Delmus PUNTON, Plaintiff-Appellee/Cross-Appellant, v. The CITY OF SEATTLE, Defendant-Appellant/Cross-Appellee, 805 F.2d 1378

GOODWIN, Circuit Judge: The City of Seattle appeals from a district court judgment for money damages, assigning error to the denial of its motion to dismiss Punton’s 42 U.S.C. § 1983 claim on the basis of the res judicata effect of a prior state court judgment. Punton v. City of Seattle Public Safety Commission, 32 Wash.App. 959, 650 P.2d 1138 (1982), cert. denied, 98 Wash.2d 1014 (1983). Punton cross-appeals, challenging the district court’s refusal to grant him the full amount of attorneys’ fees requested pursuant to 42 U.S.C. § 1988.

In September 1980, Punton, an officer of the Seattle Police Department, was dismissed from his job for conduct unbecoming an officer, disobedience of a superior’s order, allowing unauthorized persons to ride in his patrol car and other infractions of department rules. Punton was not advised of the charges against him or afforded a hearing at any time prior to receiving his notice of dismissal. Shortly after his dismissal, Punton filed an appeal with the Seattle Public Safety Civil Service Commission.

He argued that the department’s failure to provide a pre-termination hearing rendered his discharge constitutionally invalid. The commission did not reach the constitutional question. Believing its jurisdiction to be “confined to the determination ... whether [the] removal, suspension, demotion or discharge was made in good faith,” the commission affirmed the dismissal. Punton then sought a writ of certiorari in King County Superior Court pursuant to Wash.Rev.Code Ann. § 7.16.040 (1961).

He again alleged that his discharge “was not in good faith, nor for cause, nor in conformance with due process.” The superior court concluded that dismissal without a hearing violated Punton’s state and federal due process rights. Pun-ton did not seek general damages. The court ordered Punton’s reinstatement with back pay and awarded Punton attorneys’ fees. The commission appealed from the superior court to the Washington Court of Appeals. The court of appeals affirmed Pun-ton’s reinstatement, agreeing that there had been a due process violation.

The appellate court, however, reversed the award of attorneys’ fees. The court stated that proceedings pursuant to a writ of certiorari are limited in scope and may only “secure the rendition of 'the judgment which should have been rendered by the lower tribunal.’ ” Punton v. City of Seattle Public Safety Commission, 32 Wash.App. 959, 970, 650 P.2d 1138, 1144 (1982) (quoting Bringgold v. City of Spokane, 19 Wash. 333, 336, 53 P. 368, 369 (1898)), cert. denied, 98 Wash.2d 1014 (1983).

Thus, the court concluded, “the relief granted under the writ may be only that which is necessary to set aside action in excess of ‘the jurisdiction of [the] tribunal, board or officer, or [is illegal]’ (sic) or to ‘correct any erroneous or void proceeding, or a proceeding not according to the course of the common law.’ ” Id. (quoting Wash.Rev.Code § 7.16.040). The court held that because the commission lacked authority to award attorneys’ fees, the superior court “likewise lacked jurisdiction in a certiorari proceeding to award fees.” Id.

While awaiting the decision of the Washington Court of Appeals, Punton filed this action in the United States District Court for the Western District of Washington. Once again, Punton alleged that his dismissal violated his due process rights. In federal court Punton sought damages for emotional, distress resulting from the city’s alleged violation of his constitutional rights, and attorneys’ fees under 42 U.S.C. § 1988, relief he had neither sought nor received in the state court proceedings. Upon receiving the decision of the Washington Court of Appeals, Punton moved for partial

summary judgment in the district court. He asserted that collateral estoppel, based upon the state court determination that his due process rights had been violated, prevented the city from relitigating any question of liability, and that only damages remained to be assessed. The city also moved for

summary judgment, contending that the state court decision, having granted Punton all the relief to which he was entitled under state law, barred the federal action under the doctrine of res judicata. The district court granted Punton’s motion and denied the city’s motion. Subsequently, a jury awarded Punton $150,000 for mental suffering, and the court added an award of $15,000 in attorneys’ fees. Pun-ton cross-appeals from the denial of additional attorney fees. We turn first to the city’s appeal. As already indicated, the city contends that Punton’s action was barred by the doctrine of res judicata.

In cases brought pursuant to 42 U.S.C. § 1983, a prior state court judgment has the same claim preclusive effect that the judgment would have in the courts of the state in which it was rendered. Migra v. Warren City School District Board of Education, 465 U.S. 75, 83, 104 S.Ct. 892, 897, 79 L.Ed.2d 56 (1984). Under Washington law, clearly those claims which were actually litigated in the earlier proceeding are barred. Seattle-First National Bank v. Kawachi, 91 Wash.2d 223, 226, 588 P.2d 725, 727 (1978).

The district court was of the opinion that Punton’s claim for general damages for emotional suffering could have been litigated in state court by joining it with his civil service proceeding even though the kind of review (certiorari) provided for those disappointed in the result of the civil service proceeding is very narrow. See Standow v. City of Spokane, 88 Wash.2d 624, 632, 564 P.2d 1145, 1150 (1977). The Washington Court of Appeals in Punton v.

City of Seattle Public Safety Commission, 32 Wash.App. 959, 650 P.2d 1138, 1140-41 (1982), cert. denied, 98 Wash.2d 1014 (1983), implied that certiorari proceeding is a “special” form of action that is sharply limited in scope. The court, however, did not discuss the possibility of joinder and combination of claims in the superior court. While we agree with the district court that Punton’s federal claim was not barred by a requirement of exhaustion of state remedies, Patsy v.

Board of Regents, 457 U.S. 496,102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), it does not necessarily follow that Punton still had a viable § 1983 claim after he was reinstated in his job with back pay through state court action. Punton’s federal constitutional right was a right to not be deprived of property without due process of law. Tenured public employment has been held to be a species of property for § 1983 purposes. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418 (1971).

Punton’s right to tenure and right to redress for wrongful termination were both created by state law. In this case, the undisputed facts are that Punton lost his job without any kind of a hearing. He immediately complained, received a civil service hearing, and in due course was reinstated with back pay. By resorting to post-deprivation state court process, he received everything he had lost, but he did not receive supplemental damages for emotional distress or attorney fees.

The crucial question, therefore, is whether Punton, who after losing his job, obtained the incidental relief afforded by the law that created his job, is now entitled to additional relief in federal court under § 1983, for damages not available in state court under the type of procedure that he chose to follow. In short, the question properly before the district court was whether or not Punton is entitled to something more and, if so, what more.

In analyzing the probable intent of Congress in creating a federal remedy for the denial of constitutional rights without due process of law by state officials acting under color of state law, we look at two facets of the problem: (1) is post-deprivation process the equivalent of due process in a given case? And, (2) how does the adequacy of the state’s choices of remedy bear upon (1)? We know that Congress intended to afford a federal remedy in some cases.

But is the federal remedy under § 1983 intended to be a supplemental tort remedy for those victims of state government blunders who receive a remedy at law in the state where the wrong occurred, but who want a better remedy in the federal courts? If the question were one of first impression it would be difficult to say that Congress intended § 1983 to afford a supplemental remedy for all state and municipal property or liberty grievances in which state remedies were available but were deemed by the injured party to be inadequate.

The Supreme Court has said that § 1983 is not a general tort relief statute imposing liability on state and local governments for the blunders of their employees. Daniels v. Williams, — U.S. -, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). On the other hand, history teaches that the theoretical possibility of a state court remedy does not always afford realistic protection for civil rights. A multitude of federal cases testify that a federal remedy has often been necessary to awaken state and local governments to their responsibilities toward those under their protection. See, e.g., Monroe v.

Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). On a case-by-case basis, the courts have evolved a doctrine that one who is deprived of a fundamental liberty or property interest by state action must be afforded a remedy, either through due process of law before the deprivation, or through some kind of process afterward that approximates due process. See, e.g., Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985) (en banc) cert. denied sub nom. Cranke v. Haygood, — U.S. -, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986), and cases collected therein.

In Haygood, the interest infringed was a liberty interest, and by the time Haygood received a hearing and a remedy in the state courts, he had been kept in prison some 17 months after his keepers knew, or should have known, that he was claiming a right, as a matter of law, to be released. We held that the release, belatedly, after a hearing, did not bar his resort to federal court for the additional remedy of damages and attorneys’ fees.

In the case at bar, Punton complained after he had lost his job without a hearing, in circumstances in which the City’s own regulations required a hearing, and in due course he was reinstated in his job with back pay. He says that he was not able to litigate in state courts his claim for emotional suffering because the only process available to him was limited to reinstatement and back pay. The district court disagreed, but held that exhaustion of state remedies was not required.

Punton’s case is analogous to that of an injured workman in an industrial plant covered by compulsory workmen’s compensation who collects his statutory compensation and then looks around for someone to sue for additional damages for mental suffering, loss of consortium, and the like. The injured workman sometimes can find a third party who supplied an appliance or who otherwise may be sued for damages, but he is barred by the claim preclusion feature of the local compensation law from relitigating his own employers’ liability. Here there is no third party with a deeper pocket.

Punton is looking for supplemental relief in another judicial system. Punton’s election to proceed initially in the state court amounted to a splitting of his cause of action as well as an election of remedies. At the start, he could have proceeded directly in federal court with a § 1983 claim for reinstatement, back pay, and general damages. Instead, he first chose to seek the relief of reinstatement and back pay in the state court. He also sought this relief in a concurrent action in federal court.

The result of these dual proceedings was to create a narrow issue preclusion advantage in federal court with respect to the issue of the wrongfulness of the city’s termination of his employment. Punton now represents that he could not have litigated his § 1983 claim in the state court, and therefore his § 1983 claim cannot be barred by the claim preclusion effect of his partial recovery under the state judgment. His point does not necessarily follow.

It is highly unlikely that Congress intended to permit state court vindication of state created property interests to set up offensive collateral estoppel for federal claims brought pursuant to § 1983. Washington state law created both Punton’s job and the civil service review which he employed to get his job back, with back pay. In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), a bus mechanic and security guard were dismissed under a civil service system which, unlike Seattle’s, provided no pretermination hearing.

The Supreme Court held that a balancing of the interests involved required some form of pretermination hearing, a matter provided for by Washington’s, law in this case. In contrast, Punton is not claiming solely that Washington law denied him a pretermination hearing. He is claiming that the officials charged with carrying out the law deprived him of a pretermination hearing and that when he carried his complaint through post-termination process, the remedy he received was not adequate because it did not include emotional distress damages and attorney fees.

We recently held in an employment grievance case originating in California that claim preclusion arising from a state court mandamus action in which substantial but incomplete relief was granted barred relitigation of the claim in federal court under § 1983. Clark v. Yosemite Community College District, 785 F.2d 781 (9th Cir.1986). In Clark, a faculty member brought mandamus to vindicate employment rights (to be free from administrative harassment and the placement of defamatory information in his personnel files).

Because California law permits the joinder of claims arising out of the federal constitution with mandamus claims, we held that Clark was precluded from splitting his claims into state and federal segments and litigating his federal claims in federal court after successfully pressing his mandamus claims in state court. Id. at 786-87. Another instructive case is that of a police officer in Philadelphia who was charged with a crime, discharged from his job, acquitted after trial, and upon application to the municipal Civil Service Commission, reinstated without back pay. Cohen v.

City of Philadelphia, 736 F.2d 81 (3rd Cir.1984). The commission found that whether or not Cohen had participated in the burglary for which he was acquitted, he had violated police department rules by lending money to a superior officer. Cohen thereupon sued in federal court, alleging a § 1983 claim.

Summary judgment for the city was affirmed on the basis of claim preclusion. The Third Circuit held that Cohen’s claim of deprivation had been partially litigated in the state administrative system, and that had he wished to do so, he could have appealed for additional relief through the state court system. Because he chose to accept the partial remedy granted by the state court and then move over to federal court, the court held that he had not been deprived by the state defendants of his property without due process of law. Citing Parratt v.

Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the court held that where the state would have provided adequate post-deprivation relief had Cohen chosen to pursue it, the state had not denied him due process of law. The court noted that it was not adopting an exhaustion-of-state-remedies rule, but rather that it was holding that a state has not deprived its inhabitants of due process of law in cases in which the plaintiff has made an election to avail himself of a state remedy and then abandoned it when the state courts were still open. Cohen, 736 F.2d at 86-87.

It is not necessary in this case to decide how far we might be willing to march to the drum of the Third Circuit if we were faced with another case on all fours with Cohen. It does appear, however, that Pun-ton decided at some point, while waiting for further proceedings in the state courts, to seek more lucrative relief in federal court.

We have found no Supreme Court case holding that merely because litigation strategy and the perceived advantages of a more adequate award in federal court make it an attractive alternative, a person aggrieved by official state action can abandon a remedy that colorably satisfies due process of law in the state court after recovering substantially what he has lost. On the contrary, Migra v. Warren City School District Board of Education, 465 U.S. at 85,104 S.Ct. at 898, instructs to the contrary. The judgment of the district court is reversed with neither party to recover costs in this court.

The cross-appeal is dismissed as moot. .

Section 7.16.040 states: A writ of review shall be granted by any court, except a police or justice court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law. . We are limited by the briefs and records in the case before us.

It is not clear whether Punton could have combined all elements of his present claim in state court proceedings as was said to be the case in Clark v. Yosemite Community College District, 785 F.2d 781 (9th Cir.1986).