Gjellum v. City of Birmingham, Ala.

• Citation: 829 F.2d 1056
• Decision Date: 13 October 1987
• Docket Number: No. 86-7643,86-7643
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Parties: John A. GJELLUM, Plaintiff-Appellant, v. The CITY OF BIRMINGHAM, ALABAMA, etc., Richard Arrington, Jr., individually and/or as Mayor of the City of Birmingham, Alabama; Arthur V. Deutcsh, individually and/or as Chief of Police of the Police Dept. of the City of Birmingham, Alabama, Defendants-Appellees.

Page 1056

829 F.2d 1056

56 USLW 2254

John A. GJELLUM, Plaintiff-Appellant, v. The CITY OF BIRMINGHAM, ALABAMA, etc., Richard Arrington Jr., individually and/or as Mayor of the City of Birmingham Alabama; Arthur V. Deutcsh, individually and/or as Chief of Police of the Police Dept. of the City of Birmingham Alabama, Defendants-Appellees.

No. 86-7643.

United States Court of Appeals Eleventh Circuit.

Oct. 13, 1987.

Jack H. Harrison, Gordon, Harrison & Lathum, Ann Arnold, Birmingham, Ala., for plaintiff-appellant.

Charles Michael Melton, City of Birmingham, Charles H. Wyatt, Jr., Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Appellant John A. Gjellum, a police officer in Birmingham, Alabama, brought this 42 U.S.C. Sec. 1983 action against appellees, the City of Birmingham, Birmingham Chief of Police Arthur V. Deutcsh, and Birmingham Mayor Richard Arrington, Jr. Appellant's complaint alleged that appellees violated his constitutional rights by suspending him for attempting to tape record certain conversations between Gjellum and his superiors making public statements approving of Gjellum's suspension and ordering Gjellum to turn his cassette tape over to the police department and then failing to return the tape. We reverse the district court's order granting summary judgment for appellees and remand for further proceedings.

I

The statement of facts agreed upon by the parties in the district court's pre-trial order indicates that Chief Deutcsh ordered appellant suspended without pay for forty-five days from his position as a full-time Birmingham city police officer. ¹ Gjellum was charged with secretly taping, or attempting to tape, certain conversations regarding official police business that Gjellum had with his superior officers, and with conveying official information to others without authority. ² Mayor Arrington publicly expressed his official and personal approval of the suspension in newspaper editorials, on television, and in press releases. At some point, Gjellum complied with a direct order from the police department to surrender the tape allegedly used to record conversations with his fellow officers.

Gjellum appealed his suspension to the Jefferson County Personnel Board (Board). The Board held a hearing at which the district court found all parties were present and represented by counsel. The Board reversed Gjellum's suspension and ordered Gjellum reinstated with backpay because "there was no written or oral policy of the police department prohibiting the taping of peers or supervisors on September 29, 1983, the time of the incident."

The City appealed the Board's decision to the Circuit Court of Jefferson County, Alabama. City of Birmingham v. Personnel Board of Jefferson County, Alabama, No. CV 84-1671 (Cir. Ct. Jefferson Cty., Ala. Dec. 13, 1984). Gjellum's motion to intervene in the appeal was denied. A three judge circuit court panel ruled that an appeal from a Board decision is statutorily-limited in scope to "review[ing] questions of law and the question of whether or not the decision or order of the Board is supported by substantial and legal evidence." Applying this standard, the court affirmed the Board's decision.

Gjellum then brought this section 1983 action in the United States District Court for the Northern District of Alabama. The district court, relying upon University of Tennessee v. Elliott, --- U.S. ----, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986), granted summary judgment for appellees. The court held that appellant was barred by the doctrines of claim preclusion and collateral estoppel from relitigating matters previously decided by the Board. As an alternative ground for its holding, the court found that appellant was not entitled to relief on the merits because: (1) his secret taping activity was not protected by the first amendment; (2) appellant had not been deprived of a liberty interest because his reputation was not damaged by appellees' conduct; and (3) any denial of due process was cured by the post-deprivation hearing.

II

Although the district court's order discussed both claim and issue preclusion as supporting summary judgment for appellees, the res judicata dispute in this case concerns only the doctrine of claim preclusion. ³ 3] Issue preclusion does not create a basis for dismissing appellant's action. When the requirements for issue preclusion are met, ⁴ the parties may be prevented from relitigating issues actually decided in a prior action. In this case, both the Board and the circuit court found that appellant had been wrongfully suspended. Thus, issue preclusion would at most limit appellees' ability to relitigate issues decided adversely to them in the prior proceedings. Appellant's motion to preclude relitigation of issues decided in the state proceedings is not, however, before us in this appeal. ⁵ We do not decide therefore whether issue preclusion should have been applied against appellees. For purposes of this appeal, we need only decide that the doctrine of issue preclusion, even if applicable to the prior proceedings in this case, would not bar appellant's suit, and that summary judgment for appellees is not sustainable on that basis.

If claim preclusion applies either to the prior state court proceeding or to the state administrative proceeding, however, appellant's action might be barred. The basic rule of claim preclusion is that "when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound 'not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.' " Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 578-79, 94 S.Ct. 806, 812, 39 L.Ed.2d 9 (1974) (quoting Cromwell v. County of Sac, 94 U.S. (4 Otto) 351, 352, 24 L.Ed. 195 (1877)). It is now well established that, even in a suit under section 1983, a federal court must give the same "full faith and credit" to the records and judicial proceedings of any state court that they would receive in the state from which they arise. 28 U.S.C. Sec. 1738; Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Accordingly, we must first determine whether Alabama would give claim preclusive effect to the judgment of the Circuit Court of Jefferson County in this case. See Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 383, 105 S.Ct. 1327, 1333, 84 L.Ed.2d 274 (1985) ("issue whether there is an exception to Sec. 1738 arises only if state law indicates that litigation of a particular claim or issue should be barred in the subsequent federal proceeding.").

A

The doctrine of claim preclusion in Alabama bars a subsequent suit on the same cause of action, including any issue that was or could have been litigated, if four elements are present: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the prior judgment was rendered on the merits; (3) the parties to both suits are substantially identical; and (4) the same cause of action is present in both suits. Tatum v. Kelley, 481 So.2d 1132, 1135 (Ala.1985); Broughton v. Merchants Nat'l Bank of Mobile, 476 So.2d 97, 101 (Ala.1985). The Circuit Court of Jefferson County is a court of competent jurisdiction to hear appeals from Personnel Board decisions, see 1945 Ala. Acts No. 248 Sec. 22 (as amended), and the court's judgment was rendered on the merits. ⁶ We need not decide ⁷ whether the same cause of action was present in both suits ⁸ because we conclude that, under Alabama law, the parties to the Jefferson County judgment was not substantially identical to the parties in this proceeding.

"Substantially identical" parties under Alabama law exist where the parties to both proceedings are "either the same, or in privity of estate, blood, or law with the original parties." Lott v. Toomey, 477 So.2d 316, 319 (Ala.1985). Claim preclusion thus may be applied in Alabama to bar litigants who were not actual parties to the prior judgment only where the non-party had either: (1) a mutual or successive relationship to the same property rights as a party to the prior proceeding; ⁹ or (2) substantially identical interests in the litigation and an actual opportunity to litigate in the prior proceeding. ¹⁰

In this case, Gjellum was not an actual party to the Jefferson County judgment and his motion to intervene in that proceeding was denied. As the Alabama Supreme Court held in Lott, denial of permission to intervene is a significant factor in determining whether the parties are "substantially identical." ¹¹ Moreover, whatever interests the Jefferson County Personnel Board had in the proceedings before the circuit court were substantially different from Gjellum's interests in vindicating his constitutional rights. Under these circumstances, we conclude that Alabama would not view the Board as "substantially identical" to Gjellum, ¹² and would not, therefore, afford claim preclusive effect to the state circuit court judgment. ¹³

B

Our conclusion that appellant's suit is not barred by the state court judgment does not end our res judicata inquiry. The possibility remains that appellant's section 1983 claim might be barred by virtue of his having litigated his grievance before the Personnel Board.

The full faith and credit statute, 28 U.S.C. Sec. 1738, applies only to the judgments and records of state courts and not to decisions of state administrative agencies. See University of Tennessee v. Elliott, --- U.S. ----, ----, 106 S.Ct. 3220, 3224, 92 L.Ed.2d 635; McDonald v. City of West Branch, 466...