Columbian Financial Corporation et al v. Stork et al, No. 2:2014cv02168 - Document 131 (D. Kan. 2018)

Court Description: MEMORANDUM AND ORDER granting 104 Motion for Summary Judgment or in the alternative, judgment on the pleadings. It is Further Ordered that 121 Objection to Order of Magistrate Judge is denied as moot. Signed by District Judge Sam A. Crow on 5/17/2018. (ht)

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Columbian Financial Corporation et al v. Stork et al Doc. 131 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS COLUMBI AN FI NANCI AL CORPORATI ON, Plaint iff vs. Case No. 14- 2168- SAC MI CHELLE W. BOWMAN, in her official capacit y as Bank Com m issioner of Kansas, et al, Defendant s. MEMORANDUM AND ORDER The plaint iff Colum bian Financial Corporat ion ( “ CFC” ) , as t he sole shareholder of Colum bian Bank and Trust Com pany ( “ Bank” ) , originally brought t his act ion wit h t he Bank against t he Office of t he Kansas St at e Bank Com m issioner ( “ OSBC” ) and four com m ission officials under 42 U.S.C. § 1983. The act ion principally alleged denial of due process from t he OSCB declaring t he Bank insolvent , seizing t he Bank’s asset s, and doing so wit hout providing adequat e const it ut ional prot ect ions and rem edies before and aft er t he declarat ion and seizure. Twice t his court grant ed m ot ions t o dism iss in favor of t he defendant s, and t wice t he Tent h Circuit ret urned t he case for furt her considerat ion. An underst anding of t hese t wo inst ances is helpful background for fram ing t he pending disposit ive m ot ion. Dockets.Justia.com On t he first m ot ion t o dism iss, t he dist rict court agreed t hat abst ent ion under Younger v. Harris, 401 U.S. 37 ( 1971) , required t he plaint iff’s claim s for inj unct ive and declarat ory relief t o be dism issed wit hout prej udice due t o t he pending st at e court m at t ers. ECF# 30, pp. 12- 13. The court dism issed t he Bank as not a person capable of bringing a § 1983 act ion and dism issed t he OSBC as not a person am enable t o suit under § 1983. I d. at pp. 13- 14, 18. The court held t hat t he defendant Edwin G. Splichal was ent it led t o absolut e im m unit y for his role in presiding over t he 2012 adm inist rat ive hearing, in det erm ining what discovery t o allow , and in deciding t he part ies’ cross- m ot ions for sum m ary j udgm ent . I d. at 22- 25. Finally, on grounds of qualified im m unit y, t he court dism issed t he individual capacit y act ions against t he defendant J. Thom as Thull, t he form er bank com m issioner who issued t he declarat ion of insolvency; t he defendant Deryl K. Schust er, t he bank com m issioner com ing int o office in April 2014; and t he defendant Judi St ork, t he act ing bank com m issioner and deput y bank com m issioner during t he relevant period. ECF# 30, pp. 25- 38. The plaint iffs appealed t he Younger abst ent ion ruling and t he qualified im m unit y rulings in favor of t he defendant s St ork and Thull. While t his order was on appeal, t he circum st ances of t his case for Younger abst ent ion changed when t he pending st at e proceedings t erm inat ed in favor of t he defendant s. Consequent ly, t he Tent h Circuit “ vacat e[ d] dism issal of t he equit able claim s and rem and[ ed] t hese claim s t o 2 t he dist rict court so t hat it can reconsider t hem wit hout t he need t o abst ain now t hat t he st at e proceedings have ended.” Colum bian Financial Corp. v. St ork, 811 F.3d 390, 395 ( 10t h Cir. 2016) ( cit at ion om it t ed) . The circuit court de novo reviewed and affirm ed t he dist rict court ’s dism issal of t he defendant s St ork and Thull based on qualified im m unit y. The circuit court also found t hat t he seizure of t he bank’s asset s and t he appoint m ent of a receiver wit hout a prior hearing did not violat e a clearly est ablished right and t hat t he delay in t he post - deprivat ion hearing did not violat e a clearly est ablished right . On rem and, t he plaint iff filed an am ended com plaint wit h leave of t he court grant ed over t he defendant s’ obj ect ions. ECF# # 63 and 66. The defendant s t hen filed t heir next m ot ion t o dism iss t he first am ended com plaint assert ing t he lack of j urisdict ion and ot her legal defenses, including t he failure t o st at e a claim for relief. ECF# 69. Their first issue was t hat t he plaint iff’s rem aining equit able act ion against t he defendant s in t heir official capacit ies was barred by t he Elevent h Am endm ent . The defendant s specifically argued t he plaint iffs were not seeking prospect ive relief against an ongoing violat ion wit hin t he except ion creat ed by Ex Part e Young, 209 U.S. 123 ( 1908) . I nst ead, t he plaint iffs were seeking “ backward- looking relief” against OSBC’s order of seizure and receivership. ECF# 70, pp. 11- 16. Based on t he part ies’ argum ent s as briefed and present ed t o it , t he dist rict court grant ed t he defendant s’ m ot ion t o dism iss for Elevent h Am endm ent 3 im m unit y and did not address t he balance of t he issues present ed in t he defendant s’ m ot ion t o dism iss. On appeal, t he Tent h Circuit const rued t he plaint iff’s am ended com plaint t o “ allege[ ] an ongoing violat ion of federal law and [ t o] seek[ ] from t he federal court only prospect ive relief and ot her relief ancillary t heret o.” Colum bian Financial Corporat ion v. St ork, 702 Fed. Appx. 717, 721 ( 10t h Cir. Jul. 25, 2017) . The panel underst ood t he plaint iff t o be alleging an ongoing due process violat ion from t he denial of “ a hearing before an im part ial hearing officer aft er sufficient opport unit y for discovery.” I d. 1 Cit ing precedent t hat involved claim s such as ongoing exclusion from school, from em ploym ent , and from an approved vendors’ list , as well as t he ongoing denial of a hearing in each inst ance, t he panel saw no dist inct ion bet ween t hem and t he plaint iff’s claim here of j ust t he ongoing denial of a const it ut ionally adequat e due process hearing. I d. at 721- 22. The panel believed t hat an inj unct ion giving t he plaint iff anot her hearing fell wit hin t he Young except ion. Finally, on t he quest ion of whet her any m eaningful relief was available here pursuant t o t he Young except ion, Colum bian argued for t he first t im e on appeal: Colum bian cont ends t hat it s right t o a const it ut ionally adequat e hearing exist s independent ly of it s abilit y t o have t he Bank’s asset s rest ored. Moreover, it m aint ains t hat a part ial rem edy is st ill available. Colum bian not es t hat , as a consequence of t he seizure, it lost not only 1 I n foot not es, t he Tent h Circuit sum m arized t he plaint iff’s allegat ions t hat Splichal was not a neut ral j udge over t he due process hearing and t hat Splichal denied t hem t he opport unit y t o depose Thull, “ t he sole decision- m aker regarding t he Bank’s closure.” 702 Fed. Appx. at 721 n. 2 and 3. 4 t he Bank’s asset s but also t he Bank’s chart er t o conduct fut ure business in Kansas. And furt herm ore, Colum bian argues t hat t he Declarat ion’s insolvency finding could be held against in in a fut ure applicat ion for a Kansas banking chart er. Thus, Colum bian argues t hat an opport unit y t o clear it s nam e in a proper due process hearing would have “ som e effect in t he real world” sufficient t o avoid m oot ness of it s procedural due process claim . ( cit at ion om it t ed) . 702 Fed. Appx. at 723. The Tent h Circuit held t hat “ Colum bian ident ifies inj uries t hat could be redressed by it s request ed relief—specifically, a new hearing wit h adequat e procedural prot ect ions—which could overt urn t he insolvency finding and rest ore t he Bank’s chart er.” I d. The dist rict court ’s j udgm ent was reversed and rem anded for furt her proceedings consist ent wit h t he Circuit ’s order and j udgm ent . Now on rem and, t here has been a subst it ut ion of defendant s wit h Michelle W. Bowm an replacing Deryl K. Schust er for t he official capacit y act ion against t he Bank Com m issioner and wit h t he t it led posit ion of Deput y Bank Com m issioner replacing Judi St ork. ECF# 101. The plaint iff has propounded discovery request s for which t he defendant Bowm an sought an ext ension of t he response deadline and t hen sought a st ay aft er filing a disposit ive m ot ion. ECF# # 102, 104 and 106. The Magist rat e Judge denied t he st ay request , and review of t hat ruling is also pending before t his court . ECF# 121. The dist rict court has ent ered an order st aying discovery pending t he filing of t his order. ECF# 130. Wit h t he m at t ers fully briefed and before t he court , t he court t akes up t he defendant Bowm an’s m ot ion for sum m ary j udgm ent , or in t he alt ernat ive, j udgm ent on t he pleadings. ECF# 104. 5 Judicial Not ice I n her m ot ion, t he defendant asks t he court t o t ake j udicial not ice of all proceedings in t his lit igat ion and all relat ed com m ission proceedings and st at e court proceedings. The court m ay t ake j udicial not ice of st at e court docum ent s. See Pace v. Swerdlow, 519 F.3d 1067, 1072- 73 ( 10t h Cir. 2008) . I n doing so, t he court will follow t he Tent h Circuit ’s holding: However, fact s subj ect t o j udicial not ice m ay be considered in a Rule 12( b) ( 6) m ot ion wit hout convert ing t he m ot ion t o dism iss int o a m ot ion for sum m ary j udgm ent . See Grynberg v. Koch Gat eway Pipeline Co., 390 F.3d 1276, 1278 n. 1 ( 10t h Cir. 2004) ( cit ing 27A Fed. Proc., L.Ed. § 62: 520 ( 2003) ) . This allows t he court t o “ t ake j udicial not ice of it s own files and records, as well as fact s which are a m at t er of public record.” Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 ( 10t h Cir. 2000) , abrogat ed on ot her grounds by McGregor v. Gibson, 248 F.3d 946, 955 ( 10t h Cir. 2001) . However, “ [ t ] he docum ent s m ay only be considered t o show t heir cont ent s, not t o prove t he t rut h of m at t ers assert ed t herein.” Oxford Asset Mgm t ., Lt d. v. Jaharis, 297 F.3d 1182, 1188 ( 11t h Cir. 2002) . Tal v. Hogan, 453 F.3d 1244, 1265 ( 10t h Cir. 2006) , cert . denied, 549 U.S. 2007) ; see Winzler v. Toyot a Mot or Sales U.S.A., I nc., 681 F.3d 1208, 1213 ( 10t h Cir. 2012) ( “ The cont ent s of an adm inist rat ive agency's publicly available files, aft er all, t radit ionally qualify for j udicial not ice, even when t he t rut hfulness of t he docum ent s on file is anot her m at t er. ( cit at ions om it t ed) .” ) . Thus, t he court will t ake j udicial not ice of t he exist ence and cont ent of t he orders and pleadings subm it t ed and publicly filed and t ake not e of t he cont ent of what was argued and what was decided. See Kaufm an 6 v. Miller, 2013 WL 4446977, at * 2 ( 10t h Cir. Aug. 21, 2013) ( “ [ W] e can t ake j udicial not ice of t he cont ent s of t he habeas pet it ion t o det erm ine whet her t his claim had been present ed in t he dist rict court . See Gut t m an v. Khalsa, 669 F.3d 1101, 1130 n. 5 ( 10t h Cir.2012) .” ) . But , t he court will not assum e t he t rut h or correct ness of t he m at t ers or fact s alleged, assert ed, or decided t herein. Legal St andards Governing Mot ion Rule 56 m andat es sum m ary j udgm ent “ against a part y who fails t o m ake a showing sufficient t o est ablish t he exist ence of an elem ent essent ial t o t hat part y's case, and on which t hat part y will bear t he burden of proof at t rial.” Celot ex Corp. v. Cat ret t , 477 U.S. 317, 322, 106 S.Ct . 2548, 91 L.Ed.2d 265 ( 1986) . “ Of course, a part y seeking sum m ary j udgm ent always bears t he init ial responsibilit y of inform ing t he dist rict court of t he basis for it s m ot ion, and ident ifying t hose port ions of ‘t he pleadings, deposit ions, answers t o int errogat ories, and adm issions on file, t oget her wit h t he affidavit s, if any,’ which it believes dem onst rat e t he absence of a genuine issue of m at erial fact .” I d. at 323, 106 S.Ct . 2548. This does not m ean t he m oving part y m ust negat e t he ot her side’s claim s or defenses t hrough affidavit s. I d. Upon a properly support ed m ot ion for sum m ary j udgm ent , t he nonm oving part y m ust go beyond t he pleadings, t hat is, m ere allegat ions or denials, and set fort h specific fact s showing a genuine issue of 7 m at erial fact for t rial, relying upon t he t ypes of evident iary m at erials cont em plat ed by Rule 56. I d. The court decides t he m ot ion “ t hrough t he prism of t he subst ant ive evident iary burden.” Anderson v. Libert y Lobby, I nc., 477 U.S. 242, 254, 106 S.Ct . 2505, 91 L.Ed.2d 202 ( 1986) . Thus, a fact ual disput e is “ m at erial” only if it “ m ight affect t he out com e of t he suit under t he governing law.” I d. at 248, 106 S.Ct . 2505. A “ genuine” fact ual disput e requires m ore t han a m ere scint illa of evidence in support of a part y's posit ion. I d. at 252, 106 S.Ct . 2505. The purpose of Rule 56 “ is not t o replace conclusory allegat ions of t he com plaint or answer wit h conclusory allegat ions of an affidavit .” Luj an v. Nat 'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct . 3177, 111 L.Ed.2d 695 ( 1990) . At t he sum m ary j udgm ent st age, t he court is not t o be weighing evidence, credit ing som e over ot her, or det erm ining t he t rut h of disput ed m at t ers, but only deciding if a genuine issue for t rial exist s. Tolan v. Cot t on, –––U.S. ––––, 134 S.Ct . 1861, 1866, 188 L.Ed.2d 895 ( 2014) . The court perform s t his t ask wit h a view of t he evidence t hat favors m ost t he part y opposing sum m ary j udgm ent . I d. Sum m ary j udgm ent m ay be grant ed if t he nonm oving part y's evidence is m erely colorable or is not significant ly probat ive. Libert y Lobby, 477 U.S. at 250–51, 106 S.Ct . 2505. Essent ially, t he inquiry is “ whet her t he evidence present s a sufficient disagreem ent t o require subm ission t o t he j ury or 8 whet her it is so one- sided t hat one part y m ust prevail as a m at t er of law.” I d. at 251–52, 106 S.Ct . 2505. The defendant s m ove, in t he alt ernat ive, for j udgm ent on t he pleadings. “ A m ot ion for j udgm ent on t he pleadings under Rule 12( c) is t reat ed as a m ot ion t o dism iss under Rule 12( b) ( 6) ,” At lant ic Richfield Co. v. Farm Credit Bank of Wichit a, 226 F.3d 1138, 1160 ( 10t h Cir. 2000) , and t he sam e st andards govern m ot ions under eit her rule, Ward v. Ut ah, 321 F.3d 1263, 1266 ( 10t h Cir. 2003) . On eit her m ot ion, t he court considers only t he cont ent s of t he com plaint . Gee v. Pacheco, 627 F.3d 1178, 1186 ( 10t h Cir. 2010) . The court accept s as t rue “ all well- pleaded fact ual allegat ions in a com plaint and view[ s] t hese allegat ions in t he light m ost favorable t o t he plaint iff.” Sm it h v. Unit ed St at es, 561 F.3d 1090, 1098 ( 10t h Cir. 2009) , cert . denied, 558 U.S. 1148 ( 2010) . To wit hst and a Rule 12( b) ( 6) m ot ion, “ a com plaint m ust cont ain enough allegat ions of fact , t aken as t rue, t o st at e a claim t o relief t hat is plausible on it s face.” Al–Owhali v. Holder, 687 F.3d 1236, 1239 ( 10t h Cir. 2012) ( quot ing Ashcroft v. I qbal, 556 U.S. 662, 678 ( 2009) ) . “ The plausibilit y st andard is not akin t o a probabilit y requirem ent , but it asks for m ore t han a sheer possibilit y t hat a defendant has act ed unlawfully.” I qbal, 556 U.S. at 678 ( int ernal cit at ion and quot at ion m arks om it t ed) . “ Thus, in ruling on a m ot ion t o dism iss, a court should disregard all conclusory st at em ent s of law and consider whet her t he rem aining specific fact ual allegat ions, if assum ed t o be t rue, plausibly suggest t he defendant is 9 liable.” Kansas Penn Gam ing, LLC v. Collins, 656 F.3d 1210, 1214 ( 10t h Cir. 2011) . Background Rat her t han rest at e all t he uncont est ed fact s appearing in t his court ’s prior orders, t he Tent h Circuit ’s opinions, and t he part ies’ current and past filings in t his case, t he court provides t he following sum m ary as sufficient for t he cont ext of it s ruling. The court does not share t he plaint iff’s posit ion t hat it s § 1983 act ion const it ut es a rout ine federal case for which discovery should occur before any sum m ary j udgm ent m at t ers are decided. By t aking j udicial not ice of t he publicly- filed records which bot h sides have subm it t ed as exhibit s in t his dism issal/ sum m ary j udgm ent proceeding, t he court finds it self fully inform ed of all relevant rulings and fact s and is wellposit ioned t o rule on t he argum ent s present ed wit hout t he delay and burden of addit ional discovery being shouldered. As reflect ed in what follows, t he court has been careful t o review t he st at e court filings, because t he plaint iff’s federal claim s are being uniquely present ed in an apparent effort t o avoid t he res j udicat a/ collat eral est oppel bar. I n July of 2008, t he st at e- chart ered Bank wit h federal- insured deposit s consent ed t o t he ent ry of an “ Order t o Cease and Desist ” which required t he Bank t o cease and desist from engaging in t he list ed “ unsafe or unsound banking pract ices and violat ions” and t o m odify it s operat ions and policies in num erous areas and t o report t hese changes. ECF# 70- 1. CFC has 10 alleged t hat t he Bank com plied wit h t his order revising it s policies and subm it t ing t he required report s and analyses which dem onst rat ed t he Bank’s financial st rengt h and liquidit y. On August 22, 2008, wit hout addit ional not ice or a prior hearing, t hen- Bank Com m issioner J. Thom as Thull issued a Declarat ion of I nsolvency and Tender of Receivership ( “ Declarat ion” ) finding, “ t he Com m issioner is sat isfied t hat t he bank is insolvent wit hin t he m eaning of K.S.A. 9- 1902( 2) and as such, t he sit uat ion present s an im m ediat e danger t o t he public welfare j ust ifying uses of t his em ergency proceeding.” ECF# 117- 6, p. 2. The Com m issioner’s Declarat ion quot ed t his Kansas st at ut e as providing, “ A bank or t rust com pany shall be deem ed t o be insolvent . . . ( 2) when it is unable t o m eet t he dem ands of it s credit ors in t he usual and cust om ary m anner.” I d. The Declarat ion direct ed t hat t he Com m issioner was t aking charge of Bank’s “ propert ies and asset s.” I d. The Declarat ion furt her appoint ed t he Federal Deposit I nsurance Corporat ion as receiver aft er finding t hat t he Bank “ cannot resum e business or liquidat e it s indebt edness t o t he sat isfact ion of deposit ors and credit ors and knowing furt her t hat t he deposit s of said bank are insured by t he Federal Deposit I nsurance Corporat ion.” I d. On t he sam e day as t his seizure, t he FDI C followed t hrough wit h a pre- arranged sale of a subst ant ial port ion of t he Bank’s asset s. The Declarat ion also not ified t he Bank it had “ 30 days t o file an appeal pet it ion for j udicial review under t he Kansas Judicial Review Act , 11 K.S.A. § 77- 602 et seq.” I d. at 3. A t im ely pet it ion for review was filed. The pet it ioners Bank and CFC argued, in part , t hat t he Bank “ was not , in fact , insolvent wit hin t he m eaning of” st at e law. ECF# 117- 7, pp. 2- 3. Eight een m ont hs lat er in March of 2010, t he st at e dist rict court ent ered a j udgm ent “ denying relief t o t he” plaint iffs except for “ rem anding t his m at t er back t o t he St at e Banking Com m issioner and t he St at e Banking Board for furt her proceedings consist ent wit h” t he dist rict court ’s fift y- t wo- page opinion. ECF# 117- 9, p, 53. The dist rict court ’s opinion included an int erpret at ion of t he st at e st at ut e in quest ion: Thus, Pet it ioners’/ Appellant s’ assert ion t hat t he phrase “ is unable” , as used in K.S.A. 9- 1902, m eans “ insolvency” in act ual fact is t oo st rict of a st andard by which t o m easure t he aut horit y of t he Com m issioner t o seize a banking inst it ut ion. . . . . Thus, here, t he legal quest ion before t he Court , properly det erm ined, would be not whet her t he Colum bian St at e Bank and Trust Com pany was, in fact , insolvent , only whet her it reasonably appeared t o be so at seizure and t hat based on exam inat ion and report s available t o t he Com m issioner at t he t im e he was ‘sat isfied t hat it . . . cannot sufficient ly . . . resum e business or liquidat e . . . .” ( K.S.A. 9- 1905) . ECF# 117- 9, pp. 35- 36, 40. As t hese quot at ions show, t he dist rict court int erpret ed t he relevant Kansas st at ut es and est ablished t he governing legal st andard on insolvency which was followed t hroughout t he adm inist rat ive review proceedings. CFC’s pet it ion for j udicial review also assert ed t he denial of due process ( lack of not ice and hearing) in violat ion of t he Fourt eent h 12 Am endm ent and 42 U.S.C. § 1983. ECF# 117- 7, pp. 4- 5. On t his due process issue, t he st at e dist rict court ’s opinion included t hese conclusions of law: I t seem s clear t hat bank seizures, given t heir exigency, have long been excused from any not ice or pre- hearing seizure requirem ent ( cit at ion om it t ed) . However, such is not necessarily t he case post - seizure. Som e subst ant ive post - deprivat ion review is required in order t o const it ut ionally ground t he decision. ( cit at ion om it t ed) . A bank seizure is not except ed. I n Woods v. Federal Hom e Loan Bank Bd., 825 F.2d 1400 ( 5t h Cir. 1987) , cert . denied, 485 959, 99 L.Ed.2d 422 ( 1988) , a review of t he adm inist rat ive record and an opport unit y t o subm it evident iary m at t ers under st andard sum m ary j udgm ent rules, by which t he case was present ed t o t he Court , was deem ed const it ut ionally sufficient , part icularly in light of t he fact t he financial inst it ut ion had been t he subj ect of in- house scrut iny by regulat ors for four years and was t he subj ect of a form al cease and desist order. I d. at pp. 1410- 1413. . . . . . . . Thus, since t o dat e a seem ingly const it ut ionally adequat e post - seizure procedure has been om it t ed here, and t he consequences of such an om ission, given t he record before t he court , is t o disable an adequat e rem edy or adequat e review, t he j ust ificat ion or rem edy for such an om ission needs furt her exam inat ion. . . . Here, while t he Com m issioner, as not ed, purport ed t o act under t he em ergency procedures grant ed in t he Kansas Adm inist rat ive Procedure Act ( K.S.A. 77- 536) , he, t o t he Court ’s knowledge, has not yet followed t hrough wit h a post - deprivat ion hearing ( K.S.A. 77- 536( e) ) . I f t his is t he case, t he Court believes t his was error. . . . Given t he breadt h of circum st ances affect ing licensure t hat invoke a hearing when a license is effect ed, clearly, t hen, a bank’s seizure and t he effect ive t erm inat ion of it s operat ion as a going banking concern, as occurred in present case, should com m and a hearing by t he direct ive of K.S.A. 77- 512. . . . 13 I f t his is correct , t hen, at best here, Pet it ioners are before t he Court appealing “ non- final agency act ion” as defined by K.S.A. 77- 607( b) ( 2) . . . . . . . . Thus, post ponem ent of j udicial review of t he lim it ed issue, as available in t his proceeding, provokes no m ore inadequat e rem edy t han t hat which present ly exist s nor has subst ant ial harm been shown t o probably have been increased by such a post ponem ent ( K.S.A. 77- 608( b) ) . Furt her, delay for a K.S.A. 77- 536( e) post - deprivat ion hearing cert ainly offends no public benefit disproport ionat ely. I d. As such, Pet it ioners’ pet it ion, seen as a pet it ion for int erlocut ory review, would fail for t he reason t hat K.S.A. 77- 608’s “ non- final” , int erim , relief could sim ply not be sust ained under K.S.A. 77- 608( b) in fact or law at t he t im e t he pet it ion in t his case was filed. . . . . Furt her, as not ed earlier, given t hat t he record in t his case lacks any precedent and subst ant ive const it ut ional developm ent and grounding t hat would be essent ial for m eaningful j udicial review or t hat could com m and const it ut ional respect for any j udicial order ent ered, a rem and t o t he agency for im plem ent at ion of t he hearing process cont em plat ed by K.S.A. 77- 536( e) seem s warrant ed from any perspect ive. Once such proceedings are concluded, whet her by hearing, m eaningful st ipulat ion, sum m ary j udgm ent , or adm ission, only t hen can j udicial review, if elect ed, be m eaningfully and const it ut ionally exercised. However, t his said, any fut ure rem edy as previously discussed would st ill be grossly lim it ed. ECF# 117- 9, pp. 44- 52. Besides rem anding t he m at t er for a post - seizure hearing under K.S.A. § 77- 536, t he dist rict court , as shown above, concluded as a m at t er of law t hat a subst ant ive review here post - seizure would be const it ut ionally adequat e, t hat such a procedure was provided by t his st at ut e, and t hat post poning j udicial review for t his hearing would not m ake t he “ grossly lim it ed” fut ure rem edies any m ore “ grossly lim it ed” t han 14 t hey already were. These rulings were necessarily part of t he st at e j udicial review proceedings here. Around t wo years lat er, in April of 2012, t he OSBC issued it s sixt een- page decision grant ing sum m ary j udgm ent against CFC and t he Bank. ECF# 117- 13. I n t hat decision, t hen- Com m issioner Splichal charact erized t he issues in disput e as t hese: The sole issues in disput e as a m at t er of law are ( 1) whet her Colum bian Bank was insolvent on August 22, 2008, when t he form er Bank Com m issioner issued a Declarat ion of I nsolvency and ( 2) whet her t here were grounds t o appoint t he FDI C as Receiver and for t he FDI C t o cont inue serving as Receiver. The part ies are all in agreem ent t hat Sum m ary Judgm ent as a m at t er of law is appropriat e as t here are no genuine m at erial fact s in disput e. What is disput ed bet ween t he part ies are t he conclusions t hat should be drawn from t he fact s. ECF# 117- 13, p. 9. I n addressing t he Bank’s argum ent s against t he OSBC’s failure t o include it s adequat e sources of liquidit y in t he form ula, Splichal concluded, in part : The liquidit y posit ion of Colum bian Bank det eriorat ed even furt her leading up t o it s closure. Bankers Bank of Kansas wit hdrew it s line of credit t o Colum bian Bank. The FHLB froze t heir line of credit . AVI VA ( t he bank’s largest deposit or) was in t he process of wit hdrawing it s funds by t he end of t he t hird quart er t hat year. By July 30, 2008, Colum bian Bank was not ified t he FDI C was t aking bids for t he sale of t he bank’s deposit account s. The bank was in dire condit ion. Colum bian Bank viewed it s liquidit y posit ion t hrough rosecolored glasses. The fact t hat t he bank had not im proved it s liquidit y posit ion prior t o t he closing, despit e having had m ont hs of advance not ice regarding t he regulat or’s st ance on it s liquidit y posit ion, furt her j ust ifies view ing t he cont ingent liquidit y sources wit h skept icism and not including t hem in t he liquidit y form ula. I f t he liquidit y sources were as readily available as Colum bian Bank 15 now cont ends, t hen it presum ably could have and should have secured t hem well in advance of t he closing. I n fact , Colum bian Bank’s brokered deposit plan dat ed August 15, 2008, recognized t he risks involved wit h t he speculat ive sources of liquidit y. As such, t he brokered deposit plan provides addit ional support for t he m et hodology used by t he OSBC t o calculat e t he bank’s liquidit y. ( R. 154.) To conclude, t he at t em pt s of Colum bian Bank t o im prove it s liquidit y sit uat ion were sim ply t oo lit t le, t oo lat e. ECF# 117- 13, pp. 13- 14. Splichal also rej ect ed t he Bank’s reading of K.S.A. 9- 1902( 2) as t o require an act ual unsat isfied credit or’s dem and before a finding of insolvency. I d. at pp. 14- 15. Splichal concluded t hat , “ [ a] preponderance of evidence, t hat is clear and convincing in nat ure, dem onst rat es Colum bian Bank was insolvent , as defined in K.S.A. 91902( 2) , on August 22, 2008.” I d. at p. 15. This order not ified t he part ies t hat t hey had t hirt y days t o file a pet it ion for j udicial review under K.S.A. 77613. I d. at p. 17. I n May of 2012, t he Bank and CFC filed a new t welve- page pet it ion for j udicial review in Shawnee Count y Dist rict Court and “ concurrent ly filed a m at erially ident ical Second Am ended Pet it ion for Judicial Review” in t he prior j udicial review proceeding. ECF# 117- 14, p. 1, n. 1. The pet it ioners claim ed relief because: a. The Com m issioner’s act ions, or t he st at ut e or rule and regulat ion on which t he Com m issioner’s act ions are based, violat es t he Due Process Clause on it s face or as applied by allowing t he Com m issioner t o seize a solvent , adequat ely capit alized bank. b. The Com m issioner violat ed t he Due Process Clause by failing t o provide a t im ely and adequat e hearing for t he deprivat ion of Pet it ioner’s libert y or propert y. 16 c. The Com m issioner act ed beyond t he j urisdict ion conferred by law. d. The Com m issioner has erroneously int erpret ed or applied t he law. e. The Com m issioner’s act ion is based on a det erm inat ion of fact s t hat is not support ed by evidence t hat is subst ant ial when viewed in light of t he record as a whole, which includes t he agency record for j udicial review, supplem ent ed by any addit ional evidence received by t he Court . f. The Com m issioner’s act ion is ot herwise unreasonable, arbit rary, or capricious. ECF# 117- 14, p. 12. The OSBC filed a m ot ion t o dism iss t he j udicial review proceeding, arguing in part t hat t he pet it ioners had no effect ive rem edy and were seeking only an advisory opinion. The Shawnee Count y Dist rict Court in a six- page decision dism issed t he act ion as m oot . ECF# 117- 16. The CFC and t he Bank appealed. Mark McCaffree, current Vice President of CFC, avers t hat OSBC “ did not file t he full agency adm inist rat ive record wit h t he Dist rict Court of Shawnee Count y before t he m at t er was dism issed as m oot ” and, consequent ly, t hat t he KCOA did not have t he full agency record on appeal. ECF# 117- 1, p. 10, ¶ 48. The KCOA regarded t he record on appeal as “ volum inous” wit h “ m ore t han a t housand pages of docum ent s.” ECF# 11719, p. 2. I n t heir brief before t he Kansas Court of Appeals, t he Bank and CFC argued t heir act ion was not m oot and advocat ed for t he Kansas Court of Appeals t o proceed in t he following way: The Court need not rem and t he case t o t he dist rict court because resolut ion of t his case t urns on t he proper int erpret at ion 17 of t he st at ut es conferring aut horit y on t he Com m issioner t o seize a bank and appoint a receiver—an issue t his Court reviews de novo. I t is undisput ed t hat t he Bank never failed t o m eet a deposit or’s or credit or’s dem and for paym ent and t hat t he Bank had a m inim um of $8 m illion in excess liquidit y on t he day it was closed. The Com m issioner’s apparent assum pt ion t hat a bank m ust keep on hand sufficient cash t o im m ediat ely and prem at urely pay fut ure obligat ions which by regulat ory fiat have been select ively chosen for accelerat ed paym ent , and t hat he had aut horit y t o seize and appoint a receiver for a bank ut ilizing such fuzzy m at h, is cont rary t o t he governing st at ut es and conflict s wit h a cent ury of case law. When applying t he law t o t he fact s found by t he Com m issioner, no conclusion can be reached ot her t han t hat Colum bian Bank was not insolvent , and t hat t he Com m issioner exceeded his lawful aut horit y by seizing and appoint ing a receiver. ECF# 117- 17, pp. 12- 13. Am ong t he issues list ed in t heir fort y- nine- page appellat e brief, t he Bank and CFC argued for t heir st at ut ory int erpret at ion of insolvency, against t he agency’s int erpret at ion of insolvency as a denial of due process, and against t he dist rict court ’s conclusion t hat it lacked j urisdict ion for m oot ness. I d. at p. 13. I nst ead of cont est ing t he t ot als and am ount s calculat ed for t he different fact ors, t he appellant s’ brief disput ed Com m issioner Splichal’s underst anding and conclusions about t hese sum s used in det erm ining t he Bank’s liquidit y posit ion on August 21, 2008. Nonet heless, t he appellant s’ brief ended it s st andard of review wit h, “ When t he cont rolling fact s are based on st ipulat ions, an appellat e court m ay det erm ine de novo what t he fact s est ablish and need not rem and t o t he dist rict court t o reevaluat e under t he proper legal st andard.” I d. at p. 19- 20 ( cit at ion om it t ed) . 18 Consist ent wit h t hat posit ion, t he appellant s’ brief opened it s argum ent opposing t he st at ut ory int erpret at ion used by t he st at e dist rict court and t he Com m issioner on sum m ary j udgm ent by st at ing: There is no disput e t hat , on August 22, 2008—t he day t he Com m issioner seized Colum bian Bank—t he Bank was showing a profit , it was adequat ely capit alized, and t hat it could and did m eet all of it s deposit ors’ and credit ors’ dem ands for paym ent t hat day. I t is also undisput ed t hat t he Bank had at least $7,999,000 in excess cash, even aft er subt ract ing nearly $21 m illion from t he Bank’s cash sources t o account for t he Bank’s largest deposit account ( t he value of which had not been, and was not expect ed t o be, dem anded by t he deposit or) . Vol. 15, p. 9- 10, 12. The Com m issioner declared t he Bank insolvent because of a concern as t o whet her t he Bank could pay off cert ificat es of deposit m at uring t he following week. ECF# 117- 17, p. 20. Addit ionally, t he appellant s argued t hat even if t he st at ut e allowed predict ing fut ure solvency, t he Com m issioner’s det erm inat ions were inconsist ent wit h t he st at ut e for including dem ands t hat were not usual, cust om ary and ant icipat ed and for not including fut ure sources of liquidit y. I d. at pp. 27- 31. Appellant s fram ed t his argum ent as a challenge t o t he Com m issioner’s erroneous int erpret at ion and applicat ion of his st at ut ory aut horit y and not as a challenge seeking j udicial review on t he adequacy of t he ent ire adm inist rat ive record t o sust ain t he Com m issioner’s findings. I d. at pp. 30- 31. On t he quest ion of due process, t he appellant s expressly argued lack of not ice on t he Com m issioner’s st at ut ory int erpret at ion prior t o seizure and t he Com m issioner’s ongoing effort s t o avoid post - seizure j udicial review of his act ions. I d. at p. 33- 34. Specifically, “ [ t ] he Com m issioner seeks t o deny any sort of j udicial review of his act ion 19 what soever, and t he dist rict court erroneously abided. That is unconst it ut ional.” I d. at p. 34. On July 25, 2014, t he Kansas Court of Appeals ( “ KCOA” ) issued it s t welve- page opinion, 2014 WL 3732013, concluding: Alt hough we do not find t his j udicial review act ion t o be m oot , we affirm t he dist rict court ’s denial of relief because t he Bank and it s owner have failed t o m eet t heir burden of proving t he invalidit y of t he Com m issioner’s act ion under t he Kansas Judicial Review Act ( KJRA) , K.S.A. 77- 601 et seq. ECF# 117- 19, p. 2. The KCOA observed upfront : At t he out set , we not e t hat t he part ies agree t hat t he fact s of t his j udicial review act ion are undisput ed. Rat her t he issues present ed in t his act ion are eit her quest ions of law or quest ions involving t he applicat ion of t he law t o t he undisput ed fact s. Alt hough t he record is volum inous and cont ains m ore t han a t housand pages of docum ent s, we will briefly sum m arize t he fact s t hat led t o t his appeal. I d. The KCOA recognized t hat it s review under t he KJRA was lim it ed t o “ whet her an agency erroneously int erpret ed t he law, whet her it t ook an act ion based on a det erm inat ion of fact t hat was not support ed by subst ant ial evidence, or whet her it act ed unreasonably, arbit rarily, or capriciously.” I d. at p. 6 ( cit at ion om it t ed) . The KCOA recognized it s “ unlim it ed review over st at ut ory int erpret at ion wit hout deference t o t he agency’s int erpret at ion.” I d. Aft er concluding t hat t he Bank and t he CFC had st anding t o seek j udicial review under t he KJRA, t he KCOA began it s analysis of t he m oot ness issue by sum m arizing it s underst anding of CFC’s appeal: On appeal, Colum bian seeks t o have us declare t hat t he Bank was not insolvent , declare t hat t he Com m issioner’s act ion was 20 unconst it ut ional, declare t hat t he Com m issioner had no aut horit y t o appoint a receiver, and t o set aside bot h t he Declarat ion of I nsolvency and Tender of Receivership ent ered on August 22, 2008, and t he Decision on Sum m ary Judgm ent Mot ions ent ered on April 18, 2012. Colum bian argues t hat such a declarat ion regarding t he closure of t he Bank, t he seizure of it s asset s, and t he appoint m ent of a receiver could be a basis for a civil act ion. Moreover, Colum bian m aint ains t hat such a declarat ion would clear it s nam e. I n addit ion, Colum bian cont ends t hat if t he Com m issioner’s det erm inat ion of insolvency is allowed t o st and, t he Colum bian Financial Corporat ion will not be able t o chart er anot her bank in Kansas. ECF# 117- 19, at p. 8. The relief sought in t hat appeal is essent ially t he sam e relief t hat CFC present ly seeks in t his federal act ion. The KCOA rej ect ed t he m oot ness argum ent not ing t he Shawnee Count y Dist rict had correct ly found t he need for a subst ant ive post - seizure review and “ appropriat ely rem anded t he m at t er t o t he Com m issioner t o conduct post deprivat ion proceedings under K.S.A. 77- 536( e) .” I d. at p. 9. Thus, when t hese post - deprivat ion proceedings becam e final, t he m at t er was ripe for j udicial review. The KCOA t hen held, “ [ a] ccordingly, we will review t he issues on t he m erit s. See Est at e of Belden v. Brown Count y, 46 Kan. App. 2d 247, 288- 89, 261 P.3d 943 ( 2011) ( ‘An appellat e court has a vant age point equal t o t hat of t he dist rict court when it com es t o quest ions of law.’) .” I d. Because t he appellant s had argued t hat t he Com m issioner’s st at ut ory int erpret at ion of his aut horit y t o seize and his ongoing effort s t o evade j udicial review were a denial of due process, t he KCOA held: I n addit ion t o finding t hat Colum bian has st anding and t he issues are not m oot , we find t hat t he procedure ut ilized aft er t he Declarat ion of I nsolvency and Tender of Receivership was 21 necessary t o provide due process t o Colum bian. Colum bian argues t hat elim inat ing j udicial review of a st at e bank closure “ would creat e serious const it ut ional im plicat ions as it would deny banks and t heir shareholders t o due process.” Colum bian argues t hat t his court should apply Judge Theis’ analysis where he st at ed t hat alt hough bank seizures have long been excused from any not ice or pre- seizure hearing requirem ent , t hat is not necessarily t he case post - seizure, and som e subst ant ive post deprivat ion review is required t o const it ut ionally ground t he decision. The basic elem ent s of procedural due process are not ice and an opport unit y t o be heard. St at e v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 ( 2000) . Appellat e review of alleged due process violat ions is a quest ion of law over which t his court has unlim it ed review. Hem phill v. Kansas Dept . of Revenue, 270 Kan. 83, 89, 11 P.3d 1165 ( 2000) . Colum bian argues t hat banks and t heir owners are ent it led t o due process, cit ing Franklin Sav. Ass'n v. Office of Thrift Supervision, 35 F.3d 1466, 1472 ( 10t h Cir.1994) , and Woods v. Federal Hom e Loan Band Bd., 826 F.2d 1400, 1411 ( 5t h Cir.1987) , which st at es t hat “ owners of a FSLI C- insured savings and loan associat ion clearly have t he const it ut ional right t o be free from unlawful deprivat ions of t heir propert y.” We agree. Clearly, Colum bian should be ent it led t o not ice and an opport unit y t o be heard, which was provided t o t hem when t hey received review from t he Com m issioner and t he Kansas court s under t he KJRA. ECF# 117- 19, p. 10. The KCOA clearly underst ood t he appellant s t o be m aking a due process challenge, a quest ion of law. The KCOA also plainly held t hat t he Bank and CFC had received due process from t he subst ant ive post - seizure review conduct ed by t he Com m issioner which was t hen reviewed on t he m erit s by t he Kansas court s under t he KJRA. Consequent ly, t he KCOA t ook up t he subst ant ive issues present ed by t he Bank and CFC in t he j udicial review act ion. The first issue 22 was whet her t he Com m issioner exceeded his st at ut ory aut horit y by appoint ing a receiver when t he Bank was alleged t o st ill be solvent . “ Specifically, Colum bian argues t hat t he Com m issioner erroneously int erpret ed t he law when he appoint ed a receiver based on only an appearance of insolvency.” I d. at p. 10. The KCOA’s review of t his st at ut ory int erpret at ion issue was unlim it ed. I d. Reading in pari m at eria t he relevant provisions, K.S.A. 9- 1902, 1903, and 1905, in considerat ion wit h t he Com m issioner’s st at ut ory dut y of prot ect ing t he public, t he KCOA held: Based on our reading of t he Kansas Banking Code, we find t hat t he form er Com m issioner was aut horized t o declare t he Bank insolvent under K.S.A. 9–1902( 2) , t ake charge of t he Bank and all of it s asset s under K.S.A. 9–1903, and appoint a receiver under K.S.A. 9–1905. Moreover, we rej ect Colum bian's argum ent t hat a finding of insolvency cannot be m ade and t hat a receiver cannot be appoint ed unt il act ual dem ands for wit hdrawals have been m ade and unsat isfied. Thus, we conclude t hat t he st at ut e perm it s t he Com m issioner t o reasonably consider fut ure dem ands t hat will be m ade on a bank in order t o prevent im m inent harm t o deposit ors and t o t he public. ECF# 117- 19, p. 11. Thus, t he KCOA found t hat t he Kansas st at ut es were correct ly int erpret ed by t he Com m issioner as giving him t he aut horit y t o act . Under t he t it le of “ Subst ant ial Evidence,” t he KCOA addressed t he appellant s’ alt ernat ive argum ent not ing first , The Bank argues in t he alt ernat ive t hat t he Com m issioner's conclusion t hat t he Bank was insolvent is not support ed by subst ant ial com pet ent evidence. As indicat ed above, however, t he part ies agree t hat t he m at erial fact s are undisput ed. Alt hough Colum bian would be ent it led t o relief under t he KJRA if t he Com m issioner's act ion was “ based on a det erm inat ion of fact , m ade or im plied by t he agency, t hat [ was] not support ed ... by evidence t hat is subst ant ial when viewed in light of t he record 23 as a whole,” Colum bian does not argue it is ent it led t o relief under t his sect ion of t he KJRA. I nst ead, in it s st andards of review sect ion, Colum bian alleges it is only challenging int erpret at ion of st at ut es and t hat t his court can det erm ine de novo what t he st ipulat ed fact s est ablish. As such, we will look t o t he fact ual findings set fort h in t he Decision on Sum m ary Judgm ent Mot ions ent ered by t he Com m issioner on April 18, 2012, and det erm ine whet her t hey are support ed by subst ant ial evidence. I d. Relying on what t he appellant s had argued in t heir brief, t he KCOA underst ood first t hat CFC had chosen t o not argue for j udicial review “ in light of t he record as a whole,” even t hough it would have been ent it led t o pursue such j udicial review . I d. I nst ead, CFC’s challenge was wit h t he Com m issioner’s int erpret at ion and applicat ion of t he Kansas st at ut es based on t he uncont est ed/ st ipulat ed findings of fact in t he Com m issioner’s sum m ary j udgm ent decision. I n t hat regard, t he KCOA also addressed what CFC argued in t he alt ernat ive if CFC’s st at ut ory int erpret at ion challenge were rej ect ed: Colum bian argues t hat if we find t hat t he Com m issioner correct ly considered dem ands t hat would be m ade on t he Bank on August 29, 2008, in det erm ining t he Bank's liquidit y posit ion on August 21, 2008, t hen t he Com m issioner erred in not also considering sources of liquidit y t hat were likely t o be available t o t he Bank on or before t hat fut ure dat e. Colum bian's argum ent s t hat t he Com m issioner failed t o consider ot her sources of liquidit y t hat m ight have been available t o t he Bank by t hat “ fut ure dat e” —presum ably August 28, 2008—have no m erit . The Com m issioner considered each of t he sources of liquidit y, but ult im at ely det erm ined t hat t hey were t oo cont ingent t o be reliable sources of liquidit y in det erm ining solvency. The Com m issioner did not fail t o consider t hese sources as a m at t er of st at ut ory const ruct ion. He found he could 24 not consider t hese sources because t hey were not likely t o be available. ECF# 117- 19 p. 11. The KCOA specifically addressed t he appellant s’ ot her argum ent s on t he Com m issioner’s classificat ion of cert ain account s, renewal of brokered account s, and t he largest cust om er’s wit hdrawal of funds. The KCOA concluded it s analysis as follows: Finally, Colum bian argues t hat anyt hing less t han a requirem ent of insolvency- in- fact violat es due process. But t he Com m issioner did find t he Bank t o be insolvent . So t his argum ent fails t o provide Colum bian relief from t he Com m issioner's decision. Colum bian failed t o m eet it s burden t o show t hat t he Com m issioner's act ion was invalid. We reviewed t he record as a whole, including evidence bot h support ing and det ract ing from t he Com m issioner's finding, and find t hat t he Com m issioner's decision is support ed by subst ant ial evidence. Moreover, t he Com m issioner did not erroneously int erpret t he law or act unreasonably, arbit rarily, or capriciously. We, t herefore, affirm t he dist rict court 's decision denying Colum bian relief. ECF# 117- 19, p. 12. Despit e t he quot ed language above, Mr. McCaffree avers on behalf of CFC t hat , “ The Kansas Court of Appeals’ Opinion . . . upheld t he OSBC’s int erpret at ion of t he banking st at ut es wit hout addressing Colum bian’s argum ent t hat such an int erpret at ion is unconst it ut ionally vague as applied t o Colum bian.” ECF# 117, ¶ 81; ECF# 117- 1, ¶ 52. Alm ost one year aft er t he KCOA’s opinion, t he Kansas Suprem e Court denied review. First Am ended Com plaint in Federal Act ion Following t he Tent h Circuit ’s first rem and, CFC filed an am ended com plaint wit h leave of t he court . ECF# 66. CFC’s allegat ions appear chronologically. For what led up t o t he OSBC’s order declaring t he Bank 25 insolvent and seizing t he Bank’s asset s, CFC’s relevant allegat ions are t he following. The Bank st rengt hened it s liquidit y posit ion aft er t he agreed cease and desist order by offering com pet it ive cert ificat es of deposit , by finding a purchaser for som e Texas propert y, and by increasing it s line of credit wit h t he Federal Reserve Bank ( “ FRB” ) . The Bank had posit ive excess liquidit y as of August 22, 2008, which would cont inue t hrough at least August 28, and yet , t he OSBC seized t he Bank on a finding t hat it was insolvent and unable t o m eet t he dem ands of it s credit ors in t he usual and cust om ary m anner. The OSBC’s decision was based on forecast ed illiquidit y which assum ed t he Bank would pay off debt s accruing on August 28 wit h only t hat cash available on August 22. The OSBC’s proj ect ions did not include FRB’s increased line of credit , t he ant icipat ed deposit growt h, or t he Texas propert y sale. The OSBC “ m isrepresent ed” t he usual and cust om ary dem ands by assum ing t he Bank’s largest cust om er would wit hdraw all deposit s im m ediat ely when “ t here was no t hreat of t he ent ire deposit being wit hdrawn earlier t han Sept em ber 30, 2008.” ECF# 66, p. 8, ¶ 40. As t o t he proceedings aft er t he OSBC’s Declarat ion, CFC’s relevant allegat ions are t he following. OSBC at t em pt ed, but failed, t o deny OSBC a post - deprivat ion hearing. The OSBC’s post - deprivat ion hearing was const it ut ionally deficient because CFC was denied t he opport unit y t o depose Mr. Thull, t he Bank Com m issioner who decided, signed, and sent out t he Declarat ion of I nsolvency and Tender of Receivership. Wit hout Thull’s 26 deposit ion, CFC says it was prevent ed “ from det erm ining t he precise j ust ificat ions and calculat ions relied upon in closing t he Bank, and [ was] im peded [ in] it s abilit y t o prove t he Bank should not have [ been] declared insolvent .” ECF# 66, p. 10, ¶ 49. CFC alleges t hat Com m issioner Splichal’s sum m ary j udgm ent order was deficient for applying an erroneous int erpret at ion of “ insolvency.” CFC also alleges t his adm inist rat ive proceeding was illusory due process because Com m issioner Splichal could not grant m eaningful relief in t he form of an inj unct ion or m onet ary dam ages. As t o t he j udicial review proceedings following t he post - seizure adm inist rat ive hearing, CFC m akes t he blanket allegat ion t hat t he st at e court s “ rubber- st am ped t he OSCG’s unconst it ut ional conduct .” ECF# 66, p. 12. CFC sum m arizes t hese j udicial proceedings as t he st at e dist rict court finding t hat CFC “ was not ent it led t o j udicial review” and t hen grant ing OSBC’s m ot ion t o dism iss, followed by t he COA “ affirm [ ing] ” t he dist rict court in “ an unpublished per curiam opinion.” I d. CFC alleges it s argum ent s on appeal addressed only Thull exceeding his st at ut ory powers in closing t he Bank and t he dist rict court having j urisdict ion t o review t he OSBC’s act ions. ECF# 66, p. 12, ¶ 58. CFC furt her alleges t he KCOA erred on appeal: 60. Beyond m erely affirm ing t he dist rict court on t he legal issues raised CFC, t he court of appeals m ade fact ual findings regarding t he propriet y of t he OSBC’s act ions. Such findings were im proper because t here was no evident iary record before t he court of appeals. The OSBC did not file t he agency record from it s adm inist rat ive proceedings wit h dist rict court ( as is it s 27 responsibilit y under K.S.A. 77- 620( a) ) before t he dist rict court dism issed t he pet it ion for review. Accordingly, t he agency record was not t ransm it t ed t o t he court of appeals eit her. ECF# 66, p. 12. CFC alleges it s exhaust ion of rem edies under st at e law was com plet e wit h t he Kansas Suprem e Court ’s denial of t he pet it ion for review. CFC’s am ended com plaint assert s t hree count s of relief under 42 U.S.C. § 1983. Count one alleges denial of procedural due process in t he seizing of t he Bank and it s asset s wit hout providing CFC wit h a hearing “ at a m eaningful t im e and in a m eaningful m anner” or wit h a post - seizure hearing at which m eaningful relief was available. Count one also assert s t he post seizure proceeding and j udicial review of it did not provide due process “ because at no t im e did CFC have an opport unit y t o receive inj unct ive or m onet ary relief t hat would have provided it an adequat e rem edy.” ECF# 66, ¶ 71. Count t wo alleges denial of procedural due process in t he seizing of t he bank pursuant t o st at e st at ut es t hat were unconst it ut ionally vague in failing t o provide fair not ice of what alleged condit ions in t he Bank would j ust ify a finding of insolvency and seizure. CFC alleges it s “ propert y int erest in t he Bank as t he Bank’s sole shareholder was prot ect ed by t he due process clause of t he Fourt eent h Am endm ent .” I d. at ¶ 81. I n t his count , CFC also alleges t hat , “ The proj ect ions Defendant s relied upon in finding t hat t he Bank m ight be able t o m eet t he dem and of a credit or at a fut ure dat e arbit rarily and unreasonably ignored sources of liquidit y available t o t he 28 Bank, and grossly overst at ed t he dem ands t he Bank would face in t he norm al course of business.” I d. at ¶ 79. Count t hree alleges a m alicious and int ent ional violat ion of it s subst ant ive due process by t he defendant s issuing t he Declarat ion and seizing t he Bank based on incom plet e proj ect ions of liquidit y and m isrepresent at ions of liabilit ies and wit hout evidence t hat t he Bank was unable t o m eet it s credit ors’ dem ands in t he usual and cust om ary m anner. CFC’s prayer for relief asks for j udgm ent in it s favor and: b. an inj unct ion requiring Defendant s t o provide CFC a hearing before a neut ral j udge or m agist rat e at which it m ay pursue inj unct ive relief sufficient t o rem edy t he inj uries CFC has suffered arising from t he issuance of t he Declarat ion, t he seizure of t he Bank, and t he appoint m ent of FDI C as receiver; c. t he award of at t orneys’ fees and cost s as provided for under 42 U.S.C. § 1988( b) ; d. t he award of such ot her relief as t his Court m ay deem j ust and proper. ECF# 66, p. 17. Re s Ju dica t a a n d Colla t e r a l Est oppe l The defendant s principally argue t hat t he plaint iff’s § 1983 due process claim s, procedural and subst ant ive, are subj ect t o t he doct rinal bars of res j udicat a and collat eral est oppel. Having fully disput ed t he m anner and subst ance of t he Bank’s seizure and receivership in t he post - deprivat ion adm inist rat ive proceedings provided by t he OSBC, CFC concluded t hem by subm it t ing all issues for final decision before t he presiding officer Com m issioner Splichal. CFC t hen pursued and received j udicial review of t his 29 adm inist rat ive decision wit h t he Kansas Court s. The plaint iff’s due process claim s pending in federal court are all m at t ers t hat eit her were decided in t hese st at e proceedings or t hat could have been decided in t hem . CFC had a full and fair opport unit y t o lit igat e all due process challenges in t he st at e proceedings. CFC had t he rem edies available under t he Kansas Judicial Review Act ( “ KJRA” ) which provides t hat t he part y assert ing an agency act ed invalidly carries t he burden of proof and t hat a court m ay grant relief only aft er det erm ining one of t he following: ( 1) The agency act ion, or t he st at ut e or rule and regulat ion on which t he agency act ion is based, is unconst it ut ional on it s face or as applied; ( 2) t he agency has act ed beyond t he j urisdict ion conferred by any provision of law; ( 3) t he agency has not decided an issue requiring resolut ion; ( 4) t he agency has erroneously int erpret ed or applied t he law; ( 5) t he agency has engaged in an unlawful procedure or has failed t o follow prescribed procedure; ( 6) t he persons t aking t he agency act ion were im properly const it ut ed as a decision- m aking body or subj ect t o disqualificat ion; ( 7) t he agency act ion is based on a det erm inat ion of fact , m ade or im plied by t he agency, t hat is not support ed t o t he appropriat e st andard of proof by evidence t hat is subst ant ial when viewed in light of t he record as a whole, which includes t he agency record for j udicial review, supplem ent ed by any addit ional evidence received by t he court under t his act ; or ( 8) t he agency act ion is ot herwise unreasonable, arbit rary or capricious. 30 K.S.A. 77- 621( c) . The defendant s argue t he st at ut ory breadt h of available j udicial review encom passes t he plaint iff’s due process claim s which could have been fully advanced in t he st at e j udicial review proceedings. Finally, t he defendant s point t o t he KCOA’s “ t horough decision” t hat expressly found “ CFC had been afforded sufficient due process” in t he post - deprivat ion adm inist rat ive proceedings and j udicial review. ECF# 105, p. 21. CFC cont ends t hese doct rinal bars are inapplicable because it was not afforded due process in t he adm inist rat ive proceedings or in t he subsequent j udicial review. CFC not es t he burden is wit h t he defendant s assert ing t he doct rinal bar t o show t he agency proceeding was “ j udicial in nat ure” and provided “ sufficient due process prot ect ions.” Zim m erm an v. Sloss Equipm ent , I nc. 72 F.3d 822, 826 ( 10t h Cir. 1995) ( cit ing Murphy v. Silver Creek Oil & Gas, I nc., 17 Kan.App.2d 213, 837 P.2d 1319, 1321 ( 1992) ) . CFC advocat es following Scroggins v. Dep’t of Hum an Res., 802 F.2d 1289, 1293 ( 10t h Cir. 1986) , t o conclude t hat CFC did not have a full and fair opport unit y t o lit igat e t he m erit s of it s due process claim s. CFC point s t o provisions wit hin t he Kansas Adm inist rat ive Procedure Act ( “ KAPA” ) , 77- 501, et seq., which lim it s discovery t o t hat “ allowed by t he presiding officer,” K.S.A. 77- 521( a) , and which frees t he presiding officer from being “ bound by t echnical rules of evidence,” K.S.A. 77- 524( a) . CFC com plains t hat it was prevent ed from deposing Bank Com m issioner Thull who signed t he Declarat ion and t hat t he presiding officer Splichal im put ed a 31 st at e of m ind t o Thull wit hout giving CFC t he opport unit y t o cross- exam ine Thull. CFC challenges t he j udicial review as insufficient because t he dist rict court dism issed it s pet it ion as m oot and because t he KCOA did not have t he full adm inist rat ive record before it and did not address Colum bian’s argum ent t hat OSBC’s int erpret at ion of t he Kansas banking st at ut es was unconst it ut ionally vague. Due t o t hese argued procedural failures, CFC opposes giving preclusive effect t o t he agency decision and j udicial review findings. Next , CFC argues it s claim s are not barred by res j udicat a because t hey could not have been brought in t he prior proceedings. CFC argues it s procedural due process claim in count one arises from t he defendant s’ behavior in t he adm inist rat ive and j udicial review proceedings and “ res j udicat a does not bar claim s . . . predicat ed on event s t hat post dat e t he filing of t he init ial com plaint .” ECF# 117, p. 37. CFC also insist s t hat raising it s procedural challenges before t he KCOA “ would have been unavailing,” because t he dist rict court did not reach t he m erit s and because t he issues were not raised in t he adm inist rat ive proceeding. “ Finally, and m ost significant ly, Colum bian’s due process inj uries were not ripe unt il t he Kansas Suprem e Court denied Colum bian’s pet it ion for review, because unt il t hen, it was possible ( however unlikely) t hat t he OSBC or t he Kansas court s would provide Colum bian due process.” I d. ( cit at ions om it t ed) . CFC believes it s due process claim “ had not t aken it s fixed and final shape, . . . , unt il it 32 becam e clear t hat no rem edy would be fort hcom ing from Kansas st at e court s.” I d. at p. 38. Under t he Full Fait h and Credit act , “ [ f] ederal court s m ust give t o st at e court j udgm ent s ‘t he sam e full fait h and credit ... as t hey have by law or usage in t he court s of such St at e, Territ ory or Possession from which t hey are t aken.’” Pohl v. U.S. Bank for Merrill Lynch First Franklin Mort gage Loan Trust Back Cert ificat es Series 2007- 4, 859 F.3d 1226, 1229 ( 10t h Cir. 2017) ( quot ing 28 U.S.C. § 1738) . The court s m ust “ ’ascert ain what preclusive effect [ t he st at e] would give it s own decision before we m ay know what effect it should be given in t he federal court .’” I d. ( quot ing St ifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544 ( 10t h Cir. 1996) ) . “ Sect ion 1983, . . ., does not override st at e preclusion law and guarant ee pet it ioner a right t o proceed t o j udgm ent in st at e court on her st at e claim s and t hen t urn t o federal court for adj udicat ion of her federal claim s.” Migra v. Warren Cit y School Dist . Bd. of Ed., 465 U.S. 75, 85 ( 1984) ( public policy behind § 1983 j ust ifies no dist inct ion bet ween issue preclusion and claim preclusion effect of st at e j udgm ent s) . The Suprem e Court , however, recognizes a “ ’full and fair opport unit y’ except ion t o full fait h and credit .” Phelps v. Ham ilt on, 122 F.3d 1309, 1322 ( 10t h Cir. 1997) ( cit ing Allen v. McCurry, 449 U.S. 90. 95 ( 1980) ) . Because res j udicat a is an affirm at ive defense, t he burden of proof rest s wit h t he defendant . Nwosun v. Gen. Mills Rest s., I nc., 124 F.3d 33 1255, 1256 ( 10t h Cir. 1997) , cert . denied, 523 U.S. 1064 ( 1998) . The defense can be present ed in a m ot ion for j udgm ent on t he pleadings based on t he pleadings in t he case and on records from prior cases wit h t he sam e part ies. See Merswin v. William s Cos., I nc., 364 Fed. Appx. 438, 441 ( 10t h Cir. 2010) ; see also Q I nt 'l Courier, I nc. v. Sm oak, 441 F.3d 214, 216 ( 4t h Cir. 2006) ( “ When ent ert aining a m ot ion t o dism iss on t he ground of res j udicat a, a court m ay t ake j udicial not ice of fact s from a prior j udicial proceeding when t he res j udicat a defense raises no disput ed issue of fact .” ) . The court m ay “ t ake j udicial not ice of publicly- filed records in our court and cert ain ot her court s concerning m at t ers t hat bear direct ly upon t he disposit ion of t he case at hand.” Unit ed St at es v. Ahidley, 486 F.3d 1184, 1192 n. 5 ( 10t h Cir.) ( cit at ions om it t ed) , cert . denied, 552 U.S. 969 ( 2007) . Under Kansas law, “ [ r] es j udicat a ( claim preclusion) prevent s t he relit igat ion of claim s previously lit igat ed and cont ains four elem ent s: ( 1) sam e claim ; ( 2) sam e part ies; ( 3) claim s were or could have been raised; and ( 4) a final j udgm ent on t he m erit s.” Neunzig v. Seam an Unified School Dist . No. 345, 239 Kan. 654, 660- 61, 822 P.2d 569 ( 1986) . “ Collat eral est oppel ( issue preclusion) prevent s t he relit igat ion of issues previously lit igat ed, and, if res j udiciat a is found t o apply, t here is no need t o consider t he applicat ion of collat eral est oppel. Neunzig, 239 Kan. at 661 ( cit at ions om it t ed) . “ The doct rine of res j udicat a rest s upon considerat ions of econom y of j udicial t im e and public policy which favors est ablishing cert aint y in 34 j udgm ent s.” Neunzig, 239 Kan. at 662 ( cit at ion om it t ed) . “ The doct rine of res j udicat a ( or claim preclusion) prohibit s a part y from assert ing in a second lawsuit any m at t er t hat m ight have been assert ed in t he first lawsuit .” Winkel v. Miller, 288 Kan. 455, 468, 205 P.3d 688 ( 2009) ( int ernal quot at ion m arks and cit at ion om it t ed) . The Kansas Suprem e Court has art iculat ed t he following relevant principles behind t he res j udicat a doct rine: The doct rine of res j udicat a is a bar t o a second act ion upon t he sam e claim , dem and or cause of act ion. I t is founded upon t he principle t hat t he part y, or som e ot her wit h whom he is in privit y, has lit igat ed, or had an opport unit y t o lit igat e, t he sam e m at t er in a form er act ion in a court of com pet ent j urisdict ion. Penachio v. Walker, 207 Kan. 54, 57, 483 P.2d 1119 ( 1971) . The salut ary rule of res j udicat a forbids a suit or from t wice lit igat ing a claim for relief against t he sam e part y. The rule is binding, not only as t o every quest ion act ually present ed, considered and decided, but also t o every quest ion which m ight have been present ed and decided. Hut chinson Nat 'l Bank & Trust Co. v. English, 209 Kan. 127, 130, 495 P.2d 1011 ( 1972) . The doct rine of res j udicat a prevent s t he split t ing of a single cause of act ion or claim int o t wo or m ore suit s; it requires t hat all t he grounds or t heories upon which a cause of act ion or claim is founded be assert ed in one act ion or t hey will be barred in any subsequent act ion. Parsons Mobile Product s, I nc. v. Rem m ert , 216 Kan. 138, 140, 531 P.2d 435 ( 1975) . This rule is one of public policy. I t is t o t he int erest of t he st at e t hat t here be an end t o lit igat ion and an end t o t he hardship on a part y being vexed m ore t han once for t he sam e cause. The doct rine of res j udicat a is, t herefore, t o be given a liberal applicat ion but not applied so rigidly as t o defeat t he ends of j ust ice. Wells, Adm inist rat or v. Ross, 204 Kan. 676, 678, 465 P.2d 966 ( 1970) . . . . . The doct rine prevent s a second assert ion of t he sam e claim or cause of act ion and, regardless of which st at ut e a part y uses t o proceed t o a t ribunal, where t he sam e fact s, sam e part ies and sam e issues have previously been lit igat ed before a court of com pet ent j urisdict ion which renders a j udgm ent wit hin it s com pet ency, t he cause of act ion is barred. Wirt v. Esrey, 233 Kan. 300, 308, 662 P.2d 1238 ( 1983) . 35 Carson v. Davidson, 248 Kan. 543, 548- 49, 808 P.2d 1377, 1382 ( Kan. 1991) ( quot ing I n re Est at e of Reed, 236 Kan. 514, 519- 20, 693 P.2d 1156 ( 1985) ) ; see Cosgrove v. Kansas Dept . of Social and Rehab. Services, 744 F. Supp. 2d 1178, 1186 ( D. Kan. 2010) ( Kansas appears t o follow t he t ransact ional approach, t hat is, t he cause of act ion includes all claim s or legal t heories arising from t he sam e t ransact ion, event or occurrence.) , aff’d, 485 Fed. Appx. 290 ( 10t h Cir. Jun. 12, 2012) . Under Kansas law, collat eral est oppel, or issue preclusion, “ prevent s a second lit igat ion of t he sam e issue bet ween t he sam e part ies, even when raised in a different claim or cause of act ion.” I n re Applicat ion of Fleet for Relief from a Tax Grievance in Shawnee Count y, 293 Kan. 768, 778, 272 P.3d 583 ( 2012) ( The t hree elem ent s are: “ ( 1) a prior j udgm ent on t he m erit s t hat det erm ined t he part ies’ right s and liabilit y on t he issue based upon ult im at e fact s as disclosed by t he pleadings and j udgm ent ; ( 2) t he sam e part ies or part ies in privit y; and ( 3) t he issue lit igat ed m ust have been det erm ined and necessary t o support t he j udgm ent .” ( cit ing Vent ers v. Sellers, 293 Kan. 87, 98, 261 P.3d 538 ( 2011) ) . This court is t o “ afford t he st at e j udgm ent full fait h and credit , giving it t he sam e preclusive effect as would t he court s of t he st at e issuing t he j udgm ent .” Reed v. McKune, 298 F.3d 946, 949 ( 10t h Cir.2002) ( int ernal quot at ion m arks and cit at ion om it t ed) . The preclusive effect will not operat e when “ t he part y against whom an earlier court decision is assert ed did not 36 have a full and fair opport unit y t o lit igat e t he claim or issue decided by t he first court .” Allen v. McCurry, 449 U.S. 90, 101 ( 1980) . Thus, t he federal court “ m ust det erm ine first whet her, under t he collat eral est oppel rules of Kansas, t he previous rulings by t he st at e t rial court s bar t he plaint iffs from m aint aining t heir present civil right s act ion; and second, whet her t he plaint iffs had a ‘full and fair opport unit y’ t o lit igat e t heir claim s in st at e court .” Phelps v. Ham ilt on, 122 F.3d 1309, 1318 ( 10t h Cir.1997) . I n Phelps, t he Tent h Circuit sum m arized t his except ion for “ full and fair opport unit y” t o lit igat e: “ Redet erm inat ion of issues is warrant ed if t here is reason t o doubt t he qualit y, ext ensiveness, or fairness of procedures followed in prior lit igat ion.” Mont ana v. Unit ed St at es, 440 U.S. 147, 164 n. 11, 99 S.Ct . 970, 979 n. 11, 59 L.Ed.2d 210 ( 1979) . I n det erm ining whet her t he st at e court s' j udgm ent s were fundam ent ally flawed, “ we m ay only exam ine whet her t he st at e proceedings sat isfied ‘t he m inim um procedural requirem ent s of t he Fourt eent h Am endm ent 's Due Process Clause.’” Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 591 ( 10t h Cir.1985) ( quot ing Krem er v. Chem ical Const r. Corp., 456 U.S. 461, 481, 102 S.Ct . 1883, 1897, 72 L.Ed.2d 262 ( 1982) ) . Phelps v. Ham ilt on, 122 F.3d at 1322. More recent ly, t he Tent h Circuit added t he following t o t his except ion: This narrow except ion applies only where t he requirem ent s of due process were not afforded, see Crocog Co. v. Reeves, 992 F.2d 267, 270 ( 10t h Cir. 1993) —where a part y shows “ a deficiency t hat would underm ine t he fundam ent al fairness of t he original proceedings,” Nwosun [ v. General Mills Rest aurant s, I nc.] , 124 F.3d [ 1255,] at 1257 [ ( 10t h Cir. 1997) ] ( cit at ion om it t ed) . See also Mass. Sch. of Law at Andover, I nc. v. Am . Bar Ass'n, 142 F.3d 26, 39 ( 1st Cir. 1998) ( “ [ A] s long as a prior ... j udgm ent is procured in a m anner t hat sat isfies due process concerns, t he requisit e ‘full and fair opport unit y’ exist ed.” ) ; 18 37 Wright & Miller, supra, § 4415, at 366 ( opining t hat full and fair opport unit y except ion “ m ean[ s] no m ore t han t hat claim preclusion cannot arise from proceedings t hat deny due process” ) . The fairness of t he prior proceeding “ is det erm ined by exam ining any procedural lim it at ions, t he part y's incent ive t o fully lit igat e t he claim , and whet her effect ive lit igat ion was lim it ed by t he nat ure or relat ionship of t he part ies.” Nwosun, 124 F.3d at 1257–58. Lenox MacLaren Surgical Corp. v. Medt ronic, I nc., 847 F.3d 1221, 1243 ( 10t h Cir. 2017) . Addit ionally, “ claim preclusion applies t o all claim s arising from t he sam e underlying t ransact ion even where t he new claim s are based on newly discovered evidence, unless t he evidence was eit her fraudulent ly concealed or it could not have been discovered wit h due diligence.” I d. ( cit ing in part “ The very nat ure of due process negat es any concept of inflexible procedures universally applicable t o every im aginable sit uat ion.” Krem er, 456 U.S. at 482 ( int ernal quot at ion m arks and cit at ions om it t ed) . I n Krem er, t he Suprem e Court sum m arized a procedure t hat included a public hearing on t he m erit s before an agency board wit h t he claim ant having t he opport unit y t o present argum ent and evidence followed by j udicial review “ t o assure t hat a claim ant is not denied any of t he procedural right s t o which he was ent it led and” t o det erm ine t hat t he agency board’s decision was not arbit rary and capricious. I d. The Suprem e Court held, “ We have no hesit at ion in concluding t hat t his panoply of procedures, com plem ent ed by adm inist rat ive as w ell as j udicial review, is sufficient under t he Due Process Clause.” I d. Moreover, “ [ t ] he fact t hat Mr. Krem er [ claim ant ] failed t o avail 38 him self of t he full procedures provided by st at e law does not const it ut e a sign of t heir inadequacy.” I d. ( cit at ion om it t ed) . “ [ T] he doct rine of res j udicat a applies t o adm inist rat ive det erm inat ions ’when t he first adm inist rat ive proceeding provides t he procedural prot ect ions sim ilar t o court proceedings when an agency is act ing in a j udicial capacit y.’” I n re Applicat ion of Fleet for Relief from a Tax Grievance in Shawnee Count y, 293 Kan. 768, 779, 272 P.3d 583 ( 2012) ( quot ing Winst on v. Kansas Dept . of SRS, 274 Kan. 396, 413, 49 P.3d 1274 ( 2002) ( cit ing Parker v. Kansas Neurological I nst it ut e, 13 Kan. App. 2d 685, 686, 778 P.2d 390, rev. denied, 245 Kan. 785 ( 1989) ) ) . Put anot her way, while t he doct rine of res j udicat a/ claim preclusion generally does not apply t o adm inist rat ive agency act ions, see Riedm iller v. Harness, 29 Kan.App.2d 941, 944, 34 P.3d 474 ( 2001) , rev. denied, 273 Kan. 1037 ( 2002) , t he doct rine will apply t o adm inist rat ive det erm inat ions when t he agency act s in it s j udicial capacit y and conduct s proceedings so as t o provide t he necessary procedural prot ect ions, Winst on v. Kansas Dept . of SRS, 274 Kan. 396, 413, 49 P.3d 1274, cert . denied, 537 U.S. 1088 ( 2002) . “ Therefore, t he finalit y of an adm inist rat ive decision which has been appealed t o exhaust ion is subst ant ially sim ilar t o t hat of a j udicial det erm inat ion. A final j udicial det erm inat ion is conclusive for all issues raised or which m ight have been raised.” Merkel v. Board of Em ergency Medical Services, 2006 WL 3000761, at * 4, 144 P. 81 ( Table) ( Kan. App. Feb. 14, 2007) ( cit ing Kansas Bapt ist 39 Convent ion v. Mesa Operat ing Lt d. Part nership, 258 Kan. 226, 231, 898 P.2d 1131 ( 1995) ) . I n applying t he four elem ent s of res j udicat a/ claim preclusion t o t he adm inist rat ive decision and t he final j udicial det erm inat ion here, t he part ies’ argum ent s show no disput e over t he sam e claim s, t he sam e part ies, and a final j udgm ent on t he m erit s. This is consist ent wit h t he t ransact ional approach. CFC’s federal act ion involves t he sam e t ransact ion, event s and occurrences involved in t he st at e proceedings. The ext ensive overlap is plainly dem onst rat ed by a sim ple com parison of CFC’s allegat ions and argum ent s m ade in t he st at e proceedings wit h t he allegat ions and argum ent s found in CFC’s first am ended com plaint . All of which is fully set out above. The sam e decisions, sam e act ors, sam e fact ors and sam e procedures challenged and addressed in t he st at e proceedings now drive t his federal lit igat ion. The st at e’s public policy int erest in ending lit igat ion and hardship caused by m ult iple suit s over t he sam e cause is plainly im plicat ed by CFC’s federal suit . I n such circum st ances, Kansas law favors a liberal applicat ion of res j udicat a. Of t he four elem ent s t o claim preclusion, CFC disput es only t he t hird elem ent , t hat is, whet her som e of it s claim s were or could have been raised in t he st at e proceedings. CFC offers t he general rule t hat a part y should not be barred from bringing a second suit on t he sam e t ransact ion when it is based on new fact s t ranspiring aft er t he first suit ’s disposit ion. 40 CFC sim ilarly cit es Kansas and Tent h Circuit holdings t hat issues not ripe in t he first suit are not subj ect t o res j udicat a. CFC specifically argues it s procedural due process claim in count one is not barred by res j udicat a because t he claim arises from t he defendant s’ ongoing conduct in t he act ual st at e adm inist rat ive and j udicial review proceedings. At t he first st at e dist rict court proceeding, CFC alleges OSBC opposed a due process hearing for CFC which result ed in no t im ely hearing t o cont est seizure of asset s and delayed a hearing for over t hree years. At t he adm inist rat ive hearing on rem and, CFC alleges OSBC denied it adequat e discovery on t he reasons for closing t he bank. At t he subsequent j udicial review proceedings, CFC alleges OSBC denied it effect ive j udicial review by failing t o file t he adm inist rat ive record. CFC concludes t hat , t hese “ fact s could not have been m ade part of Colum bian’s claim s in t he prior proceedings, because t he fact s developed during t he course of t hose proceedings.” ECF# 117, p. 37. For it s legal aut horit y, CFC cit es, “ ’res j udicat a does not bar claim s t hat are predicat ed on event s t hat post dat e t he filing of t he init ial com plaint .’” Whole Wom an’s Healt h v. Hellerst edt , - - - U.S.- - - , 135 S. Ct . 2292, 2305 ( 2016) ( quot ing Morgan v. Covingt on, 648 F.3d 172, 178 ( 3rd Cir. 2011) ) . CFC’s argum ent s are not persuasive, and it s cit ed case law does not bear any procedural resem blance or relevance here. Hellerst adt em ployed it s rule t o dist inguish bet ween t he adj udicat ed “ preenforcem ent facial challenge” and t he unadj udicat ed “ as- applied challenge.” I d. The Court 41 recognized t hat m at erial fact ual developm ent showing changed circum st ances and new const it ut ional harm would allow a new const it ut ional “ as- applied” claim . I d. Unlike Hellerst adt , CFC’s fact ual allegat ions address m at t ers t hat occurred in and during t he pendency of t he st at e lit igat ion and t hat could have been raised and reviewed at each subsequent st age of t hese st at e proceedings. CFC’s federal claim s are not new claim s based on fact s t hat it did not know or could not have known and argued in t he st at e proceedings. Nor are t hey claim s based on new fact s arising from a different t ransact ion: [ B] roadly speaking, claim preclusion does not bar subsequent lit igat ion of new claim s based on fact s t he plaint iff did not and could not know when it filed it s com plaint , see Doe v. Allied– Signal, I nc., 985 F.2d 908, 914 ( 7t h Cir. 1993) ; cf. Mit chell v. Cit y of Moore, 218 F.3d 1190, 1202–03 ( 10t h Cir. 2000) . Crit ically, t hough, if t he plaint iff discovers fact s during t he lit igat ion t hat st em from t he sam e underlying t ransact ion, it m ust supplem ent it s com plaint wit h any new t heories t hose fact s support . St one [ v. Depart m ent of Aviat ion] , 453 F.3d [ 1271] at 1278–79 [ ( 10t h Cir. 2006) ] ; see also id. at 1280 ( “ [ A] plaint iff's obligat ion t o assert claim s arising out of t he sam e t ransact ion cont inues t hroughout t he course of t he lit igat ion.” ( em phasis om it t ed) ) . A subsequent lawsuit will be allowed only if t he fact s discovered m id- lit igat ion give rise t o “ new and independent claim s, not part of t he previous t ransact ion.” Hat ch [ v. Boulder Town Council] , 471 F.3d [ 1142] at 1150 [ ( 10t h Cir. 2006) ] . Put different ly, “ a plaint iff can[ not ] avoid supplem ent ing his com plaint wit h fact s t hat are part of t he sam e t ransact ion assert ed in t he com plaint , in t he hope of bringing a new act ion arising out of t he sam e t ransact ion on som e lat er occasion.” I d. Lenox MacLaren Surgical Corp. v. Medt ronic, I nc., 847 F.3d 1221, 1244–45 ( 10t h Cir. 2017) . 42 CFC’s count one involves only one t ransact ion and alleges claim s against t he defendant s’ lit igat ion conduct at each st age in t he st at e proceeding. The defendant s’ lit igat ion conduct , however, at each st age was always subj ect t o challenge and review at t hat st age and t he next . The t im ing and const it ut ional adequacy of a post - seizure adm inist rat ive hearing was lit igat ed and decided in t he first st at e dist rict proceeding. I t also could have been lit igat ed before t he KCOA aft er t he post - seizure adm inist rat ive hearing. The adequacy of discovery in t he adm inist rat ive proceeding could have been lit igat ed before t he KCOA. The lack of a full adm inist rat ive record before t he KCOA was a m at t er which CFC could have lit igat ed but chose not t o. As discussed above, t he KCOA not ed t hat CFC did not seek t his relief in it s j udicial review argum ent s. ECF# 117- 19, p. 11. Nor did CFC ask t he KCOA t o reverse t he m oot ness ruling and t o rem and t he case back t o t he dist rict court for t he full adm inist rat ive record t o be filed and for all ot her j udicial review argum ent s t o be pursued. CFC’s lit igat ion st rat egy before t he KCOA does not change t he m eaning of what claim s could have been lit igat ed in t he j udicial review proceedings. CFC’s federal claim in count one t urns on t he defendant s’ lit igat ion conduct occurring in t he st at e proceedings, and t his alleged conduct essent ially ended wit h t he second dist rict court proceeding. Not hing prevent ed CFC from having t hese m at t ers fully addressed before t he KCOA. That CFC failed t o avail it self of t he full procedures provided by st at e law does not show t hem t o be inadequat e or 43 unavailing. Finally, t he due process claim s alleged in count one were ripe when CFC appealed t o t he KCOA. That it failed t o prevail on appeal and on it s subsequent pet it ion for review does not render any alleged const it ut ional inj ury incom plet e. CFC’s due process claim was fixed and final as of it s appeal t o t he KCOA, and t hat court expressly undert ook a j udicial review on t he m erit s of t he argum ent s present ed. ECF# 117- 19, p. 10. I n sum , t he court finds t hat t he defendant s have shown t hat t he st at e adm inist rat ive and j udicial review proceedings sat isfy t he required elem ent s for claim preclusion j ust ifying dism issal of CFC’s federal due process claim s. CFC’s rem aining challenge t o claim preclusion is t hat it was denied due process in t he st at e adm inist rat ive and j udicial review proceedings and t hat t his prevent s claim preclusion. CFC first cont ends t he federal court should decline t o give preclusive effect t o t he st at e adm inist rat ive proceedings, because t he defendant s cannot show t he agency proceeding was j udicial in nat ure and provided sufficient due process prot ect ions. This argum ent has lit t le t ract ion. The adm inist rat ive proceedings were appealed and subj ect ed t o full j udicial review under t he KJRA. Having been j udicially appealed t o exhaust ion, t his adm inist rat ive decision becom es “ subst ant ially sim ilar t o t hat of a j udicial det erm inat ion” m aking it “ conclusive for all issues raised or which m ight have been raised.” Merkel, 2006 WL 300761, at * 4. “ [ F] ederal court s m ust give preclusive effect t o fact ual and legal det erm inat ions m ade by st at e court s when review ing st at e 44 adm inist rat ive agency act ions.” Est at e of Bassat t v. Sch. Dist . No. 1 in t he Cit y and Count y of Denver, 775 F.3d 1233, 1237- 38 ( 10t h Cir. 2014) ( cit ing Krem er v. Chem . Const r. Corp., 456 U.S. 461, 485 ( 1982) ( “ holding t hat a st at e court decision affirm ing a st at e agency det erm inat ion on a claim of em ploym ent discrim inat ion is ent it led t o preclusive effect ” ) ) ; see Ryan v. Cit y of Shawnee, 13 F.3d 345, 347 ( 10t h Cir. 1993) ( “ However, where t he arbit rat ion award was challenged and reviewed in st at e court , as here, sect ion 1738 requires t hat we ascert ain and give t he sam e effect t o t he st at e court j udgm ent as t he court s of Oklahom a would give a st at e court decision affirm ing an arbit rat ion award. See Marrese v. Am erican Academ y of Ort hopaedic Surgeons, 470 U.S. 373, 381 ( 1985) .” ) . The KCOA reviewed t he m erit s of CFC’s j udicial review argum ent s, and it s decision is a j udicial det erm inat ion com port ing wit h due process. CFC chose t o appeal wit hout raising issues t hat required a full adm inist rat ive record and wit hout request ing eit her t his full record t o be filed or a rem and t o dist rict court for review wit h t he full record. CFC’s choice not t o avail it self of available procedural prot ect ions does not render t he st at e proceedings const it ut ionally insufficient and does not change t he charact er of t he st at e proceedings int o non- j udicial. Though unnecessary, t his court has no difficult y in finding t hat t he post - seizure adm inist rat ive proceedings were conduct ed by t he OSBC act ing in a j udicial capacit y and following KAPA procedures. For t hat m at t er, 45 t he court finds not hing of m erit t o CFC’s cursory allegat ions over t he lack of due process in t he adm inist rat ive proceeding. I t s issue wit h t he presiding officer denying t he deposit ion of form er Com m issioner Thull was a procedural ruling fully review able in t he st at e court s had CFC chosen t o lit igat e it . CFC’s claim of prej udice from t his procedural ruling is insubst ant ial. The quot ed sent ence from t he presiding officer’s sum m ary j udgm ent order does not show reliance on Thull’s st at e of m ind as m uch as it st at es an obvious conclusion from t he fact t hat Thull expressly relied on t he t erm s of K.S.A. 9- 1902( 2) , when he issued t he Declarat ion of I nsolvency on August 22, 2008. More im port ant ly, t he post - seizure adm inist rat ive proceedings reveal CFC engaged in significant discovery, had every opport unit y t o present it s argum ent s and evidence, and t hen pursued j udicial review available under st at e law t o assure t hat it s procedural right s were prot ect ed and t he presiding officer’s decision and his obj ect ivit y were subj ect t o broad review under t he KJRA. Like t he Suprem e Court said in Krem er, “ We have no hesit at ion in concluding t hat t his panoply of procedures, com plem ent ed by adm inist rat ive as well as j udicial review, is sufficient under t he Due Process Clause.” 456 U.S. at 482. CFC insist s t his case resem bles Scroggins v. Dep’t of Hum an Res., 802 F.2d 1289, 1293 ( 10t h Cir. 1986) , and lends t o t he sam e conclusion t hat a Kansas court would not apply res j udicat a t o t his agency decision, “ because it did not believe Kansas ‘would clot he [ t he] quasi- j udicial 46 proceeding wit h t he vest m ent s of a form al adj udicat ion.” I n Scroggins, t he plaint iff first filed his federal racial discrim inat ion suit and was t hen discharged from his st at e em ploym ent four weeks lat er. He exhaust ed his st at e adm inist rat ive rem edies before t he st at e civil service board which found t hat his discharge was reasonable for his failure t o perform work dut ies, for his m isrepresent ing work product , for his insubordinat ion, and for his harassing fem ale co- workers. 802 F.2d at 1290. The st at e dist rict court uphold t he board’s findings, and t he KCOA sum m arily affirm ed wit hout a writ t en order. I d. When t he plaint iff resum ed his federal lit igat ion, “ t he dist rict court found t he alleged discrim inat ory act s and wrongful t erm inat ion infused bot h t he st at e and federal inquiries” and concluded t hat res j udicat a precluded relit igat ing t he issues in t he federal suit . I d. at 1291. The Tent h Circuit reversed and rem anded upon finding t hat t he adm inist rat ive agency record and decision did not show a “ reasonably discernible” pat h in “ bot h t he subst ant ive and procedural hist ory” of t he case. I d. at 1292 ( cit ing and quot ing Mat t er of Universit y of Kansas Facult y v. Public Em ployees Relat ions Board, 2 Kan.App.2d 416, 581 P.2d 817 ( 1978) ) . The st at e proceedings focused on t he reasonableness of t he agency’s t erm inat ion decision and not on Scroggins’ allegat ions of racial discrim inat ion. The im port ance of t he st at e proceedings t o t he federal act ion was t o quiet t he assert ed defense of exhaust ion of adm inist rat ive rem edies. “ Alt hough appellant had already filed a federal suit for discrim inat ion in 47 em ploym ent under Tit le VI I , t he [ subsequent ] act of his [ st at e] dism issal cat apult ed his claim in t he narrower adm inist rat ive review.” I d. at 1292. While t he appellant argued his st at e em ploym ent t erm inat ion was for “ nonm erit reasons,” t he adm inist rat ive record showed no present at ion of proof as cont em plat ed for racial discrim inat ion claim s. I d. at 1292. The st at e court s on appeal sim ply “ reit erat ed t he Agency’s reasons” and “ disregarded wit hout addressing t he appellant ’s alleged errors.” I d. Concerned over whet her t he plaint iff had a full and fair opport unit y t o lit igat e t he racial discrim inat ion claim s, t he Circuit dist inguished Krem er where “ t he plaint iff was afforded a com prehensive review and hearing before t he st at e com m ission on civil right s which had conduct ed it s own invest igat ion” from t he plaint iff Scroggins’ adm inist rat ive case in which t here was “ no sim ilarly focused review” of t he racial discrim inat ion allegat ions. I d. The Circuit was careful t o say t hat it did “ not believe, on t he record before us, t hat t he st at e would clot he t his quasi- j udicial proceeding wit h t he vest m ent s of a form al adj udicat ion of plaint iff’s cla im of r a cia l discr im in a t ion .” I d. at 1293 ( bolding added) . I n looking at t he j udicial review, t he Circuit added: Because t he charact er of j udicial review was bot h narrow and conclusory, we are unwilling t o bar appellant 's federal suit under Tit le VI I . To do so would im print t he det erm inat ions of a st at e's quasi- j udicial civil service com m ission, absent any indicat ion t o t he cont rary, wit h t he sym bols of a j udicial proceeding. Moreover, t he Court m ade clear in Krem er v. Chem ical Const ruct ion Corp., 456 U.S. at 477, 102 S.Ct . at 1895, t hat it s earlier decisions on t he relat ionship bet ween § 1738 and Tit le VI I “ est ablish only t hat init ial resort t o st at e adm inist rat ive rem edies does not deprive an individual of a right t o a federal t rial de novo 48 on a Tit le VI I claim .” Migra am plifies t his decision by est ablishing t hat st at e, not federal, preclusion m ust t hen apply. Scroggins v. Dep’t of Hum an Res., 802 F.2d at 1293 ( foot not e om it t ed) . I n applying Scroggins, one cannot overlook t wo t hings. The Circuit was not confident t hat t he st at e proceedings included, considered, and decided t he plaint iff’s race discrim inat ion claim s t hat had been first raised in federal court . See Brin v. Kansas, 101 F. Supp. 2d 1343, 1348 ( D. Kan. 2000) ( cit ed Scroggins wit h t his parent het ical com m ent , “ finding no res j udicat a on issue of race discrim inat ion where t he hearing before t he Kansas Civil Service Board focused on t he reasonableness of t he dism issal, not on t he charges of discrim inat ion.” ) The Tent h Circuit was bot hered by t he unique procedural post ure arising from t he plaint iff Scroggins having filed his federal race discrim inat ion claim s first and t hen was t erm inat ed from st at e em ploym ent and com pelled t o exhaust st at e adm inist rat ive rem edies. I n cont rast , CFC first argued and lit igat ed t he claim s of due process in t he st at e proceedings, and t hese claim s sim ply cont inued as CFC’s lack of success and disapproval grew wit h each st age of t he st at e proceeding. Moreover, t his court is confident t hat CFC had sufficient opport unit y t o raise and argue in t he st at e proceedings t he due process claim s now raised in federal court . The post - seizure adm inist rat ive proceedings were ordered by t he st at e dist rict court t o provide CFC wit h post - seizure due process. The j udicial review proceedings sim ilarly were focused on prot ect ing t he sam e procedural right s while addressing all of CFC’s argum ent s and issues challenging OSBC’s 49 original seizure, it s int erpret at ion of it s st at ut ory aut horit y, and it s applicat ion of t his aut horit y t o st ipulat ed fact s. See Spencer v. Unified School Dist . No. 501, 1997 WL 614329, at * 4 ( D. Kan. 1997) ( Dist inguishing Scroggins on sim ilar grounds) . That som e of CFC’s due process claim s went unaddressed is largely due t o CFC’s lit igat ion st rat egy and choices in t he st at e court proceedings, part icularly before t he KCOA. See Yapp v. Excel Corp., 186 F.3d 1222, 1229 ( 10t h Cir. 1999) ( Claim ant ’s loss of t he opport unit y t o lit igat e was due t o his own advocacy and his own assum ed risk of claim preclusion. “ I t is difficult t o label t his part icular court order as t he culprit in denying Yapp a full and fair opport unit y t o be heard.” ) . The second t hing about Scroggins is t hat t he federal suit was based on federal st at ut ory claim s of racial discrim inat ion. There was no Kansas precedent recognizing t hat general st at e civil service board findings would preclude subsequent Tit le VI I proceedings. More t o t he point , t he KCOA subsequent ly held, “ Unt il such t im e as t he Kansas Legislat ure specifically st at es t hat an adm inist rat ive act ion is t he exclusive rem edy for a discrim inat ion claim , a negat ive finding by t he Civil Service Board or a finding of no probable cause by t he KCCR does not preclude a subsequent act ion in t he dist rict court for discrim inat ory discharge.” Parker v. Kansas Neurological I nst it ut e, 13 Kan.App.2d at 690; See also Universit y of Tennessee v. Elliot t , 478 U.S. 788, 106 S.Ct . 3220, 92 L.Ed.2d 635 ( 1986) ( holding t hat findings of fact in unreviewed adm inist rat ive proceedings do 50 not have preclusive effect by collat eral est oppel in Tit le VI I cases, but t hat t hey do have preclusive effect in § 1983 and ot her proceedings.) ; Com pare Morales v. Kansas St at e Universit y, 727 F.Supp. 1389, 1392 ( D.Kan.1989) ( where issue of ret aliat ion was fully lit igat ed before t he Kansas Civil Service Board, such finding had collat eral est oppel effect ) . I n sum , Scroggins is not only different on it s fact s but is also dist inguishable on t hose fact ors driving it s holding. I nst ead of sharing “ m any sim ilarit ies” t o t his case, Scroggins’ crit icism s of t he st at e proceedings are best read as only accent uat ing t he different focuses bet ween t he st at e and federal proceedings. I n doing so, t he Circuit in Scroggins was em phasizing t hat t he plaint iff was not afforded full and fair opport unit ies for lit igat ing his racial discrim inat ion charges at any t im e before t he civil service board and in t he perfunct ory j udicial review proceedings. As already discussed above, t he sam e cannot be said in t he inst ant case. CFC’s due process challenges were consist ent ly and cont inuously argued in one form or anot her t hroughout t he st at e j udicial review process. See MACTEC, I nc. v. Gorelick, 427 F.3d 821, 832 ( 10t h Cir. 2005) ( Lit igant ’s chance t o assert t heory lat er before t he reviewing court is sufficient and subj ect t o res j udiciat a) ; McKinney v. Pat e, 20 F.3d 1550, 1563 ( 11t h Cir. 1994) ( “ [ O] nly t he st at e’s refusal t o provide a m eans t o correct any error result ing from t he bias would engender a procedural due process violat ion.” ) , cert . denied, 513 U.S. 1110 ( 1995) ; There was no refusal here t o provide full j udicial review, j ust as t here is 51 not hing perfunct ory about t he KCOA’s decision here. The opport unit ies t o correct t he errors below provided due process. Finally, as dem onst rat ed in t he adversarial charact er of t he st at e lit igat ion pursued, t he det ailed present at ions of issues and evidence m ade, and t he ext ensive and reasoned decisions rendered, t he st at e proceedings are hardly what one would consider as falling below t he m inim um procedural requirem ent s of t he Fourt eent h Am endm ent ’s Due Process Clause. See Mit chell v. Albuquerque Bd. of Educ., 2 F.3d 1160 ( 10t h Cir. Aug. 13, 1993) ( unpub) ( plaint iff argued no full and fair opport unit y due t o bias of reviewing adm inist rat ive agency and inabilit y t o subpoena wit nesses, but t he Tent h Circuit found t hese equit ies “ clearly out weighed by subst ant ial procedural and subst ant ive due process provided t o Plaint iff” not ing “ t he t horoughness of t he hearings and subsequent appeals” ) . The court finds no solid “ reason t o doubt t he qualit y, ext ensiveness, or fairness of procedures followed in” t he st at e proceedings. See Mont ana v. Unit ed St at es, 440 U.S. at 164 n. 11. The st at e proceedings as a w hole provided an adequat e venue for CFC t o challenge t he m erit s of t he seizure and receivership, and t o raise all issues on st at ut ory aut horit y, bias, discovery, and any ot her procedural quest ions. Not prevailing in t he st at e proceedings does not necessarily equat e wit h t he denial of due process. See Weaver v. Boyles, 172 F.Supp.2d 1333, 1341 ( D. Kan. 2001) ( Losing in st at e court is not evidence of bias on t he part of t he st at e court . ( quot at ion m arks and cit at ion om it t ed) ) , aff’d, 26 Fed. Appx. 52 908 ( 10t h Cir. 2002) . Som et hing m ore needs t o be alleged and shown. For t hat m at t er, t his court ’s j urisdict ion does not ext end t o sit t ing in appellat e review of t he st at e court s. See Sparkm an Learning Ct r. v. Arkansas Dept . of Hum an Services, 775 F.3d 993, 998 ( 8t h Cir. 2014) ( Lit igant s m ay “ not bring claim s before a federal court t hat were already fully decided by st at e court s in what would am ount t o appellat e review of t he st at e court ruling.” ( cit at ions om it t ed) ) . For all t hese reasons t hat fully address t he argum ent s t hat have been briefed by t he part ies, t he court finds t he plaint iff’s § 1983 due process claim s are barred by res j udicat a/ claim preclusion based on t he KCOA’s decision, specifically: Colum bian argues t hat banks and t heir owners are ent it led t o due process, cit ing Franklin Sav. Ass'n v. Office of Thrift Supervision, 35 F.3d 1466, 1472 ( 10t h Cir.1994) , and Woods v. Federal Hom e Loan Band Bd., 826 F.2d 1400, 1411 ( 5t h Cir.1987) , which st at es t hat “ owners of a FSLI C- insured savings and loan associat ion clearly have t he const it ut ional right t o be free from unlawful deprivat ions of t heir propert y.” We agree. Clearly, Colum bian should be ent it led t o not ice and an opport unit y t o be heard, which was provided t o t hem when t hey received review from t he Com m issioner and t he Kansas court s under t he KJRA. ECF# 117- 19, p. 10. This court m ust give t he sam e full fait h and credit t o t his decision as it enj oys in t he Kansas court s, and CFC had a full and fair opport unit y t o lit igat e it s due process claim s in t hese st at e proceedings as decided by t he KCOA. 53 I T I S THEREFORE ORDERED t hat t he defendant s’ m ot ion for sum m ary j udgm ent , or in t he alt ernat ive, j udgm ent on t he pleadings ( ECF# 104) is grant ed on t he grounds st at ed above; I T I S FURTHER ORDERED t hat t he defendant s’ obj ect ion ( ECF# 121) t o t he m agist rat e j udge’s order is denied as m oot . Dat ed t his 17t h day of May, 2018, Topeka, Kansas. s/ Sam A. Crow____________________ Sam A. Crow, U.S. Dist rict Senior Judge 54

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