Ornstein v. Regan, 377
| Decision Date | 04 April 1978 |
| Docket Number | D,No. 377,377 |
| Citation | 574 F.2d 115 |
| Parties | Irving ORNSTEIN, Plaintiff-Appellant, v. James F. REGAN, Chairman, Board of Education Retirement System of the City of New York, Board of Education Retirement System of the City of New York, and Joseph Antionette, Executive Secretary, Board of Education, Retirement System of the City of New York, Defendants-Appellees. ocket 77-7307. |
| Court | U.S. Court of Appeals — Second Circuit |
Sam Resnicoff, and Gordon & Shechtman, P. C., New York City (Murray A. Gordon, Sam Resnicoff, New York City, of counsel), for plaintiff-appellant.
W. Bernard Richland, Corp. Counsel, New York City (Leonard Koerner, Susan L. Bloom, New York City, of counsel), for defendants-appellees.
Before FEINBERG and OAKES, Circuit Judges, and WYATT, District Judge. *
This is an appeal from a judgment of the District Court for the Eastern District of New York (Costantino, J.), granting a motion by defendants for summary judgment and dismissing the complaint as barred by the principle of res judicata.
The question here is whether appellant actually litigated in the state courts the issue that the time limitation on his claim for accident disability retirement is unconstitutional. The court below decided that he had and that the decision against him in the state courts barred his action in a federal District Court. We disagree. We reverse the decision below and remand for further proceedings which will include decision of issues which were not reached in the District Court.
Appellant Ornstein, beginning May 25, 1959, was employed as a machinist's helper by the Board of Education of the City of New York. As such, he was a member of the Board of Education Retirement System ("the System") and was required to contribute to it.
On February 17, 1969, as part of his work, Ornstein was required to go (with his box of tools) from one high school to another. While walking on the way, he fell on ice and was injured. He was unable thereafter to work and was given extensive medical treatment but he says he was told, and believed, that his injuries were temporary and would clear up. According to Ornstein, it was in June 1972 that he was first advised that he would be permanently disabled and unable again to walk. He promptly applied for retirement on account of accident disability. The System, by letter to him dated July 19, 1972, denied any retirement benefits, citing Section 17 of the rules of the System that claims for accident disability retirement must be made within two years of the date of the accident.
Ornstein on October 18, 1972 commenced an action (technically, an Article 78 proceeding) against the System in the New York Supreme Court, Kings County, asking for his retirement benefits and for return of his contributions to the System. The defense was that the claim for retirement benefits was filed more than two years after the accident happened. Ornstein argued that Section 17, the time limitation, should be interpreted so as to allow a claim to be filed within two years after the claimant becomes aware that he is permanently disabled. This argument was rejected and the New York Supreme Court, on June 19, 1973, entered a judgment dismissing the action. The Appellate Division, Second Department, unanimously affirmed, without opinion, on October 23, 1974 (46 A.D.2d 738; 361 N.Y.S.2d 329).
Leave to appeal was denied by the Appellate Division on December 4, 1974, and by the Court of Appeals on February 12, 1975.
On July 24, 1975, Ornstein commenced this action in the Eastern District of New York, asserting as jurisdictional grounds, among others, federal questions (28 U.S.C § 1331) and civil rights claims (28 U.S.C. § 1343). The basic claim is that the Section 17 time limitation is unconstitutional as a denial of due process and the equal protection of the laws.
Both sides moved for summary judgment. The District Court, with a memorandum opinion, granted the motion of defendants on the ground that Ornstein in the state court had sufficiently raised his constitutional claims so that he was barred by res judicata principles from litigating such claims in the federal courts. A memorandum opinion and order was filed on May 24, 1977; a judgment was filed on May 25, 1977.
This appeal (from the May 25, 1977 judgment) followed.
The traditional doctrine of res judicata is that a valid final judgment on the merits operates to bind the parties both as to issues actually litigated and determined in the first action and as to those issues which might have been, but were not, actually raised and decided in that first action. Saylor v. Lindsley, 391 F.2d 965, 968 (2d Cir. 1968).
This court, however, for policy reasons, has declined in civil rights cases to give res judicata effect as to constitutional issues which might have been, but were not, litigated in an earlier state court action. Lombard v. Board of Education, 502 F.2d 631, 635-37 (2d Cir. 1974), cert. denied,420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975). A principal policy reason is that the civil rights action provided by 42 U.S.C. § 1983 is supplementary to the state remedy which need not be first sought before the federal claim is asserted. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). To apply res judicata effect to a state remedy which need not be first sought, is to "overrule the essence of Monroe v. Pape . . . ". Lombard v. Board of Education, above at 635. The later decisions of this Court are collected in Winters v. Lavine, 574 F.2d 46 at 56-58 (2d Cir. 1978).
On the other hand, our decisions have clearly established that where a constitutional issue has been actually raised in the state court, the litigant has made his choice and may not relitigate that issue in a federal court in a Section 1983 action. Lombard v. Board of Education, above, at 636-37; Thistlewaite v. City of New York, 497 F.2d (2d Cir.), cert. denied, 419 U.S. 1093, 95 S.Ct. 686, 42 L.Ed.2d 686 (1974); Turco v. Monroe County Bar Association, 554 F.2d 515 (1977); Ellentuck v. Klein, 570 F.2d 414 at 422 (2d Cir. 1978).
With these general principles in mind, the question is whether the record shows that Ornstein presented to the state courts his claims now made in this action that the two-year time limitation of Section 17 is in violation of the due process and equal protection clauses of the fourteenth amendment. On the basis of a paragraph in the brief for Ornstein in the Appellate Division, Judge Costantino felt that these claims had been presented to the state courts (App. 78-80). We do not agree.
The initial pleading of Ornstein in the state court (App. 45-48) did not raise any constitutional issues. The petition made no mention of due process or of equal protection. Rather, the petition was a bare averment of facts with a concluding prayer for relief. The petition set out the circumstances surrounding Ornstein's accident, his physical condition thereafter, the medical treatment he received, the surgical procedures he underwent, his application to the System for a disability pension, and the System's denial of the application.
In the memorandum opinion of the lower state court (App. 17-20) denying relief to Ornstein, there is no reference to due process or equal protection. Justice Schwartzwald outlined the facts of Ornstein's accident, his condition and his application to the System. He then stated his finding that there was "no merit to petitioner's contention that Section 17 should be interpreted to allow a disability retirement claim to be filed when a claimant becomes aware that the injury is permanent" (App. 19). It is clear that the state Supreme Court decision was only that the "plain language" of Section 17 required a finding that the claim was time barred (App. 19).
The affirmance by the Appellate Division without opinion gave no indication that constitutional issues were considered.
The only possible reference to constitutional issues in the state court was in the following paragraph (App. 64-65) which appeared in the brief for Ornstein submitted to the Appellate Division and on which Judge Costantino based his decision below:
The arguments in this brief were made in support of a proceeding under Article...
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Ohland v. City of Montpelier
...It is therefore apparent that res judicata will not bar this court's consideration of the constitutional claims. Ornstein v. Regan, 574 F.2d 115 (2d Cir. 1978); Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978); Ellentuck v. Klein, 570 F.2d 414 (2d Cir. 1978); Turco v. Monroe County Bar Ass'n, ......
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Williams v. Codd
...78 proceeding is a limited forum in which only designated questions may be raised and in which relief is restricted. Ornstein v. Regan, 574 F.2d 115, 118 (2d Cir. 1978). Most important, damages are only available to a petitioner when they are "incidental to the primary relief." Schwab v. Bo......
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Board of Regents of University of State of New York v. Tomanio
...rules would not bar a federal civil rights suit dealing with issues not actually litigated in a prior state-court suit, Ornstein v. Regan, 574 F.2d 115 (1978); Lombard v. Board of Education, 502 F.2d 631, 635-637 (1974). 8. Even were the England requirement fully applicable, respondent's fa......
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Dieffenbach v. Attorney General of Vermont
...determined in the state court and was necessary to that decision, it may not be relitigated in a § 1983 action. See Ornstein v. Regan, 574 F.2d 115, 117 (2d Cir. 1978); Winters v. Lavine, 574 F.2d 46, 56-58 (2d Cir. 1978). Here, irrespective of the lack of analysis of the constitutional iss......