United States Court of Appeals

For the First Circuit

No. 12-1920

THOMAS A. ATWATER,

Plaintiff, Appellant,

v.

MITCHELL D. CHESTER, as he is the Commissioner of

Elementary and Secondary Education of the Commonwealth of

Massachusetts; MANCHESTER-ESSEX REGIONAL SCHOOL DISTRICT,

Defendants, Appellees.

 APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch, Chief Judge,

Lipez and Thompson, Circuit Judges.

H. Reed Witherby, with whom Garrick F. Cole and Smith Duggan

Buell & Rufo LLP were on brief, for appellant.

Amy Spector, Assistant Attorney General, with whom Martha

Coakley, Attorney General, was on brief, for appellee Mitchell D.

Chester.

Geoffrey R. Bok, with whom Stoneman, Chandler & Miller LLP was

on brief, for appellee Manchester-Essex Regional School District.

September 20, 2013
THOMPSON, Circuit Judge. Appellant Thomas Atwater sought

review of his dismissal from his teaching position in the

Manchester-Essex Regional School District ("School District"),

first in Massachusetts state court and then in Massachusetts

federal district court. Concluding that Atwater's claims were

barred by res judicata, the district court granted summary judgment

in favor of Appellees, the School District and the Massachusetts

Commissioner of Elementary and Secondary Education

("Commissioner"). Atwater now appeals the grant of summary

judgment, presenting a number of reasons why res judicata does not

bar his federal claims from adjudication in federal court. Finding

none persuasive, we affirm.

BACKGROUND

Conduct Unbecoming

Atwater was a teacher with "professional status" in the

School District until March 2005, when he was informed by letter of

the District Superintendent's intention to dismiss him from his

employment for inappropriate sexual conduct toward a student.1 The

1 A quick word about professional status. Formerly referred

to as "tenure," a teacher who has served in the public schools of

a Massachusetts school district for three consecutive school years

is entitled to professional-teacher status. Mass. Gen. Laws ch.

71, § 41; see also Atwater v. Comm'r of Educ., 957 N.E.2d 1060,

1062 n.2 (Mass. 2011). Teachers with professional status "shall

not be dismissed except for inefficiency, incompetency, incapacity,

conduct unbecoming a teacher, insubordination or failure on the

part of the teacher to satisfy teacher performance standards . . .

or other just cause." Mass. Gen. Laws ch. 71, § 42.

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particular instances giving rise to Atwater's dismissal are not

necessary for our determination, and so we do not review them in

detail here. Atwater invoked his right under Mass. Gen. Laws ch.

71, § 42 to seek review of the Superintendent's action by filing a

petition for arbitration with the Commissioner. Pursuant to the

procedures required by section 42, the Commissioner coordinated the

selection of a private arbitrator to resolve Atwater's challenge to

his dismissal.2

 After a five-day arbitration, the arbitrator

issued a ninety-nine page decision affirming Atwater's dismissal

for conduct unbecoming of a teacher and finding that the

Superintendent and the School District did not violate section 42

in dismissing him.

A Multiplicity of Lawsuits

On August 4, 2006, Atwater filed suit in Massachusetts

Superior Court challenging the discharge of his employment and

seeking to vacate the arbitrator's decision. Over three weeks

later, on August 30, Atwater filed this complaint in federal court. 

Three counts advanced supposed state-law violations: the

arbitrator failed to employ the statutory standard in determining

his petition (count 1), which meant she exceeded her statutory

authority under section 42 (count 2), and, acting on behalf of the

2 Mass. Gen. Laws ch. 71, § 42 provides that teachers with

professional-teacher status "may seek review of a dismissal

decision within thirty days after receiving notice of his dismissal

by filing a petition for arbitration with the commissioner." 

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Commissioner, she exhibited bias and prejudice against him (count

3). Three counts advanced supposed federal-law violations: 

"ineffective administrative supervision," transgressing his right

to "procedural due process" (count 4); improper "delegation of a

governmental function" (count 5); and improper "insulation of

determination by private individual from meaningful judicial

review," transgressing some sort of generalized "due process" right

(count 6). In footnotes to his federal-court complaint, Atwater,

citing England v. Louisiana State Board of Medical Examiners, 375

U.S. 411 (1964), asserted that he included the state claims "for

completeness" but did not submit them for the federal court's

adjudication.

The very next day, August 31, Atwater amended his statecourt complaint so that it contained exactly the same six claims as

his federal-court complaint. And he noted that he had included the

federal claims only "for completeness" and not for the state

court's adjudication, again citing to England. Along with his

amended complaint, Atwater submitted to the state court a "Notice

of Reservation of Federal Claims," apprising that court that he had

sued the same defendants in federal court on the same grounds. He

again stated that he included the federal claims only "to inform"

the state court and "for completeness," and he purported to reserve

the claims for adjudication in federal court, once more referencing

England. He also noted his intent to seek a stay of the action in

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federal court pending the state court's determination on his statelaw claims and after the conclusion of any additional proceedings.

 In answering the amended state-court complaint, the

Commissioner and the School District objected to Atwater's attempt

to reserve his federal claims, stating that he had improperly

sought an "England reservation" of the federal claims in counts

four, five, and six. The Commissioner specifically noted that the

federal court had not yet remitted Atwater to state court on

abstention grounds, and the School District added that his claims

should be dismissed for improper claim splitting. The Commissioner

and the School District made the very same points in answering the

federal-court complaint.

In a joint scheduling conference statement, the parties,

citing Railroad Commission of Texas v. Pullman Co., 312 U.S. 496

(1941), moved the federal court to stay further proceedings pending

the outcome of the "related" state-court case. Resolving that case

first "will affect substantially the constitutional issues" before

the federal court, the parties wrote, so "a stay based on Pullman

abstention principles is appropriate." But the parties stressed

that, by joining this motion, neither the Commissioner nor the

School District "waive[d] their objections to [Atwater's]

contention that he has effectively reserved his federal

constitutional claims for this [c]ourt's consideration." The

district court responded by entering an "order of closure for

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statistical purposes," dismissing the federal-court case without

prejudice to the parties' "moving to restore [the case] to the

docket if any further action is required upon completion and

termination of any state court proceedings . . . ."

A State-Court Adjudication

Atwater proceeded with his state-law claims in state

court. On cross motions for summary judgment, the state-trial

court rejected Atwater's state-law claims and affirmed the

arbitrator's decision. In a footnote appearing on the opening page

of its decision, the state-trial court wrote that Atwater had also

alleged three federal-law claims in his state-court complaint but

had "expressly reserved" them "for adjudication" in federal court. 

The Massachusetts Supreme Judicial Court ("SJC") upheld the entry

of summary judgment for the Commissioner and the School District,

with a footnote in the opinion's background section saying:

Atwater also raised three Federal claims,

including Federal due process claims, which he

has reserved for adjudication by the United

States District Court for the District of

Massachusetts. Thus, these claims are not

before us.

Atwater, 957 N.E.2d at 1067 n.7.

Back to Federal Court

After the conclusion of his state-court case, Atwater

filed a motion to reopen his federal-court case, seeking to

adjudicate his federal claims. Neither the Commissioner nor the

School District opposed the restoration of the case. But both took

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pains to again emphasize their view that Atwater's purported

England reservation was a nonstarter.

The Commissioner and the School District moved for

summary judgment, arguing that the state court's judgment was res

judicata in the federal proceeding and that his attempted England

reservation failed. Atwater opposed the motions and cross-moved

for summary judgment himself, asserting that res-judicata

principles did not bar his federal claims and that his England

reservation was effective. Rejecting Atwater's arguments, the

district court held that his supposed "England reservation" was

ineffective and that his federal claims could have been litigated

in the previous state-court case and so were barred under res

judicata. Consequently, the district court denied his motion and

granted summary judgment to the Commissioner and the School

District. This appeal followed, over which we have jurisdiction

pursuant to 28 U.S.C. § 1291.

DISCUSSION

The parties — who agree on little else — correctly agree

that res judicata bars Atwater's federal-law claims unless an

exception applies.3 Atwater insists that three exceptions are in

3

 "[F]ederal courts must give preclusive effect to a statecourt judgment if the state court itself would." Newman v.

Krintzman, No. 12-1995, 2013 WL 3814979, at *2 (1st Cir. July 24,

2013). So here that means that Massachusetts preclusion law

controls. See id. And Massachusetts res-judicata law "makes a

valid, final judgment conclusive on the parties and their privies,

and prevents relitigation of all matters that were or could have

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play. He first argues that his England reservation lets him escape

the preclusive effect of the state-court judgment. Alternatively,

he argues that the state courts expressly reserved his right to

pursue his federal-law claims in federal court and that we must

respect what they did. And finally, he argues that, regardless of

ordinary res-judicata rules, the equities require that we let his

federal case go forward.

We first set out the summary-judgment standard and then

deal with each argument in turn.

Summary-Judgment Standard

We review the district court's grant of summary judgment

de novo, taking the facts in the light most favorable to Atwater. 

See Alvarado v. Donahoe, 687 F.3d 453, 458 (1st Cir. 2012). 

Summary judgment is called for when there is "no genuine issue as

to any material fact and the moving party is entitled to judgment

as a matter of law." Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st

Cir. 2013) (quoting Martínez-Burgos v. Guayama Corp., 656 F.3d 7,

11 (1st Cir. 2011)); see Fed. R. Civ. P. 56(a). "The presence of

cross-motions for summary judgment neither dilutes nor distorts

been adjudicated in the action." Kobrin v. Bd. of Registration in

Med., 832 N.E.2d 628, 634 (Mass. 2005) (quoting O'Neill v. City

Manager of Cambridge, 700 N.E.2d 530 (Mass. 1998)) (explaining that

res judicata is an umbrella term that covers both claim preclusion

and issue preclusion). Again, no one really disputes that the

basic requirements of res judicata are met in this case. Rather,

the fight is over whether Atwater is saved by an exception to this

rule.

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this standard of review." Mandel v. Boston Phoenix, Inc., 456 F.3d

198, 205 (1st Cir. 2006).

England Reservation

Thanks to the Supreme Court's England decision, parties

forced by a federal judge to litigate their state-law claims in

state court can return to federal court and have their federal-law

claims heard, free of any preclusive effect of the state-court

judgment. What is required is an England reservation. See

England, 375 U.S. at 415-21; see also Geiger v. Foley Hoag LLP Ret.

Plan, 521 F.3d 60, 67-68 (1st Cir. 2008). Here is how that works: 

if a plaintiff has first filed suit in federal court, and if that

court orders a Pullman abstention — a type of abstention that,

basically, "permits the federal court . . . to ask a state court to

clarify a murky question of state law involved in the case" — and

if the plaintiff "tell[s] the state court that it wishes to

litigate its federal claim" in federal court, then the plaintiff

can go back "to the federal forum for determination of the federal

question after the state court has decided the" state-law issue,

without preclusion principles standing in the way. See Duty Free

Shop, Inc. v. Admin. De Terrenos De P.R., 889 F.2d 1181, 1183 (1st

Cir. 1989); see also Rivera-Feliciano v. Acevedo-Vila, 438 F.3d 50,

63 (1st Cir. 2006).

Atwater never says that his case fits perfectly within

this paradigm. He just thinks that it is close enough. The

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district court's closure order, he writes, shared many

characteristics of a Pullman-abstention order — it stopped all

federal-court proceedings and effectively relegated him to state

court, though it permitted any party to move to reopen the case

after state-court proceedings ended. Functionally, the closure

order is nearly indistinguishable from a Pullman abstention order

— or so he asserts.

Close enough counts with horseshoes and hand grenades but

not with England reservations. The right to reserve claims arises

only when the district court abstains under Pullman. See, e.g.,

Geiger, 521 F.3d at 67-68 (citing San Remo Hotel, L.P. v. City &

Cnty. of San Francisco, Cal., 545 U.S. 323, 339 (2005), and Duty

Free Shop, Inc., 889 F.2d at 1183). And the simple truth is that

the district court's closure order is not a Pullman-abstention

order. Sure, the parties jointly requested that the court enter a

"Pullman" stay. But the district court took a different tack. The

court spent no time checking whether "substantial uncertainty

exists over the meaning of the state law in question" or whether

resolving the state-law question "will or may well obviate the need

to resolve a significant federal constitutional question" — both of

which are essential Pullman prerequisites. Batterman v. Leahy, 544

F.3d 370, 373 (1st Cir. 2008) (emphasis added). "Rather," as the

court later explained, it "assumed that, like many similarly

situated plaintiffs, Atwater had chosen to proceed first in [state

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court] because he thought he had a greater likelihood of success

there." And the reason behind the court's "order of closure for

statistical purposes" — which is what the court called it —

practically leaps off the printed page of that document: "to avoid

the necessity of counsel to appear at periodic status conferences,

or file status reports . . . ." Certainly this is not the stuff of

a Pullman abstention. See generally Duty Free Shop, Inc., 889 F.2d

at 1183 (holding that "England, and its reservations, are not

relevant . . . where the purpose of the abstention is not

clarification of state law").

If that were not enough to sink Atwater's Englandreservation argument — and it most assuredly is — there is also

this. Under our caselaw, litigants must first file suit in federal

court to secure an England reservation. See, e.g., Barreto-Rosa v.

Varona-Mendez, 470 F.3d 42, 47 (1st Cir. 2006) (citing Allen v.

McCurry, 449 U.S. 90, 101 n.17 (1980), and Partido Nuevo

Progresista v. Perez, 639 F.2d 825, 826 n.2 (1st Cir. 1980))

(noting that, "for an England reservation to be effective, a

plaintiff must initially file suit in federal court and have the

district court abstain from hearing the case pending resolution of

the state claims in state court"); Duty Free Shop, Inc., 889 F.2d

at 1183 (explaining that England "permits a plaintiff who files a

case in federal court before state proceedings begin to tell the

state court that it wishes to litigate its federal claim in that

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federal court"); Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306,

312 (1st Cir. 1986) (stressing that "to make an England

reservation, a litigant must establish its right to have its

federal claims adjudicated in a federal forum by properly invoking

the jurisdiction of the federal court in the first instance"). 

Atwater filed suit in state court first, which undoes his Englandreservation theory.

State-Court Reservations

Even putting England aside, Atwater thinks that he should

still win. His argument goes something like this: Massachusetts

takes the view that plaintiffs can split claims among different

suits (something the res-judicata rule normally forbids) if "the

court in the earlier action expressly reserves [plaintiffs'] right

to bring those claims in a later action." Perroncello v. Donahue,

835 N.E.2d 256, 261 (Mass. App. Ct. 2005), rev'd on other grounds,

859 N.E.2d 827 (Mass. 2007).4 The key being an express

reservation. Or the lack of it. Anyway, trying to squeeze himself

within this narrow exception, Atwater points to the state-court

footnotes discussed above as proof that the state forum approved

his claim splitting — meaning, the argument continues, that the

4

 Perroncello relied on, among other sources, section 26(1)(b)

of the Restatement (Second) of Judgments, which from here on we

refer to simply as the "Restatement."

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state-court judgment can have no preclusive effect vis-à-vis the

federal claims.5

But devastating to his position, Atwater points to

nothing that remotely suggests that this is what the state courts

had in mind when they penned these fleeting passages. For our

part, we see no clue in the record that he ever asked the state

courts to say that the state-court judgment has zero preclusive

effect on the federal claims. And the opinions themselves reveal

no whisper of a hint of an intimation that the state courts had

anything to say on that subject: neither court tossed around words

like "res judicata" or "claim preclusion," and neither cited — let

alone discussed — any authority touching on a state court's ability

to reserve a litigant's right to maintain a further federal-court

suit, free of certain res-judicata concerns. That speaks volumes.

In law, as in life, context matters. And taken in their

proper context, the state-court footnotes are simply descriptions

of what Atwater said he had done regarding his federal-law claims,

not sign-offs on the effect of his actions — and certainly not

rulings that the state-court judgment carries no preclusive effect

5 For those who do not remember, the state-trial court wrote

that Atwater had alleged three federal-law claims, on top of his

three state-law claims, and had "expressly reserved" his federallaw claims "for adjudication" in federal court. And the SJC wrote

that Atwater had "also raised three [f]ederal claims" that "he has

reserved for adjudication" in federal court, and "[t]hus these

claims are not before us." Atwater, 957 N.E.2d at 1067 n.7.

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in this instance. Consequently, his footnote-based argument has no

traction.

Not so fast, Atwater says. Clinging to our opinion in

Thomas v. Contoocook Valley School District, 150 F.3d 31 (1st Cir.

1998), and the Ninth Circuit's opinion in Dodd v. Hood River

County, 59 F.3d 852 (9th Cir. 1995), he still believes that he

holds a winning hand. Neither decision helps him, however, not

even a little bit.

 As for Thomas, in that case a school board in New

Hampshire had made two findings concerning a school's decision not

to renew teacher Thomas's contract: first, Thomas had performed

her job poorly, and second, her health issues had "'no direct

bearing' on her nonrenewal." 150 F.3d at 35. On administrative

appeal, a state agency upheld the poor-performance finding but said

her health concerns were a factor in the school's decision, adding

(and this is what matters for our purposes) whether the school's

action infracted state-discrimination laws "'is a fact-sensitive

question best left'" to another tribunal before which Thomas had a

pending discrimination claim. Id. at 37. The New Hampshire

Supreme Court later affirmed, and eventually Thomas's

discrimination claim found its way to federal court. Id. Relying

on section 26(1)(b) of the Restatement, we saw "no other

interpretation of the [agency's] decision but as an express

reservation of Thomas's discrimination claim for further

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adjudication" — a reservation the New Hampshire Supreme Court "did

not disturb," we noted, which meant that "res judicata did not

apply." Id. at 43. Of course, there we were interpreting New

Hampshire law, not Massachusetts law, which is a blow to Atwater's

argument. Also unfortunately for him, nothing resembling the type

of express reservation in Thomas is evident here.

As for Dodd, the Ninth Circuit did say that "[a] court

may be able to reserve part of a plaintiff's claim for subsequent

litigation by expressly omitting any decision with regard to it in

the first judgment." 59 F.3d at 862 (emphasis added) (concluding 

"that the Oregon courts sufficiently reserved" plaintiff's federal

claims "by repeatedly acknowledging" that those "claims were not

before them and were pending in the federal district court"). The

Ninth Circuit was applying Oregon law, which finds a reservation

express under section 26(1)(b) of the Restatement if a litigant

insists that he has reserved his federal claims for decision in

federal court and the state court then does not address those

claims. 59 F.3d at 862.

The Restatement's section 26(1)(b) is an exception to the

general rule against claim splitting set out in section 24(1). The

rule (section 24(1)): a "claim" for preclusion-analysis purposes

"includes all rights of the plaintiff to remedies against the

defendant with respect to all or any part of the transaction, or

series of connected transactions, out of which the action arose." 

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The exception (section 26(1)(b)): "the general rule . . . does not

apply to extinguish the claim, and part or all of the claim

subsists as a possible basis for a second action by the plaintiff

against the defendant" if "[t]he court in the first action has

expressly reserved the plaintiff's right to maintain the second

action." What Atwater wants us to do is hold that Massachusetts

would — like Oregon, apparently — read the phrase "expressly

reserved" broadly to include situations where a court acknowledges

a plaintiff's attempt to reserve a claim and consciously decides

not to address that claim. But doing so would require us to expand

Massachusetts law in a way that we cannot. See, e.g., Katz v.

Pershing, LLC, 672 F.3d 64, 73-74 (1st Cir. 2012) (quoting Gill v.

Gulfstream Park Racing Ass'n, 399 F.3d 391, 402 (1st Cir. 2005)

(explaining that "we — as federal judges sitting in diversity

jurisdiction — 'cannot be expected to create new doctrines

expanding state law'"). Given the lack of any Massachusetts

caselaw reading section 26(1)(b) as expansively as Atwater would

like and the restraints imposed on us when dealing with diversity

cases (not to mention what we said in Thomas), we decline to hold

that Massachusetts would treat the situation presented here as an

effective reservation of Atwater's federal-law claims.

Two classes of arguments down, one to go.

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Equitable Discretion

Citing Massachusetts caselaw intimating that equitable

concepts like fairness play a role in applying res-judicata

principles, see, e.g., Donahue v. Draper, 491 N.E.2d 260, 269 n.22

(Mass. App. Ct. 1986), Atwater insists that the equities favor

allowing his federal claims to proceed. He arguably waived this

idea by floating it in a footnote in his opening brief, with little

helpful analysis. See, e.g., Rodríguez v. Municipality of San

Juan, 659 F.3d 168, 175 (1st Cir. 2011) ("deem[ing] waived claims

. . . adverted to in a cursory fashion, unaccompanied by developed

argument"). But even if the idea were preserved, there is nothing

inequitable about applying res judicata here — particularly since

Atwater forged ahead with his claim-splitting stratagem despite the

fact that (a) his opponents contested his right to do so at every

turn, a tip-off that they would call on preclusion principles to

dash his litigation hopes, and that (b) neither state court ever

expressly declared that its judgment had no preclusive effect on

his federal-law claims, a tip-off that he would get no help from

section 26(1)(b) of the Restatement.

CONCLUSION

Having found no reason to disturb the district court's

ruling, we uphold the entry of summary judgment for the

Commissioner and the School District.

 Affirmed, with the Commissioner and the School District

awarded their costs on appeal.

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