Thompson v. Dall. City Attorney's Office

• Decision Date: 11 January 2019
• Docket Number: No. 17-10952,17-10952
• Citation: 913 F.3d 464
• Parties: Petrina L. THOMPSON, Plaintiff–Appellant, v. DALLAS CITY ATTORNEY’S OFFICE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

913 F.3d 464

Petrina L. THOMPSON, Plaintiff–Appellant,

v.DALLAS CITY ATTORNEY’S OFFICE, Defendant–Appellee.

No. 17-10952

United States Court of Appeals, Fifth Circuit.

FILED January 11, 2019

Madeleine B. Connor, Esq., Austin, TX, for Plaintiff-Appellant.

Petrina L. Thompson, Pro Se.

Barbara Elaine Rosenberg, Esq., Jennifer A. Brissette, Attorney, Nicholas Dane Palmer, Attorney, James Bickford Pinson, Assistant City Attorney, City Attorney's Office for the City of Dallas, Dallas, TX, for Defendant-Appellee.

Before JOLLY, ELROD, and WILLETT, Circuit Judges.

DON R. WILLETT, Circuit Judge:

On the surface, this workplace-discrimination appeal augurs a clash between our rule of orderliness and rules of res judicata. Specifically, are we bound by a 1981 panel decision (that would allow the suit)¹ or by other preclusion precedent (that would bar it)?²

There is no clash. Our decision in Henson v. Columbus Bank & Trust Co. (letting a plaintiff litigate in federal court a claim previously dismissed in state court) is not binding—not now and not the day it issued—as it contravened preexisting full faith and credit precedent.³ The rule of orderliness may be "binding as the law of the Medes and Persians which altereth not,"⁴ but the United States Supreme Court, being supreme, makes all things mutable, even "our Holy Rule."⁵

Orderliness as a judicial goal commands adherence to Supreme Court precedent—particularly precedent about orderliness—not to circuit decisions disregarding that precedent. Henson was a one-off that was swiftly cast off. Indeed, the High Court months later reaffirmed its binding res judicata rule, one we have followed consistently ever since, paying Henson no mind.

Admittedly, identifying when a panel decision has morphed from nominally narrowed to no-doubt-about-it negated can be vexing at times. But not this time. Henson was never good law, and no precedent, neither the Supreme Court’s nor ours, has ever treated it as such.

All to say, on-point res judicata precedent bars this suit. We AFFIRM.

I

Thompson, formerly a lawyer in the Dallas City Attorney’s Office, claims she suffered workplace harassment, retaliation, and discrimination because of her race, color, sex, or age. She sued in both state court (raising only state claims) and federal court (raising only federal claims). Both suits arose from the same operative facts.

While her federal suit was pending, the state court ruled that her state suit was time-barred. So the City argued that this limitations dismissal in state court was res judicata in federal court. The district court agreed and dismissed, ruling that Texas preclusion law barred Thompson’s federal suit.

On appeal, Thompson presents two arguments—both unavailing:

1. The district court incorrectly gave res judicata effect to the state-court judgment because it was not a judgment on the merits.⁶

2. The district court denied her due process because the City did not assert res judicata in its original motion to dismiss. (The res judicata argument appeared for the first time in the City’s reply brief.)

II

We first dispose of Thompson’s res judicata argument.

A

Thompson argues that because the state court’s summary judgment was based on limitations, it was not a final judgment on the merits. Citing our 1981 Henson decision, Thompson says the state-court dismissal lacks preclusive effect.

Henson considered whether a federal district court was correct that res judicata barred the plaintiff’s claims after a Georgia state court determined that related claims were time-barred.⁷ The panel held that "a state-court dismissal on the basis of the statute of limitations bars only the state-court remedy and is not an adjudication on the merits," adding, "res judicata does not operate as a bar to [plaintiff’s] litigation of the claim in federal court."⁸ Put simply, Henson declined to give a Georgia state court decision the res judicata effect that Georgia courts would give it. Indeed, the panel did not discuss Georgia res judicata law at all.⁹

Henson is factually analogous but legally anomalous. From the get-go, Henson was at odds with pre- Henson Supreme Court precedent; it is at odds with post- Henson Supreme Court precedent; and it is at odds with nearly four decades of Fifth Circuit precedent.

Let’s start with why Henson was misguided from the outset. According to the Full Faith and Credit Act, one of Congress’s first acts, "judicial proceedings ... 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."¹⁰ The Supreme Court put it plainly in Allen v. McCurry , which predates Henson :

[T]hough the federal courts may look to the common law or to the policies supporting res judicata and collateral estoppel in assessing the preclusive effect of decisions of other federal courts, Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so....¹¹

McCurry resolved an unsettled question in this circuit: Does the preclusive effect of state-court judgments hinge on federal law or state law?¹² Answer: state law. Federal courts must step into the shoes of state courts and afford preclusive effect where state courts would do so.¹³

Oddly, Henson never discusses McCurry .¹⁴ More oddly, Henson never even acknowledges McCurry . It would be one thing had Henson attempted to explain (however implausibly) why McCurry was inapt. But instead of distinguishing McCurry , the panel disregarded it, declining to give preclusive effect to the Georgia state court’s decision.¹⁵

Under our rule of orderliness, we may not overrule a prior panel decision absent an intervening change in the law, such as a statutory amendment or a decision from either the Supreme Court or our en banc court. And generally, we think of this Supreme Court or en banc authority as coming after the questionable panel decision. But this is not necessarily so. We have previously declined to follow a panel decision that couldn’t be squared with prior Supreme Court precedent.¹⁶ As Henson turns a blind eye to McCurry , Henson ’s holding is irreconcilable, and thus inoperative, and has been since it was decided. We are bound to apply McCurry and our cases that abide McCurry , not Henson .¹⁷

Even assuming Henson retained marginal viability when it issued in 1981, any lingering force was quickly, and unquestionably, sapped. Just ten months after Henson , the Supreme Court in Kremer v. Chemical Construction Corp. reaffirmed McCurry ’s res judicata rule: "It has long been established that [the Full Faith and Credit Act] does not allow federal courts to employ their own rules of res judicata in determining the effect of state judgments. Rather, it ... commands a federal court to accept the rules chosen by the State from which the judgment is taken."¹⁸ Henson and Kremer are irreconcilable. The latter spurned the former, and the estrangement is not mere tension, but rejection.

Moreover, our circuit has not treated Henson as good res judicata law for a generation. In the 38 years since Henson , we have repeatedly considered the res judicata effect due state court decisions. In each case, we followed the Full Faith and Credit Act, giving preclusive effect to state court decisions when that state would do so. In fact, just one year after Henson , we decided two preclusion cases— Rollins v. Dwyer¹⁹ (issued one month before Kremer ) and E. D. Systems Corp. v. Southwestern Bell Telephone Co.²⁰ (issued three months after Kremer )—that both employed the Supreme Court’s Full Faith and Credit approach, not Henson ’s out-of-step approach. Thompson urges us to heed our precedent, but our precedent pays no heed to Henson .

Tellingly, not one of our post- Kremer decisions on the res judicata effect of state-court judgments follows Henson . A "Citing References" check on Westlaw brings up only four Fifth Circuit cases that postdate Kremer . One of them, Dorsey Trailers , dealt with the preclusive effect one federal court ought to afford another federal court’s grant of summary judgment.²¹ The second, Manges , discusses Henson ’s attorney-fee issue, not res judicata.²² Another, Riviere , cites Henson once, and not for anything preclusion-related but for a Truth in Lending Act issue.²³ Finally, Transource Internationalonly mentions Henson offhandedly in the final footnote, explaining that a state-law claim’s time-barred status is a factor to be weighed when determining whether to exercise pendent jurisdiction.²⁴ This exhausts Henson ’s post- Kremer "Citing References" and reveals no decisions that follow Henson ’s one-off preclusion rule.

Nearly a dozen cases spanning a dozen years confirm that Henson ’s reasoning and result have been discarded, not just discounted.²⁵ Not one of them so much as mentions Henson vis-à-vis preclusion because Henson was a nonprecedential outlier.²⁶

We disagree with Thompson that our rule of orderliness obliges us to esteem Henson over contrary Supreme Court precedent such as McCurry and Kremer (not to mention our post- Henson cases that dutifully track binding precedent). Orderliness, rightly understood, compels deference, not defiance. And disregarding on-point precedent in favor of an aberrational decision flouting that precedent is the antithesis of orderliness. Such a higgledy-piggledy approach undermines, rather than underscores, the Rule of Law’s foremost virtues: clarity, certainty, and consistency.

B

Texas res judicata doctrine requires three things: (1) that the prior final judgment is on the merits; (2) that the parties in the two actions are the same; and (3) that the second action is based on claims that were raised—or could have been raised—in the first action.²⁷ Only the first element is seriously disputed here: whether the state court’s dismissal on limitations grounds...