been litigated
in the previous state-court case and so were barred under res
judicata. Consequently, the district court denied his motion and
granted summary judgment to the Commissioner and the School
District. This appeal followed, over which we have jurisdiction
pursuant to 28 U.S.C. § 1291.
The parties — who agree on little else — correctly agree
that res judicata bars Atwater's federal-law claims unless an
exception applies.3 Atwater insists that three exceptions are in
3 "[F]ederal courts must give preclusive effect to a state- court judgment if the state court itself would." Newman v. Krintzman, No. 12-1995, 2013 WL 3814979 , at *2 (1st Cir. July 24, 2013). So here that means that Massachusetts preclusion law controls. See id. And Massachusetts res-judicata law "makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have
play. He first argues that his England reservation lets him escape
the preclusive effect of the state-court judgment. Alternatively,
he argues that the state courts expressly reserved his right to
pursue his federal-law claims in federal court and that we must
respect what they did. And finally, he argues that, regardless of
ordinary res-judicata rules, the equities require that we let his
federal case go forward.
We first set out the summary-judgment standard and then
deal with each argument in turn.
We review the district court's grant of summary judgment
de novo, taking the facts in the light most favorable to Atwater.
See Alvarado v. Donahoe, 687 F.3d 453 , 458 (1st Cir. 2012).
Summary judgment is called for when there is "no genuine issue as
to any material fact and the moving party is entitled to judgment
as a matter of law." Gerald v. Univ. of P.R., 707 F.3d 7 , 16 (1st
Cir. 2013) (quoting Martínez-Burgos v. Guayama Corp., 656 F.3d 7 ,
11 (1st Cir. 2011)); see Fed. R. Civ. P. 56(a). "The presence of
cross-motions for summary judgment neither dilutes nor distorts
been adjudicated in the action." Kobrin v. Bd. of Registration in Med., 832 N.E.2d 628 , 634 (Mass. 2005) (quoting O'Neill v. City Manager of Cambridge, 700 N.E.2d 530 (Mass. 1998)) (explaining that res judicata is an umbrella term that covers both claim preclusion and issue preclusion). Again, no one really disputes that the basic requirements of res judicata are met in this case. Rather, the fight is over whether Atwater is saved by an exception to this rule.
this standard of review." Mandel v. Boston Phoenix, Inc., 456 F.3d
198 , 205 (1st Cir. 2006).
Thanks to the Supreme Court's England decision, parties
forced by a federal judge to litigate their state-law claims in
state court can return to federal court and have their federal-law
claims heard, free of any preclusive effect of the state-court
judgment. What is required is an England reservation. See
England, 375 U.S. at 415-21; see also Geiger v. Foley Hoag LLP Ret.
Plan, 521 F.3d 60 , 67-68 (1st Cir. 2008). Here is how that works:
if a plaintiff has first filed suit in federal court, and if that
court orders a Pullman abstention — a type of abstention that,
basically, "permits the federal court . . . to ask a state court to
clarify a murky question of state law involved in the case" — and
if the plaintiff "tell[s] the state court that it wishes to
litigate its federal claim" in federal court, then the plaintiff
can go back "to the federal forum for determination of the federal
question after the state court has decided the" state-law issue,
without preclusion principles standing in the way. See Duty Free
Shop, Inc. v. Admin. De Terrenos De P.R., 889 F.2d 1181 , 1183 (1st
Cir. 1989); see also Rivera-Feliciano v. Acevedo-Vila, 438 F.3d 50 ,
63 (1st Cir. 2006).
Atwater never says that his case fits perfectly within
this paradigm. He just thinks that it is close enough. The
district court's closure order, he writes, shared many
characteristics of a Pullman-abstention order — it stopped all
federal-court proceedings and effectively relegated him to state
court, though it permitted any party to move to reopen the case
after state-court proceedings ended. Functionally, the closure
order is nearly indistinguishable from a Pullman abstention order
— or so he asserts.
Close enough counts with horseshoes and hand grenades but
not with England reservations. The right to reserve claims arises
only when the district court abstains under Pullman. See, e.g.,
Geiger, 521 F.3d at 67-68 (citing San Remo Hotel, L.P. v. City &
Cnty. of San Francisco, Cal., 545 U.S. 323 , 339 (2005), and Duty
Free Shop, Inc., 889 F.2d at 1183). And the simple truth is that
the district court's closure order is not a Pullman-abstention
order. Sure, the parties jointly requested that the court enter a
"Pullman" stay. But the district court took a different tack. The
court spent no time checking whether "substantial uncertainty
exists over the meaning of the state law in question" or whether
resolving the state-law question "will or may well obviate the need
to resolve a significant federal constitutional question" — both of
which are essential Pullman prerequisites. Batterman v. Leahy, 544
F.3d 370 , 373 (1st Cir. 2008) (emphasis added). "Rather," as the
court later explained, it "assumed that, like many similarly
situated plaintiffs, Atwater had chosen to proceed first in [state
court] because he thought he had a greater likelihood of success
there." And the reason behind the court's "order of closure for
statistical purposes" — which is what the court called it —
practically leaps off the printed page of that document: "to avoid
the necessity of counsel to appear at periodic status conferences,
or file status reports . . . ." Certainly this is not the stuff of
a Pullman abstention. See generally Duty Free Shop, Inc., 889 F.2d
at 1183 (holding that "England, and its reservations, are not
relevant . . . where the purpose of the abstention is not
clarification of state law").
If that were not enough to sink Atwater's England-
reservation argument — and it most assuredly is — there is also
this. Under our caselaw, litigants must first file suit in federal
court to secure an England reservation. See, e.g., Barreto-Rosa v.
Varona-Mendez, 470 F.3d 42 , 47 (1st Cir. 2006) (citing Allen v.
McCurry, 449 U.S. 90 , 101 n.17 (1980), and Partido Nuevo
Progresista v. Perez, 639 F.2d 825 , 826 n.2 (1st Cir. 1980))
(noting that, "for an England reservation to be effective, a
plaintiff must initially file suit in federal court and have the
district court abstain from hearing the case pending resolution of
the state claims in state court"); Duty Free Shop, Inc., 889 F.2d
at 1183 (explaining that England "permits a plaintiff who files a
case in federal court before state proceedings begin to tell the
state court that it wishes to litigate its federal claim in that
federal court"); Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306 ,
312 (1st Cir. 1986) (stressing that "to make an England
reservation, a litigant must establish its right to have its
federal claims adjudicated in a federal forum by properly invoking
the jurisdiction of the federal court in the first instance").
Atwater filed suit in state court first, which undoes his England-
Even putting England aside, Atwater thinks that he should
still win. His argument goes something like this: Massachusetts
takes the view that plaintiffs can split claims among different
suits (something the res-judicata rule normally forbids) if "the
court in the earlier action expressly reserves [plaintiffs'] right
to bring those claims in a later action." Perroncello v. Donahue,
835 N.E.2d 256 , 261 (Mass. App. Ct. 2005), rev'd on other grounds,
859 N.E.2d 827 (Mass. 2007).4 The key being an express
reservation. Or the lack of it. Anyway, trying to squeeze himself
within this narrow exception, Atwater points to the state-court
footnotes discussed above as proof that the state forum approved
his claim splitting — meaning, the argument continues, that the
4 Perroncello relied on, among other sources, section 26(1)(b) of the Restatement (Second) of Judgments, which from here on we refer to simply as the "Restatement."
state-court judgment can have no preclusive effect vis-à-vis the
But devastating to his position, Atwater points to
nothing that remotely suggests that this is what the state courts
had in mind when they penned these fleeting passages. For our
part, we see no clue in the record that he ever asked the state
courts to say that the state-court judgment has zero preclusive
effect on the federal claims. And the opinions themselves reveal
no whisper of a hint of an intimation that the state courts had
anything to say on that subject: neither court tossed around words
like "res judicata" or "claim preclusion," and neither cited — let
alone discussed — any authority touching on a state court's ability
to reserve a litigant's right to maintain a further federal-court
suit, free of certain res-judicata concerns. That speaks volumes.
In law, as in life, context matters. And taken in their
proper context, the state-court footnotes are simply descriptions
of what Atwater said he had done regarding his federal-law claims,
not sign-offs on the effect of his actions — and certainly not
rulings that the state-court judgment carries no preclusive effect
5 For those who do not remember, the state-trial court wrote that Atwater had alleged three federal-law claims, on top of his three state-law claims, and had "expressly reserved" his federal- law claims "for adjudication" in federal court. And the SJC wrote that Atwater had "also raised three [f]ederal claims" that "he has reserved for adjudication" in federal court, and "[t]hus these claims are not before us." Atwater, 957 N.E.2d at 1067 n.7.
in this instance. Consequently, his footnote-based argument has no
Not so fast, Atwater says. Clinging to our opinion in
Thomas v. Contoocook Valley School District, 150 F.3d 31 (1st Cir.
1998), and the Ninth Circuit's opinion in Dodd v. Hood River
County, 59 F.3d 852 (9th Cir. 1995), he still believes that he
holds a winning hand. Neither decision helps him, however, not
even a little bit.
As for Thomas, in that case a school board in New
Hampshire had made two findings concerning a school's decision not
to renew teacher Thomas's contract: first, Thomas had performed
her job poorly, and second, her health issues had "'no direct
bearing' on her nonrenewal." 150 F.3d at 35. On administrative
appeal, a state agency upheld the poor-performance finding but said
her health concerns were a factor in the school's decision, adding
(and this is what matters for our purposes) whether the school's
action infracted state-discrimination laws "'is a fact-sensitive
question best left'" to another tribunal before which Thomas had a
pending discrimination claim. Id. at 37. The New Hampshire
Supreme Court later affirmed, and eventually Thomas's
discrimination claim found its way to federal court. Id. Relying
on section 26(1)(b) of the Restatement, we saw "no other
interpretation of the [agency's] decision but as an express
reservation of Thomas's discrimination claim for further
adjudication" — a reservation the New Hampshire Supreme Court "did
not disturb," we noted, which meant that "res judicata did not
apply." Id. at 43. Of course, there we were interpreting New
Hampshire law, not Massachusetts law, which is a blow to Atwater's
argument. Also unfortunately for him, nothing resembling the type
of express reservation in Thomas is evident here.
As for Dodd, the Ninth Circuit did say that "[a] court
may be able to reserve part of a plaintiff's claim for subsequent
litigation by expressly omitting any decision with regard to it in
the first judgment." 59 F.3d at 862 (emphasis added) (concluding
"that the Oregon courts sufficiently reserved" plaintiff's federal
claims "by repeatedly acknowledging" that those "claims were not
before them and were pending in the federal district court"). The
Ninth Circuit was applying Oregon law, which finds a reservation
express under section 26(1)(b) of the Restatement if a litigant
insists that he has reserved his federal claims for decision in
federal court and the state court then does not address those
claims. 59 F.3d at 862.
The Restatement's section 26(1)(b) is an exception to the
general rule against claim splitting set out in section 24(1). The
rule (section 24(1)): a "claim" for preclusion-analysis purposes
"includes all rights of the plaintiff to remedies against the
defendant with respect to all or any part of the transaction, or
series of connected transactions, out of which the action arose."
The exception (section 26(1)(b)): "the general rule . . . does not
apply to extinguish the claim, and part or all of the claim
subsists as a possible basis for a second action by the plaintiff
against the defendant" if "[t]he court in the first action has
expressly reserved the plaintiff's right to maintain the second
action." What Atwater wants us to do is hold that Massachusetts
would — like Oregon, apparently — read the phrase "expressly
reserved" broadly to include situations where a court acknowledges
a plaintiff's attempt to reserve a claim and consciously decides
not to address that claim. But doing so would require us to expand
Massachusetts law in a way that we cannot. See, e.g., Katz v.
Pershing, LLC, 672 F.3d 64 , 73-74 (1st Cir. 2012) (quoting Gill v.
Gulfstream Park Racing Ass'n, 399 F.3d 391 , 402 (1st Cir. 2005)
(explaining that "we — as federal judges sitting in diversity
jurisdiction — 'cannot be expected to create new doctrines
expanding state law'"). Given the lack of any Massachusetts
caselaw reading section 26(1)(b) as expansively as Atwater would
like and the restraints imposed on us when dealing with diversity
cases (not to mention what we said in Thomas), we decline to hold
that Massachusetts would treat the situation presented here as an
effective reservation of Atwater's federal-law claims.
Two classes of arguments down, one to go.
Citing Massachusetts caselaw intimating that equitable
concepts like fairness play a role in applying res-judicata
principles, see, e.g., Donahue v. Draper, 491 N.E.2d 260 , 269 n.22
(Mass. App. Ct. 1986), Atwater insists that the equities favor
allowing his federal claims to proceed. He arguably waived this
idea by floating it in a footnote in his opening brief, with little
helpful analysis. See, e.g., Rodríguez v. Municipality of San
Juan, 659 F.3d 168 , 175 (1st Cir. 2011) ("deem[ing] waived claims
. . . adverted to in a cursory fashion, unaccompanied by developed
argument"). But even if the idea were preserved, there is nothing
inequitable about applying res judicata here — particularly since
Atwater forged ahead with his claim-splitting stratagem despite the
fact that (a) his opponents contested his right to do so at every
turn, a tip-off that they would call on preclusion principles to
dash his litigation hopes, and that (b) neither state court ever
expressly declared that its judgment had no preclusive effect on
his federal-law claims, a tip-off that he would get no help from
section 26(1)(b) of the Restatement.
Having found no reason to disturb the district court's
ruling, we uphold the entry of summary judgment for the
Commissioner and the School District.
Affirmed, with the Commissioner and the School District
awarded their costs on appeal.