Unpublished Disposition, 844 F.2d 792 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 792 (9th Cir. 1987)

Joe A. SHOEMAKER; Barbara Shoemaker, Plaintiffs-Appellants,v.CITY OF BREMERTON, a municipal corporation of the State ofWashington; Donald R. Cundiff, individually and in hisofficial capacity; Eugene L. Nelson, individually and inhis official capacity; Maurice Dawkins, in his officialcapacity, Defendants-Appellees.

No. 86-3534.

United States Court of Appeals, Ninth Circuit.

Argued Feb. 5, 1987.Submission Withdrawn Feb. 6, 1987.Resubmitted March 4, 1988.Decided April 6, 1988.

Before WALLACE, FLETCHER and BRUNETTI, Circuit Judges.


MEMORANDUM

Shoemaker timely appeals from the summary judgment entered in favor of the City of Bremerton on his 42 U.S.C. § 1983 claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* The sole basis of Shoemaker's section 1983 claim is his allegation that the City of Bremerton violated his first amendment right to free speech by demoting him in retaliation for testimony that he gave before the Bremerton Civil Service Commission (the Commission) regarding alleged police department irregularities. Shoemaker initially appealed his demotion to the Commission, which found that he was not demoted in retaliation for his testimony, but rather was demoted as part of a valid reduction in the City's work force. Upon his request for reconsideration, the Commission arrived at the same conclusion. Shoemaker then filed a civil rights action in federal district court pursuant to 42 U.S.C. § 1983. The district court granted summary judgment against Shoemaker on the grounds that "the decision of the Bremerton Civil Service Commission is entitled to preclusive effect on the issue of the City of Bremerton's rationale for demoting Shoemaker."

II

We review the entry of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Whether we should apply collateral estoppel to an issue in a case is a question of law reviewed de novo. Matter of McLinn, 793 F.2d 1395, 1397 (9th Cir. 1984) (en banc). In Plaine v. McCabe, 797 F.2d 713, 718 (9th Cir. 1986), we clarified that while the availability of collateral estoppel is reviewed de novo, the district court's decision to accord collateral estoppel effect is reviewed for an abuse of discretion.

On July 7, 1986, one month after Shoemaker filed his opening brief, the Supreme Court decided University of Tennessee v. Elliott, 106 S. Ct. 3220 (1986). In that case, Elliott, a black employee of the University, was discharged for inadequate work performance and misconduct on the job. He requested an administrative hearing and also filed suit in federal district court under various civil rights statutes, including 42 U.S.C. § 1983, alleging that his discharge was racially motivated. Id. at 3222. At his state administrative hearing, the administrative law judge (ALJ) determined that Elliott's discharge was not racially motivated. Id. at 3223. Upon returning to federal court to pursue his civil rights claims, the district court granted summary judgment against him on the ground that his suit was barred by collateral estoppel. See id. The Court held that "when a state agency 'acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' ... federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." Id. at 3227 (citation omitted). The Court then remanded the case for a determination of whether Tennessee courts would give the ALJ's factfinding preclusive effect in Elliott's civil rights claims, including his 42 U.S.C. § 1983 claim.

Because we were uncertain whether the Washington state courts would give preclusive effect to the Commission's findings, on March 26, 1987, we entered an order certifying to the Washington Supreme Court pursuant to RCW 2.60.020 the following question: Does Washington law afford preclusive effect to the factual findings of the Bremerton Civil Service Commission that Joe Shoemaker's reductions in rank were not retaliatory?

Responding to our question, the Washington Supreme Court has now issued a thoughtful opinion holding that "Washington law does give preclusive effect to the factual finding of the Bremerton Civil Service Commission that Joe Shoemaker's reductions in rank were not retaliatory." Shoemaker v. City of Bremerton, No. 53779-8, p. 12 (Wash.S. Ct. Nov. 25, 1987). As Elliott commands us to defer to the Washington Supreme Court's judgment that it would grant preclusive effect to the Commission's finding, we are required to hold that Shoemaker is collaterally estopped from relitigating the issue of the City's motivation in demoting him. Because the sole basis of Shoemaker's section 1983 action is his allegation that his demotion was motivated by retaliation for his testimony against the police department, the summary judgment in favor of the City of Bremerton is affirmed.

AFFIRMED.